The \u27New\u27 Exclusionary Rule Debate: From \u27Still Preoccupied with 1985\u27 to \u27Virtual Deterrence\u27

The justices of the Supreme Court have drawn new battle lines over the exclusionary rule. In Hudson v. Michigan, 547 U.S. 586 (2006), a five-justice majority, over a strong dissent, went out of the way to renew familiar criticisms of the rule. Just this January, in Herring v. United States, 129 S.Ct. 695 (2009), the justices again divided five to four. This time the dissenters raised the ante, by arguing that the Court\u27s cost-benefit approach to applying the rule is misguided. For the first time since Justice Brennan left the Court, some of the justices appealed to broader justifications for exclusion, including concerns for judicial integrity, judicial review, and long-run and indirect influences on official behavior. This article challenges the majority positions in Hudson and Herring as both normatively mistaken and empirically unsupported. Normatively, the escape of the guilty is a cost of the Fourth Amendment rather than whatever remedies enforce it. The only legitimate cost of exclusion is possible overdeterrence, defined in careful way: discouraging lawful behavior in a pool of cases in which legality is uncertain. The Article then tests the overdeterrence hypothesis against empirical evidence reporting hit rates for different types of searches and seizures. The current mix of Fourth Amendment remedies does not appear to be overdeterring and indeed appears to underdeter certain types of low-cost Fourth Amendment violations. The article also criticizes the Herring dissent\u27s more majestic view of the exclusionary rule, because the dissent\u27s approach (1) cannot account for the law\u27s response to innocent victims of illegal searches and seizures; (2) fails to account for alternative remedies, including a deterrence-based exclusionary rule; (3) conflicts with the good-faith immunity defense to tort actions against the police, thus threatening overdeterrence; and, most fundamentally, (4) mistakes the nature of Fourth Amendment rights as trumps over the application of otherwise valid criminal laws to private behavior, i.e., as a right to commit crimes in secret. Finally, the article presents a proposed improvement on current exclusionary rule practice, the virtual deterrence approach. Under this approach, before suppressing evidence (or admitting tainted evidence under an exception), the court should demand an account of what specific remedial steps, by way of training, discipline, or record-keeping, the department has taken to prevent recurrence of the violation. In typical cases the proposal may not be worth the additional layer of procedural complexity. When, however, the charged offense is exceptionally serious, or when the government exploits an exception to exclusion for fruits of conduct found unconstitutional by the court, virtual deterrence probably would increase compliance by police with constitutional requirements, and reduce both the chances of the guilty escaping and the temptation to distort fact and law to avoid such miscarriages of justice. The government\u27s option to refuse to undertake remedial measures and thereby acquiesce in a suppression order provides a strong safeguard against overdeterrence

The \u27New\u27 Exclusionary Rule Debate: From \u27Still Preoccupied with 1985\u27 to \u27Virtual Deterrence\u27

The justices of the Supreme Court have drawn new battle lines over the exclusionary rule. In Hudson v. Michigan, 547 U.S. 586 (2006), a five-justice majority, over a strong dissent, went out of the way to renew familiar criticisms of the rule. Just this January, in Herring v. United States, 129 S.Ct. 695 (2009), the justices again divided five to four. This time the dissenters raised the ante, by arguing that the Court\u27s cost-benefit approach to applying the rule is misguided. For the first time since Justice Brennan left the Court, some of the justices appealed to broader justifications for exclusion, including concerns for judicial integrity, judicial review, and long-run and indirect influences on official behavior. This article challenges the majority positions in Hudson and Herring as both normatively mistaken and empirically unsupported. Normatively, the escape of the guilty is a cost of the Fourth Amendment rather than whatever remedies enforce it. The only legitimate cost of exclusion is possible overdeterrence, defined in careful way: discouraging lawful behavior in a pool of cases in which legality is uncertain. The Article then tests the overdeterrence hypothesis against empirical evidence reporting hit rates for different types of searches and seizures. The current mix of Fourth Amendment remedies does not appear to be overdeterring and indeed appears to underdeter certain types of low-cost Fourth Amendment violations. The article also criticizes the Herring dissent\u27s more majestic view of the exclusionary rule, because the dissent\u27s approach (1) cannot account for the law\u27s response to innocent victims of illegal searches and seizures; (2) fails to account for alternative remedies, including a deterrence-based exclusionary rule; (3) conflicts with the good-faith immunity defense to tort actions against the police, thus threatening overdeterrence; and, most fundamentally, (4) mistakes the nature of Fourth Amendment rights as trumps over the application of otherwise valid criminal laws to private behavior, i.e., as a right to commit crimes in secret. Finally, the article presents a proposed improvement on current exclusionary rule practice, the virtual deterrence approach. Under this approach, before suppressing evidence (or admitting tainted evidence under an exception), the court should demand an account of what specific remedial steps, by way of training, discipline, or record-keeping, the department has taken to prevent recurrence of the violation. In typical cases the proposal may not be worth the additional layer of procedural complexity. When, however, the charged offense is exceptionally serious, or when the government exploits an exception to exclusion for fruits of conduct found unconstitutional by the court, virtual deterrence probably would increase compliance by police with constitutional requirements, and reduce both the chances of the guilty escaping and the temptation to distort fact and law to avoid such miscarriages of justice. The government\u27s option to refuse to undertake remedial measures and thereby acquiesce in a suppression order provides a strong safeguard against overdeterrence

