NationStates Jolt Archive

http://online.wsj.com/article/SB123578433303098429.html

How did we get here? When Mapp v. Ohio (the Supreme Court decision applying the exclusionary rule to the states) was adopted in 1961, exactly half of the states (24) already had an exclusionary rule in place, and half did not. This set up an ideal situation for a statistical experiment to determine what the effects of the rule had been on crime rates. In a 2003 paper published in the Journal of Law and Economics, Raymond Atkins and I looked at just this issue. We compared crime rates in states that had adopted their own exclusionary rule with states that had the rule forced on them by the Supreme Court.

If police followed the law, the exclusionary rule would have no effect whatsoever.

So, do we prefer to encourage illegal activity by the police, or risk slightly reducing the deterrence factor for crime?


You might note that the only crime where the increase was statistically relevant is assault, which is an unsuccessful attempt or a threat to hit someone. Seeing as this is something generally done not by criminals, but by regular commoners, who, even if aware of an exclusionary rule, certainly don't plan the "heist" of assault, the reason has to lie outside the deterrence factor. Possibly, it may have to do with police reporting of crimes.

Also, correlation doesn't imply causation - being a political issue, states with present/absent exclusionary rule also differ in many other legal aspects.

"In our basic model, we found significant increases in crime in jurisdictions forced by the Supreme Court's ruling to exclude evidence. Those increases were 3.9% for larceny, 4.4% for auto theft, 6.3% for burglary, 7.7% for robbery, and 18% for assault. For murder, the increase was small and statistically insignificant."

Why is there no data provided for the jurisdictions not "forced by the Supreme Court's ruling" to exclude evidence?

Edit: Unless he means "significant increases" relative to the other jurisdictions, that is, beyond the trend upward or downward in those states?

http://online.wsj.com/article/SB123578433303098429.html

First, let us recognize that restraints on the police power to search and seize are imposed by the Fourth Amendment and that such circumscription is both essential and deliberate in a free society. Justice Stewart eloquently described this point:

The exclusionary rule places no limitations on the actions of the police. The fourth amendment does. The inevitable result of the Constitution's prohibition against unreasonable searches and seizures and its requirements that no warrant shall issue but upon probable cause is that police officers who obey its strictures will catch fewer criminals.

Necessarily, the enforcement of the Fourth Amendment involves costs; but as Justice Stewart has stated, "[T]hat is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, home, and property against unrestrained governmental power."

Second, Professor Rubin's brief op-ed tells us little about his study or the basis for his allegations.

A reading of an earlier version of his study (http://papers.ssrn.com/sol3/Delivery.cfm/98112411.pdf?abstractid=140992&mirid=5) (which is about 20 years old and deals with data from 1948-1969) reveals numerous caveats, questionable assumptions, flat-out errors, ect., that Rubin blithely ignores in his op-ed piece. Among other things, his "increased crime rates" are increases in reported crime and does not adjust for the known fact that the rate of reporting of crime increased during the relative period. An example of a very questionable assumption in his statistical model is the assumption that for every crime the police have two suspects -- one of whom is the criminal --and the exclusionary rule effects the allocation of resources in investigating these two suspects. Yet another problem is that the study admits that applying its dated analysis to the modern day would ignore the fact that the Court has in last 40 years made many changes in the exclusionary rule -- including revoking Fouth Amendment habeas petitions, enacting a good faith exception, and shifting from a warrant requirement to a reasonableness standard. I could go on and on with various flaws in this study.

In fact, contrary to the statements Rubin made in his op-ed piece, his study concluded:

This analysis cannot be used to show that the exclusionary rule should be replaced, or that the "good faith" doctine should be used, or that the Supreme Court was incorrect in its decision. .... More importantly, we do not examine the benefits of the exclusionary rule, nor do we posit or analyze any alternative procedure to control police misconduct.

Third, in the study itself, Rubin and Atkins admit that their research reaches very different results from the bulk of studies done on this subject. They note that the "host of studies" performed in the '70s and '80s uniformly concluded that "the exclusionary rule has little effect on crime rates in the United States." (Note: the fact that such studies are dated is irrelevant, because Rubin's study relies on the same aged data.) The exclusionary rule has, for example, little to no effect in causing cases to be dismissed, lost, or not prosecuted. The American Bar Association in 1988 summarized such study results:


Between 0.2% and 0.8% of all adult felony cases are screened by prosecutors because of illegal searches.
Adding together data from all stages of the felony process, the cumulative loss from illegal searches ranges from 0.6% and 2.35%.
In felony arrests for offenses other than drugs or weapons possession, including violent crime arrests, the effects of the rule are lower; prosecutors screen out less than 0.3% of these felony arrests because of illegal searches, and the cumulative loss is no more than 0.3% to 0.7% of such arrests.
Very few arrests are lost by acquittals at trial following suppression of evidence.


From these and other findings, the ABA wrote; "conclusion that the exclusionary rule neither causes serious malfunctioning of the criminal justice system nor promotes crime is strongly supported by practically all of our [] witnesses and by our telephone survey respondents. Taken as a whole, the testimony and the survey results demonstrate that constitutional limitations are not seen as a relatively significant problem by the people who must work within those limitations."

