Balancing Law enforcement and Individual liberties

Balancing Law Enforcement and Individual Liberties; the
Case of the exclusionary rule.

The forth amendment to the United States Constitution states that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. The exclusionary rule is meant to enforce the above constitutional protection.
The above constitutional provision outlines certain fundamental rights and liberties which are inherent to all citizens regardless of their individual orientations and peculiarities. In view of this, there can be no conclusive discussion on the exclusionary rule without making reference to the tenets of the forth amendment which constitute the pivot around which the exclusionary rule rotates. While the larger society is kept in check by the police and other law enforcement agencies, the exclusionary rule can be said to provide the mechanism with which to police the police. This is because human as they are, police officers and for that matter, all law enforcement officers are bound to commit blunders which need to be remedied.
The exclusionary rule is a legal framework which is intended to serve as checks and balances against police officers who illegally gather evidence in violation of the Forth Amendment to the American constitution.
According to Judge Calabresi, the exclusionary rule, among other things serves as an indicator with which an individual can identify various persuasions of American politicians. To him, Liberals view the exclusionary rule as the backbone for the protection of civil rights and liberties as enshrined in the Forth Amendment. On the other hand, Conservatives regard the exclusionary rule as a major stumbling block to the fight against crime and argue that it serves as an escape route for criminals to avoid punishment (Harvard Journal of Law and Public Policy Vol. 26 page 112).
Notwithstanding the above generalizations, the exclusionary rule is in fact, a constitutional framework which seeks to provide the necessary protection and remedies to individuals who fall victims to police misconduct and violations during the evidence gathering processes of criminal investigations. It is a rule of exclusion which forbids law enforcement professionals from presenting evidence obtained in violation of the constitution during criminal trials (Worrall 2004, page 54).
In his analysis, Judge Calabresi points out that in spite of the good intentions of the framers of the exclusionary rule, it has not live up to its expectations because it does not provide any direct punishment to offending police officers, neither does it give adequate incentive for people to report police misconduct. This according to the Judge is mainly due to Judges over reliance on precedents, the rapid expansion of the reasonable search doctrine, and the tendency for Juries to identify with the police during Tort suits, and not the criminal whose rights have been violated by the police (Harvard Journal of Law and Public Policy Vol. 26 pages 112 -114). He therefore proposes other alternatives to the exclusionary rule.
One of the prominent alternatives proposed by Judge Calabresi is the “after trial hearing” session to determine whether the evidence used by police during the original trial was obtained legally or not. So that if it is found that the evidence was illegally obtained, then the sentence will be proportionately reduced to reflect the degree of violation by the police. Furthermore, he proposes direct punitive measures such as civil law suits, criminal prosecution, civil and internal reviews against police officers who are found to be liable for misconduct or violated the Forth Amendment rights of convicted persons during their investigations.
Contrary to Judge Calabresi’s propositions, Professor Kamisar argues that, in spite of the seemingly ineffectiveness of the exclusionary rule, it has stood the test of time because there have been several attempts to replace it and yet none of such attempts has succeeded. According to him, the absence of the exclusionary rule will open the floodlights for police officers to violate the forth amendment rights of accused persons with impunity. He also refuted the suggestion for the after trial hearing which is intended to establish violation of a convicted person’s rights in order to determine the length of sentence to be imposed. He pointed out that conviction of a person is one thing, and length of the sentence is a different thing altogether. Therefore, once an individual is convicted of a crime, the sentence becomes secondary and so a reduction of a sentence as a result of police misconduct does not necessary serve as an incentive to the convict. He also asserted that there is, and there can be no direct punishment of the individual police officer after the convict has been thrown into jail as a result of a police officer’s illegal acts (Harvard Journal of Law and Public Policy vol. 26 pages 135 – 137).
Despite his sharp criticisms, Professor Kamisar however agrees with Judge Calabresi that the basic principles of the exclusionary rule is to serve as checks and balances against police violation of the forth amendment and also to provide necessary remedies to those whose rights are violated. They also agree that by the very nature of their work, Judges and for that matter, Juries are somewhat restrained from enforcing the exclusionary rule to the latter against police officers who are deemed as “friends of the courts” by virtue of their complimentary role to the judicial system. In my view, the point of contention is the process of implementation of the exclusionary rule. While Judge Calabresi proposes an “after trial hearing” and direct punishment approach, Professor Kamisar suggests sticking to the exclusionary rule and simultaneously experimenting with other alternatives carefully and slowly for a period of time in order to enable policy makers have ample time before a firm decision is taken to replace the exclusionary rule. Considering the two opinions, there is therefore the need to secure a workable compromise for the common good.
Individuals’ security, liberties, freedom from unlawful interferences, privacy, and protection against official excesses are all wrap up in the forth amendment to the constitution. However, in an ever growing sophisticated society like the United States of America, there is also the need for law enforcement professionals and their affiliated agencies to protect and defend the lives and liberties of all citizens against criminals. At the same time, they have to maintain a balance between law, order, individual liberties, and generally peaceful coexistence at all times. For the police to achieve all these there is bound to be a collision between law enforcement and citizens’ rights and liberties and so the exclusionary rule, while it may not be perfect, is a necessary tool to address any excesses to ensure a workable balance between liberty, law, and order.