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Police States: They’re What’s For Dinner

By Jesse Taylor
Friday, January 16, 2009 20:25 EDT
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imageHerring v. United States was a landmark case for exclusionary rule jurisprudence. Short version, a man went to get his truck out of the impound lot, and an old warrant that should have been deleted from the system popped up. That led to a search of his truck and his person and the discovery of an illegal firearm and methamphetamines, for which Herring was sentenced to prison.

The Supreme Court found, 5-4, that the exclusionary rule (certain evidence should be excluded from prosecution because of the manner in which it was obtained) didn’t apply in this case. It’s problematic for a number of reasons, not the least of which is that it encourages law enforcement to make these types of errors as excuses to intrude into anyone’s life – a single warrant could “accidentally” be used to turn the rest of your life into random police searches.

Jonah Goldberg weighs in on the decision in his weekly column, and as you might expect from the man who wrote a four hundred page treatise on the evils of totalitarianism, he totally thinks this decision was the best thing EVAR, and fuck anyone who disagrees.

Meanwhile, some of my libertarian friends are vexed by this. Glenn Reynolds (the 800-pound gorilla blogger known as Instapundit) writes in the New York Post that police shouldn’t be exempt from following the law like everyone else. Reynolds understands the court’s reasoning: “Why punish the police by letting a guilty man go free when they just made a simple mistake?” But, he reasons, ignorance is no excuse for John Q. Public, so why should it be one for Johnny Law? “Being a ‘public servant,’ apparently, means being free to make the kind of mistakes that the rest of us aren’t allowed,” writes Reynolds.

I’ve never understood this argument.

To be fair, you’ve spent your career not understanding many, many things.

Now, I agree that cops should follow the law just like everyone else. I just don’t understand how Reynolds and so many others get from there to the idea that punishing cops requires rewarding people like Herring. According to the exclusionary rule, a cop who breaks the rules to arrest a serial child rapist should be “punished” by having the rapist released back into the general public. (Or as Benjamin Cordozo put it in 1926 when he was a New York state judge, “The criminal is to go free because the constable has blundered.”)

See, the thing you’re describing? It’s not what anyone’s saying. The cop isn’t really punished for the type of error in this case – they aren’t docked pay, they aren’t sent to prison instead of the accused, they aren’t fined, they aren’t fired. The case just doesn’t go forward. The criminal also isn’t rewarded – they’re simply left in the same state they were before. I’m wondering what definable “reward” stems from not being arrested for guns and meth, but again, asking Jonah to justify his thoughts is like asking someone dumb to not do something dumb.

Also, it’s Cardozo, not Cordozo. He’s only one of the most famous Supreme Court justices in our nation’s history, so it’s understandable why you would make this mistake, as he’s not on the back of any boxes of cereal. Usually. Although those “Justice for All” toys they put in Rice Krispies a few years back were amaaaazing.

But the officer, while frustrated, isn’t really punished. The people punished are the subsequent victims and their families.

Oh, so you said the previous thing for…no reason? Good, good.

Let’s think about this. We have to use any and all evidence we can get, no matter how it’s gotten, to protect future unspecified victims against future unspecified acts that may or may not happen. Ergo, the police should be able to use virtually anything they find for any reason whatsoever so long as it results in Bad People being punished. To do any less results in a less safe society, which is all bad and stuff. This wouldn’t be a problem, except in those incredibly and indescribably rare cases where the police power results in abusive intrusion into people’s lives based on the most threadbare of excuses labeled as “mistakes”. Of course, we can always depend on the government to use proper restraint in its exercise of expansive powers, so let’s go get gelato.

Reynolds and others say police should be subject to the same laws as other citizens and public servants. I agree. But if a husband runs a red light to get his pregnant wife to the hospital, she’s not turned away because he broke the law. Or, imagine if a health inspector had the wrong address on his paperwork and rummaged around the wrong restaurant, only to find a roach and vermin infestation the likes of which are rarely seen outside of an Indiana Jones movie. According to the logic of the exclusionary rule, the public should keep eating roach burgers and rat droppings because the eatery was illegitimately searched. That’s cuckoo for cocoa puffs.

There’s a reason that Goldberg’s analogies don’t work, and it’s not just because he’s a terrible and unimaginative writer who could write a one-page essay on “What Jonah Goldberg Did This Summer” that focused on sledding and Christmas trees.

The police have a special power that allows them to step into our lives, collect evidence and accuse us of committing offenses the punishment for which could deprive us of liberty and even life. We put limits on that power because nobody should be deprived of life or liberty without a very good and very necessary reason. The same justification for allowing the wife to receive medical care would dictate that we don’t justify locking people up based on any “mistake” that allows an officer to peek wherever they want. And, uh, restaurants are open to the public. My car is not. Jesus.

One answer — really the only answer — you hear about why we should treat criminals with more respect is that it’s the only way to make government respect the rights of the innocent. I’m all for respecting the rights of the innocent, and I think police should be required to follow strict rules, have warrants and all the rest.

Jonah Goldberg, 1963: “I’m all for “equal treatment” of the Negro race, and I don’t think they should have to get sprayed by fire hoses or bitten by dogs and all that rigamarole.”

But I don’t see why cops who break the rules intentionally or unintentionally should be “punished” by having objectively guilty criminals let loose on society.

Jonah Goldberg, 1963: “Buuuuuuut, if they just happen to be riding in the wrong area of the bus, one seat is as good as another, and they shouldn’t complain.”

I don’t think zookeepers should abuse their animals, but nor do I think a zookeeper’s abused polar bear should be set free in Midtown Manhattan.

Polar bears: nature’s frosty criminals.

If Special Forces troops break the rules while capturing Osama bin Laden, I don’t see why that should require letting bin Laden go and giving him a do-over.

Methheads: nature’s bin Ladens.

If zookeepers, soldiers or cops break the rules, punish them — criminally, civilly or administratively. But don’t reward the scum of the earth with a get-out-of-jail-free card, particularly when that will result in truly innocent people being punished. Criminals didn’t do anything right just because the cops did something wrong.

So, the Founding Fathers wrote the Constitution, guaranteeing due process in all matters of justice before the courts, so that we could give the people administrating justice mulligans every time they fuck up and just happen to find evidence of wrongdoing when they had no relevant reason to find said evidence. I can’t wait until the Sheriff’s Department “accidentally” finds Jonah’s rare stash of illegally imported Bolivian Twinkies because they “accidentally” thought they had proper clearance to investigate his home.

Jesse Taylor
Jesse Taylor
Jesse Taylor is an attorney and blogger from the great state of Ohio. He founded Pandagon in July, 2002, and has also served on the campaign and in the administration of former Ohio Governor Ted Strickland. He focuses on politics, race, law and pop culture, as well as the odd personal digression when the mood strikes.
 
 
 
 
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