I’m not sure if I agree with this line of reasoning.
I would agree that the exclusionary rule is a good *legal* remedy to stop the blood loss incurred in a violation of civil rights, like returning a stolen car back to its owner.
The problem is that the courts created this rule on their own accord in part because Congress wasn’t doing anything about rampant illegal collection of evidence from police and the FBI. The courts basically said that they weren’t going to play along in trampling the rights of the accused. Even if they couldn’t stop it themselves, they would refuse to be complicit in using illegal evidence to bring convictions.
Also, the question of appropriately disciplining police officers for civil rights violations, something which Congress enacted three years after Mapp v. Ohio, is a question of good lawmaking. The penalties as such are listed under 18 USC chapter 13 and depending on the nature and consequences of the infraction, can be up to anywhere from 10 years to life, and even the death penalty if there are fatal consequences. The section that applies to law enforcement is section 242, and in order to prevent over-application, it includes a willfulness requirement.
I’m aware you’re a criminal defense lawyer, not a civil rights lawyer, but the stringency of the mens rea requirement in this case seems to preclude prosecution for any accidental violations.
But an accidental violation of a person’s civil rights by a law-enforcement official could ruin their life just as easily as an intentional violation of their civil rights without the exclusionary rule to stop the violation from leading to a conviction.
You’ll forgive me for disagreeing with a statement that cops who break the law should go unpunished, I trust?
The policy described is simply encouraging cops not to get caught crossing the line.
Imagine if the penalty for owning contraband was simply having that particular contraband confiscated. Would people accept that that was a deterrent?
I’m pretty sure everybody expects you to disagree at this point by now, yeah ;)
The only differences between this and the contraband situation are that a.) We’re encouraging cops to make sure they get everything except the bad stuff (if we wanted people to make sure people got everything except for contraband, and we found gathering a bit of contraband an acceptable price, we’d do that there too) and b.) Evidence goes under scrutiny before it can be used. If you were unable to smoke anything before the cops looked it over and confiscated anything illegal, a lot of people might give up and not bother.
If we handled contraband like that? We’d get people with contraband all the time, usually just a little of it here and there, though, and they’d have everything else they wanted too, without worrying too much about the legality of it.
That’s pretty much what happens with cops. Lots of little violations that they don’t lose any sleep over, while the big violations are generally too much effort to bother with and only rarely happen. In the balance of “how much and how serious crime is happening in uniforms vs. how much is happening out of uniforms,”* society supposedly finds this a good balance. There are at least plenty of worse ways it could pan out.
*Also known as the percent chance of a cop meddling in your private life vs the percent chance of a serial killer hiding in your basement.
Given the number of cases in which illegal laws have been allowed to stand because nobody with the time or money was charged, I would say this system is in bad need of fixing.
Which illegal laws do you have in mind?
Laws are pretty much only illegal when SCOTUS says they are; until then, you gotta pay your income tax as required by the Sixteenth Amendment.
Oh, are you going to cover qualified immunity?
I did! Link here.
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