285. The first duty of government (revised)

British Prime Minister Gordon Brown, speaking to the nation after the terrorist attack on the Glasgow airport, said: "The first duty of the government is the security and safety of all the British people."

American judges disagree.  A system of law that recognized the safety of the people as it highest priority would never conceal evidence of criminal violence from its jurors.  Rather, even as it recognized that preventing violence is better than responding to it, it would act on the principle that responding to violence is better than passively accepting it.

American judges have rejected that concept of government.  Instead, they hold - as a matter of the loftiest principle - that the security and safety of the people must never be permitted to become more than a secondary concern of the government.

The first duty of the government is to protect the constitutional rights of the accused.  That's why, for example, Illinois judges allowed James Ealy to go free after killing four people.  (See post 224.) 

The judges who set him free after he wiped out a whole family told him, in so many words, that there is no act so horrible as to be entirely unacceptable in American society.  Raping a small boy, strangling him and his mother, grandmother and aunt -  American judges are prepared to accept all that.   Protecting the boy and his female relatives from harm, or according them justice after their deaths - those weren't trivial concerns, but they were secondary.  The government's higher duty was to protect James Ealy from ... the government.

The first version of this post sounded angry and bitter, but the idea it was trying to get across is neither.  On the contrary, it's something that lawyers who practice criminal law simply take for granted.  And yet it's that odd thing, an unfamiliar truism.  The whole point of the judge-made exclusionary rules invented since 1961 is that some things are more important than enforcing laws intended to ensure the security and safety of the people.

Criminal law, in America, is always conditional: Thou shalt not kill, unless a judge believes the police wrongfully obtained evidence against you, in which case thou canst go ahead. 

Comments

[Jeff Gamso]

It's a quibble, I suppose, to point out that the exclusionary rule was actually adopted by the Supreme Court in Weeks v. United States back in 1914. The Court applied that rule to the states in 1961, but it was already out there.

I mention it, though, not to quibble but to remind that protecting the rights of the accused is not an idea first invented by that bunch of wild-eyed liberals forming the Warren Court but a good deal earlier, and at what many might think a less starry-eyed time.

[Joel Jacobsen]

You're absolutely right, and it shows how curious it is that we so unthinkingly conceive of the non-textual exclusionary rules as "liberal." If they were inaugurated by a notoriously reactionary Court, shouldn't that tell us something about the politics they embody?