Liberal Professor Feels Violated by Justice Scalia

Thursday, July 06, 2006

Supporters of criminal rights were enraged when the Supreme Court ruled in Hudson v. Michigan this term to weaken the exclusionary rule and allow evidence to be submitted at trial even if collected improperly. Among them was a liberal professor whose own theory was used against him by the smartest justice on the Supreme Court.

In his piece titled Scalia got it wrong in police ruling for the L.A. Times, professor Samuel Walker fumes over the decision:

A FRIEND e-mailed me last week with exciting news -- the Supreme Court had cited one of my criminal-justice policy books in an important, late-term decision. My law professor friends tell me that being mentioned by the court is a huge deal. And my 93-year-old mother in Cleveland will certainly be impressed that her son has finally done something worthy of note

Alas, as I surfed the Net for news about Hudson v. Michigan, my excitement turned to dismay, then horror.

First, I learned that Justice Antonin Scalia cited me to support a terrible decision, holding that the exclusionary rule -- which for decades prevented evidence obtained illegally by police from being used at trial -- no longer applies when cops enter your home without knocking.
Right of the bat, Walker exposes his political identification by calling the ruling "a terrible decision" as he obviously believes in the merits of the exclusionary rule. It's no surprise whenever this professor disagrees with Scalia, especially when he incorporates his own writings.

What caught me off guard in Walker's piece is the part that reveals just how liberal he is when it comes to the Supreme Court and his vision of how it should be deeply involved in political matters governing our country:
Scalia quotes my book, "Taming the System: The Control of Discretion in American Criminal Justice," on the point that there has been tremendous progress "in the education, training and supervision of police officers" since the 1961 Mapp decision, which imposed the exclusionary rule on local law enforcement.

My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court's interventions (Mapp and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse.

Scalia's opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing.

To the contrary, I have argued that the results reinforce the Supreme Court's continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.
Walker accuses Scalia of misrepresenting his opinion, but all the justice did was use the same findings to come to a different conclusion. Walker believes the exclusionary rule has required law enforcement to reform its policies over the years and that it should continue. Scalia believes it is no longer necessary. The difference is Scalia has a much better constitutional argument to make while Walker has to rewrite the purpose of the judicial branch...and admits it:
The ideal approach is for the court to join the other branches of government in a mix of remedies for police misconduct: judicially mandated exclusionary rules, legislation to give citizens oversight of police and administrative reforms in training and supervision.

No single remedy is sufficient to this very important task. Hudson marks a dangerous step backward in removing a crucial component of that mix.
But the Supreme Court was never supposed to "mix" with the other branches to do whatever today's criminologist feels is important. The Court was created specifically as an independent branch to correct legislative wrongdoings among a limited number of other things unrelated to this topic. Laws governing police should be written -- naturally -- by lawmakers.

Libertarians have a right to be concerned about the outcome of this case because police now get more power to conduct investigations. But let's not overestimate the Fourth Amendment. We are protected against "unreasonable searches and seizures." There was nothing unreasonable about the evidence seized from Hudson - even with the police having failed to properly "knock and announce."