WEBVTT

NOTE Rethinking the Fourth Amendment: Ethics, History, Theory, and Empirics

1
00:00:00.000 --> 00:00:02.600
We arrest 1.3 million of them.

2
00:00:02.600 --> 00:00:05.800
Now that seems pretty crappy until you look down

3
00:00:05.800 --> 00:00:08.320
at the other things like prostitution,

4
00:00:08.320 --> 00:00:13.320
where it's estimated that about 61 million offenses occur

5
00:00:14.680 --> 00:00:17.320
and only 75,000 arrests,

6
00:00:17.320 --> 00:00:22.320
which is a ratio of hundreds, 800.

7
00:00:22.320 --> 00:00:24.960
So you've got two orders of magnitude and difference,

8
00:00:24.960 --> 00:00:27.320
and this is even with the search power.

9
00:00:27.320 --> 00:00:29.880
If the police did not have the search power,

10
00:00:29.880 --> 00:00:36.400
You can imagine that this prostitution, the drug abuse violations, the DUIs, they would

11
00:00:36.400 --> 00:00:37.600
be off the charts.

12
00:00:37.600 --> 00:00:42.960
You wouldn't be able to arrest almost anyone.

13
00:00:42.960 --> 00:00:48.480
There's only been one really in-depth piece of research on search warrants that I was able

14
00:00:48.480 --> 00:00:50.300
to find.

15
00:00:50.300 --> 00:00:59.200
This was done in the early 80s and they went to seven different cities and these researchers

16
00:00:59.200 --> 00:01:03.600
observed every aspect of the search warrant process from the application, the judicial

17
00:01:03.600 --> 00:01:08.200
review, the returns, they followed up with the court cases where they could and there's

18
00:01:08.200 --> 00:01:15.200
a whole book on this and it's over 900 cases. It's a great little study. And what they found

19
00:01:15.200 --> 00:01:20.280
was, they found a lot of stuff and I have a much longer PowerPoint presentation I could

20
00:01:20.280 --> 00:01:32.280
They found that about 74% of the search warrants were successful. That is, they find something.

21
00:01:32.280 --> 00:01:40.280
And if it says listed items, that means they find what they were looking for, or pretty much.

22
00:01:40.280 --> 00:01:44.280
And for contraband, of course, this leads to a high conviction rate.

23
00:01:44.280 --> 00:02:14.280
What's interesting is, of the 900 and something search warrants, 642 had returns, and the way they present the data in the tables, you can't quite figure out all of these things, so there are some assumptions in the way I've constructed these numbers, but the violent, the victim crime warrants total about

24
00:02:14.280 --> 00:02:20.280
There are about 300 of these, and the vice warrants are the other 300.

25
00:02:20.280 --> 00:02:26.280
There's about a 50-50 split between the warrants that they get returns on.

26
00:02:26.280 --> 00:02:32.280
And they filed about 347 cases, convicted about 266.

27
00:02:32.280 --> 00:02:42.280
And what we estimate from their data is about 223 of those 266 were easy vice case convictions.

28
00:02:42.280 --> 00:02:48.520
Because those are the ones where you're able to make the prosecution because you've got

29
00:02:48.520 --> 00:02:56.240
the guy dead to rights because you found contraband in his car or in his dwelling or what have

30
00:02:58.120 --> 00:03:05.180
So again, this kind of brief survey kind of shows this typology that the search power

31
00:03:05.180 --> 00:03:09.040
and I'm not going to claim at all that the search power doesn't help in victim-crime

32
00:03:09.040 --> 00:03:27.040
and Victim Crime Interactions and Victim Crime Investigations. It most certainly does help, but by the same token, if we had promiscuous search, the clearance rates for all victim crimes would maybe go up.

33
00:03:27.040 --> 00:03:34.040
If I could search anywhere, anyone, at any time, for any reason, then of course I might be able to increase clearance rates.

34
00:03:34.040 --> 00:03:41.160
but the claim that I'm making here is that the the amount that the search

35
00:03:41.160 --> 00:03:49.460
power increases or makes the clearance rates of victim crimes higher is small

36
00:03:49.460 --> 00:03:53.920
and it's much smaller in comparison to what the search power gives for vice

37
00:03:53.920 --> 00:04:00.360
crimes. Another thing we did just for kicks was we compared the Van Deus and

38
00:04:00.360 --> 00:04:07.260
The data I just showed you, that big study, we compared it to a randomly selected set

39
00:04:07.260 --> 00:04:11.300
of law and order episodes, which are almost all murder cases.

