It is amazing how seeing an old law school professor makes you think of some things. I saw my old Marquette Law School criminal law professor, Professor Hammer, today after being out with another lawyer. Instantly, my mind jumped to a question he asked my criminal law class based on Cardozo’s famous question in criminal law, ” “Should the criminal go free because the constable has blundered?” People v. Defore, 242 N.Y. 13
Not sure if we as brilliant 1Ls we had an answer that day. Today, however, I realize the answer to this question is not about law enforcement. It is really a question government. Or maybe, more exactly, what role should government play in a supposedly free society. According to James Dorn of the Cato Institute, when Madison was writing the Constitution, he was not “primarily looking for an engine of economic growth; he was seeking an institutional design to limit the powers of government and protect individual rights. People would then be free to pursue their happiness and, in the process, create wealth. … The legitimate functions of government help define the range of choices open to individuals and, hence, the boundaries between the individual and the state.”
The boundaries between the individual and the state are defined in the process that is due in criminal law, “that most awesome aspect of government….” Pennekamp v. Florida, 328 U.S. 331, 356 (1946) (Frankfurter, J., concurring). The measure of a civilization is judged by the process it uses to enforce its criminal laws. Coppedge v. United States, 369 U.S. 438, 449 (1962). This measure of due process is in reality “our sense of fair play which dictates” a fair balance in the contest between the state and the individual. Murphy v. Waterfront Comm’n., 378 U.S. 52, 55 (1964). Due process is a constitutional guarantee that the government must respect personal rights which are “fundamental” and “implicit in the concept of ordered liberty.” Rochin v. California, 342 U. S. 165, 169 (1952).
In his memorable dissent in Olmstead v. United States, 277 U.S. 438 471 (1928) Justice Brandeis explained that when the government seeks to enforce a law by the commission of criminal acts, there are compelling reasons not to do so. Id at 483-84. Legal remedies would be denied to a prosecuting litigant who “has violated the law in connection with the very transaction as to which he seeks legal redress.” Id. at 484. The reasons for this, Justice Brandeis instructed, were “to maintain respect for law[,]… to promote confidence in the administration of justice[,]. . . [and] to preserve the judicial process from contamination,” regardless of any wrong committed by the defendant. Id.
For this reason, concluded Justice Brandeis, “[d]ecency, security[,] and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen.” Id. at 485. If the rule were otherwise, argued Justice Brandeis, the very existence of government would be “imperilled” by its failure “to observe the law scrupulously.” Id. Furthermore, by its example as “the potent, the omnipresent teacher,” the government, as lawbreaker, will breed “contempt for law” and invite anarchy. Id. To Justice Brandeis, therefore, any attempt by government to introduce, into “the administration of the criminal law,” the doctrine that “the end justifies the means -to declare that the [g]overnment may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution.” Against that “pernicious doctrine,” he admonished, “[c]ourt[s] should resolutely set [their] face[s].” Id.
Simply put, courts are custodians of liberty that cannot sanction convictions taken by offensive methods or courts will breed contempt of the law. McNabb v. United States, 318 U.S. 332, 343-47 (1943).