Last Hope for Fourth Amendment Hangs by a Thread; Weekly Standard Rejoices

Over at the Weekly Standard, William Tucker notes gleefully that the exclusionary rule is but one Bush Supreme Court appointment away from extinction.

Tim Lynch’s 1998 Policy Analysis is about all you’ll need to thoroughly refute Tucker’s general thesis. But two specific passages in Tucker’s broadside on the Fourth Amendment are worth addressing:

What makes the exclusionary rule so absurd is that it only protects people who are guilty of crimes. If the police come to your house, knock down your door, ransack your home, throw all your belongings in the street, and find no incriminating evidence, then the exclusionary rule offers you no compensation whatsoever. Only if evidence turns up that shows you to be guilty of something are you rewarded.

This argument – that the exclusionary rule “only protects the guilty” – is a common refrain on the right. Strictly speaking, Tucker’s right. Once the scenario he outlines has taken place, the exclusionary rule offers no remedy. But Tucker and critics like him ignore the rule’s deterrent value. The exclusionary rule helps ensure that fewer of those incidents happen in the first place.

If police know in advance that evidence gathered from ill-conisidered searches performed without adequate investigation won’t hold up in court, they’re more likely to take the necessary precautions to ensure that bad searches don’t happen. That means fewer scenarios like the one Tucker lays out, and fewer of the all-too-real incidents that clutter this map.

Tucker also bites on Justice Scalia’s canard about the new police professionalism, and the new mechanisms we supposedly have in place to deal with police excess:

In pointing out how dated the exclusionary rule has become, Justice Scalia noted both the “increasing professionalism of police forces” and the ease with which aggrieved citizens can now pursue other remedies against the police for the violation of their rights. “Citizens whose Fourth Amendment rights were violated by federal officers could not bring suit until 10 years after Mapp,” Scalia noted. Since then, “Congress has authorized attorney’s fees for civil-rights plaintiffs… . The number of public-interest law firms and lawyers who specialize in civil-rights grievances has greatly expanded… . [E]xtant deterrences against [Fourth amendment violations] are … incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.”

As any civil rights attorney will attest, the barriers to bringing a federal lawsuit agianst a police officer, police department, or city are enormous. The qualified immunity we give individual officers and the sovereign immunity granted to government entities they work for – immunities Scalia has helped broaden – make such suits nearly impossible in all but the most egregious cases. Even then, it’s tough to find a lawyer willing to risk the time and energy to bring a suit that’s likely to be thrown out of court before ever reaching trial.

Throughout the 1990s, New Yorkers on the receiving end of “wrong door” raids like the one Tucker describes weren’t even compensated for the damage done to their homes, much less for the needless terror and fright they suffered. After the “wrong door” raid that ended in the death of innocent city worker Alberta Spruill in 2003, the city instituted some reforms, but has already begun to renege on its promises.

In many cities, the entire warrant process – from the shady informant’s tip to breaking down the suspect’s door – takes only a matter of hours. The judges we entrust with oversight have largely turned the warrant process into a rubber-stamp exercise. And when these lax procedures do result in tragedy, public officials clam up. Transparency and accountability give way to CYA and damage control.

There are some 40,000 paramilitary police raids conducted each year in America, and that number is rising. Given the high stakes and low margin for error associated with such tactics, we need more assurance that police are doing everything possible to ensure they have the right suspect, not less. The coming death of the exclusionary rule should be mourned, not celebrated.

Against Forcing Voters to be Free

Around election time pundits begin to fret about low voter turnout in the United States. Norman Ornstein has even called for mandatory voting, complete with sanctions. The voters should be, as it were, forced to be free.

Ilya Somin at the Volokh Conspiracy shows why such concerns are misplaced. We should be worrying, Ilya says, about the rational ignorance of voters who do go to the polls. His longer argument about voter ignorance may be found here.

Your Tax Dollars at Work

Speaking of my claim yesterday that “people spend other people’s money far less efficiently than their own,” this just in from the Associated Press:

The federal program that provides legal help to poor Americans turns away half of its applicants for lack of resources. But that hasn’t stopped its executives from lavishing expensive meals, chauffeur-driven cars and foreign trips on themselves.

Agency documents obtained by The Associated Press detail the luxuries that executives of the Legal Services Corp. have given themselves with federal money – from $14 “Death by Chocolate” desserts to $400 chauffeured rides to locations within cab distance of their offices.

The government-funded corporation also has a spacious headquarters in Washington’s tony Georgetown district – with views of the Potomac River and a rent significantly higher than other tenants in the same building.

Chuck Grassley, chairman of the Senate Finance Committee, is upset. Maybe at last he can turn his attention from oversight of private charities and universities to his actual job, oversight of federal spending.

When Dogs Are Criminalized, Only Criminals Will Own Them

Kansas City has followed the lead of Denver and Ontario, Canada in instituting a ban on pit bulls. Any pit bulls found in the city will either be turned over to shelters outside the city or, more likely, euthanized.

Breed-specific prohibitions are a bad idea for a variety of reasons, but the most glaring is that the most common target of these laws – the “pit bull” – isn’t really a breed, but a generic name given to dogs with those features we’ve come to associated with aggression. The “pit bull” very generally refers to the American Staffordshire Terrier, but can include a number of breeds with similar features, including the most recent Best in Show at the Westminster Kennel Club and, more importantly, one of my dogs. (We were repeatedly warned when she was a puppy that she might be mistaken for a pit bull, but she’s the sweetest, most harmless dog I’ve ever known, unless you happen to be a rug or a pair of shoes).

