Quote:
Originally posted by Spanky
If the courts had stayed out of it and let the legislature deal with it we would have been much better off. The legislature should decide the penalties not the courts. But we will never be able to fix the problem because the Supreme Court decided that the exclusionary rule was a constitutional right. The British, with their common law right system, were lucky to not have judges divorced from reality.
|
The exclusionary rule is not a "constitutional right." The right is the right to be free of unreasonable searches and seizures. The exclusionary rule is one way of preserving this right. As a matter of policy, you may be right that, e.g., a system of financial penalties and/or incentives might, on the whole, provide a better mix of results. My point, however, is that if courts leave the question up to the legislature(s) by deferring to whatever system it/they adopt, you may find that legislatures don't wish to spend money to preserve those constitutional rights, and the rights are then effectively extinguished by legislative inaction. A constitutional right that depends on legislative action to be realized is not much of a constitutional right. Analogously, one could suggest that there is no right to compensation for takings except as a legislature sees fit to provide. Conservatives probably find it easier to imagine that the abstract promise of legislative action is not comforting when you put it in that context.