The Civil Side of Criminal Procedure: Back to the Future?

This Essay, an introduction to a symposium on the Civil Side of Criminal Procedure, explains the critical role of civil litigation in guiding and checking the criminal justice system and how both civil and criminal procedure may be reformed to improve compliance by law enforcement officers with legal limits on investigation and prosecution. For roughly the first century under the Constitution, civil litigation based on the common law torts of trespass, false imprisonment, and malicious prosecution provided the primary regulation of American law enforcement. Systemic reliance on private law made sense while criminal law enforcement, prosecution included, was conducted largely by private persons. During the late nineteenth and early twentieth centuries, the criminal justice became administered by full-time public officers, and the regulatory structure evolved. A regime of administrative discretion regulated at the margins by exclusionary rules and the residual threat of tort liability has been in place ever since. The articles in the Symposium invite the speculation that civil proceedings may bring criminal procedure back to the future, and provide some intriguing glimpses of what such a future might look like

Three Tensions and One Omission, In the Case for the Federal Marriage Amendment

Sam-sex marriage is a hotly contested social issue. This Article responds to Professor Wolfe by analyzing three tensions that premise the case for the Federal Marriage Amendment. The first tension portrays marriage as both fragile and fundamental. However, the long-standing institution of marriage faces more serious challenges than same-sex marriage. Therefore, if social changes, violence, and disease have not weakened marriage, same-sex marriage likely will not do the institution any grave damage. The second tension claims that activist judges threaten traditional marriage, thus necessitating its definition in Federal Constitutional law. However, the new Federal Marriage Amendment will be left to interpretation and construction by the same activist judges that proponents of the Amendment are trying to stop. The third tension portrays the Constitution as protecting religious, but not sexual experience from state interference. However, the Constitution has been used to justify many cases involving sexual and social changes. Though Professor Wolfe is concerned with promoting the purity of marriage, this author concludes that Wolfe’s article makes one omission: Wolfe does not discuss the emotional lives, material interests, or political dignity of gay people. The author concludes that a discussion of gay people is merely a means to an end of preserving marriage for the benefit of others

Race and Crime Sixty Years After Brown v. Board of Education

Whether the Court, let alone the electorate, has the political will to start down this path is another question. But I remind myself that Dr. King did not despair in his Birmingham jail cell, that Ruth Bader Ginsburg did not despair when asked by the Dean of the Harvard Law School why she was taking a place from a man, and that Evan Wolfson did not despair when the high Court declared that any claim of a constitutional right to private sex between consenting adults was “at best, facetious.” Ever since abolitionism, the heroes of every American civil rights movement have all had at least one good reason to reject despair: The success of their predecessors. In America, tomorrow is always vital with the prospect of redemption, however distant that prospect may appear. We must visualize the prospect of redemption for each of us—even for those of us who have transgressed the criminal law. For until we can visualize redemption for each of us, we will never fully realize redemption for all of us, bound together, as we surely are, in a political community scarred from birth by the original sin of slavery