[625] in libertarians
Re: Legislative Alert
daemon@ATHENA.MIT.EDU (Kevin THEOBALD)
Thu Feb 9 19:35:11 1995
From: theobald@duke.cs.mcgill.ca (Kevin THEOBALD)
Date: Thu, 9 Feb 1995 19:32:12 -0500
In-Reply-To: "Paul D. Eccles"'s message [Re: Legislative Alert] as of Feb 9, 15:10
To: "Paul D. Eccles" <pde@sd.inri.com>, libertarians@MIT.EDU
| > For those of you who don't know yet, there's a bill in Congress attempting
| > to weaken the exclusionary rule, which prohibits illegally seized evidence
| > from being used in criminal prosecution. As we all know, as the government
| > creates more and more victimless crimes, it becomes harder to enforce them
| > without random or profile-based searches which violate the 4th amendment.
| > Weakening the exclusionary rule would give the government all-the-more
| > incentive to continue its chirades. (Like for example, when DEA goons
| > kicked down the door of a minister in Boston looking for drugs, causing
| > him to die of a heart attack. Needless to say, no drugs or contraband
| > were found.)
|
| The problem is not that illegally seized evidence is used in criminal
| prosecution but that the persons violating the 4th ammendment are not
| prosecuted. The Supreme Court, in its infinite wisdom, decided not to let
| illegally siezed evidence be used at trial. Hence society loses by letting
| a criminal go free.
Don't ridicule the Supreme Court. The day it created the Exclusionary Rule
was a great day for freedom, for what it meant was that the police would
no longer be able to profit from ignoring the Constitution. The
Constitution clearly says that the state can't do certain things, but
doesn't provide any mechanisms for punishing the state. In fact, the
Constitution is full of statements about what the state can't do, but
doesn't say what happens if the state tries.
The general rule, therefore, is that if the state tries to do something
unconstitutional (say, pass a law restricting speech), the Supreme Court
will declare it null and void. In other words, they will say, "act as if
that law DID NOT EXIST." The S.C. simply applied this general principle
to another instance: "yes, you found this evidence, but you did not have a
proper warrant. Therefore, you must act as if that evidence DID NOT EXIST."
So the Rule means that sometimes, a "criminal" will go free. But don't
forget that we are talking about *two* groups of criminals: those who are
charged by the State, and those who work *for* the State (when they violate
the Constitution). If too many "criminals" go free, the solution is for
citizens to demand that their political leaders replace the cops whose
disregard for the Constitution caused them to lose the cases, NOT to throw
out the 4th Amendment.
If you say, "punish the bad cops; don't release the criminal," then tell us
how to punish the cops. Remember, the Constitution has no mechanism in
place to do this. The Supreme Court would have no precedent for creating
such a mechanism. It would require a genuine Constitutional amendment just
to ensure that such a mechanism were put into place.
Even if that were to happen, it would still be a joke. Suppose the cops
do a house-to-house search for drugs in a poor neighborhood. They may find
drugs in a few houses, but many innocent people have had their constitutional
rights violated. So what happens? Our imaginary Amendment might say that
cops shall be held criminally liable for Constitutional violations, but this
would be a joke. Considering how difficult it is to get any justice when
there is a SERIOUS abuse by the police, like killing an innocent person,
how often do you think police would be punished (in a meaningful way)
for lesser crimes like house-to-house fishing expeditions. Or we could say
that people could seek damages from the bad cops. Right. So these poor
folks are going to shell out $10K to get a lawyer to sue in civil court.
How much money is an illegal search worth? A judge is likely to say, "well,
your life wasn't disrupted that much..." Would the monetary damages even
cover the legal fees?
Kevin Theobald
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| Well, like they say: Live and learn -- die and teach the gene pool. |
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