40
00:04:11.300 --> 00:04:13.100
So these were all murder cases.

41
00:04:13.100 --> 00:04:19.380
So this is real data here on the left, the real world, and this is law and order.

42
00:04:19.380 --> 00:04:27.180
Now in the real world, 65% of murders are known to police.

43
00:04:27.180 --> 00:04:28.780
That is, this is the clearance rate.

44
00:04:28.780 --> 00:04:33.440
This is where they actually arrest somebody, and I'll make the assumption that everybody

45
00:04:33.440 --> 00:04:37.400
they arrest, they execute some sort of search warrant on.

46
00:04:37.400 --> 00:04:41.240
That may not be the case.

47
00:04:41.240 --> 00:04:42.900
Some of those are not approved.

48
00:04:42.900 --> 00:04:43.960
Most of them are.

49
00:04:43.960 --> 00:04:48.300
In law and order, 100% of the search warrants are approved.

50
00:04:48.300 --> 00:04:56.800
By the way, you get 89% of the time in law and order, they submit search warrants.

51
00:04:56.800 --> 00:05:02.660
In the real world, 18% now of murders known to police, a case is filed.

52
00:05:02.660 --> 00:05:08.440
In law and order, 100% of the cases are filed.

53
00:05:08.440 --> 00:05:16.560
In the real world, 40% of the cases that are filed have a motion to suppress, which is

54
00:05:16.560 --> 00:05:20.100
77% total of murders known to police.

55
00:05:20.100 --> 00:05:25.720
In law and order, half of the cases have motions to suppress.

56
00:05:25.720 --> 00:05:30.920
By the way, I thought it was an interesting fact in one of the studies I read, that in

57
00:05:30.920 --> 00:05:37.600
many jurisdictions, a motion to suppress consists of checking a box on the motion, on the pleading

58
00:05:37.600 --> 00:05:40.600
form.

59
00:05:40.600 --> 00:05:44.840
So that makes this difference even more amazing to me.

60
00:05:44.840 --> 00:05:52.920
The motion to sustain is almost never given, and the conviction rate, of course, is 12%

61
00:05:52.920 --> 00:06:22.920
The number of Ron cases filed, which is about 6%, you have convictions with searches, and this is murders, and on law and order, it's 89%, so what you see on TV is not, I know this might be a big shock to you, but what you see on TV is not how the search power actually works, and how important it is to murder cases, and by implication to other victim crimes, either with or without interaction.

62
00:06:22.920 --> 00:06:27.320
I'm going to say, okay, so we've learned this difference in search power, that it's really,

63
00:06:27.320 --> 00:06:34.400
really necessary if you're going to do vice crimes, and it's only very useful a little

64
00:06:34.400 --> 00:06:37.060
bit in victim crimes.

65
00:06:37.060 --> 00:06:41.400
So there's this great book called, oh, I forgot to mention this book.

66
00:06:41.400 --> 00:06:52.040
Let's mention this book just for a moment.

67
00:06:52.040 --> 00:06:55.320
You know, you run into books every once in a while and you say,

68
00:06:55.320 --> 00:06:58.880
everybody's got to read this book. Okay, so everybody has to read this book.

69
00:06:58.880 --> 00:07:02.760
This is The Origins of Reasonable Doubt

70
00:07:02.760 --> 00:07:07.880
by James Q. Quitman. It's a long and complicated book

71
00:07:07.880 --> 00:07:12.640
and I'm going to do an injustice to summarizing it in a couple of sentences.

72
00:07:12.640 --> 00:07:17.560
But we think in the modern legal context that reasonable doubt

73
00:07:17.560 --> 00:07:22.880
is this high legal standard that's used to protect the innocent, that, man, we've got

74
00:07:22.880 --> 00:07:28.280
this really high hurdle so that, you know, you've got to be so certain the only thing

75
00:07:28.280 --> 00:07:30.920
left is reasonable doubt.

76
00:07:30.920 --> 00:07:37.440
And surely some farsighted jurist long ago came up with this idea to protect the innocent.

