In Defense of the Exclusionary Rule


April 18, 1991|By TRB

The U.S. prison population has tripled in the past two decades, to over a million. This country has more of its population behind bars than any other nation with reliable statistics. South Africa is second, the Soviet Union is third. Now that South Africa has a moratorium on executions, we're also the only advanced Western nation with a death penalty.

It is absurd to say the answer to rising crime is locking up even more people for even longer periods, or chopping off more heads. But few politicians can resist.

Jeremy Bentham, who first elaborated the theory of prison as a deterrent to crime, might look at America's choked prisons and say we've got it all wrong. As James Q. Wilson and Richard Herrnstein, no softies, put it in their book, Crime & Human Nature: ''It may be easier to reduce crime by making penalties swifter or more certain, rather than more severe.'' America's absurdly long prison terms often come at the end of a lengthy and random process that nullifies their power as a deterrent to crime.

One element of President Bush's crime bill that can't (like most of it) be laughed off, therefore, is his proposal to limit the exclusionary rule. This is the rule that evidence obtained in violation of someone's constitutional rights cannot be used against him, even if it proves him guilty. Or, as Benjamin Cardozo famously derided the rule, it is ''the doctrine that the criminal is to go free because the constable has blundered.''

In the war of statistics about how often the guilty go free because good evidence against them can't be used, liberals are a bit disingenuous. It is rare that the exclusionary rule is actually invoked at a trial. But trials themselves are rare. Far more often, potentially excludable evidence will lead prosecutors to drop the case or negotiate a plea bargain for a shorter term.

Indeed, the best case against all the elaborate procedural safeguards created by the Warren Supreme Court is that they have created a level of protection for defendants that we can't afford to offer, and don't really offer.

Practically all criminal defendants are actually tried in a much more rough-and-ready process -- plea bargaining -- in which there are no safeguards for the innocent or those whose constitutional rights have been violated, but where procedural claims are translated into shorter sentences. Meanwhile, legislatures increase the official sentences for crimes to counteract the plea bargaining effect.

So dump the exclusionary rule? Not so fast. There is a logical flaw in the argument that excluding wrongfully obtained evidence lets the guilty go free. That is: The guilty would also go free if the evidence hadn't been wrongly obtained in the first place.

Conservatives complain about the burden of the exclusionary rule on cops and prosecutors. But the rule is a burden only to the extent that it actually works in deterring unconstitutional behavior. The complaint, in short, is not with the exclusionary rule. It is with the Fourth Amendment itself.

Eliminating the exclusionary rule would only lead to more guilty people being punished if it also led to more illegal searches, seizures and confessions: an effect the rule's critics take great pains to deny.

In fact, the Fourth Amendment-- as interpreted by the Supreme Court -- could use some pruning back. Most guilty-going-free horror stories you read in attacks on the exclusionary rule involve some piece of evidence ruled inadmissible on some overly exquisite chain of logic involving some cop's failure to curtsy in the right direction.

But cops also violate real Fourth Amendment rights that most people treasure and everyone -- criminals included -- is entitled to. And they would do it a lot more often if it weren't for the exclusionary rule.

Most calls for reforming or eliminating the exclusionary rule, including President Bush's, come with deeply disingenuous alternative proposals for protecting Fourth and Fifth Amendment rights. These generally involve internal police department disciplinary procedures or an enhanced right for victims to sue. The record of police departments punishing their own for rights violations is laughable, as is the record of juries sympathizing with criminals who sue cops.

And isn't it odd for conservative anti-legalistas to be proposing a whole new layer of bureaucratic and legal procedure? Addressing this concern, a recent Justice Department report notes -- without apparent irony -- that claims will be minimal since those whose rights were violated will not qualify for free legal counsel as they do in criminal trials. How very reassuring.

But the main problem with alternatives to the exclusionary rule is that if they worked, they would be just as burdensome to law enforcement as the exclusionary rule itself. The assumption has to be, therefore, that proponents assume they would not work.

That certainly sounds like Attorney General Richard Thornburgh's assumption when he complains: ''If [police] feel that someone's perched on their shoulder watching every action they're going to take, you're not going to get the kind of aggressive law enforcement that you need.''

TRB is a column of The New Republic, written by Michael Kinsley.

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