Exclude this

Back when I was young, naive, and too easily influenced by TV and Hollywood, I thought the exclusionary rule was just horrible.  Why would you let a clearly guilty person go free just because the cops made a mistake.  Isn’t the solution to just punish the cops?!  Oh, how naive I was.  I have long since learned better.  The genius of the exclusionary rule is that it gives the police a hell of an incentive not to violate Constitutional rights in the collection of evidence.  Because, as we know, in reality, the chance that police will actually be meaningfully disciplined for conducting illegal searches, etc., is pretty damn small.  Thus, yes, we do actually let guilty people go free sometimes.  But all of us  are the beneficiaries because it keeps us from living in a police state.

Adult me who studies criminal justice (or lets be honest, any adult who reads the news without hopeless ideological blinders) can tell you that punishing the police is not going to be the solution.  Alas, people like Antonin Scalia, a supposedly brilliant jurist, still managed to see the world like my 13-year old self.  Radley Balko follows up his great reporting on the totally corrupt and out-of-control Little Rock PD with some very compelling evidence on the importance of the exclusionary rule.  Balko:

As I pointed out in a piece published on Sunday, the reason narcotics officers can get away with it goes back to another Supreme Court case — 2006’s Hudson v. Michigan. In that case, the court ruled 5 to 4 that, while the Fourth Amendment does indeed require police to knock and announce, violations of the knock-and-announce rule would not result in the suppression of any evidence seized in the ensuing raid. In the majority opinion, Justice Antonin Scalia argued that there were other remedies for violations of the rule, such as civil liability (lawsuits) or internal professional discipline. [emphases mine]

Seriously?!  Oh, the willful naivete.  Continuing:

As David Moran — the attorney who argued for the losing side in Hudson — told me, Scalia’s remedies have proven insufficient to deter these violations. And, in fact, those of us who were concerned about these sorts of raids predicted at the time that the court’s ruling in Hudson would result in, well, exactly what we’re now seeing in Little Rock.

There’s lot of debate about the Exclusionary Rule, which says any incriminating evidence that police obtain during an illegal search can’t be used against a defendant at trial. Conservatives have long argued that the rule only protects the guilty, since innocent people won’t be in possession of incriminating evidence, regardless of the legality of the search. And even some supporters of the rule have argued that it doesn’t have much value as a deterrent.

What is happening in Little Rock would seem to refute both arguments.

Let’s take the first argument, that the rule only protects the guilty. To examine this, let’s assume that (a) the Supreme Court had ruled the other way in Hudson, and (b) the Exclusionary Rule is an effective deterrent against violations of the knock-and-announce rule. Even assuming both of those things, the innocent people wrongly raided by Little Rock police over the last few years would still likely have been visited by the SWAT team. But instead of having their doors blown off their hinges, incurring thousands of dollars of damage to their homes and facing eviction from their apartments, not to mention experiencing a lot of trauma, the SWAT team would have been required to knock on the door, announce themselves, and give these suspects sufficient time to answer to avoid the violence of a “dynamic entry.” (I should note here that even when police do knock and announce, they often do so just as the battering ram hits the door, which basically nullifies the difference between a no-knock and a knock-and-announce warrant. But in this hypothetical, we are assuming the courts are properly enforcing the rules, so those raids would also be violations of the knock-and-announce rule.)

So 97, and possibly 99, of these 105 warrants were in violation of the Fourth Amendment. I think it is safe to say that, contrary to Scalia’s opinion, lawsuits and internal discipline are providing very little deterrence here. And Little Rock residents have very little protection against having their Fourth Amendment rights violated by illegal no-knock raids…

That said, the comparison is pretty compelling. When Little Rock police and judges know a rule will be enforced by suppression of evidence, they complied with that rule at least 76 percent of the time. (It could be more, depending on how many of the 22 exceptions were legitimate.) But when it’s a rule not enforced by suppressing evidence, they at most complied 8 percent of the time.

In Little Rock, at least, the Exclusionary Rule matters.

And, obviously, it’s not just Little Rock.  This is such an obvious cost/benefit.  Meaningful freedom and protection from a police state for all citizens versus the occasional criminal going free due to overzealous policing.  But, hey, tough on crime!!  That’s worked so well for us.

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