A recent court decision of 5-to-4 in the case of Herring v. United States shows that the "exclusionary rule" may be at risk and the man leading the onslaught on the rule may be Chief Justice John G. Roberts, Jr, a Bush Administration lawyer through and through who many now know as the guy who fumbled words when administering Obama's oath of office.

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A recent court decision of 5-to-4 in the case of Herring v. United States shows that the “exclusionary rule” may be at risk and the man leading the onslaught on the rule may be Chief Justice John G. Roberts, Jr, a Bush Administration lawyer through and through who many now know as the guy who fumbled words when administering Obama’s oath of office.

The “exclusionary rule”, as the New York Times’ Adam Liptak describes it, is “the principle that evidence obtained by police misconduct cannot be used against a defendant.” According to Liptak, “in 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule.”” That young lawyer was the man who is now chief justice of the United States---Chief Justice John G. Roberts, Jr.

While there is a proven record of attacks on the exclusionary rule (speeches, opinion editorials, litigation, and proposed legislation), none of the attacks, which stem from the idea that there are judicial activists out there who threaten our nation’s Constitution, have ever gained much traction until this recent case.

As Liptak writes, “the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.”

Chief Justice Roberts said of the decision:

To trigger the exclusionary rule…police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. [That price being] letting guilty and possibly dangerous defendants go free.

The Herring decision concerns an “officer's mistaken belief” that Bennie D. Herring, an Alabama man, was “subject to an outstanding arrest warrant. “Sloppy recordkeeping”, apparently, led to the misconduct.

Liptak explains that the decision may not be able to apply to all cases dealing with the “exclusionary rule” but notes that Chief Justice Roberts added a lot of “sweeping suggestions that all sorts of police carelessness should not require.

The wiping away of the exclusionary rule would not be much of a possibility if a man who publicly claims to disagree with Warren Court decisions on areas of criminal procedure, religious freedom, and voting rights, Justice Samuel A. Alito Jr, wasn’t on the Supreme Court with Chief Justice Roberts.

Craig M. Bradley, a law professor at Indiana University, is quoted in the article by Liptak as saying Justice Samuel A. Alito Jr. makes it possible for the elimination of the exclusionary rule.

Justice Antonin Scalia, Justice Clarence Thomas, Justice Samuel A. Alito Jr, and Chief Justice Roberts, all Reagan alumni, make up the four votes that would settle the issue once and for all. The fifth vote would have to come from Justice Anthony M. Kennedy, according to Liptak.

Chief Justice Roberts & the Federalist Society

At the root of the issue concerning the “exclusionary rule” is the idea that the Fourth Amendment could be seriously damaged even more than it already has been by prior court decisions if more cases set precedents like the Herring v. United States quite possibly happens to do.

The problem manifesting itself, however, is not just an issue concerning the Fourth Amendment. It’s an issue of ideology that stems from the background that Chief Justice Roberts has in government and in the public sphere.

When Roberts was up for confirmation, the Washington Post dutifully reported that Roberts was “a member of the Federalist Society” and once served “on the steering committee of the group's Washington chapter.”

The Washington Post highlighted “the eagerness of the White House to distance Roberts from the Federalist Society”, a move which was something the Post claimed “baffled many conservatives", and said many conservatives believed “the reaction fed a false perception that membership in the organization -- an important pillar of the conservative legal movement -- was something nefarious that would damage Roberts's chances of confirmation.”

As Roger Pilon, a vice president at the libertarian Cato Institute put it, "Are you now or have you ever been a member of the Federalist Society?...The Republicans and the White House in particular should take this issue on head-on. What are we talking about here? The Communist Party? The Ku Klux Klan? This is an organization of conservative and libertarian law students, lawyers and legal scholars."

Pilon was “mocking” the suspicions some Americans have toward the group. Are any of these suspicions reasonable?

A long-drawn-out article, “In Defense of Evidence: Against the Exclusionary Rule and Against Libertarian Centralism” posted on LewRockwell.com, a site created by a former chief of staff to Congressman Ron Paul, explains why the “rule” should be opposed by libertarians:

“In its current form, therefore, the exclusionary rule is a means by which federal courts illegally usurp powers that are constitutionally reserved to the states. Of course, libertarians must oppose the states as well as the federal government, since both by their nature commit aggression against innocent victims. From the libertarian standpoint, however, it is better that government power be dispersed rather than centralized. A weak federal government is preferable to a strong one, ceteris paribus. It is generally better for the federal government not to have a particular power, even if that power could be used to protect individual freedom. This is all the more true where the power in question is the power to exclude probative evidence, something that can only protect criminals. Criminals do not deserve protection, least of all from the federal government, itself a criminal organization.”

