If a moderate Texan could love the exclusionary rule, why can't judicial conservatives?

The law, lawyers, and the court.
June 7 2011 5:41 PM

Mapp v. Ohio Turns 50

If a moderate Texan could love the exclusionary rule, why can't judicial conservatives?

(Continued from Page 1)

How and why an easygoing Texan managed to engineer this historic decision with a court comprised of brilliant prima donnas, including another southerner who happened to be a former member of the KKK, is almost the best part of the story. Although he was good friends with two of the court's leading liberals, Warren and Brennan, Clark was no liberal, no judicial activistand no pushover. A former assistant district attorney and later Harry Truman's attorney general, Clark was as pro-law enforcement as they came. As attorney general he had come under fire from civil libertarians for his stewardship of aTruman anti-Communist law known as the Attorney General's List of Subversive Organizations. So when Clark talked about "judicial integrity" and the problems resulting from federal officers who "were invited to and did … step across the street to the state's attorney with their unconstitutionally seized evidence," there is reason to respect his understanding of law enforcement practices. And that's why, in that elevator, Justice Black, who would become the key fifth vote for incorporation of the exclusionary rule, was willing to listen to him.

As Clark explained the problem in his opinion in Mapp, "a federal prosecutor may make no use of evidence illegally seized, but a state's attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same Amendment."  This discrepancy, he wrote, "serves to encourage disobedience of the Federal Constitution." In closing "the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse" of the basic right to privacy, Mapp relied on principles of deterrence and judicial integrity, as well as logic.

In response to criticism that the decision would "handcuff" the police and allow criminals to go free, Clark replied that clearly defining the constitutional requirements forced police to be more disciplined and would actually lower the risk of evidence being disallowed. Recalling Judge (later Justice) Benjamin Cardozo's famous comment about whether "the criminal is to go free because the constable has blundered," Clark noted, "In some cases this will undoubtedly be the result," but reasoned further that, "The criminal goes free if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."

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The Mapp decision galvanized opposition from those who objected to the "nationalization of the Bill of Rights," particularly in the area of criminal procedure, at a time of increasing crime and social unrest. Yet its critics never have been able to demonstrate that the decision lets large numbers of criminals "go free." In fact, studies show the rate of suppression was remarkably low and even in most of those cases, convictions were achieved. It turns out that police with proper training and a better understanding of the law actually do follow it, with little interference on their law enforcement abilities.

But this hasn't stopped conservative judicial activists from advancing arguments with little basis in reality. Since the 1970s, an increasingly conservative court has issued numerous rulings slowly chipping away at Mapp and now appears to be within one vote of overturning it entirely.  A 2006 decision, Hudson v. Michigan, created yet another significant exception to the exclusionary rule, while its author, Justice Antonin Scalia went so far as to suggest that the rule itself was outdated and no longer required. Never mind that his explanationthat this was due in part to "the increasing professionalism of police forces"was a direct consequence of Mapp itself.  More recent decisions in this area, such as a 2009 ruling in Herring v. United Statescreated an even larger exception to the exclusionary rule by allowing faulty evidence from other police officers, the very group the exclusionary rule is designed to deter. In short, as former New York Times Supreme Court correspondent Linda Greenhouse, discussing a decision from this term that added yet another exception to the warrant requirement wrote, "It's worth wondering what planet the justicesmost of them, anyway … have been living on when it comes to encounters between the police and the rest of us."

Whether the end of Mapp comes from death by a thousand cuts or its actual overruling, either conclusion is problematic for the integrity of our Constitution and system of justice. This is not a proposition that should be embraced by liberals alone. As Justice Clark explained in penning the opinion, Mapp "gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and to the courts, that judicial integrity so necessary in the true administration of justice." Fifty years later, these are still words any true conservative should keep posted next to his or her copy of the Constitution.

Alexander Wohl, a former Supreme Court judicial fellow, is writing a biography of Justice Tom Clark and his son, former Attorney General Ramsey Clark, and their impact on the balance between government power and individual rights.

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