77
00:07:37.440 --> 00:07:46.160
And what he shows, more or less, is that that's not the case at all, that in reality the punishments

78
00:07:46.160 --> 00:07:55.160
in the English court systems were, at one time, favored mutilations and hangings and so forth,

79
00:07:55.160 --> 00:07:59.160
but that declined and was favored by transportation,

80
00:07:59.160 --> 00:08:03.160
which is sending them off to the boonies, to the colonies, right?

81
00:08:03.160 --> 00:08:09.160
And at first this was to the American colonies and later to Australia.

82
00:08:09.160 --> 00:08:15.160
In the run-up to the American Revolution,

83
00:08:15.160 --> 00:08:22.520
transportation ceased and so if you were sitting as a juror and you had a man in

84
00:08:22.520 --> 00:08:27.720
front of you to be adjudicated and you're a juror and you're on this

85
00:08:27.720 --> 00:08:36.840
jury and you have to decide whether or not the guy is guilty then you have to

86
00:08:36.840 --> 00:08:42.640
you have to weigh in your mind the theological notion because religion is

87
00:08:42.640 --> 00:08:49.440
is very important, that if this guy gets hanged or mutilated, this is a blood punishment.

88
00:08:49.440 --> 00:08:57.440
And if he is innocent, then this is on your conscience and affects your salvation.

89
00:08:57.440 --> 00:08:59.980
And there are hand bills and things that he talks about.

90
00:08:59.980 --> 00:09:05.980
This was a very big pamphleting issue in this time frame.

91
00:09:05.980 --> 00:09:12.520
And it was then that the standard of reasonable doubt emerged to try to get conviction rates

92
00:09:12.520 --> 00:09:17.400
back up, because the Christians were saying, no way am I going to have blood on my hands,

93
00:09:17.400 --> 00:09:20.440
and they were quitting people at record pace.

94
00:09:20.440 --> 00:09:24.240
And so they came out with this, they said, no, you can have doubts, you just have to

95
00:09:24.240 --> 00:09:26.560
have reasonable doubts.

96
00:09:26.560 --> 00:09:32.840
So it's the exact opposite of maybe what our modern contention is of what reasonable doubt

97
00:09:32.840 --> 00:09:33.840
does.

98
00:09:33.840 --> 00:09:41.080
This is a great book, and I've probably butchered the thesis a bit, but it's worth knowing.

99
00:09:41.080 --> 00:09:47.080
It's also worth knowing about this, which I also have up on my PowerPoint slide, I'll show you.

100
00:09:47.080 --> 00:10:02.080
This is an excellent overview of English and American history from 602 to 1789 on the rise of the search power and how the Fourth Amendment came to be.

101
00:10:02.080 --> 00:10:10.080
He looks at practice, he looks at court cases, legislation, law, legal theory, popular literature, debates.

102
00:10:10.080 --> 00:10:20.080
It's amazing, and that's the source for a lot of what the rest of this presentation is, which I have, how many, how much time? Ten minutes, excellent.

103
00:10:27.080 --> 00:10:39.080
So, before the Norman invasion of England, the only type of search that was conducted was that search that took place during the hue and cry.

104
00:10:40.080 --> 00:10:51.080
If you've read Bruce Benson, The Enterprise of Law, he has a long section on what this customary law was like, but basically it was mutual defense.

105
00:10:51.080 --> 00:10:58.080
If you see somebody stealing your cattle, you raise the hue and cry, hey, this guy's going off with my cattle.

106
00:10:58.080 --> 00:11:06.080
All of your neighbors, everyone in your kinship group is obliged to try to chase the guy down and catch him.

107
00:11:06.080 --> 00:11:10.920
and as you go from house to house and the guy's trying to get it you know he

108
00:11:10.920 --> 00:11:14.280
hides in this barn or whatever and they go into the barn and they try to find

109
00:11:14.280 --> 00:11:18.960
him and he goes out the back and so this is the search that was attendant this

110
00:11:18.960 --> 00:11:26.660
was the only search that existed in England over time after the Norman

111
00:11:26.660 --> 00:11:32.620
invasion and I can't really get too much into the details of this but the Norman

112
00:11:32.620 --> 00:11:59.620
The Biford Kings started to use the legal system as a revenue generating device by ratcheting up the doctrine of the king's peace and to make every crime eventually a crime also against the king and then eventually making the king's peace claim have a superior place to what we now would call a civil claim.

