Two Final Notes On Hudson

Radley Balko’s post about Scalia’s Orwellian citations made me think of two points I neglected in my previous post on the subject:

• Scalia’s causal logic is, indeed, bizarre–the fact that the procedural decisions of the Warren Court led to a decline in civil liberties abuses is cited as an argument…for gutting the procedural protections provided by the judiciary! For this reason, I think it’s wrong when people say that the exclusionary rule provides no protection to the innocent. This is true with respect to the victim who has already been wronged, but it’s not true looking forward at preventing future abuses. The point of the exclusionary rule is not to throw out lots of reliable evidence per se, but to create incentives that stop police from conducting illegal searches in the first place. This professionalization of the police force benefits all citizens, not just accused criminals looking to get sprung on a “technicality.”
• It’s also worth noting that (as I think Balko as said elsewhere) that replacing clear, uniform rules with the whim of individual justices about what constitutes due process is bad for police as well as for defendants. As William O. Douglas said long ago (“we cannot in fairness free the state courts from that command and yet excoriate them for flouting the “decencies of civilized conduct” when they admit the evidence. That is to make the rule turn not on the Constitution but on the idiosyncrasies of the judges who sit here.”) to make decisions about the constitutionality of searches turn on the unarticulable whims of Felix Frankfurter or whatever judge is hearing the case is odious because police officers have no idea what’s legal and what isn’t, which discourages the development of internal procedures that prevent abuses before they happen, which is the most important thing. (Warren, who was, after all, a former prosecutor emphasized this in Miranda.) This unpredictability, in other words, isn’t just bad for the rights of defendants–after all, some state and local judges will have unarticulable libertarian biases–but bad for legitimate police work as well.