Amar Loses His Way on Mapp

We’re all prey to motivated reasoning, as I keep reading in articles about Antonin Scalia (such as this withering critique by judge Richard Posner), so of course that means I am too. I hope readers will point out when that happens, unless you have the same motivations and don’t realize.

One example I noticed recently was in the book America’s Unwritten Constitution by Akhil Reed Amar. Amar is a law professor at Yale and I’ve seen him on Chris Hayes and Melissa Harris Perry talking about the national popular vote movement, reforming the Senate’s filibuster rule, and the Voting Rights Act’s destruction by the Supreme Court, among other legal topics related to how we govern this country. He’s well-spoken and makes compelling arguments on these topics.

His book is a pretty good read, though the writing is occasionally on the legalistic/academic end. He explains the many unenumerated rights in the Constitution and Bill of Rights, based on the legal thinking of the late 18th century and later years when constitutional amendments were passed. He covers important topics like speech, religion, and voting rights. Even that shibboleth of textualists, the right to privacy.

There’s one topic within the many covered in the book, though, where Amar's perspective on the law diverges sharply from all the others, in my opinion, given that he’s considered to be a “liberal scholar” of the Constitution: the exclusionary rule.

The exclusionary rule, based on the Fourth Amendment, says that police are excluded from using evidence in court that was taken through unreasonable search and seizure. The first case in question was Mapp. v. Ohio. In that 1961 case, the court majority found that without excluding such evidence, the Fourth Amendment was meaningless, “a mere ‘form of words.” Amar labels this hyperbole, but that makes no sense to me. The amendment say:

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.

If police can search without probable cause or beyond their warrant’s scope and introduce the evidence toward a conviction, what meaning do those words have?

Amar claims (I imagine correctly, since he’s the legal historian) that the writers of the Bill of Rights would have assumed people whose rights were violated would have recourse through civil action against the illegal seizure, rather than through the protection of exclusion.

Oh, right. How would that work? Let’s say you’re a poor person. The police raid your house without a warrant and find some drugs you have for personal use. You’re convicted based on that evidence, and Amar thinks you’re going to be able to file in civil court to recover punitive damages against the police. It would take years to get a trial date, and you’d need a lawyer you can’t pay for since civil courts are not covered under Gideon v. Wainright. Meanwhile, you’d be in prison anyway, so all of that would be a bit hard to manage. And that unrealistic “threat” of punitive damages is supposed to keep the police from violating the Fourth Amendment.

It’s absurd on its face.

A much better check on police overreach is the threat that they won’t be able to use the evidence at all. That is a lot more likely to keep them honest, even if it sometimes results in a guilty person going free. If that happens, it’s the fault of police, not the rule.

What is our justice system supposed to be for, anyway? It’s meant to find the truth and convict people when the truth is guilt beyond a reasonable doubt. That’s why the late Antonin Scalia’s statement that it’s fine to execute innocent people as long as they had a fair trial is so shocking and wrong.

Amar points out the inconsistency that the exclusionary rule only applies to criminal cases, not civil ones, and that is a good point. I think this may have led directly to the current, unacceptable use of civil forfeitures, where police seize property from people who have not been convicted of any crime. Over $2 billion was seized in 2013 by the feds, dozens of states are funding their police departments with locally seized money, and the nightmare stories pile up. If anything, the exclusionary rule should be extended to civil cases, not removed from criminal cases as Amar seems to want.

I wonder why he goes so clearly in the wrong direction on this topic? Was this topic part of his dissertation, worked out at an earlier point of his career while under the influence of a particular professor or judge? The only reference to a better way to manage police misconduct in search and seizure is a footnote to Amar’s first book, 1997’s The Constitution and Criminal Procedure. So maybe that was his dissertation. Guess I’ll have to find my way to a law library and look it up.

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The details of the Mapp case, which started in the mid-1950s, are enough to curl my 21st-century hair. 

While looking for a suspect in a fire-bombing between rival numbers runners, Cleveland police stormed Dollree Mapp's house and presented a fake (!) warrant, handcuffing her for being belligerent for good measure. (More details on how she was treated here.) They didn’t find the guy they were looking for in her part of the house, but they did find him in the home of the downstairs tenant (which I would think was constitutionally separate). They also found in the basement some betting slips and numbers paraphernalia, along with a few dirty pictures and books that Mapp said were left behind by a previous boarder.

Mapp was cleared on all of the betting-related charges, but when she refused to testify against bigger fish in the numbers racket case, the state prosecuted her for the pornography. She was found guilty in 1958 and sentenced to one to seven years in prison. I’m glad to report she was able to stay out on bail while she appealed. That obscenity conviction is the case the Supreme Court threw out in 1961, and the one that Amar is saying should have been found against the defendant.

Oh, and by the way: guess what race is ascribed to Dollree Mapp in our culture. 

She died recently, in 2014. Someone should write a book about her life.