113
00:11:59.620 --> 00:12:29.620
and this eventually resulted in the bifurcation of the legal system into the criminal and the civil trials and I don't have time to get into all of this but what happened as this was happening was it broke down the incentive for you to join a hue and cry because if you're not going to get restitution for getting this guy then why

114
00:12:29.620 --> 00:12:32.100
Why am I chasing him?

115
00:12:32.100 --> 00:12:38.260
And as a result, so for about two centuries after the Norman Conquest,

116
00:12:38.260 --> 00:12:43.500
Hugh and Cry remained a little more than an immediate hot pursuit, okay, I've said that,

117
00:12:43.500 --> 00:12:52.960
and I've said some of this, okay, and by 1275, they passed legislation to compel the Hugh

118
00:12:52.960 --> 00:12:53.960
and Cry.

119
00:12:53.960 --> 00:12:57.620
They said these guys aren't doing it now, I have no idea why, you know.

120
00:12:57.620 --> 00:13:06.580
But now, you guys, you have to do the human cry. You have to run after all of these guys.

121
00:13:06.580 --> 00:13:15.100
But it wasn't working. And also during this period, of course, the kings were attempting

122
00:13:15.100 --> 00:13:21.900
to assert their power and consolidate their power, as they always do. And during this

123
00:13:21.900 --> 00:13:33.140
In this time period, 1275 to 1360, you had a proliferation of state officers that went

124
00:13:33.140 --> 00:13:41.160
into the communities and started to pick up some of the elements of investigations and

125
00:13:41.160 --> 00:13:45.840
going after criminals, and they were imbued with search powers.

126
00:13:45.840 --> 00:13:50.080
And because there were already searches going on, they say, hey, you know, you're not searching,

127
00:13:50.080 --> 00:13:58.160
So now this Shire Reeve is going to search and he'll search and they did searches and

128
00:13:58.160 --> 00:14:03.160
it was not too, too bad.

129
00:14:03.160 --> 00:14:11.360
At the same time we had forcible entry during hue and cry come into accepted practice and

130
00:14:11.360 --> 00:14:14.860
then something very interesting happened.

131
00:14:14.860 --> 00:14:19.840
And that thing that was interesting was a whole bunch of things were happening.

132
00:14:19.840 --> 00:14:29.400
You had economic progress, which, okay, so all over Europe, this was a time from 1485

133
00:14:29.400 --> 00:14:34.240
to 1642, this is the Tudor-Stewart dynasty in England.

134
00:14:34.240 --> 00:14:39.440
And right on the heels of the Black Death, we had economies that were finally rebuilding,

135
00:14:39.440 --> 00:14:46.020
we had an increase in trade, we had an increase in production and prosperity.

136
00:14:46.020 --> 00:14:52.580
And I'm just going to take one minute to go through, just remind us of some of the key

137
00:14:52.580 --> 00:14:53.580
events, okay?

138
00:14:53.580 --> 00:14:59.020
You have the invention imprinting here, Henry Tudor, of course, is the victor of the War

139
00:14:59.020 --> 00:15:07.260
of the Roses, and this inter-Circus Magnus, there were these trade wars that were going

140
00:15:07.260 --> 00:15:12.380
on with the Dutch, and everybody knows this, of course, right?

141
00:15:12.380 --> 00:15:14.500
And it ended up having a fixed set of duties.

142
00:15:14.500 --> 00:15:27.500
This is important revenue the king wants, but overall the duties were lower, so trade rose, but now the king also wants to get his stuff, and so smuggling started to rise.

143
00:15:27.500 --> 00:15:39.500
You had the enclosures movement, there were enclosures riots, and I think there's some element there, and of course the Reformation started.

144
00:15:39.500 --> 00:15:47.500
and England is very well known for having gone Catholic, now we're Protestant, now we're Catholic, now we're Protestant, right?

145
00:15:47.500 --> 00:15:57.500
And so you had Edward VI with the Protestant establishment, Mary I reconciled with Rome and you had Catholicism reestablished

146
00:15:57.500 --> 00:16:04.500
and then Elizabeth I brought back Protestantism and established the Anglican Church.

147
00:16:04.500 --> 00:16:10.500
This is the time of the East India Company Royal Charter in 1600.

148
00:16:10.500 --> 00:16:14.500
You have Shakespeare, you have Bacon.

149
00:16:14.500 --> 00:16:18.500
This guy, James I, absolute worst guy.

150
00:16:18.500 --> 00:16:22.500
He wrote this thing, True Law of Free Monarchies.

