Monday, 2005 December 19, 09:21 — constitution, drugwar

the double standard

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?

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