Why stop halfway? - need to repeal the exclusionary rule

Mr. Reynolds is director of the Criminal Justice Center of the National Center for Policy Analysis and professor of economics at Texas A&M University.

A MOTORCYCLE cop stops a speeding car. Without a search warrant but suspicious, the policeman demands that the driver open his trunk and discovers the corpses of a woman and two children. The man later walks out of court scot-free because the evidence was inadmissible. The criminal's Fourth Amendment rights had been violated.

This miscarriage of justice supposedly improves the protection of our civil liberties, but it does no such thing. The entire theory of suppressing illegally obtained evidence in criminal court is misguided.

The exclusionary rule was concocted by an imaginative Supreme Court in Weeks v. United States in 1914. Until then, little had been heard about reckless abuse of citizens' constitutional rights by federal law-enforcement officials. The agitated Justices declared that, without their little creature, the Fourth Amendment was "of no value" and "might as well be stricken from the Constitution."

In 1961 Earl Warren and Company initiated their do-good revolution in criminal privileges by imposing the exclusionary rule on all state courts in Mapp v. Ohio, a breathtaking expansion of power considering that more than 90 per cent of criminal cases are prosecuted by the states. Between 1920 and 1960, half the states had allowed pertinent evidence into criminal proceedings, even if it had allegedly been obtained illegally, on a case-by-case basis. The remaining states, either through statute or through appellate- court decisions, emulated federal suppression. Advocates of quashing had succeeded in twenty states during the 1920s, usually as a device to soften the impact of Prohibition.

Not only does the exclusionary rule have a wholly suspicious origin -- the twentieth-century federal judiciary -- but it defies common sense and lacks empirical evidence in its favor. As former Chief Justice Warren Burger points out, "There is no empirical evidence to support the claim that the rule actually deters illegal conduct of law-enforcement officials." The exclusionary rule remains unique to American jurisprudence. Our celebrated civil-libertarian neighbor to the north, for example, relies on the tort system to correct overzealous police searches and compensate victims.

Like the rest of the Warren Court revolution, the rule excluding illegally obtained evidence makes so little sense that the courts and Congress have tried steadily to narrow its application. Yet allowing an exception to the exclusionary rule for evidence seized illegally but in good faith is a defective cure. It allows police officers to blunder in good faith again and again. Government agents now routinely conduct unconstitutional searches and seizures with impunity.

Expanding the legal liability of police departments and setting up compensation funds for money damages would make the police respect constitutional liberties and avoid illegal searches and seizures for which they might be sued.

The exclusionary rule has benefits only in the eyes of those who judge laws strictly by their intentions rather than their actual effects. The rule offers no civil-liberties benefits, only social cost. It artificially impedes justice by freeing at least 20,000 criminals each year. Statistical studies show that exclusionary rules, all else equal, are associated with a 15 per cent increase in crime rates. The Warren Court has the blood of thousands of crime victims on its hands.

While most policemen honestly try to follow Fourth Amendment directives, current law is so tortured that even experienced lawyers and judges do not know if particular searches will be upheld by the courts. The exclusionary rule has done more to undermine the Fourth Amendment than to protect it. As District of Columbia Circuit Judge Malcolm Wilkey once wrote: "If one were diabolically to attempt to invent a device designed slowly to undermine the substantive reach of the Fourth Amendment, it would be hard to do better than the exclusionary rule."

The exclusionary rule makes it more difficult to convict the guilty, including police officers who commit crimes. The rule makes it easy for corrupt cops to protect favored criminals from prosecution by simply making an illegal seizure.

The exclusionary rule dooms many criminal prosecutions. Prosecutors have limited budgets and avoid prosecuting cases with serious search and seizure problems. Their reasoning: Why risk a prolonged struggle over the technicalities of the exclusionary rule?

The exclusionary rule does not punish overzealous or criminal police conduct because officers and police departments are typically rated on overall arrest clearance rates rather than conviction rates. The police practices attacked by the courts have increased since the do-good rule was imposed nationwide in 1961.

The irony of the exclusionary rule is that the public, not the culpable police, bears the costs of freeing the guilty criminals. Considering the liberal sociological view that "society" is to blame for crime rather than the criminal, this is an ironic success for this theory of justice. Under exclusion of evidence, the criminal freed on a technicality is free to punish society again.