Handcuffing Criminal Law

I have a small but devoted readership, especially here in Missoula (Google Analytics is a wonderful thing).  It's been a while since I posted on the Fourteenth Amendment, and you might be wondering whether I've abandoned my efforts to de-program you from the bilge that government schools pumped into your brains during your formative years.  Rest assured that is not the case, and let the re-education continue.

Most Americans possess at least some familiarity with criminal law, given the innumerable police shows and courtroom dramas dappling the television landscape. In many of these shows, there arrives a painful moment when a damning piece of evidence – be it a confession, a murder weapon bearing the accused’s fingerprints, or a corpse stuffed in the accused’s home – is excluded from evidence because the police obtained it illegally. Most of us clench our teeth in anger, while self-styled pensive viewers opine that however infuriating it is for someone who is guilty to go free, the law must be upheld. Sometimes a television show even reveals that the accused is in fact innocent, thereby driving home the official lesson that the “exclusionary rule” barring admission of illegally-obtained evidence is the price of justice. This is a lie. Nothing in the Constitution requires the exclusion of incriminating evidence because of the manner in which it was obtained, and there is certainly no basis under the Fourteenth Amendment for commanding the States to follow such an artificial rule. Unfortunately, the Supreme Court’s avidness for reform hit its zenith with criminal-law issues, and we are much less safe as a result.

The most frequent rationale offered in favor of the exclusionary rule is deterrence of police misconduct. Indeed, the Supreme Court relied heavily on that rationale when first deciding to apply the exclusionary rule to the federal government in 1914, as well as when extending the rule to the States in 1961. Yet the very concept of an exclusionary rule was alien to the Founding Fathers, who placed their faith in a far more effective weapon for combating police misconduct: lawsuits. Under prevailing state law at the time of the Constitution’s drafting, if law enforcement officers violated a suspect’s rights when obtaining evidence, then the suspect could sue those officers for damages. By the same token, though, if the evidence established the suspect’s guilt, then the officers had a valid defense to the lawsuit. Under this approach, the beneficiary of the deterrent mechanism is the innocent man rather than the guilty criminal. Moreover, this approach allows citizen juries, rather than government personnel (such as judges), to mete out police punishment. The generation of the Founders knew that government officials are always hesitant to punish their own, which is precisely why they embedded the state-law remedy into the Seventh Amendment by requiring that lawsuits for damages be tried before a jury.

In the midst of inventing the exclusionary rule, the Supreme Court also set to helping the rule find its way into ever more criminal cases and frustrate justice. Specifically, the Court created new requirements for the gathering of evidence that, when not followed dogmatically, would result in that evidence’s being deemed illegal. Chief among these was the new requirement that all police searches must have benefit of a warrant unless a Court-crafted exception permitted a warrantless search.* Yet the Fourth Amendment, which the Court claimed to be interpreting, does not require warrants for all searches. As a matter of fact, the founding generation wanted to make warrants the exception, not the rule. Warrants were heavily disfavored because they cloaked police searches with a veil of legitimacy that a wronged person could not overcome when suing the offending police officers for damages. All the Fourth Amendment requires is that searches and seizures be reasonable, no more and no less. Warrants receive mention in a separate clause of the Fourth Amendment, and with good reason because warrants were deemed necessary only for searches and seizures of contraband, not of generic evidence of criminal activity.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

By transplanting warrants from the second clause of the Fourth Amendment to the first clause, the Supreme Court has rewarded the guilty and punished the innocent: guilty men can more easily challenge evidence of their guilt, whereas innocent men cannot seek recompense for unreasonable searches of their property and their persons. Perhaps this folly would affect fewer of us if the Supreme Court had confined it to the federal government, but sadly, the Court once again abused the Fourteenth Amendment and straitjacketed the States, thereby destroying their freedom to craft new and innovative solutions to the eternal problem of crime. Many criminals doubtless express their gratitude.

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*According to modern jurisprudence, warrants are not necessary in the following circumstances: consent by the person (or homeowner) to be searched; emergencies requiring immediate action to avoid harm or destruction of evidence; searches of automobiles upon a reasonable suspicion of illegal items within; “hot pursuit” of a person who has just committed a crime; items in plain view; “stop and frisk” upon reasonable suspicion that a person has or will commit a crime; public arrest; and searches pursuant to arrest.