Dear Professor Dershowitz,
Let’s get down to details. You think that tort damages today won’t protect unsavory characters from police abuse, since civil juries will not want to make the police pay damages to “bad” people. Because of this problem, you reluctantly call for the exclusionary rule as an alternative deterrent. Your concern is quite reasonable, but I address it squarely in my book–on Page 44 (middle paragraph); Page 199, Note 215; and Page 201, Note 231. In a nutshell: If the problem is that civil juries won’t be fair to criminals whenever cops end up finding evidence, the civil jury shouldn’t be told whether a search was, in the end, successful–the relevant question is whether the police had good reason beforehand to search, not whether they lucked out and found stuff after the fact. And I further suggest that if you still don’t like civil juries, let judges decide those tort suits–but don’t substitute the exclusionary rule, because that rule rewards the guilty in ways that a fairly administered tort model would not. (Suppose A and B are both searched equally and outrageously, and the cops find nothing on A, and the bloody knife in B’s pocket; B then goes to jail for murder. If A and B both sue, B should perhaps not recover less than A, but surely he should not get more simply because he went to jail for 20 years. The wrong done was the search, not the conviction. Yet the exclusionary rule in effect rewards B with just such a windfall by sparing him from the conviction. A judge-driven tort model or an administrative model would avoid this upside-down world in which the guilty recover more than the innocent.)
You wish I would forcefully condemn exclusionary rules “imposed against the defense.” I do just that on Pages 49-51, 71-73, 94-95, and 132-38, where I defend vigorously the defendant’s right to introduce reliable evidence. And in a Sunday op-ed on O.J. in the Washington Post on April 16, 1995, I did insist that if, say, a man on death row improperly obtains evidence that proves his innocence, we should not “exclude this evidence on the grounds that it was obtained improperly.”
Another point: You say I’m trying to have it “both ways” as a “constitutional literalist.” Honestly, I don’t understand what you could possibly mean here. The founders required neither exclusion nor pretrial depositions; and so (as I explain on Pages 150-51) my constitutional position is that neither is constitutionally required, but both are constitutionally permissible, if that’s what the legislature wants. Now, I happen to think that, today, the exclusionary rule is generally bad legislative policy, whereas pretrial depositions would be a good idea, but surely there’s no inconsistency–at any level–here.
Finally, you invoke the Eighth Amendment as proof that the Constitution protects the guilty as such. I agree. But as I explain on Page 214, Note 131, the Eighth Amendment protects the guilty from barbaric punishment, not from conviction itself. My book is about constitutional criminal procedure–adjudication rules that should promote accurate verdicts of acquittal and conviction. Once we properly convict the guilty, nothing in my book suggests that we should punish persons savagely. Indeed, at the end of my concluding chapter, I suggest that truth-defeating procedural rules of the sort you champion may tend, alas, to encourage savage penal policy, and that this is a lose-lose scenario:
[T]hings do not “cancel out” if we exclude half the evidence, catch half the truly bad guys, and then simply double the punishment for those unlucky enough to get caught. The social norms underlying sensible substantive [criminal] laws are best reinforced with high detection, and quick (though not necessarily severe) punishment. “War on crime” rhetoric needs to be channeled away from savage penal policies, toward strategies that lead to high detection and quick, reliable adjudication. (Page 160.)
But I am grateful for your implicit suggestion that I should say more about the Eighth Amendment. Some day (perhaps in a sequel) I hope to write an essay on “Eighth Amendment first principles.” Its theme will be that we should convict the guilty, but treat them humanely.