The Death of Outrage

Shredding a constitutional protection that isn't even used
Exclusionary rules were the exception, not the rule. Now they're history.

By David Feige, DAVID FEIGE is a former public defender and the author of "Indefensible: One Lawyer's Journey Into the Inferno of American Justice."
June 20, 2006

A fixture of the U.S. legal landscape for nearly a century (the principle was first annunciated in the 1914 decision Weeks vs. United States), the exclusionary rule has been astonishingly effective at curbing precisely the kinds of police corner-cutting and abuses the 4th and 5th amendments were designed to target. Ironically, unlike tougher laws or longer sentences — highly popular sanctions that are generally ineffective at deterring crime — the threat of evidence-suppression actually has the deterrent effect it is designed to have.

But for all its efficaciousness and precedential heft, the exclusionary rule also has been the constant target of attacks from conservatives and is almost single-handedly responsible for popularizing the fiction that criminal cases are regularly dismissed on "technicalities." The reality is quite different.

As "tough on crime" rhetoric has come to a boil over the last two decades, and an ever-expanding number of column inches and talk-show rants have been directed at judges who impose light sentences or question police behavior, it has become less likely that even courageous judges would be willing to endure the public censure by actually applying the exclusionary rule.

For all its traditional centrality and high-minded value, the exclusionary rule these days is honored mainly in the breach. In an informal poll of several public defenders, most could count on one hand the number of times they've won suppression motions that have resulted in dismissal.

The fact that the exclusionary rule has been virtually dead for years may come as a surprise to those who don't see the daily grind of cases being processed through the system. But most insiders will concede that with sky-high arrest rates and a tidal wave of mostly petty prosecutions, there is rarely enough time for public defenders to even challenge an unlawful search, much less conduct a hearing, cross-examine the police officers and actually procure a ruling to suppress evidence. And that is too bad.

Police officers, genuine in their desire to see the guilty convicted, are generally careful not to break the rules when they believe that a judge might be watching. But remove the threat of judicial oversight and no one should be surprised when irremediable complaints of patently illegal searches and corrupt police behavior begin to skyrocket.

It may well be that putting to rest the barely breathing carcass of the exclusionary rule will finally require us to confront the consequences of allowing American law enforcement to police the public without any meaningful deterrent. As it continues to remove the constraints on police power, the Supreme Court will eventually force us to directly consider the depth of our commitment to the individual liberties that are enshrined in our Constitution.

Bush and his SCOTUS are systematically dismantling the Bill of Rights and the precedential scheme of laws which have protected our privacy for a couple of hundred years and the sheeple don't give a fuck. I really can't say much more without invoking Godwin's Law.