"If [police] feel that someone’s perched on their shoulder watching every action they’re going to take, you’re not going to get the kind of aggressive law enforcement that you need.
-Attorney General Richard Thornburgh, on NBC’s "Meet the Press." March 17.
Thornburg’s point was that Congress should license police to present a wide array of illegally seized evidence in criminal trials without being second-guessed by judges.
His timing betrayed a revealing blindness to what can happen when "aggressive" police think they have free rein: Two weeks before, a gang of 15 white Los Angeles cops (including those who only stood and watched) beat a black man almost to death, savagely pounding him with batons and kicking him in the head as he lay on the ground. Some boasted about the beating later through the police computer system, apparently without fear of provoking disapproval from colleagues or superiors.
But for the fortuitous presence of "someone perched on their shoulder"-a hidden bystander with a video camera-it’s a safe bet the officers would have gotten away with their crime. The initial police reports were full of lies and probable lies, including a supposed confession by the victim that he "remembered fighting with officers."
If the Bush administration has its way with Congress, officers like these-and others who eschew brutality but are often tempted to cut legal corners-will have a strong incentive to trample citizens1 rights in search of evidence.
The administration wants Congress to "reform" the longstanding rule excluding evidence obtained in violation of the Fourth Amendment ban on "unreasonable searches and seizures."
This is part of an annual dance of demagoguery in which Republicans like President George Bush and Thornburgh vie with Democrats like Delaware Sen. Joseph Biden Jr. in dreaming up new anti-crime proposals, most of which would serve only to make our society less free in the guise of making it more safe.
Biden, anxious not to be outdone by Thornburgh’s tough rhetoric, declared in the same "Meet the Press" session: "Let me put this in perspective. Last year I introduced a crime bill-34 death-penalty provisions in it."
Wow! Surely this year he can get it up to 35, Let’s see: How about executing any marijuana farmer whose weed causes a motorist to get stoned and run over a mailman on an Indian reservation?
While the spotlight has been on the bipartisan clamor for the death penalty and on the Democrats’ modest gun-control proposal, the administration’s slickly packaged exclusionary-rule "reform" draws little media attention and only tepid Democratic dissent.
In the current rush to appear ever more tough on crime, Congress may for the first time be dangerously close to gutting the exclusionary rule.
This would be an open invitation to police lawlessness. The rule, which traces to the Supreme Court’s 1886 decision Boyd v. United States, remains the only serious deterrent to illegal searches and seizures.
The newest Bush proposal is for Congress to open a gaping hole in the exclusionary rule by giving federal agents carte blanche to use any firearms they can find in illegal searches-no matter how flagrant or intentional-as evidence against defendants charged with violent crimes or drug offenses. This would encourage inner-city dragnet searches of the innocent and guilty alike.
The administration is also urging Congress, as it has before, to create a broad "good faith" exception aimed at allowing both federal and state officials to use illegally seized evidence whenever they can convince a judge that they "reasonably" believed the seizure was lawful.
This boils down to the nonsensical proposition that police should be free to use evidence that they "reasonably" obtained in what are by definition "unreasonable searches and seizures." How can a search be both reasonable and unreasonable at the same time?
A good-faith exception may make some sense in the very narrow context in which the Supreme Court created one in United States v. Leon (1984) : The justices let in evidence seized by police in reasonable reliance on a judicial warrant that turned out, through no fault of the police, to be invalid.
But the Court’s logic does not begin to justify the administration’s proposal to open up a broad good-faith loophole for police doing warrantless searches and seizures.
This would perversely invert-for law-enforcement officers only-the old principle that ignorance of the law is no excuse. It would encourage police to avoid learning what the Fourth Amendment requires so they can claim good faith when they violate it, or to violate it knowingly and then to feign ignorance, or to shade the facts so as to bring their unconstitutional conduct under the capacious good-faith umbrella.
Thornburgh and others say they seek only to remedy the old Benjamin Cardozo complaint that "the criminal is to go free because the constable has blundered," and to prevent criminals from getting off when police inadvertently violate complex and hypertechnical judge-made rules.
But if the rules are complex, it is only because the Court has riddled with loopholes the original intent of the Fourth Amendment, which was to ban all (or certainly almost all) warrantless searches and seizures.
For more than 20 years, the Court’s tilt has been toward upholding the substantive constitutionality or anything a reasonable police officer might be tempted to do. The number of cases in which criminals now go free because of genuinely innocent blunders by constables has been shown by scholars to be minuscule.
If the administration has its way, there will soon be a far greater number of cases in which police who intentionally violated the rules will be able to convince credulous judges of their "good faith."
And the administration’s rhetoric suggests that its ultimate objective is to obliterate the exclusionary rule entirely. Public frustration with the rule is understandable. It is an imperfect deterrent that imposes significant costs. While there are far fewer cases than is generally believed in which serious criminals go free because evidence was illegally obtained, it’s galling that there have to be such cases at all.
The best way to mitigate the costs of the exclusionary rule might be to legislate a "murder exception," rather than to weaken the rule across the board. But in today’s climate, someone would amend my murder exception to make it a "serious crimes" exception, defined broadly enough to encompass people like the young man from Washington state who is now serving five years in federal prison, without parole, for growing a few marijuana plants in his yard.
The administration claims it would not leave Fourth Amendment violations unremedied. Its proposed "firearm exception" to the exclusionary" rule would be contingent on the establishment of improved administrative sanctions for officers found to have flouted the law-with fellow law-enforcement officers, not judges, hearing the complaints and making the decisions.
Such procedures are worth trying, but only to supplement vigorous judicial enforcement of the exclusionary rule. The history of self-policing by law-enforcement officials (like that by other professional guilds, including lawyers) has been dismal. The Justice Department itself reported in 1986 that since 1981 it had conducted a grand total of seven investigations into Fourth Amendment violations by its agents and had taken no disciplinary action.
Given the reluctance of law-enforcement officials to testify against or pass judgment on one another, and the unwillingness of juries to uphold civil or criminal claims against them, it would be wildly unrealistic at this point in our history to entrust enforcement of constitutional rights to self-policing and civil litigation.
The message Congress would send by eviscerating the exclusionary rule now would be that Fourth Amendment rights don’t matter anymore.