Adam Liptak, the New York Times’ new Supreme Court reporter, writes on the exclusionary rule, explaining that in U.S. criminal courts, evidence “is routinely and automatically suppressed where police misconduct is found.”
Except that it isn’t. It takes particularly egregious conduct on the part of police to get evidence suppressed. And it’s vanishingly rare. The often-propagated idea that child rapists and multiple murderers are getting released because judges are suppressing the evidence against them is a canard.
As for the broader debate on the rule itself, I understand the arguments against it, and I’d be fine with doing away with it–if I were certain there were adequate measure in place to deter police misconduct and protect our Fourth Amendment rights. There aren’t. Police are rarely if ever disciplined for improper searches. Compensation for someone wrongfully searched is even rarer.
Let’s assume there’s no exclusionary rule. You’re a cop, and you believe there’s a career-making narcotics bust at the home of someone you’re investigating. There’s always going to be the temptation to take a shortcut. If you screw up and get the wrong house, you’re at worst looking at a slap on the wrist, and possibly a small settlement paid for by the taxpayers. Get the right house and make a big bust, and no one’s going to care much at all what tactics you used to get in there.
The vague, small possibility that the entire investigation could get tossed is about the only check we have right now. This isn’t saying all cops are corrupt. It’s saying that cops are human, and respond to incentives.
I know conservatives hate the exclusionary rule, because they feel it protects criminals. Tell you what. If you want to get rid of it, then step up to the plate with ideas that will offer real discipline for cops who routinely disregard the Fourth Amendment, and come up with a system that compensates the people wrongly searched.
Even with the exclusionary rule, we’re perilously close to having an enumerated right that offers no remedy for those who have been violated, and no sanction for the state actors who violate it.
That’s not really much of a right at all, is it?