Some conservatives, like my old schoolmate Eric Rasmusen, say that rather than excluding tainted evidence (i.e., evidence acquired in violation of the Fourth Amendment) from trials, courts ought to admit whatever credible evidence exists and punish the cops for the illegal search. Eric makes an interesting point about the exclusion policy:
That is a remedy that is useless to someone whose house was searched who was innocent of any crime, since the evidence wouldn’t be useful against them anyway. Rather, our current policy is to only compensate guilty criminals, and, by putting the the compensation in the form of evidence suppression, to compensate them precisely to the extent that they deserve punishment. The compensation has no relation whatsoever to the degree to which the search was illegal.
Radley Balko says:
For my upcoming paper on no-knock and short-notice drug raids, I’ve researched probably close to a hundred examples of botched drug raids, where cops clearly conducted a middle-of-the-night raid on an innocent person or family. Thus far, I haven’t found a single incident in which police themselves were ever charged with a crime for either raiding the wrong home, or shooting someone once inside.
Can this practical immunity be changed by a wave of the wand? What DA will prosecute a cop for bringing in, y’know, someone that the DA wants to prosecute? (Does England still allow private prosecutions?) What jury – routinely screened of anyone likely to question authority – will convict a cop who, like Starsky & Hutch, bends the rules a bit for the greater alleged good?
I don’t see anything odd about making the police subject to the same laws that they enforce. I’ve long advocated the idea that the police should be subject to prosecution when they step outside the law. The fact that they are police, trying to make the world safe for the rest of us would probably be seen by most juries as extenuating circumstances when they get it right…although it’s not likely to buy them a lot of sympathy when they kick down the wrong door. The idea that evidence should be discarded instead strikes me as a poor attempt to compensate for their immunity.
It’s true that prosecutorial discretion is a problem. The prosecutor wouldn’t like botched raids– he doesn’t get any useful evidence from them, after all. But he wouldn’t like bad relations with the police dept. either, since he has to work with them all the time.
Another problem is that for criminal prosecution of police, the police have to know they are doing something wrong, and I suppose most of these raids are just stupid mistakes.
What might help is a law making police individually liable to civil suits for botched raids if they were negligent (which would have to be proved). Negligence is easier to prove than criminal intent on the part of the police.
Because negligence is easier to prove than criminal intent, I’d expect the police unions to fight any such idea even harder than notional criminal liability.