Over at Crime and Consequences, Kent Scheidegger writes about one of the philosophical problems with the exclusionary rule:
For many years, the U.S. Supreme Court has been pruning back one of the most repugnant notions of criminal procedure — the idea that a clearly guilty criminal can suppress rock-solid reliable evidence of his crime on the basis of how it was obtained. If someone violated a law in the process of obtaining that evidence, that person should be prosecuted or sued for the violation, but it is utterly irrelevant to the justice of the case at hand — whether the defendant did or did not commit the crime of which he is accused.
As it happens, I agree with Kent Scheidegger on the basic issue. I don’t find the exclusionary rule to be repugnant, as he does, but it is a messy half-assed attempt by the courts to remedy a situation that is beyond their power to fix correctly, and we would be better off without it.
As Kent explains, the proper approach when cops break the law to obtain evidence is to punish the cops rather than letting the guilty go free. If a cop enters a house illegally and discovers evidence of a crime, the best solution is not to let the offender go free, but to send both the cop and the offender to jail for their respective crimes.
Unfortunately, this fine solution is beyond the power of the courts and the legislature — neither judges nor lawmakers can press charges for a crime. Only prosecutors can do that. Therefore, my dear prosecutorial readers, you’re going to have to make the first move: Start indicting police officers when they break the law. I’ll bet you’ll only have to imprison a few thousand of them before the Supreme court changes its mind and rules that the exclusionary rule is no longer necessary.
In order to encourage prosecutors to follow this path, I hereby invite the forward-thinking Kent to share his stories of all the cops he prosecuted for breaking the law while gathering evidence…Oh, wait, Kent isn’t the C&C blogger that was a prosecutor. That was Bill Otis…
Well, let me just throw it open to any prosecutor who agrees with Kent’s view of the exclusionary rule: We want to hear your story. Inspire other prosecutors with your tale of prosecuting lawbreaking cops — the trespassing charges for entering a home illegally, the theft charges for confiscating cellphones, the false imprisonment charges for detaining people without probable cause. I’m sure there are lots of these stories out there. Now’s your chance to be an inspiration to others to make a real change in the world. Tell us your stories. Just leave a description of the indictment in the comments, or drop a link to your office’s press release.
I’ll be waiting. But I won’t be holding my breath.
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