Crime or Punishment?

Our courts do not do well in enforcing a legal order in which law-abiding citizens can be secure in their lives, their liberties’ and their pursuit of happiness. Yet it is “to secure these rights” that “governments are instituted among men.” Our courts, rather than concentrating on whether those arrested for a crime are guilty of it, are preoccupied with deciding whether there was “probable cause” for the arrest. They are less concerned with the defendant’s guilt or innocence than with whether the evidence for his guilt is admissible. If it isn’t—if a policeman made an error in seizing the evidence—the defendant gets off, however many murders he has committed.

The exclusionary rule on which this procedure rests is a late invention of our courts (in no way mandated by the Constitution). A letter to the New York Times illustrates its perverse effects:

EH

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Ernest van den Haag

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Our courts do not do well in enforcing a legal order in which law-abiding citizens can be secure in their lives, their liberties’ and their pursuit of happiness. Yet it is “to secure these rights” that “governments are instituted among men.” Our courts, rather than concentrating on whether those arrested for a crime are guilty of it, are preoccupied with deciding whether there was “probable cause” for the arrest. They are less concerned with the defendant’s guilt or innocence than with whether the evidence for his guilt is admissible. If it isn’t—if a policeman made an error in seizing the evidence—the defendant gets off, however many murders he has committed.

The exclusionary rule on which this procedure rests is a late invention of our courts (in no way mandated by the Constitution). A letter to the New York Times illustrates its perverse effects: