JUDGING CRIMES

One of the themes of this blog is that we should evaluate our legal system by looking at what it does rather than examining the words its judges use or their protestations of good intentions.  That approach can be applied more broadly, too. 

Take Richard Nixon's War on Drugs.  If one were to reason from effects backwards to intent, one would have to conclude that Nixon was not motivated to reduce the consumption of illegal drugs.  We're wrapping up the fourth decade of "war" and while there's some evidence that fewer people are passing around joints today than when the Grateful Dead was doing 10-minute versions of "Peggy-O," more are using methamphetamine, prescription painkillers, crack cocaine and ecstasy.

Here's Brian Bennett's huge selection of government data presented graphically - lots of flat lines.  And here's a chart suggesting marijuana is as readily available to teenagers today as in 1975.  If the intent of the "War on Drugs" is measured by effects, and its effects don't include decreasing drug use, or even limiting drug availability, we can only conclude its intent was/is something else. 

Reasoning back from effect to intent, the intent of the "War on Drugs" must have been to:

1. Destroy the economies and destabilize the polities of Colombia, Bolivia, Ecuador and Peru. 
2. Vastly increase the size of the federal police force.
3. Simultaneously encourage police corruption.
4. Vastly increase the number of children growing up without their fathers, and teach them that it's normal to have family members in jail.
5. Vastly increase the number of people under "correctional control" - in jail or prison, on probation or parole.  In 1980, which was already nine years into the "War," 1,842,100 Americans were under correctional  control.  In 2005 the number was 7,056,000.  That's an increase of about 383%.  Over the same period, the national population increased by 23%.  (Here's the 1980 population figure, here's 2005.)

I'm quite capable of thinking ill of Nixon, but even I can't really believe he intended effects 1, 3 and 4.  (He might not have cared, but he probably didn't intend them.)  I can, however, easily believe he intended # 5, not for its own sake but - again reasoning backwards from effect to intent - because it represented the disenfranchisement of so many people who were highly unlikely to vote Republican.  The high percentage of Black prisoners can be seen as just one aspect of the Republican Party's extremely successful Southern Strategy.

Last week's Hudson v. Michigan decision, the Supreme Court's knock and announce case, is the place where a lot of strands of our criminal law come together.  (See post 126 and post 124.)  I think there's no function of government - no reason for government's existence - more basic than protecting society's members from physical harm.  That's why our ancestors first started hanging around in groups.

But the whole point of the various exclusionary rules, both the textual (fifth amendment protection against coerced confessions) and non-textual ones (all the rest), is that some things are more important than enforcing the criminal law.  And one of those things, we've been told, is to protect the reasonable expectation of privacy.

Knock and announce cases all involve valid search warrants, issued by a judge and supported by probable cause - if they didn't, the evidence would be suppressed for that reason alone.  So whatever expectation of privacy the occupant has is pretty much illusory to begin with - the cops already have permission to enter, one way or the other. 

The dispute in knock and announce cases always boils down to (1) whether the cops knocked and announced at all, and, if they did, (2) whether they waited long enough before kicking in the door.  "Long enough" means some figure between 5 and 20 seconds, pretty much.  (See post 126.)  So the expectation of privacy that's more significant than enforcing the criminal law is 15 seconds or less of knowing that the cops are going to break down your door if you don't open it at once.

Of course, the cops sometimes raid the homes of the innocent.  There's a description of one such fiasco in Edward Conlon's Blue Blood - the cops recognize immediately that the information they received was bad, but once they're inside they don't have any choice but to see the raid through to its dismal end.  So a good argument could be made that we need a rule to protect the innocent from rampaging cops.

Unfortunately, the knock and announce rule isn't it.  Those who are innocent - those who don't have drugs, or stolen property, or murder weapons in their homes - get no benefit at all from a rule that suppresses (i.e., conceals from the jury) evidence of such things.  We've developed a remedy for innocents that doesn't help them at all, like treating pneumonia with wrist splints.

The only people who receive any benefit from suppression of evidence found during a premature police raid are those with evidence to suppress.  Those, in short, who actually had a motive either to destroy evidence or to shoot the officers coming through the door. 

So with the announced intention to protect those who don't have such a motive, we've created a rule that protects only those who do.  It's nearly perfect in its way.

When the only thing the police discover inside the home is drugs, it's easy to believe in a sort of half-thinking way that no real harm comes from letting the poor defendant get away with it.   Not all drug traffickers are antisocials, some are probably pretty harmless (see post 93) and we know for a fact that the overall availability of drugs in the neighborhood isn't going to change whether this dealer walks or rots in federal prison.

But when you start down the road of pretending that the Constitution requires you to hide evidence from the jury, you're stuck with hiding it, even when the crime involved isn't something as comfortably quaint (or so it probably seems to many baby-boomer judges) as selling pot.  If the knock, announce and wait rule is actually written (in invisible ink) in the fourth amendment, then it applies equally to the person carving up fresh cadavers in his bathtub to feed to the alligators.

Assuming you're not a drug dealer, the risk of police kicking down your door is pretty slight today, but before the war on drugs it was just about exactly nil.  The knock, announce and wait rule is one more way in which the war on drugs has damaged American society.

Most significantly of all, the knock, announce and wait rule, justified as a way to protect homeowners from property damage and to compensate them for injuries to their dignity,  is essentially a tort claim.  The government prosecutes you, but you sue the government for damages.  But - and this is the really interesting part - the damages to which you claim legal entitlement is the right to break the law.

Our legal system considers money an adequate compensation for the mill worker whose arm is ripped off by the machine, or the parent who loses a child to medical malpractice, or the policyholder confronted with a crooked adjuster.   But one class of victims receives something even better than money.  They receive a get-out-of-jail free card. 

The underlying, unspoken and unexamined assumption is that it's not possible to provide compensation to victims of police misconduct and still enforce the criminal law.  But why not?  It's true, as a practical matter, that juries aren't much inclined to award damages in civil rights actions brought by guilty people, as Norm Pattis points out.  But the solution suggests itself: a mechanism for providing predictable monetary compensation in a non-jury proceeding, like workers comp. 

There's no political will for such an obvious solution because our definition of "crime" has diverged so far from the fundamental purpose of criminal law.  As long as violent crime and drug possession are treated as the same thing, we're going to continue to have judges who invent new constitutional doctrines out of thin air to counteract the sentencing laws that are so ferocious in part because judges have spent much of the last 30 years inventing new constitutional doctrines out of thin air.

Here's the lede from an AP story about the Supreme Court's decision this week in Hudson v. Michigan (see post 124):

The Supreme Court made it easier Thursday for police to barge into homes and seize evidence without knocking or waiting, a sign of the court's new conservatism with Samuel Alito on board.

Conservatives, you see, like police barging into their homes.  Many, in fact, keep a sherry goblet waiting on the sideboard in the entrance hall, to greet the officers who splinter their carved doors in the middle of the night.

The AP reporter assured us that the decision was "a significant rollback of earlier rulings protective of homeowners", by which he or she must have meant the 1995 decision written by Justice Thomas.  Since three of the justices who participated in the 1995 decision voted with the majority in Hudson,  that means they were rolling back their own prior decision. 

But doesn't this make the story a sad example of burying the lede?  Isn't the really big news that three justices were retreating from the position they staked out just 11 years ago?  When's the last time you can remember Justice Scalia admitting he was wrong?

Well, perhaps it's asking too much to expect an AP reporter to know anything about recent constitutional history - the Constitution is such a squirmy, changeable thing.  1995 is ancient history, constitutional criminal procedure-wise.

But if the Hudson decision made it easier for police to barge into people's homes, you have to wonder how the knock and announce rule made it hard.  Was it a kind of temporary force field?  Was it pixie dust that transformed cops from barges into gliding sloops?  Should we picture a judge in his black robe standing beside the front door, stopwatch in his hand, giving the signal to the battering ram after exactly 15 seconds?  Or 30?  Or whatever that particular judge thought was about right?

(Doesn't "battering ram" suggest something more like this or maybe even this?  Here's the disappointing reality, here's it in action, and here are the specs.)

The AP story might have been more accurate if it had started:

The Supreme Court ruled today that truthful information is not necessarily such a terrible thing to provide to jurors, a sign of an increased commitment to reality with Samuel Alito on board.

Or:

The Supreme Court ruled today that judges, who have no training or experience in law enforcement, and are too chicken to accompany cops serving warrants they themselves have issued, might not be ideally qualified to establish standard operating procedures for law enforcement agencies.

Or:

The Supreme Court ruled today that any expectation of privacy a homeowner has after a squad of Kevlar-jacketed cops armed with a valid warrant deploy around his house is illusory, at best.  Writing for the majority, Justice Antonin Scalia held: "There is considerable folk wisdom in the lyric, 'If you've got a warrant, I guess you're gonna come in.'  Whether it's now or ten seconds from now doesn't really matter, does it?"

Suppressing evidence as a result of a "violation" of the knock-announce-and-wait rule didn't stop police from barging in.  It just meant juries didn't learn what the cops found once they were inside.  It's understandable that lawyers and judges act as if they can't perceive any difference between the two - the Supreme Court has told us there's none, and the law is a hierarchy as strict as the military.  We follow orders.  But I never understand why reporters feel compelled to go along with our game of constitutional make-believe.

I put "violation" in quotes because no one actually knows what it takes to violate the knock and announce rule.  Over at Crime & Federalism, we read:

Absent extreme circumstances, the Fourth Amendment prevents police officers from kicking down a citizen's door when executing a search warrant.  The police are required to knock on the door, announced their presence, and wait from 20-30 seconds before kicking down a citizen's door. 

But in 2003, the Supreme Court said 15-20 seconds was okay, given exigent circumstances - and the mere possibility that the cocaine dealer would destroy evidence was exigent enough.  (The poor guy was actually in the shower.)  Is 10 seconds too little?  My local Court of Appeals said it was, based on the specific facts of the case, while remarking that it was a "close question."  But the Sixth Circuit upheld a wait of just 5-10 seconds.

In the case of the showering cocaine dealer, the Ninth Circuit's Judge Fisher wrote:

15 to 20 seconds is not an insignificant amount of time to wait after a loud knock and announcement. Knock, then count out the time to see for yourself.

It's a useful exercise.  15-20 seconds is about how long most phones ring before rolling over to voice mail.  And remember that any cocaine or meth dealer who isn't heavily armed is a fool - think for a minute about the type of people who know best about the cash and drugs he keeps in his home.  And remember, also, that any cocaine or meth dealer who uses the product isn't very good at assessing his own long-term best interest - and that was before he had used enough to display the chronic user's characteristic paranoia. 

Now, how comfortable are you with lining up your body with the rectangular frame of the doorway, knocking on it and yelling, "Police!  Shoot now or face twenty years in prison!  Last chance!"

The drug laws blur the distinction between criminal and antisocial behavior.  No one who knows an aging pothead can doubt that all drugs, no matter how benign in moderation, can be devastating - hold on, that's a bit vigorous.  They can be enfeebling with misuse.  And some drugs aren't benign even in moderation, as a recent Frontline report on meth detailed with some hair-raising photos and graphs.  (Check out the before-and-after mugshots - ever wonder what you'll look like after you've been dead several days?  Makes you wonder why the makers of Sudafed haven't been hit with massive tobacco-style class actions yet.)

Years ago I listened to a psychologist's testimony that use of alcohol or drugs in adolescence tends to freeze the maturation process.   A kid who starts getting stoned every day at age 13 will remain an emotional 13-year-old until he quits.  I don't know if there's any research to back that up, but it explained a lot about high school in the 1970s.

Compassionate judges are reluctant to put pathetic, damaged people - people who are dangerous only to themselves and to anyone unfortunate enough to love them - in prison, where they will become fodder for the true psychopaths that abound in such places.  (See post 93.)  Luckily, from the judge's point of view, there's a way to avoid the necessity of doing that: suppress the evidence.

The exclusionary rule is extremely flexible.  In my experience about half of all suppression motions could plausibly go either way, because there are so many boxes in the flow chart that call for a factual finding or credibility determination, which can't be reviewed on appeal.  In the other 50% of cases, too, the trial judge can do whatever he or she wants, but the possibility of reversal gradually increases.  (See post 53.)  The temptation to tweak the system, just a little bit, to avoid burying some poor schmuck alive must be strong.

From the point of view of the beneficiary, it must be stunning to realize it actually doesn't much matter if a cop catches you with drugs in your pocket.  You can get arrested, and arrested, and arrested, each time with absolute 100% gas-chromatographic proof of your guilt in the baggie inside your mouth (I don't understand why dealers think that's a good place to hide drugs, but they do), and never once get convicted.  (See post 58.) 

Given that a person who chooses to deal cocaine or meth on the street is, by definition, not very adept at calculating his own long-term advantage, it shouldn't be a surprise that he would gradually come to believe himself immune to the law.  Like the rain-dancer who can point to the arrival of the rains, he has the logic of experience on his side.  One might question whether this is a lesson our society is well-advised to teach its least responsibile members.

From the point of view of the cops and prosecutors, the frustration might be comical if not for the threat at the end, as Edward Conlon, a Harvard-educated Bronx policeman and author of Blue Blood, a great cop memoir, describes:

For months, we hit a dope spot run by a guy named Lamont, taking bundles of heroin weekly and in one nice grab, over a thousand dollars in cash.  Though we were little more than an aggravation to him - he was always released, usually without bail - the aggravation did mount, and after I collared him the second time, he told me, "You're making this personal, you're costing me.  You watch your back out there, something might happen."

From the point of view of jurors in hard-hit areas, the drug laws themselves are socially destructive.  (See post 93.)  Their reluctance to convict, and the judges' tendency to err on the side of suppression, combine to make prosecutors leery about pursuing anything but a slam-dunk case.  Conlon captures that dynamic:

[I]n the Bronx, they rarely indicted for an observation sale, unless there were four or five buyers, with stash and cash recovered from the dealer as well.  If you caught two buyers and the dealer, but he had no drugs, you didn't have a case.  Or if you missed the buyers and just grabbed the seller, they only charged misdemeanor possession, even if he had felony weight several times over.  ...

[T]he term "repeat offender" was nearly meaningless: almost every dealer we caught was charged with what they did once, twice, or three times, over a matter of seconds, when they did exactly that, hours a day, for months and years.  They committed felonies more often than they ate, and if eating had been illegal, our food collars would have been thrown out or pled out because we didn't have the menu, the fork, the tip, the waiter, and the belch, all at once.  We could bring in chain gangs of the morbidly obese, sumo wrestlers and opera singers by the groaning busload, and the ADA would say, "Well, according to the record, this was their first meal."

From the point of view of the drug warriors,  it must be frustrating that no matter how much is spent on the War on Drugs, so little changes.  Even the White House Office of National Drug Control Policy ( which has a massive  incentive - bureaucratic survival - to massage the numbers) agrees that the overall effect of enforcement efforts, as measured by price, is mainly to provide windfall profits to a few well-positioned dealers.

In any town of any size, and I imagine in most of the small ones, too, even the straightest middle-aged church-goer has a pretty good idea where to go to buy some crack.  They might not know what crack is, but they could point you to the marketplace.  Forty years of effort have only turned mysteriously exotic opium dens into crack houses while creating an industry devoted to cleaning up meth labs.

Members of Congress and state legislators, either from conviction or from a wish to appear tough on crime, try to do something about drugs.  Unfortunately, the only tools that fall readily to their hands are lengthening sentences or reducing good time.   So punishments for drugs get way out of whack.  When I began practicing criminal law in 1991, New Mexico punished the sale of a half-gram of coke as severely as second degree murder or child abuse resulting in death.  Although the basic sentences for the latter two crimes have since increased, the sale of a second half-gram will still net you more than many murders.

The more extreme drug sentences become, the more incentive for judges to use the exclusionary rule to evade their harshness.   But this produces its own dynamic.   In The Common Law, Oliver Wendell Holmes wrote:

[T]here can be no case in which the law-maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment.  The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed.  [p. 46]

So our legislators show their wish and purpose to prevent the drug trade, while judges resist inflicting the pains that are necessary for the law's threats to be believed, with the result that drug dealers are emboldened, with the result that our legislators increase sentences and reduce good time, and so on, around and around.

My first exposure to the federal Sentencing Guidelines occurred back in the 1980s, when I was in civil practice.  I showed up for a pretrial conference in federal court.  The judge was still in court, conducting a sentencing hearing, and I decided I might as well wait in the courtroom and watch the proceedings.

The man standing before the bench was probably about my age, in his mid to late 20s.  Someone - a federal probation officer, no doubt, but I couldn't have told you that at the time - stood up and said something about the defendant's record.  What he said didn't register with me, because I didn't have any experience with the federal criminal justice system against which to compare it.

Then the defendant spoke to the judge in a quiet, sincere-sounding voice.  Again, because I'd never heard a convicted defendant's allocution before, I didn't realize there was anything unusual about this one.  At the end of the hearing the judge sentenced him to five years or 60 months.  That part was the one thing that struck me as strange.  I later found out that because the constitutionality of the Guidelines was then uncertain, federal judges routinely imposed sentences under both the Guidelines and the old statute.  (So it was the routine part of the hearing that struck me as strange.)

A few minutes later the judge called us into his chambers for the pretrial conference.  But instead of jumping right into the tedious minutiae of discovery and motion deadlines, the judge began talking about the sentence he had just imposed.  He seemed shaken.   The judge told us that the probation people actually believed the defendant's story, which, he assured us, is not the typical attitude of probation officers.  He believed the man's story, too. 

The main outline, as I recall it, was like this: The man had no criminal record.  He was a high school graduate,  married, with a kid or two.  He and his wife had "stretched themselves" when they bought a new home, the sort of thing newspaper financial columnists are always advising young couples to do.  But then he had lost his job through no fault of his own, and had fallen behind in his mortgage payments and was facing the real risk of foreclosure.  At that juncture someone he knew and trusted advised him of an opportunity to earn several thousand bucks simply by driving a car from California to New Mexico.  So he agreed.

The Guidelines exemplify the most fundamental flaw in our criminal justice system, which is our failure to distinguish between criminal and antisocial conduct.  A great deal of seriously destructive conduct isn't criminal in America, and a great deal of criminal conduct isn't antisocial. 

It's obvious to me, and I think it was obvious to my judge, that the 60-month sentence for transporting a carload of pot was far more socially destructive than the act of transporting it.  The family lost its house for sure; the kids grew up without a father in their lives, and quite possibly with a mother whose increased financial responsibilities meant she had less time to spend with them; the children were likely introduced into the subculture of penitentiary families, by and large not such a healthy milieu; the strains on the marriage would have been immense; and when the husband and father finally got out, his record would have made it hard for him ever to find a good job again.

But on the other side of the ledger, if he hadn't been arrested, Albuquerque's stoners would have gotten stoned on the pot seized from the car he was driving.  Thanks to the forceful intervention of the federal authorities the city's stoners, ah, got stoned anyway.  But on different pot.

A couple years later, soon after I began doing criminal appeals, I was assigned a simple hashish possession case.  One witness, we'll call him Abel Baker, was military, or by that time ex-military.  Abel got to know another soldier (or airman, or whatever), whom we'll call Serpent.  Over the course of many months Serpent cultivated a friendship with Abel, until finally Abel trusted him sufficiently to share some of the hashish his sister, also in the military, had mailed from North Africa.

As it turned out, Serpent's ambition in life was to be accepted into the Military Police.  He couldn't wait to inform on Abel (and on Abel's civilian friend, the defendant in the case that landed on my desk).  Abel was court-martialed and dishonorably discharged after serving something like six months in military prison.  The sister, I believe, also had her career destroyed.

Abel was trusting and generous.  Serpent befriended him for the purpose of betraying him.  Abel's behavior was criminal, but Serpent's was antisocial.  The legal system's inability to recognize which was worse rendered it, with a kind of clanking inevitability, as amorally destructive as Serpent himself.

This is from the transcript of a bail hearing that happened to cross my desk.  The speaker is a probation officer, in court to give his evaluation as to whether the defendant, up on drug charges, was a flight risk:

Judge, I found 16 misdemeanor arrests, Judge, 18 bench warrants.  Fifteen of those were failure to appear.  Twelve of them were in citations, Judge; 21 misdemeanor convictions, 21 felony arrests, Judge.  There has been failures to appear, two parole violations, two probation violations, six convictions. I do show he has prior trafficking convictions.

There's doubtless a good deal of double-counting there.   I imagine the probation officer was leafing through a file and reporting the figures as they caught his eye.  But add up the numbers, divide by four, and you still get a pretty impressive rap sheet.

The man's record is a testament to a strong - even Iggy Pop-like - constitution.  He was about 50 years old and had been doing drugs for most of them.  And he was still getting in trouble in the usual poor-schmuck way: he volunteered to act as middleman between the customer and the dealer, hoping for a reward, or an opportunity to knock a corner off a rock, or both.  And the customer was an undercover cop, of course. 

"21 felony arrests ... six convictions".  I won't say numbers like that are common, but it's not at all unusual for drug users to be arrested many times for every time they're prosecuted.  That's one of the side-effects of the fourth amendment exclusionary rule.  If there's a problem with the stop, the frisk, the seizure or the search (those are four distinct categories in fourth amendment law, each with multiple sub-categories), no big-city prosecutor will want to pursue a simple possession case against a small-time addict.   What's the point? 

The truth of this observation can be suggested by statistics.  For example, the FBI reported that in 2000 there were an estimated 1.6 million arrests for drug crimes, while the Bureau of Justice Statistics reports that there were about 319,700 state-court convictions for drug crimes in the same year. 

This is an apples-to-oranges comparison, because some drug cases (the big-quantity ones, and those on federal property) are prosecuted in federal court, and because many, maybe most, of those convicted in 2000 were arrested in previous years.  So the figures don't prove that the ratio of arrests to convictions is 5-to-1.   But I think the true figure is somewhere in that ballpark.

The thing about drug crimes is that the investigation is already over at the time of arrest.  Once the cop pulls the cocaine out of your pocket, all that's left to do is the chemical analysis (and if it doesn't come out positive, you have something else to be upset about).  There's not going to be a whole lot you can say to convince a jury of your innocence.  So while some of the yearly 1.6 million avoid conviction by getting acquitted, their number is relatively small.

(Although my mother once served as an alternate on a grand jury that refused to indict a person who testified he had just picked up his coat from the dry cleaners, which explained how the rocks happened to be in his pocket.)  

To the long list of costs of the war on drugs (see post 38) must be added this one: the creation of an army of people who have been caught red-handed doing something the law declares to be a felony, but who weren't prosecuted for it.  One consequence of the creation of this army - the prevalence of drugs - is obvious.  Future posts will address two other consequences that are a little less obvious.

MF, commenting on post 51, asks: "So what is your alternative to the exclusionary rule??"  The assumption is that the fourth amendment exclusionary rule does something.  If it were eliminated, what would take its place?

To answer that, we first need to figure out what the fourth amendment exclusionary rule does.  (Later posts will deal with the much different question of what it's intended to do.) 

One of the most important things it does is illustrated by the truly spectacular flame-out of northern Missouri Judge Jeffrey D. Sayre.  The Kirksville (Mo.) Daily Express reported that Sayre, who become a county judge at age 33, was assigned the drug prosecution of William Lance May.  That's when things got interesting:

 May hired a Columbia, Mo., attorney to represent him. The indictment alleges that Sayre offered to take care of May's case for less money, and in April Sayre told an intermediary that he would take care of the case for $10,000.

On April 19, 2002, the indictment alleges, Sayre met with May at the Brookfield, Mo., home of an intermediary. May placed $10,000 in cash on the bathroom sink. Sayre later walked into the bathroom and retrieved the money, the indictment stated. May then hired a less expensive attorney for $3,500.

May encouraged his new lawyer to file a motion to suppress evidence, explaining that "he was certain Sayre would rule in his favor."  As indeed Sayre did.

It must have been a rude shock to Judge Sayre to learn that the ungrateful May was talking to the FBI.  Still, there's a good argument to be made that the judge overreacted when he located a hit man and made arrangements to have May murdered.  As always in such conspiracies that make the papers, the "hit man" was an undercover officer.   (Here's the anticlimactic ending to Judge Sayre's public story.)

The whole sordid mess was made possible by the fourth amendment exclusionary rule.  Motions to suppress evidence are almost universal in drug cases and common in every other type of case.  Deciding motions to suppress is a significant part of what a criminal court judge does to fill the day.  In my experience, about half of all motions to suppress could go either way.  A judge could, with roughly equal plausibility, either  grant or deny the motion.  That means the judge - such as, for instance, Judge Sayre - can pretty much do whatever he or she wants to do.  (In the other half of the cases, the judge can still do what he or she wants, but the risk of reversal on appeal rises.)

One reason for this unpredictability is the sheer, lunatic complexity of fourth amendment law.  The amendment is 54 words long, but the leading treatise interpreting it fills six fat volumes.  The use of the medieval word "treatise" to describe this type of learning is telling, because what's known as "fourth amendment jurisprudence" is a mass of hairsplitting commentary on the sacred text. 

To determine whether an officer's response to a perceived emergency is "reasonable" and therefore constitutional,  lawyers and judges have to work their way through a mental flow chart so enormously long that it would require the side of a large barn to represent it graphically.  Picture a cop in his patrol car at night, turning on his dome light to leaf through the six volumes, trying to determine if the situation illuminated by his car's (I mean, unit's) revolving red light (I mean, its emergency equipment) is sufficiently dire to qualify as an exigent circumstance, and you'll know all you really need to know about fourth amendment law.

A judge ruling on the constitutionality of a search or seizure doesn't make one decision but many, giving yes or no answers to the endlessly-unfolding string of subsidiary questions.  All a judge on the take has to do is change a "no" to a "yes", or vice versa, and the paid-for result is achieved.  And, in about half the cases, there's really no argument to be made that the decision should be reversed on appeal.

Combine that abundance of opportunities to hide a corrupt ruling with the amount of money sloshing around in the drug trade.  The temptation is there.  Now consider the roughly 30,000 state court judges and 1275 sitting federal judges.  Imagine that 99% of them are pure as the driven snow.  That leaves 313 who, like Mae West, have drifted.

So that's one thing the fourth amendment exclusionary rule does.  It invites corruption into the judicial system.  In response to MF, any alternative should differ from the current situation in this way: it should produce predictable results, so that the lawyers can know where they stand before the case is filed, and so corrupt rulings will flag themselves by their obvious unreasonableness.  (Future posts will discuss other things the fourth amendment exclusionary rule does.)

A few days ago, BlackProf ran a piece about the disenfranchisement of felons, reporting that a full 25% of black men in Virginia are ineligible to vote because of their records.  In Arizona,  "soldiers and law officers lined up to accept bribes from what they believed were representatives of Mexican cocaine cartels," according to the Arizona Republic.  Bolivia elected a former coca grower as president, while Colombia remains mired in a civil war financed by cocaine.  In my hometown of Albuquerque, Presiding Judge John Brennan pled guilty to cocaine possession.

While the conservative Heritage Foundation floods the Internet with research (or, at least, talking points) about using governmental authority to keep families intact, the Republican Party's 2004 platform advocated prison time for drug users (page 73), tearing families apart in the most literal way imaginable.   The vast increase in America's corrections population since Ronald Reagan took office has helped to normalize prison for millions of children, presumably not the intent of Nancy Reagon's "Just Say No" campaign.  Growing up with an addicted parent is a terrible misery.  But can anyone believe that it's a improvement to grow up with a parent who is not only addicted but in and out of jail?

The costs of the war on drugs include dirty judges (and what cheaper insurance could a drug dealer purchase than a judge?), wars and social breakdown in South America, destroyed families in America, the formal expelling of hundreds of thousands of adults from our political life, and of course the expenditure of billions of dollars.  (For a more vivid sense of how many dollars all those zeroes represent, check out this War on Drugs Clock.)

And the benefits are ...?  Go back to that Republican Party platform and you'll read about the destructive effects of drug use.  The points are all valid, but how are they addressed by the proposed solutions?  How can anyone convince him- or herself that a program in use since Nixon's formation of the DEA is finally going to start working tomorrow?  Mental health professionals have a word to explain it: perseveration.

I grew up with the idea that it was liberal to think that the purpose of prison is, or should be, rehabilitation.  But that idea leads to a very illiberal consequence: it makes incarceration for drug crimes halfway-plausible.

Another – and, I think, more realistic – way to think of prison is as exile.  Prison is a casting-out from society, a way to isolate those people who have demonstrated their inability to live in society without hurting others.  If you think of prison in those seemingly-primitive terms, then locking people up for using drugs makes no sense at all.  Addicts are dangerous to themselves, and to those unfortunate enough to love or trust them.  But the metaphorical knife to the heart is qualitatively different from the literal one.

The central goal of criminal law, and perhaps the only goal, should be to identify, as accurately and certainly as possible, dangerous violent people, the people described by Lonnie Athens, who was so memorably profiled by Richard Rhodes, and by Robert D. Hare, creator of the Hare Psychopathy Checklist.  There was a good reason for our ancestors to huddle together in the back of the cave.  And it remains the most important function of government.