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

An analysis of attitudes of acceptance-rejection towards exceptional children

Thesis (Ed.M.)--Boston Universit

The Variola Variation

Part of Symposium: The Sound of Legal Thunder: The Chaotic Consequences Of Crushing Constitutional Butterflies

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

After Rape Law: Will the Turn to Consent Normalize the Prosecution of Sexual Assault?

This essay explores the new rape exceptionalism. My thesis holds that rape exceptionalism is rooted in a divide between elite opinion, reflected in statutes, court decisions, and academic commentary, and popular opinion, as reflected in jury verdicts. Elite opinion values sexual autonomy and suspects, when it does not despise, sexual aggression. Popular opinion supposes that sexual autonomy may be forfeited by female promiscuity or flirtation, and views male sexual aggression as natural, if not indeed admirable...pressions of consent,8 is an academic exercise. If we really want to normalize rape law, we must bypass the jury openly. We can’t conceal the bypass under the fig leaf of plea bargaining, because defense lawyers know that juries are unlikely to convict. The Supreme Court permits such a bypass. “All” does not mean “all,” at least in the Sixth Amendment. There’s a catch; for convictions rendered without a right to jury trial, the maximum penalty is six months in jail...Those of us who regard the “normal” operation of the criminal justice system with suspicion would still object to the concentration of power in prosecutorial hands and the routine punishment of exercising constitutional rights. If that’s the best system of social control our society can achieve, however, it makes at least as much sense in rape cases as it does in drug cases. If and when we find ways to force elected representatives to make the hard choices about the substantive law, and to provide a fair, accurate, and affordable day in court for every defendant, we will have time to ask what the just punishment should be for sex without consent. Until then a special sex crimes court, sitting without a jury but with no jurisdiction to exceed the Supreme Court’s six-month limit, makes sense as a prosecutorial option to the standard felony process