What’s more, as the New Yorker’s Malcolm Gladwell has pointed out, it’s not even clear that pit bulls deserve their reputation:

A Georgia-based group called the American Temperament Test Society has put twenty-five thousand dogs through a ten-part standardized drill designed to assess a dog’s stability, shyness, aggressiveness, and friendliness in the company of people. A handler takes a dog on a six-foot lead and judges its reaction to stimuli such as gunshots, an umbrella opening, and a weirdly dressed stranger approaching in a threatening way. Eighty-four per cent of the pit bulls that have been given the test have passed, which ranks pit bulls ahead of beagles, Airedales, bearded collies, and all but one variety of dachshund. “We have tested somewhere around a thousand pit-bull-type dogs,” Carl Herkstroeter, the president of the A.T.T.S., says. “I’ve tested half of them. And of the number I’ve tested I have disqualified one pit bull because of aggressive tendencies. They have done extremely well. They have a good temperament. They are very good with children.”

Pit bulls do boast strong jaws that can lock into place. But many breeds can deliver a nasty bite when provoked. The attention directed at pit bulls seems more due to their trendiness, not to any unique aggressiveness in their genetics. The tough guy dog du jour was once the equally powerful Rottweiler.

Which means the problem is with the owners, not the dogs. Ban pit bulls, and the riffraff that uses them for nefarious purposes will move on to another breed.

The law in Kansas City, however, is particularly dumb. Apparently, the city has instituted an “amnesty period,” during which well-intentioned owners can turn their pups over for euthanizing without facing a fine.

To see the folly in this proposal, let’s consider two hypothetical put bull owners.

Owner A is a family who had the misfortune of picking a pit bull from the pet store, breeder, or pound. They’ve raised the dog as a pet, and it lives in a happy, loving home. It’s harmless.

Owner B is a drug dealer who bought a pit bull to protect his contraband. He has trained the dog to attack. The dog, obviously, is vicious and dangerous.

Which dog owner is more likely to follow the law, and take advantage of the amnesty period? Which dog is more likely to be turned over and euthanized?

Seems to me that Kansas City has created a scenario where all of the harmless pit bulls around town will be destroyed, leaving only the dangerous ones.

Which of course will (1) reinforce stereotypes about the breed, and (2) likely give police license to shoot on sight any dog remotely resembling a pit bull without much in the way of repercussions.

Winning with Zero

Though prospects for broad reform of the U.S. antidumping law are tied to the now-moribund Doha Round of trade negotiations, curtailing antidumping abuse is still viable through other channels. Yesterday, the Appellate Body of the World Trade Organization ruled that the U.S. dumping calculation technique known as “zeroing” violates the WTO’s Antidumping Agreement.

In determining margins of dumping (which dictate the prospective antidumping duties applied to affected imports), the Department of Commerce typically compares a foreign exporter’s U.S. and home market prices. There are usually dozens or hundreds (sometimes thousands) of comparisons made, each generating a margin of dumping, which can be positive, negative or zero.

Before averaging the individual dumping margins to produce an overall antidumping duty rate, the DOC perpetrates some sleight of hand by setting all of the negative dumping margins to zero. This, of course, has the effect of seriously inflating the overall rate and dissuading subsequent importation.

Zeroing is probably the most distortive of a multitude of methodological tricks the DOC undertakes in the name of fighting unfair trade. In previous research, Brink Lindsey and I looked at 18 actual dumping cases and found that had the DOC not engaged in zeroing, the antidumping duty rates would have been, on average, 89 percent lower.

If the United States complies with yesterday’s ruling and ceases the practice in all cases prospectively, the antidumping law will remain a nuisance, but its capacity to seriously obstruct trade will be weakened considerably.

The Decider, Hard at Work

It’s no secret that President Bush doesn’t take well to criticism (or even actual non-filtered news), and doesn’t do much to break out of the groupthink bubble down on Pennsylvania Ave. But now for some reason the administration has decided to start pretending that they seek outside counsel. Back in June, the president held a much-ballyhooed “war council” at Camp David that was portrayed as a broad-minded president seeking to mix it up with a variety of opposing intellectuals. The scholars on that panel were

Frederick Kagan, AEI, full-throated neocon

Eliot Cohen, SAIS, full-throated neocon

Robert Kaplan, The Atlantic, advocate of American empire

Michael Vickers, former CIA, vocal war proponent turned tactical critic

So much for intellectual diversity at that summit. But now the White House is touting another panel of critics, held earlier this week, that is supposed to help Bush figure out what the heck’s going on in Iraq. Here’s how spinmeister Tony Snow spun the meeting:

What the president does in sessions like this is invite people to express very openly their candid views on things. They play a role in the sense that they add to the president’s knowledge and understanding of the region, they introduce new ideas, and they allow him to question closely people who spend the vast majority of their time studying issues that are of keen concern to him, and, at this point, to the country.

We do not invite in “amen choruses.’’ What you do is you invite smart people in who have different points of view… And that’s a very useful service. You don’t want people who are simply saying exactly the same thing.

Right, you wouldn’t want them to say exactly the same thing. But trouble is, it seems that The Decider didn’t even want the experts’ views. Here’s Vali Nasr, one of the participants in the recent panel, on what he did and didn’t contribute:

I didn’t give an opinion about policy. They didn’t ask if it was a good policy or not.

I wonder why.