Some additional thoughts on the Hudson case, which Radley wrote about earlier today …

To quickly recap Hudson, it involves a police search of a man’s home, during which the police found contraband. The law says that before the police can break into a person’s home, they must first “knock and announce” themselves. In this case, all admit the police violated the knock-and-announce rule, but there is a dispute about how to handle this violation.

A lot can be said about this case, but for this particular post, I think I’ll introduce (or perhaps reacquaint) readers with an axiom of our criminal law: Generally speaking, the government demands strict application of the law to the people, but lenient application of the law to itself.

A few examples:

Elwyn Lehman found himself under arrest and facing deportation after living in the United States for 15 years. Lehman was a tour bus driver. A few years ago, he was driving gospel singer CeCe Winans to the White House from out-of-town for a special guided tour. The 53-year-old driver did not realize he had a handgun on board his bus until he was at the gates of the White House. He immediately told the Secret Service about his mistake and turned the pistol over to them. Lehman was sent to the downtown jail on three counts of weapons possession.

Daniel Yirkovsky found a single 22-caliber bullet while he was remodeling his home. He placed the bullet in a box in his room and forgot about it. Months later, when police responded to a former girlfriend’s complaint that Yikovsky had kept some of her things, they discovered the bullet. Nothing else—no gun, no stolen property. Federal prosecutors charged him with being a “felon in possession of ammunition.” Yirkovsky is now serving a 15-year sentence.

Edward Hanousek was a railroad roadmaster who was sentenced to prison under the Clean Water Act. A backhoe operator who was working for Hanousek accidently ruptured an oil pipeline while removing rocks from a section of track. Hanousek was off-duty at the time of the accident, but the backhoe operator was working under him. Thus, prosecutors charged Hanousek with “negligent failure to supervise.”

These are just three quick examples of the strict application of the law. The rule of law is important, prosecutors say, and swift and severe punishment will deter violations.

But on closer inspection, we find that when the prosecutors were speaking of “the law,” they did not mean the Bill of Rights. Yes, the Fourth Amendment is law. Yes, the police violate the law when they fail to knock and announce themselves when they break into people’s homes. But, it is argued, this is not a situation for the strict application of law. Severe punishment in this context is totally inappropriate. Justice, in these circumstances, requires leniency and non-enforcement, for some reason.

In the Hudson case, Justice Scalia and Justice Alito know the law was violated, but they seem keenly interested in making sure that the penalty or remedy is “proportionate” to the violation. This is the axiom at work.

Some people may prefer a strict application of the law, across the board. Some may prefer a lenient application of the law, across the board. A case can be made for both. I also think a case can be made for strict application of the law as applied to the government, but a lenient application as applied to the people. But the least defensible position, it seems to me, is the one that dominates: Strict justice for the people and leniency for the government. 

The speculation is that there is a 4–4 split on the Court in the Hudson case and that Justice Alito will tip the balance. It is a bad sign that he had no questions at all for the government lawyers who were urging a lenient response to Fourth Amendment knock-and-annonce violations.