Exclude This

Few phrases have exasperated the general public as much as "guilty but free on a technicality." Although not a huge fan of the Supreme Court as presently constituted, I thought they made the right decision the other day in ruling that inadvertent error on the part of the police shouldn't automatically result in setting an otherwise guilty party free.

In fact, I'd probably take it a step further: while I certainly agree that we need protection against the abuse of power by police, I've long thought that the exclusionary rule as presently practiced has got it backwards. Meant to punish police misconduct, it leaves the police untouched and punishes the public instead.

The New York Times, perhaps predictably, Viewed With Alarm this latest development, but I think they've got the wrong end of the stick as well. To me, the correct way of going about is this: if the police obtain evidence by unlawful means, by all means punish them. Arrest them and put them on trial if necessary. But if the evidence, no matter how it was obtained, is valid, then by no means should the criminal be set free.

If a cop knows he's likely to get fired or even go to jail for violating constitutional procedure, that's a far greater deterrent than the prospect of seeing his arrestee get cut loose. In the latter case, the cop still gets credit for an arrest and can blame the lack of a conviction on an incompetent prosecutor or "liberal" judges. In the former case, the cop gets charged with a crime, but so does the person who had the gun or the dope or the corpse, regardless of how it was found.

Society has a great interest in preserving the rights of the people to be free from unreasonable search and seizure. It has no interest in preserving their right to illegally transport guns, drugs or corpses. The exclusionary rule was bad policy from the start. It should be used to exclude dishonest cops, not to protect dishonest citizens.