The Corner

Red Herring

Glenn Reynolds writes:

[N]ow the Supreme Court, in its just-released decision in Herring v. United States, has ruled that simple negligence by police – in arresting a man based on a warrant that had been withdrawn, but left in the computer by mistake – isn’t enough to justify excluding the evidence found during that arrest.

Being a “public servant,” apparently, means being free to make the kind of mistakes that the rest of us aren’t allowed. . . .

You can see their reasoning. Herring’s a bad guy. Why punish the police by letting a guilty man go free when they just made a simple mistake?

Except that the rest of us enjoy no such immunity. If you’re a citizen who, say, accidentally carries a gun into a designated “gun-free” zone, the Supreme Court will not say that you can escape punishment because your action was “the result of isolated negligence.” For citizens, there’s no “I forgot” defense.

What I think this analysis misses is that letting criminals go free in these cases punishes the public, not just the police. The Supreme Court has made the judgment–a properly legislative judgment, one would think–that this cost is worth paying in order to deter police misconduct. But when that misconduct is unintentional that weighing of the balance becomes hard to sustain, and a good-faith exception to the rule makes sense.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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