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Friday, August 05, 2011
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We Do Run Our Criminal Justice System Like We Run Our Elections

Roland Melnick, over at Badger Blogger, wonders what would happen if we ran our criminal justice system like our elections operate. His assertion, using Sandy Pasch as an example, is that we let people running for office get away with lying and cheating, even if those lies get them elected. He then goes on to compare this to the "exclusionary rule" in the criminal justice system, and argues about how terrible it would be in our criminal justice system if we let the police get away with lying and cheating, and still let the evidence into court, and convict criminals. He asks why we can't hold our elections to the same standards that we hold in the justice system? I'm assuming that he would like to see election candidates "excluded" from running if caught in some act of election related misbehavior.

The problem with his assertion is that the "exclusionary rule", while in existence in theory, doesn't exist in practice, and so the criminal justice system already works just like he says our elections currently do. In theory, the exclusionary rule is supposed to be a check on police abuse. If the police don't get a warrant for a search, or perform some other act where evidence is illegally obtained, it is supposed to be suppressed during a trial. And of course, most people actually believe this happens. After all, you see motions to suppress succeed all the time... on television shows like Law & Order. If only real life were actually like television.

The reality is that the exclusionary rule has taken a beating over time, and that so many exceptions exist to the exclusionary rule, that it might as well not exist anymore to give false hope to defendants who have suffered at the hands of abusive police tactics. One district judge described it this way:

The district judge stated that the granting of motions to suppress was 'almost as rare as hen's teeth. I think I have done two in ten years and none in federal court.'

This was an especially sad note:

In a major metropolitan public defender's office, if you win a suppression motion, someone in the office will bring cake.  It's that big of a deal.

One major exception to the exclusionary rule is the good faith exception, described this way:

There are numerous exceptions to the exclusionary rule.  There's the good faith exception to the exclusionary rule.  Under the good faith exception, when an officer makes a mistake of law or fact, the evidence won't be excluded. The good faith exception has become so dominant that it's more accurate to say we have an exclusionary exception to the good faith rule.

And then came the Supreme Court's terrible decision in Herring vs. United States. In that case, they decided that evidence can't be thrown out when it was due to "isolated negligence". In fact, Antonin Scalia has said that the exclusionary rule doesn't need to exist any more because the police have shown "new professionalism" in the last 20 years that makes it unnecessary because they can police themselves. Of course, the idea that the police can police themselves is as laughable as the idea of an honest politician. There is the always present "blue wall of silence", and also the fact that police enjoy qualified immunity from being sued while performing their duties.

This isn't to say that all police are bad people... in fact for most police officers the exact opposite is true. But the police also are human beings that respond to incentives. When there is pressure on police to make a bust, and they know they can get away with cutting corners, they will. And the fact that the courts don't provide a much needed check on that abuse has been very costly to our criminal justice system. The result is that the police can, and often do, cut corners around your rights while performing investigations.

The fact that our election system behaves the same way is no surprise. After all, the same incentives still apply... and people who benefit from cutting corners in elections also make the rules for elections.

# Posted at 10:20 AM by Nick  |  Comment Feed Link 1 Comment  |  No Trackbacks

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Tuesday, August 09, 2011 9:56:55 AM (Central Daylight Time, UTC-05:00)
I think your first mistake was expecting to find rational discussion at BadgerBlogger. I'm tempted to say "you will never find a more wretched hive of scum and villainy," but who knows, maybe there's some other schoolyard conservative blog out there I haven't seen.
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