This argument is not far from the opinion Chief Justice Roberts gave in the recent decision concerning the “exclusionary rule.” Since the Federalist Society consists of conservatives and libertarians, it might be fair to further explore the threat to the “exclusionary rule” by following this ideology which suggests the state must always be opposed and even if it threatens individual freedom because “criminals do not deserve protection.”

The Hoover Institution has posted an essay by Edwin Meese III, who was attorney general under Reagan from 1985-1988. In “The Imperial Judiciary—And What Congress Can Do About It”, which was published in 1997, Meese wrote about how “unelected federal judges are using their awesome power to usurp democracy from the American people.”

The article is a porthole into the ideology of the Reagan alumni which currently occupy the Supreme Court of the United States. Much of it explains why these justices oppose the “exclusionary rule.”

To people like Meese, a key problem in America now (and then) is (and has been) “judicial excesses”, which occur when “federal judges exceed their proper interpretive role” and engage in “judicial activism” and “undermine nearly every aspect of public policy.”

Instances of concern to Meese are explained thoroughly (and I encourage you to explore the other “excesses” described in the article that are not related to "exclusionary rule").

For the purposes of this article, this is what Meese has to say about the “exclusionary rule”:

Hampering criminal prosecution. In Mapp v. Ohio (1961), the Supreme Court began a revolution in criminal procedure by requiring state courts to exclude from criminal cases any evidence found during an "unreasonable" search or seizure. In so holding, the Court overruled a previous case, Wolf v. ColoradoMapp decision unjustifiably infringed upon the states' sovereign judicial systems and forced them to adopt a uniform, federal procedural remedy ill-suited to serve states with "their own peculiar problems in criminal law enforcement." (1949), which had allowed each state to devise its own methods for deterring unreasonable searches and seizures. The Supreme Court in effect acted like a legislature rather than a judicial body. As a dissenting justice noted, the

In fact, nothing in the Fourth Amendment or any other provision of the Constitution mentions the exclusion of evidence, nor does the legislative history of the Constitution indicate that the Framers intended to require such exclusion. Instead we ought to explore other means of deterring police misconduct without acquitting criminals, such as permitting civil lawsuits against reckless government officials and enforcing internal police sanctions against offending officers with fines and demotions.

Since Mapp v. Ohio, the exclusionary rule has had a devastating impact on law enforcement in America. One recent study estimated that 150,000 criminal cases, including 30,000 cases of violence, are dropped or dismissed every year because the exclusionary rule excluded valid, probative evidence needed for prosecution.

The Federalist Society honored former Attorney General Edwin Meese III in 2006.

The NY Times claims, “The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.”

What the “death of the exclusionary rule” means for America is that police could be granted carte blanche when it comes to purposeful or accidental police misconduct. The practices of law enforcement will be less important than creating some sort of proof that the suspect is guilty of a crime.

Any removal of the “rule” also means more and more criminals are locked up behind bars.

Chief Justice Roberts and others who share his ideology may, in theory, have good reason to do what they do but practically speaking, further decisions like Herring v. United States will simply ensure the U.S. continues to do what it does best --- incarcerate its people.

Liptak writes in an article published for the International Herald Tribune in 2008, “the United States leads the world in producing prisoners…Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.”

Let's keep going with this conservative and libertarian ideology and think about what conservatives and libertarians think about taxes, which must pay for the incarceration of prisoners, right?

From LewRockwell.com:

Have you noticed that every time we build a jail it immediately fills to capacity? They’re like homeless shelters. An acquaintance of mine likes to say this about both jails and homeless shelters: if you build them they will come. Jails are schools for criminals. Nobody comes out rehabilitated – that myth was disproved decades ago. Criminals come out better-educated criminals than before they went in.

Liberals say we shouldn’t put violent murderers and rapists to death. They say we should be humane. They say we should lock them in cages like animals.

I ask: how is that humane? Those same liberals gripe when they see actual animals locked in cages.

The truth is that jails are not cages anymore. Jails are: free health care, free dental care, free HBO, free books, free pornography, free air conditioning, free heating, free conjugal visits, free exercise facilities, free trade schools, free showers, free beds, free laundry service, and lots of free time to hone their criminal trade from fellow inmates.

All that is free only to the inmate. The family that the inmate devastated when he raped and murdered their little girl is the one who pays his bills with their taxes. And this is called "justice"?

Don’t get me wrong. If jails were harsh environments I still wouldn’t support their existence. Jails are miserable failures the same way that the government schools are.

Considering the fact that the ideology of the author of this babble may be somewhat different from Chief Justice Roberts and many in the Federalist Society, I will let you decide how much proof this is that conservative and libertarian ideology can be a labyrinth of preposterous thinking which will ultimately lead to more and more conundrums instead of explanations that can be put into practice.

Authors Bio:
Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure." He was an editor for OpEdNews.com