Wednesday, June 21, 2006

Knock, knock ...

Ladies and gentlemen, take a front row seat to the next step in the continuing saga of the re-writing of American Constitutional law, brought to you by the well-renowned Scalia & Co. troupe from Washington.

Last week, the United States Supreme Court handed down a 5-4 decision in Hudson v. Michigan that was limited in its’ direct effect, but chilling in its’ possibilities down the road.

Here’s the case in a nutshell. Michigan police searched the home of Booker Hudson, ultimately finding a loaded firearm and a good quantity of drugs. The search was based on a warrant, and the Supreme Court has held for the last 11 years that before police can execute a search warrant they must knock and announce their presence.

Here, the police clearly did not do that. They just went in, executed the warrant, and arrested Hudson. In doing so, they clearly violated their Constitutional responsibilities and Hudson’s rights.

Justice Antonin Scalia wrote the majority opinion, and started out with a narrow position that this particular evidence should not have been suppressed because the evidence would have been discovered anyway. While reasonable minds may differ, at least at this point he was following new Chief Justice John Roberts’ promise to decide cases on the “narrowest possible grounds.”

But then he kept going. He discussed how the exclusionary rule – the rule that police cannot use the fruits of an illegal search – has too high of a social cost, and amounts to a “get-out-of-jail-free card” for criminals. Scalia then continued to say that at one point in our nation’s history, the exclusionary rule might have been necessary, but now police are so professional and well-trained that the rule is no longer required.

Scalia’s suggestion for a replacement to the exclusionary rule to deter bad police behavior would be a civil rights lawsuit. If the police violate your constitutional rights, in the world according to Scalia & Co., the state can still use that evidence, but you can sue the police and get monetary compensation.

Seriously. That’s his suggestion.

So, let’s think about this. What is the point of the exclusionary rule, a rule that has been in place since 1914? Doesn’t the rule just protect the guilty? Isn’t Scalia right when he says it’s a “get-out-of-jail-free card” for the bad guys?

Yes, it does protect the guilty. And that’s why it is so vitally important.

If the Bill of Rights mean anything, it means that it protects all of us. To live in a free society means that we limit the power of the government (and, therefore, the police) to intrude in our lives. If our only concern is stopping crime, then all we have to do is adopt a Soviet-style police force and give them the authority to stop anyone, anywhere, anytime, for any reason.

Quite simply, without the exclusionary rule, the Bill of Rights has no real meaning. A right without a remedy is not a right at all, and the exclusionary rule is the only remedy that has worked to protect those rights we all say as Americans we hold dearly.

Scalia’s rationale that the exclusionary rule is no longer needed because of the professionalism of modern day police is particularly ironic. He says we don’t need the exclusionary rule because the police already follow the rules, rendering the deterrent effect meaningless. But in the very case making that decision, the police openly broke the rules, and now have been rewarded for that behavior.

I’m no psychologist, but it seems to me the message that would be sent to the police would be to break more rules and see what Scalia & Co. will let you get away with.

I have a tremendous amount of respect for police officers. I think it is the single hardest job in the world to have. But it should be. We entrust our police officers with the joint duties of keeping us safe and allowing us to remain a free society. Police officers have an unbelievable amount of power that comes with a badge. That power must be limited and controlled, or there will be elements within a police force who will abuse it.

A professional police force does not need to worry about the exclusionary rule. They do the hard work, follow the rules, and make sure that they both catch the guilty AND protect the rights of the innocent.

A lazy, unprofessional police force does need to worry about the exclusionary rule. They don’t do the hard work, they aren’t thorough, they just go after someone they think might have done something and hope for the best.

A system should be set up to reward good behavior and punish bad behavior. Seems to me we should be rewarding the former, not the latter, don’t you think?

Justice Anthony Kennedy, in a concurring opinion, limited his reason for voting with the majority and said specifically that the exclusionary rule is not in jeopardy. The fact that Kennedy felt it necessary to say that should tell you a lot about the nature of the Scalia & Co. voting block.

It is one of the great American ironies that we fight so hard for freedom abroad and fight so hard to limit that freedom at home. We have already seen secret detentions and consistent use of torture abroad, and unbridled surveillance of the telephone records of millions of innocent Americans at home. Now we have four members of the Supreme Court who are ready to jettison the single most successful tool to protect the rights of individual Americans created since the Bill of Rights was passed.

I’m not saying that we’re going to move into a police state tomorrow. But the hostility shown by four members of the Supreme Court towards one of the most fundamental principles of American law is enough to make me take notice.


will said...

Well, I must say I am a little taken aback by this. One thing to think about is just how many mistakes the Police have been making that we only hear on TV. We are all human so I understand your concern.

That Damn (Moderate) Liberal said...

Pat, on most issues, I tend to agree with you. But one set of comments you made is well ... as over the top as Scalia stating that the police are now so professional that we can attack the exclusionary rule (paraphrased, and based on your comment -- I have to confess, professer, that I didn't read the case). The statement you made is this:

"Quite simply, without the exclusionary rule, the Bill of Rights has no real meaning. A right without a remedy is not a right at all, and the exclusionary rule is the only remedy that has worked to protect those rights we all say as Americans we hold dearly."

I can think of several rights that are equally as important...any other amendments of the Bill of Rights, for starters. And lets not forget that whole Habeus Corpus thingee we spent so much time studying way back when.

Yes, I AGREE that limiting the exclusionary rule is a serious beating on the Constitution ... and places us one step closer to a "police state". Human nature being what it is, I belive the police will do EXACTLY what you have said .... push the envelope to see how far it will go.

Well, at least the ACLU will have jobs for the foreseeable future, and can fight for something that most would agree with.

But what most want to know is this: How much more money did Exxon make as a result of this ruling? Because that seems to be the focal point of this entire administration -- eliminate abortion and boost the oil companies profits. And oh yeah....lets stifle dissent and keep that uppity middle class in its place!