Finally, Rubin's assertions have been questioned by other experts. For example, one observer has noted that Rubin's work is "difficult to follow and difficult to swallow" because (among other things):

Crediting these findings would require one to believe that implementing the exclusionary rule substantially increased police compliance with the Fourth Amendment (an effect that all researchers who have looked for it have missed) or at least that criminals believed the rule effective. Moreover, compliance with the Constitution appears to be a very bad thing, for criminals—especially suburban criminals—almost instantly responded to apparent police observance of the Fourth Amendment by increasing the rate at which they committed crimes. Oddly, these criminals were especially likely to commit offenses—like assault—whose investigation almost never involves searches and seizures.

Overally, I think Rubin's comments are bunk and, regardless, our freedom is worth the alleged price.

i actually like a suggestion of rubin's, though not the way he wants to use it. i think it would be a great idea to deter "police misconduct through a system of civil damages paid by the police department for improper searches" on top of them not being able to actually use such evidence.

i actually like a suggestion of rubin's, though not the way he wants to use it. i think it would be a great idea to deter "police misconduct through a system of civil damages paid by the police department for improper searches" on top of them not being able to actually use such evidence.

At the very least a police officer who gathers evidence illegally is in need of a metaphorical smack upside the head and a very literal discussion about how he is a dumbass and has forgotten what he was taught about collecting evidence.

http://online.wsj.com/article/SB123578433303098429.html

The Wall Street Journal was a right-wing rag before Rupert Murdoch bought it, so I didn't see that he could make it very much worse.

Shows what I know. "The crazy right-wing SCOTUS said that if the police officer followed all proper procedures in the course of his duties then the evidence he obtains is not subject to the exclusionary rule, even if clerical errors lead an officer to follow procedures that might not otherwise be appropriate, therefore SCOTUS is just one step away from giving us the police-state we always wanted! Yaaaay!"

Rupert you batshit psycho, you've done it again.

As it's interpreted today, the exclusionary rule can hinder the effectiveness of law enforcement. Since police know they cannot use certain types of evidence, their policing and detection methods are limited. The overall result is that the police are somewhat less successful in catching criminals. This in turn encourages criminals to increase their illegal activity.

In the Herring decision, Chief Justice John G. Roberts viewed the benefits of the law as deterring police misconduct, and the costs as "letting guilty and possibly dangerous defendants go free."
Yes, how dare we expect the police to follow the guidelines set out by the Constitution.

At the very least a police officer who gathers evidence illegally is in need of a metaphorical smack upside the head and a very literal discussion about how he is a dumbass and has forgotten what he was taught about collecting evidence.

the problem is, all too often it is effectively policy to engage in illegal behaviors. we need further external ways to make this not work for them. lawsuits are a step in the right direction, but don't solve everything - a few years back, the global justice movement was gaining significant funding from suing cops for illegal arrests and such, but it didn't seem to hold them back. perhaps it was because the cops didn't actually feel the pain directly...

the problem is, all too often it is effectively policy to engage in illegal behaviors. we need further external ways to make this not work for them. lawsuits are a step in the right direction, but don't solve everything - a few years back, the global justice movement was gaining significant funding from suing cops for illegal arrests and such, but it didn't seem to hold them back. perhaps it was because the cops didn't actually feel the pain directly...

How about making such behaviors by the police felonies themselves? If they know they'll do time for illegal search and seizure (as a matter of fact, what, other than a uniform, is the difference between that and burglary?) maybe they would follow procedure.

At the very least a police officer who gathers evidence illegally is in need of a metaphorical smack upside the head and a very literal discussion about how he is a dumbass and has forgotten what he was taught about collecting evidence.http://sensico.files.wordpress.com/2008/12/fail-owned-first-amendment-win-fail.jpg
Don't ask me what this has to do with anything, I just think it should be used to remind the police officer's of their failability from time to time. :p

Better 1000 criminals go free than 1 piece of questionable evidence be accepted as fact.

How about making such behaviors by the police felonies themselves? If they know they'll do time for illegal search and seizure (as a matter of fact, what, other than a uniform, is the difference between that and burglary?) maybe they would follow procedure.
That's needed, but not enough. Deterring a crime requires both casting the penalty and removing the benefit. Otherwise it would be like giving a robber the sentence, but allowing to keep the loot.

And, considering that we're talking about police, prosecution would rarely be successful - dissolution of guilt in the paperwork, it will be that no one really did anything satisfying all elements of the crime.

Better 1000 criminals go free than 1 piece of questionable evidence be accepted as fact.
If you have a piece of evidence that can uncover and legally prove guilty 1000 criminals, give it to your local police. Immediately.


Since you don't, let's talk about the reality. In there, it will be more along the lines of 1 criminal go free versus police conduct 1000 illegal searches.

Also, "go free" here doesn't mean acquitted and immune. It's not as much going free as staying investigated by the police for a while longer, until they obtain evidence in a legal manner.

If you have a piece of evidence that can uncover and legally prove guilty 1000 criminals, give it to your local police. Immediately.


Since you don't, let's talk about the reality. In there, it will be more along the lines of 1 criminal go free versus police conduct 1000 illegal searches.

Also, "go free" here doesn't mean acquitted and immune. It's not as much going free as staying investigated by the police for a while longer, until they obtain evidence in a legal manner.

If I had such evidence, I would give it to the local police. Legally.

Call what I said a statement of position. The concept of quis custodiet ipsos custodes requires that the police and others in positions of power and enforcement be held to a higher standard than those not in such positions. And the best way to do that is to let their efforts come to nothing when they choose to violate the precepts of their position. The exclusionary rule is the best method for this.

Ah, sorry then - I thought you were being sarcastic.

De nada. I can see that.