Herring v. United States

Glenn Reynolds comments on the Supreme Court’s recent Herring decision:

According to Chief Justice John Roberts, writing for the majority, “When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.”

You can see their reasoning. Herring’s a bad guy. Why punish the police by letting a guilty man go free when they just made a simple mistake?

Except that the rest of us enjoy no such immunity. If you’re a citizen who, say, accidentally carries a gun into a designated “gun-free” zone, the Supreme Court will not say that you can escape punishment because your action was “the result of isolated negligence.” For citizens, there’s no “I forgot” defense.

I think Reynolds is mistaken here.  I’d been meaning to explain why, but before I could, Ramesh Ponnuru expressed my thoughts perfectly:

What I think this analysis misses is that letting criminals go free in these cases punishes the public, not just the police. The Supreme Court has made the judgment—a properly legislative judgment, one would think—that this cost is worth paying in order to deter police misconduct. But when that misconduct is unintentional that weighing of the balance becomes hard to sustain, and a good-faith exception to the rule makes sense.

Here’s an interesting question: if we were devising the system from scratch, could we deter police misconduct effectively without an exclusionary rule at all? If we could, that would certainly be better for society.

UPDATE: An interesting tale about the origin of the exclusionary rule.

UPDATE: Reynolds responds:

Well, this is the classic argument against the exclusionary rule, and it’s a pretty good one. The other classic argument against the exclusionary rule is that if you’re actually innocent — if the police search you unreasonably and don’t find anything — the rule does you no good because you’ve got nothing to exclude anyway.

But he goes on to point out that official immunity is another modern invention, and when officers cannot be prosecuted for their misconduct, they are incentivized to violate our rights, unless they cannot gain anything from doing so. Fair enough, but then we should focus on limiting official immunity, rather than extending the exclusionary rule.  Randy Barnett has a suggestion how to do that.

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