As the Obama administration begins with the closing of Guantanamo, the rejection of torture as policy and the appointment of Leon Pannetta as Director of the CIA (hopefully a major step forward in the sordid history of that agency) the Supreme Court has ruled by a five to four decision to undermine the "exclusionary rule," used in U.S. criminal cases to eliminate evidence obtained by improper police conduct (unlawful searches and seizures, bureaucratic errors, etc.)
If one is innocent until proven guilty, if the standard in criminal cases is that one must be found guilty beyond a reasonable doubt, then the benefit of the doubt concerning such evidence, as more progressive courts at all levels have often ruled, should go to the defendant, since in the U.S. criminal justice system, indictments are very easy to get and trials far more common than in other judicial systems with civil rights, civil liberties protections(systems where, following the traditions born of the French revolution, indictments are difficult to obtain, but once one has been obtained, the defendant in effect is in a far more difficult position, having to prove in effect that he is innocent beyond a reasonable doubt and without the protections defendants are afforded by the exclusionary rule).
I don't want to exaggerate the influence of the exclusionary rule in U.S. courts. The gains that were made here in the 1960s and 1970s, according to the late Sam Dash and others, were undermined over the last three decades. But this is a very bad decision that should be seen as a "victory for the Bush administration and its policies as it leaves office.
In the five to four vote, Chief Justice Roberts issued the majority opinion and was joined by the Court's rightwing majority, Scalia, Alito, Thomas, and Kennedy, who has moved in his decisions to the right with the appointments of Alito and Roberts. The evidence in question concerned drugs and a gun found on an Alabama man by police through a search and seizure based on an outstanding warrant which was no longer valid. Although the outstanding warrant, which had been withdrawn, was still in the computer system, the evidence, on the traditional "fruit from the poisonous tree" doctrine, should have been excluded, since there was no reasonable expectation that the police would have gathered it had they not acted on what was a defunct warrant.
But that was not the way Roberts and his associates saw it. For them it was an example of "isolated negligence." In Roberts opinion, the exclusionary rule should be reserved for "deliberate, reckless, or grossly negligent conduct, or in circumstances recurring systematic negligence." Beside the fact that "recurring systematic negligence" is something of an oxymoron, who is to apply this standard. The Roberts Court? Craig Bradley, a law Professor at Indiana University, responded insightfully that "it may well be that courts will take this as green
light to ignore police negligence all over the place." That is the danger and it is a clear and present one that the Obama administration and progressive state and local administrations must face, given the packing of the judicial system which began with Nixon four decades ago, accelerated with Reagan, and then was carried forward to its present level by the Bush administration.
The minority, whose opinion was written by Justice Ginsburg, focussed on the need to have a "forceful exclusionary rule" that protects defendants and deters "official lawlessness," particularly in an age of computers and electronic data bases where a incorrect or untimely data entry can have disastrous consequence. Bbut they were outvoted as, one expects, they will be until the Obama administrations begins to act forcefully to challenge and end rightwing domination of the Supreme Court and the federal judiciary.
As a final point, it is interesting to note that Justice Roberts in his majority decision contended that "the deterrent effect of suppression [of evidence under the exclusionary rule] must be substantial and outweigh any harm to the judicial system. Marginal deterrence does not 'pay its way'" Perhaps Roberts might listen to some of those nineteenth century conservatives whom he seeks to emulate in so many ways--those who kept on saying "we are a government of laws, not of men." And then there are the civil libertarians who he and his Federalist Society friends would not be seen with--those who said it is better if ten guilty men go free than if one innocent one is imprisoned (they sometimes put that in old Civics courses for high school students, however an example of false consciousness it may have been).
Finally, his comment that "marginal deterrence does not 'pay its way'" ignoring even the question of who is to determine with is marginal, would bring a smile to the lips of the late Karl Marx, who always understood that everything under capitalism was reduced to the cash nexus, even in this case the rules governing the presentation of evidence in criminal proceedings.
