One reality of 21st-century religion is that many people treat the Ten Commandments as the Ten Suggestions, to be modified or ignored without penalty. That same spirit has infected the Supreme Court, which last week contemplated an abuse of the Bill of Rights, rolled its eyes and said: Oh, what's the big deal?
Bennie Dean Herring had gone to a sheriff's impoundment lot in Coffee County, Ala., to get some things out of his truck. A suspicious investigator checked with officials of a neighboring county to see if the ex-convict had any outstanding arrest warrants and was told he did. The investigator arrested Herring and found him in illegal possession of drugs and a gun.
But it turned out there was a problem with the arrest warrant. It had been canceled months before but was never deleted from the database. So when Herring was indicted on drug and weapon charges, his lawyer asked for the evidence to be thrown out because it came from an arrest that the sheriff had no right to make.
When presented with these facts, the Supreme Court reached two conclusions. The first was that everyone agreed the cops had violated Herring's rights. The second was that it was his tough luck. Never mind the Fourth Amendment, which forbids unreasonable searches and seizures -- he's guilty and he's going to jail.
This decision creates a new exception to the exclusionary rule, which bars evidence police obtain through an illegal search. The prohibition was meant to foster respect for constitutional requirements by giving law enforcement agents a disincentive to violate them. But Chief Justice John Roberts and four of his colleagues are happy to excuse some violations.
The exclusionary rule, said the court, "serves to deter deliberate, reckless or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level." On the contrary, wrote Roberts, it was but a trifle, "the result of isolated negligence."
Of course the error did rise to a fairly significant level -- since it deprived Herring of a freedom considered vital enough to be enshrined by the nation's founders. The Constitution doesn't say the government may not violate these rights except through isolated negligence. It says the government may not violate them, period.
Rights need constitutional protection because governments have a tendency to ignore them. But it takes more than a parchment dictate to force the authorities to do what they are supposed to do. It takes penalties that make violations painful to the violator.