We interrupt this discussion of the exclusionary rule
 

... to observe Sen. Coburn's extensive preparation for the Roberts hearings.

http://mywebpages.comcast.net/duncan...oburncross.jpg

Now that the questioning has ended, we'll be able to devote our full attentions to 24 Across.

Gattigap

Exclusionary Rule
 

I am too disturbed by your blithely accepting use of the term "immoral" to absorb this.

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I tell a little white lie to save your mom's feelings and it gets thrown back in my face on a public messageboard. Nice.

We interrupt this discussion of the exclusionary rule
 

Pretty funny. While I'm sure many of us would happily deal with it, I can't imagine a greater challenge than trying to pay attention and appear engaged during the 3 hours plus of opening statements that Roberts had to endure before he even gave his opening statement.

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just using a legal term of art. does unconscionable and jus tertii also get you in a lather.

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What I don't get is why someone who supposedly favors limited government is willing to grant unbridled authority to the police.

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I wondered about that too. I'm all for punishments to the police for illegal searches, but it sounds like a fine that wouldn't really deter action -- it would just be a cost of doing business that would be absorbed by the market. If you really want to get a presumed perpetrator, why not do an illegal search to get evidence, if all you have to do is pay a fine?

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Why not? If the taxpayers are willing (ultimately) to pay the costs for illegal searches, so what? Presumably someone will get the message and tell the police chief he could do the job a lot more cheaply if he actually went to the magistrate to get a warrant. And, also, figure out that breaking down doors randomly will actually cost a lot of money (it's not like the illegal searches that don't turn stuff up ever get litigated).

This isn't coerced confessions. Illegally seized evidence isn't unreliable; indeed, it's too reliable, which is why there's such a fight over its admission.

If there's a problem, it's determining what the damages are, not only to the plaintiff but also to all other citizens who presumably lose a little something because of the fear they're no longer secure in their homes.

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Why does it increase their authority? The search is still illegal; it's just a question of the penalty. Under the current rule, the penalty is that the criminal goes free (or at least is harder to convict). The criminal wins and society loses. Under the alternative, the penalty is that the police department pays damages of some amount, the criminal is more likely to be convicted, and society penalizes the criminal.

In either case, the costs of illegal searches are ultimately borne by society. In one case it's by letting criminals go free because they happened to be subject to an illegal search. In the other, it's putting them in jail, but paying a price for sloppy enforcement. I don't see how the latter is unambiguously worse for everyone involved. The only person who's clearly worse off is the criminal.

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I view constitutional rights differently. We're supposed to be free from illegal searches. That freedom means little if you're sitting in jail, whether or not the police pay a fine.

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They end up calculating that the security of their homes is worth, say, $25.46. Comforting, no?

I understand the crappy effects of the exclusionary rule, but I'm discomfited by the thought that this civil right is worth a particular dollar amount. If the government is willing to bear the cost, that civil right is gone.

(I know -- cue Kelo).

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So, what you're saying is the only person who should benefit from the rule is the criminal. I, as a law abiding citizen, who might at some point be unlawfully searched, will get zero recompense.

With all rights we monetize past violations, because we can enjoin only future ones. In some cases this matters--for example, prior restraints on speech--but even then, you may be delayed in getting your message out (like Martha Burke, who missed the masters). In some cases it's express in the constitution--for example, the government can seize your property if it pays you. This extends to torts. I can't cut off your leg, but if I do, I have to pay you.

What you seem to be saying is that there is no amount of money damages that can adequately deter unlawful searches, such that the only way to deter them (and thus ensure the right is meaningful) is to let criminals go free. I think there is an amount of money damages. And, if a p.d. engages in a pattern of illegal searches, it would be relatively easy to bring a class action or something like it for injunctive relief commanding them to adhere to the law. Plaintiffs lawyers would start smelling the punis, and that police chief isout of town on a rail.

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You're forgetting what the right is, though. The right is not to avoid jail. The right is to be free of unreasonable searches and seizures.

The exclusionary rule is not a way to implement the right. Instead, it's a tool used to deter violations of the right. You, like Shifter, are saying that the fines won't adequately deter. That may be right and may be wrong, but the answer is easy--higher fines.

If there were no sovereign immunity, every time an unreasonable search occured, there would be a potential law suit. Both from criminals and from the innocent. Juries would not know that the seizure ultimately turned up evidence (that would have to be the rule--the question is ex ante whether the search was reasonable). They would say "crap, police just bashing down doors because he's a black man with dreadlocks? that's b.s, let's give him $100k." P.d.s would get the message pretty quickly.

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Didn't the case that extended the exclusionary rule to the states focus on the harm to the innocent? I remember a straw man of the bad white sheriff mistreating black people in the South.

I don't recall the case being too concerned with the rights of a murderer being impacted, it was just that the Court saw no other way to protect the rights of the innocent, but suspected.

Is my recollection wrong again?

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I don't see how that would work. In most places, you're going to be in front of a judge who works with the police day in and day out. Juries are inclined to believe, or at least give the benefit of the doubt to, the police or anyone else acting under the color of authority. Moreoever, any damages the jury awards will ultimately come from their pocketbook.

We grant the police vast amounts of authority in order to keep us safe. I view the exclusionary rule as a reasonable limitation on that authority. So a few criminals go free? Big deal. Our criminal justice system does a good enough job overall, but mistakes are made every day. Easily, far more people plead out to crimes they did not commit than go free because of the exclusionary rule.

eta: P.S. I made a mistake on the FB thread title. It's Preston Michael, not Michael Preston. Would you mind changing it?