151
00:16:22.500 --> 00:16:30.500
This is the best defense of the divine right of kings you could ever read.

152
00:16:30.500 --> 00:16:40.980
Okay, well and of course you know that eventually you've got the Charles I, he also was a big

153
00:16:40.980 --> 00:16:45.260
advocate of the divine right of kings, he had power struggles with parliament, a lot

154
00:16:45.260 --> 00:16:53.220
of these also resulted in searches as we'll see, raise taxes without the consent of parliament.

155
00:16:53.220 --> 00:16:59.780
Okay so all this is going on, so what's going on with searches during this time?

156
00:16:59.780 --> 00:17:07.280
There were class regulations. If you were of a lower class, you could not hunt pheasants.

157
00:17:07.280 --> 00:17:10.620
And this was called poaching, which is why I have it in scare quotes. It's not that it

158
00:17:10.620 --> 00:17:15.340
was somebody else's pheasant, so that you were not in the right class to hunt pheasants.

159
00:17:15.340 --> 00:17:19.500
So they would go looking for pheasant hunting dogs, and, oh, you have a pheasant hunting

160
00:17:19.500 --> 00:17:25.420
dog, so we'll take him and kill him. Also ostentatious hats. I'm not making this stuff

161
00:17:25.420 --> 00:17:32.500
up, bowling, dice, counterfeiters, religious dissenters, plotters against the throne, hoarders

162
00:17:32.500 --> 00:17:37.340
of grain, adulterated spices, drugs, butter, beer, ale.

163
00:17:37.340 --> 00:17:42.980
There was a restricted consumption of meat during a certain period of time that was legislated

164
00:17:42.980 --> 00:17:47.080
and there were frequent searches of butcher shops and taverns and so forth.

165
00:17:47.080 --> 00:17:53.620
Of course, there was the mercantilist prevention of the export of bullion, there was wool smuggling

166
00:18:53.620 --> 00:19:00.220
And then, of course, custom searches. Custom searches are what the state needs to collect

167
00:19:00.220 --> 00:19:07.840
its duties. So this was huge. And so, also during this time, you had the well-known institutions

168
00:19:07.840 --> 00:19:14.380
of search that were created, the High Commission. Now, this was for religious nonconformity.

169
00:19:14.380 --> 00:19:19.100
You know, he's got to put some officers on this. And then in 1611, he expanded it to

170
00:19:19.100 --> 00:19:25.540
Seditious Materials, the Company of Stationers, this is another monopoly that was created,

171
00:19:25.540 --> 00:19:31.260
and of course they rooted out the counterfeits, the seditious tracks that were being made,

172
00:19:31.260 --> 00:19:36.820
the heretical writings, and then the Privy Council was established, and this was mainly

173
00:19:36.820 --> 00:19:39.740
a war on dissent.

174
00:19:39.740 --> 00:19:47.260
1592, every Justice of the Peace was instructed to secretly and suddenly visit the houses

175
00:19:47.260 --> 00:19:52.660
and to seize their arms and armor.

176
00:19:52.660 --> 00:19:55.660
And then of course the famous star chamber.

177
00:19:55.660 --> 00:19:59.140
This was to hear political libel and treason cases.

178
00:19:59.140 --> 00:20:03.620
This is an example of the search warrant that would be issued.

179
00:20:03.620 --> 00:20:06.900
This is because somebody put up some graffiti.

180
00:20:06.900 --> 00:20:11.700
The officer is to make search and apprehend every person, so to be suspected, and for

181
00:20:11.700 --> 00:20:16.740
that purpose to enter into all houses and places where any such may be remaining and

182
00:20:16.740 --> 00:20:24.900
and upon their apprehension to make like searches in any of the chambers, studies, chests and

183
00:20:24.900 --> 00:20:29.420
other like places for all manner of writings or papers that may give you light for the

184
00:20:29.420 --> 00:20:31.780
discovery of the libelers.

185
00:20:31.780 --> 00:20:37.180
This is what we call promiscuous search or a general warrant and there was a big move

186
00:20:37.180 --> 00:20:43.000
later to curtail this into what we have today, the specific warrant.

187
00:20:43.000 --> 00:20:48.160
So there was a meteoric rise in the scope and frequency of searches, and unfortunately

188
00:20:48.160 --> 00:20:53.260
it led to this kind of diffuse opposition like we have to taxation today.

