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Culture War Roundup for the week of September 23, 2024

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Short answer: I believe that the constitutional rights of a subject should be upheld. If that is generally the case, then any suspect who could only be convicted through evidence obtained illegally will go free. Like the framers, I think this is acceptable. If suspects rights are respected 99% of the time due to any effective enforcement (e.g. incentives due to exclusionary rule, punishment of police), then we are just quibbling over the 1% odd cases where deterrence of police misconduct failed and we have to decide what to do with illegal evidence. The exclusionary rule will not lead to worse conviction rates than respecting suspect rights in the first place.

If you are unable to say 'the world would be better if the cops had not illegally searched the suspect and found the murder weapon, which lead to his conviction' then you are not anti-exclusionary, you are anti-4th.

Innocent people the 4th Amendment was intended to protect.

Wait what? The way I read the 4th:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, [...]

This seem pretty narrowly tailored to express that the government (whose action the Bill of Rights limits) can not conduct unreasonable searches. Your interpretation seems to be along the lines of 'people have a right to security of their person, so the government has to make homicide illegal'.

Famously, the constitution says what the SCOTUS says it says, so if you have a SC ruling that the 4th mandates government action to protect people (e.g. by driving away natives, or defending you against a mob, or forcing states to build hurricane shelters), I will concede this to you.

It seems obvious that the constitution tries to strike a balance between civil rights and police efficiency. The 4th seems a good example here:

  • On the one hand, you could not restrict police searches at all. Having police do random (or 'random') searches of homes will certainly mean a lot fewer criminals will get away with their misdeeds. However, it would also be a way for the state to punish dissidents: even if they don't find anything incriminating, having your home searched (and your dog shot in the process) is a pretty harrowing experience. Also, every home likely contains some minor fine-able violations if you look hard enough.
  • On the other hand, you could say that homes are inviolable like embassies, and that police may never search them. This would lead to outcomes which I would find unacceptable: if you saw that the kidnapper took the victim to their home, there should be a legal way to get the victim out.
  • The compromise is that you require judicial oversight and and probable cause. This seems much more reasonable than the other two options.

If you want to deter misconduct by police, then punish them personally for it.

You might have noticed that police rarely face criminal charges about their conduct. For example, if they get the address wrong while executing a warrant, i.e. they perform an action which has no legal basis, they are still treated very different from private citizens. A motorbike gang who decides to storm some home to look for their dope will generally be tried for robbery, while due to the qualified immunity doctrine police storming the wrong home will face no criminal charges unless you can prove that they acted in bad faith.

On top of that, the DA generally has a symbiotic relationship with the police: they need the cops to investigate and testify. While public pressure will these days make certain that they bring murder charges if there is video evidence, having a policy to aggressively investigate any allegations of police misconduct will lead to the police becoming very uncooperative, which will jeopardize your reelection chances. And the blue code of silence means that you would likely not get very far in any case.

This applies to even routine police misconduct like giving a suspect a black eye without reason. I may judge 'blatantly violating suspects rights to gather evidence to secure a conviction' as 'evil', but I am confident that a significant fraction of cops would judge it as 'heroic'. The chances that the criminal justice system would be able to punish cops enough to deter them from doing so all the time are basically nil.

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How about a compromise: the exclusionary rule can be voided if a cop takes responsibility for the violation of the suspects rights. This involves giving testimony in open court about the gathering of the evidence, asking for forgiveness for violating the constitution and committing suicide through sepukku on the spot. Any inheritance or widow's or widower's pensions will go to the suspect whose rights were violated instead of the family of the cop.

This would both of us get what we want: you would have a way to get around the exclusionary rule, and I would have effective incentives set against violating suspect rights which will keep convictions on illegally obtained evidence rare.