Q: Does 'Reform' of the Exclusionary Rule Threaten Our Liberties?

Article excerpt

Yes: Power grab violates the rights of every citizen.

In today's political Jargon, "reform" often means the dismantling of an entrenched federal program that has fallen from favor. People of goodwill may well disagree over whether a particular tax-"reform" or Medicare-"reform" bill is or is not desirable for the country. But when the "program" that's being dismantled is one of the core protections guaranteed by the Bill of Rights, we should all vociferously object.

The so-called Exclusionary Rule Reform Act, or HR 666, passed by the House of Representatives in February by a better than 2-to- 1 margin, would, in the name of reform, make it practically impossible to enforce the Fourth Amendment to the Constitution. It would, for the first time in this nation's history, explicitly allow federal prosecutors to use evidence in court even if it had been seized illegally by the police without a search warrant by codifying a general "good-faith exception" to the Fourth Amendment's Exclusionary Rule. Although the general public has not yet awakened to its dangers, an unusual alliance of organizations from across the political spectrum is now working hard to defeat HR 666s passage by Congress.

On Oct. 24th, the American Civil Liberties Union, the National Rifle Association, the Citizens Committee for the Right to Bear and Keep Arms, the National Association of Criminal Defense Lawyers, the Gun Owners of America, the Drug Policy Foundation and several other groups called upon Congress and the Clinton administration to adopt a 24-point plan to halt the abuse of power by federal law-enforcement agencies. In a letter to congressional leaders, these organizations urged the rejection of HR 666 (and its Senate version, S 3, sec. 507), arguing that "Congress should certainly preserve, and indeed strengthen, the Exclusionary Rule to safeguard citizen rights and curb police misconduct." Congress should heed this advice.

The Exclusionary Rule was first announced by a strictly conservative Supreme Court in 1914 in the face of rampant lawlessness by federal law-enforcement agents. Although it has been weakened in recent years by a series of Supreme Court decisions recognizing various exceptions to the rule's strictures, the court nonetheless consistently has upheld the Exclusionary Rule itself as the only effective means of deterring Fourth Amendment violations. The rule operates by excluding from trial any evidence seized in violation of the Fourth Amendment's warrant and probable-cause requirements, thereby deterring illegal searches by rendering their fruits useless. No other mechanism for enforcing compliance with the Fourth Amendment has proved anywhere near as effective.

The rule nevertheless has been attacked politically as hindering law enforcement practically since its inception, and the House debate in February echoed this tired and spurious refrain. The bill's sponsor, Rep. Bill McCollum, a Florida Republican, proclaimed that "these technicalities are killing a lot of our police officers' efforts and the prosecutors' efforts to get convictions." Not true.

Most law-enforcement officials do not believe that the Exclusionary Rule interferes with their effectiveness. In 1988, the American Bar Association published a comprehensive report on the impact of constitutional rights on crime and crime control. After gathering the testimony of hundreds of judges, prosecutors and police officers describing in detail the problems they faced daily in their work, the report concluded that "the Exclusionary Rule neither causes serious malfunctioning of the criminal justice system nor promotes crime." Further, it observed that "the police, toward whom the deterrent force of the Exclusionary Rule is primarily directed, do not consider search and seizure proscriptions to be a serious obstacle." Many police administrators have emphasized that the rule has professionalized the police and made their work better.

The police and prosecutors' experience is supported by the, numbers. …