189
00:20:53.260 --> 00:20:58.780
It was ineffective, but everybody hated it, but they didn't really have any good arguments

190
00:20:58.780 --> 00:20:59.780
against it.

191
00:20:59.780 --> 00:21:04.980
Sir Edward Cook, he actually formulated a theory of unreasonable searches.

192
00:21:04.980 --> 00:21:09.400
He said, look, we can't do these general warrants, we need to have written warrants, they need

193
00:21:09.400 --> 00:21:11.000
to be specific.

194
00:21:11.000 --> 00:21:17.000
Unfortunately, even though everyone agreed that this was a good idea, it didn't affect legal practice.

195
00:21:17.000 --> 00:21:23.000
I'm going to just whiz through some of this stuff, because I'm so out of time.

196
00:21:23.000 --> 00:21:29.000
There's a whole history of the colonies in search, and there's this whole Massachusetts thing,

197
00:21:29.000 --> 00:21:35.000
of how Massachusetts came to be the place that the search power was restricted.

198
00:21:35.000 --> 00:21:41.000
and it's tied up in an accident of history where they copied the English Fraud Act of 1660

199
00:21:41.000 --> 00:21:48.000
which was this really nice fraud act. Okay, you're going to issue a warrant, okay, but you have to search in daytime

200
00:21:48.000 --> 00:21:55.000
and the duration of the warrant is only one month from the infraction and the informant has to swear the oath

201
00:21:55.000 --> 00:22:03.000
and if you don't find anything, not only is that trespass, but the informant is liable for the trespass.

202
00:22:03.000 --> 00:22:07.840
and so Massachusetts copied this and used this later and and then I'm just

203
00:22:07.840 --> 00:22:10.560
going to forward through you guys know about the seven years war the sugar at

204
00:22:10.560 --> 00:22:14.880
the stamp act and declaratory act revenue act right okay all this stuff

205
00:22:14.880 --> 00:22:19.280
happened and and and basically and you had you had this great outrage it's

206
00:22:19.280 --> 00:22:26.280
searches and you had this wonderful struggle against searches in the US

207
00:22:26.280 --> 00:22:32.280
Specialty with regard to smuggled goods and duties collection.

208
00:22:32.280 --> 00:22:39.280
Anyway, you came down to, let's just pass through here.

209
00:22:39.280 --> 00:22:41.280
So eventually you got the Fourth Amendment.

210
00:22:41.280 --> 00:22:44.280
I'm not going to focus too much on that.

211
00:22:44.280 --> 00:22:46.280
But what do we learn from history?

212
00:22:46.280 --> 00:22:51.280
We learn that searches are not these carefully crafted crime-fighting techniques.

213
00:22:51.280 --> 00:22:52.280
Techniques.

214
00:22:52.280 --> 00:22:57.960
This is not how searches came about historically in the Anglo-American tradition.

215
00:22:57.960 --> 00:23:04.140
Searches were asserted but not justified prerogatives of the state, and there's been a long and

216
00:23:04.140 --> 00:23:09.920
slow intellectual and political battle that has given us specific and warranted searches

217
00:23:09.920 --> 00:23:14.480
supported by author affirmation, but that doesn't mean that's where we have to stop.

218
00:23:14.480 --> 00:23:16.200
There's more work to be done.

219
00:23:16.200 --> 00:23:26.900
1550. Among the first institutions to undergo a general search for religious reasons were

220
00:23:26.900 --> 00:23:31.960
the several libraries of Oxford University in 1550 under the Privy Council's directive

221
00:23:31.960 --> 00:23:37.520
of that year for the confiscation of Catholic publications, starting with the Merton College

222
00:23:37.520 --> 00:23:43.040
Library. The Oxford searchers, who included zealous students, the illiterate and the poor,

223
00:23:43.040 --> 00:24:01.800
1590s. The Crown's officers developed numerous

224
00:24:01.800 --> 00:24:07.800
What are the most common strategies of search in the 1590s to catch Catholics off guard?

225
00:24:07.800 --> 00:24:20.800
Just think of this. Break-ins of houses occurred at all times of the day and year, but were most common at dawn, during dinner, late at night, and on holidays when priests were celebrating mass before assembled congregations.

226
00:24:20.800 --> 00:24:27.000
The method was to encircle a house clandestinely with armed men, wait until unsuspecting servants

227
00:24:27.000 --> 00:24:34.160
opened a door at daybreak and rush in suddenly and en masse, catching everyone by surprise.

