January 19, 2009

THE OTHER DAY, JONAH GOLDBERG responded to my New York Post column on the Herring case:

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. 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.

Well, this is the classic argument against the exclusionary rule, and it’s a pretty good one. The other classic argument against the exclusionary rule is that if you’re actually innocent — if the police search you unreasonably and don’t find anything — the rule does you no good because you’ve got nothing to exclude anyway.

These are good arguments and I’d be happy to scrap the exclusionary rule and return to the framing-era approach that put the constable at risk for personal liability whenever there was an unreasonable search or arrest, unless he had a warrant, in which case the magistrate who issued the warrant might be at risk if the warrant was improperly issued. But modern doctrines of official immunity — which are basically judge-made, and a result of “judicial activism” of the first order — make that impossible. There’s no constitutional basis for immunity on the part of police or their supervisors; it’s just something judges think is a good idea. Nonetheless, it’s not going anywhere — as part of my efforts to get something done about no-knock raids, I was recently told that, even in the Democratic Congress, it’s not going to be possible to do anything about official immunity.

Meanwhile, if you reward negligence, by letting cops who are negligent arrest people they’d otherwise be unable to, the cops — and, more importantly, their superiors, who might otherwise look bad if a guilty person is allowed to go free — wind up incentivized to be negligent. That increases the risk that innocent people will be subjected to unreasonable searches. In this imperfect world, the exclusionary rule is pretty much all we’ve got. But hey, if Jonah wants to join me in a campaign to get official immunity abolished or cut back, I’m ready. (Bumped).

UPDATE: Jonah responds.

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