Break a law that you did not know existed.  It doesn’t matter how vaguely worded that law is.  If a police officer wants to arrest you for it and if a Deputy District Attorney decides she wants to prosecute you for it, you will be prosecuted. You will, unfortunately, almost certainly lose: you’ll either realize that you’re going to lose and take an offer, or you’ll be convicted.  Even if somehow, some way you win, you will lose, because you will have paid an attorney, or posted bail, or — in the event you were too poor to hire an attorney and the offense did not require you to post bail — you will have lost time, effort and sleep over the case.

Unless you’re a police officer.

Last week, taking another whack at the exhausted and near-death Fourth Amendment, the United States Supreme Court indicated that if the police arrest and search someone because of “mistakes [which] are the results of negligence,” it’s okay.  No harm; no foul.  After all, the victim of the police department’s negligence was a bad guy.  The police were doing something the Constitution forbids them to do, but it’s for a good cause.

It is rather ironic that the ascendancy of right-wing Christianity with its hardcore “law and order” crowd in the United States has resulted in the increasing tendency of the government to ignore the laws of our land, particularly when we think following the law will result in a bad guy escaping punishment.  As far back as Genesis, no less an authority than the Bible laid down the principle that it was better to let guilty men escape punishment than to act in a way that could harm the innocent.

And Abraham drew near and said, Wilt thou also destroy the righteous with the wicked?… That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right? And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes…

And he said, Oh let not the Lord be angry, and I will speak yet but this once: Peradventure ten shall be found there. And he said, I will not destroy it for ten’s sake. (Genesis 18:23-32.)

Maimonides, a 12th Century Jewish philosopher, said,

it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death. (Moses Maimonides, The Commandments, Neg. Comm. 290, at 269-271 (Charles B. Chavel trans., 1967).

This principle subsequently became known in legal circles as “Blackstone’s Ratio,” after Sir William Blackstone, an English jurist (lawyer) and professor, published the principle in his famous “Blackstone’s Commentaries.”

Blackstone, of course, had significant impact on the Founders of the United States. So it’s no surprise that even Benjamin Franklin stated,

it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer. (9 Benjamin Franklin, Works 293 (1970), Letter from Benjamin Franklin to Benjamin Vaughan (Mar. 14, 1785).)

But modern Americans know better than our nation’s Founders…than the explicators of the foundations of our religions…than the G-d they supposedly worship. Today, our fear that someone might get away…that a single death could be averted…that accused people have too many rights and “victims” too few, has lead us to overrule the wisdom of the ages.  “Judge not, that ye be not judged,” has become, “Judge.  Quickly.  Before they get away.”  And harshly.

Prosecutors limit discovery, refusing to divulge evidence until trial, if at all (even though California law says “thirty days prior to trial”), for fear the defense will investigate and find a way to show why innocent acts are innocent because their clients are innocent.  Trial by ambush is the new approach.  It matters not that this makes prosecutors — representatives of The People — lawbreakers.  The government is above the law.

But believe it or not, there really is a problem with this philosophy.  The root of it is “might makes right.”  In fact, not only is that the root of this philosophy, it is its totality.  Nothing else matters, except who is big enough to make everyone else “do as I say, and not as I do.”

Thomas Paine, one of the driving forces behind the Revolutionary War which produced the United States, said:

In America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.  (Thomas Paine, Common Sense (Larkin, ed. 2004) p. 75, capitalization and italics in the original Larkin edition [Paine’s original publication date is 1776].)

But once the government “of laws, and not of men” (John Adams, “Novanglus Papers,” no. 7.—The Works of John Adams, (ed. Charles Francis Adams 1851) vol. 4, p. 106) has lost respect for the law, why should anyone else respect it?

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7 comments

  1. RickH – you are so right: “well, yeah, the Constitution says government can’t do this, but doesn’t say that there should be any penalty, so we shouldn’t impose one in this case because we don’t like the result that would flow from that.”

    But that is why the exclusionary rule was created in Weeks; if there is no penalty, there is no Fourth Amendment. And the way it is now, penalties via exclusion only crop up in the case of criminal prosecutions. Who can you call when your Fourth Amendment rights are being violated and you’re not charged? The Police? I think not; they spend most of their time figuring out ways to sidestep the Fourth. Bivens actions are rarely possible when illegal surveillance is performed, as one can’t get evidence. The idea that civil suits provide remedies is a SCOTUS figment.

  2. RickH – you are so right: “well, yeah, the Constitution says government can’t do this, but doesn’t say that there should be any penalty, so we shouldn’t impose one in this case because we don’t like the result that would flow from that.”

    But that is why the exclusionary rule was created in Weeks; if there is no penalty, there is no Fourth Amendment. And the way it is now, penalties via exclusion only crop up in the case of criminal prosecutions. Who can you call when your Fourth Amendment rights are being violated and you’re not charged? The Police? I think not; they spend most of their time figuring out ways to sidestep the Fourth. Bivens actions are rarely possible when illegal surveillance is performed, as one can’t get evidence. The idea that civil suits provide remedies is a SCOTUS figment.

  3. I’m with you on that. It blows my mind that the government thinks by carving itself up into little chunks and letting non-law-enforcement chunks violate the Constitution, they’re honoring the Constitution.

    The Constitution is a limitation on government. Period. Doesn’t matter which part of the government is doing the violating, the exclusionary rule should apply.

    But even better are the people, including courts, that seem to argue that “well, yeah, the Constitution says government can’t do this, but doesn’t say that there should be any penalty, so we shouldn’t impose one in this case because we don’t like the result that would flow from that.”

  4. I’m with you on that. It blows my mind that the government thinks by carving itself up into little chunks and letting non-law-enforcement chunks violate the Constitution, they’re honoring the Constitution.

    The Constitution is a limitation on government. Period. Doesn’t matter which part of the government is doing the violating, the exclusionary rule should apply.

    But even better are the people, including courts, that seem to argue that “well, yeah, the Constitution says government can’t do this, but doesn’t say that there should be any penalty, so we shouldn’t impose one in this case because we don’t like the result that would flow from that.”

  5. I’m with you on that. It blows my mind that the government thinks by carving itself up into little chunks and letting non-law-enforcement chunks violate the Constitution, they’re honoring the Constitution.

    The Constitution is a limitation on government. Period. Doesn’t matter which part of the government is doing the violating, the exclusionary rule should apply.

    But even better are the people, including courts, that seem to argue that “well, yeah, the Constitution says government can’t do this, but doesn’t say that there should be any penalty, so we shouldn’t impose one in this case because we don’t like the result that would flow from that.”

  6. I’ve read a little about the Herring case, and the exclusionary rule. My take on it is that SCOTUS has blinders on, focusing on deterring police violations of fourth amendment rights. Why should not the exclusionary rule be invoked to simply protect fourth amendment rights, period? That is, whether it is the police, the clerk, or the judge; shouldn’t there be a deterrent regardless of the proximate cause of the invalid search and/or seizure? Am I missing something?

  7. I’ve read a little about the Herring case, and the exclusionary rule. My take on it is that SCOTUS has blinders on, focusing on deterring police violations of fourth amendment rights. Why should not the exclusionary rule be invoked to simply protect fourth amendment rights, period? That is, whether it is the police, the clerk, or the judge; shouldn’t there be a deterrent regardless of the proximate cause of the invalid search and/or seizure? Am I missing something?

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