228
00:24:34.160 --> 00:24:38.920
Violent entrance was more usual, however, and a sledgehammer was frequently used to

229
00:24:38.920 --> 00:24:44.960
obtain it, causing sudden, traumatic death to many an aged householder.

230
00:24:44.960 --> 00:24:50.180
Once inside, the invaders locked family members in a room to prevent interference and then

231
00:24:50.180 --> 00:24:53.620
and went about their business meticulously and ruthlessly.

232
00:24:53.620 --> 00:24:56.220
So you thought the no-knock raid was invented in the U.S.

233
00:24:56.220 --> 00:24:57.220
It was not.

234
00:24:57.220 --> 00:25:01.080
It was invented in England in the 1590s.

235
00:25:01.080 --> 00:25:04.540
And you guys may have read these awesome...

236
00:25:04.540 --> 00:25:10.100
There's a great book by Radley Balco, Overkill the Rise of the Paramilitary Police Raids

237
00:25:10.100 --> 00:25:14.860
in America, which documents a number of abuses by the search power.

238
00:25:14.860 --> 00:25:17.900
There are all these botched raids.

239
00:25:17.900 --> 00:25:24.500
Okay, so if you'll indulge me for a moment. Costs and benefits of the search power. In

240
00:25:24.500 --> 00:25:28.820
order to say whether or not we should have a search power, you have to take an ethical

241
00:25:28.820 --> 00:25:34.520
stance because you have to ask what counts as a benefit or a cost. If there's a gambling

242
00:25:34.520 --> 00:25:41.180
arrest or a seizure or a conviction or prostitution or drug or an asset forfeiture, do we count

243
00:25:41.180 --> 00:25:47.100
that as a benefit or a cost? We can all agree that a botched raid that results in the death

244
00:25:47.100 --> 00:25:52.580
Math in an Aged Householder is a cost.

245
00:25:52.580 --> 00:25:54.800
This is my cost-benefit analysis.

246
00:25:54.800 --> 00:26:01.000
I will concede that victim crime clearance rates will go down if we get rid of the search

247
00:26:01.000 --> 00:26:04.280
power entirely.

248
00:26:04.280 --> 00:26:09.920
This is an actuarial calculation, which I'll give you lots of info on if you'd like, that

249
00:26:09.920 --> 00:26:16.840
estimates, it says that if clearance rates halved for every single crime category, which

250
00:26:16.840 --> 00:26:20.360
Which I think is a very conservative assumption.

251
00:26:20.360 --> 00:26:24.680
This makes a difference to households, I know, don't, I know, we're all Austrians here,

252
00:26:24.680 --> 00:26:25.680
right?

253
00:26:25.680 --> 00:26:26.680
Okay.

254
00:26:26.680 --> 00:26:29.720
Thirty dollars a year per household.

255
00:26:29.720 --> 00:26:35.760
But if we got rid of the search power, the detection and intervention crime clearance

256
00:26:35.760 --> 00:26:39.040
rate would plummet, which I count as a benefit.

257
00:26:39.040 --> 00:26:42.680
There would be no botched trades, which I count as a benefit.

258
00:26:42.680 --> 00:26:45.880
There would be security of property rights, which is a benefit.

259
00:26:45.880 --> 00:26:49.260
There would be no asset forfeitures, which I count as a benefit.

260
00:26:49.260 --> 00:26:54.440
So I think that it's pretty clear that searches are unjust, they're less productive than you

261
00:26:54.440 --> 00:27:01.240
think you might from TVC, they're marginally useful for real crime, but they're essential

262
00:27:01.240 --> 00:27:03.840
for mal and prohibitum crime.

263
00:27:03.840 --> 00:27:06.560
Search is the health of the state, history shows it.

264
00:27:06.560 --> 00:27:11.200
Search was never a crime-fighting tool introduced by a benevolent king, it has always been a

265
00:27:11.200 --> 00:27:17.280
and a tool of taxation, suppression of dissent and projection of control.

266
00:27:17.280 --> 00:27:20.800
So it should be, the right of the people to be secure in their persons, houses, papers

267
00:27:20.800 --> 00:27:25.920
and effects against all searches and seizures shall not be violated and no warrants shall

268
00:27:25.920 --> 00:27:27.640
issue for any reason whatsoever.