Jonah Goldberg and Glenn Reynolds have gotten into an interesting debate on the merits of the exclusionary rule. Jonah argues against setting the criminal free because the constable blunders and Glenn contends that the exclusionary rule is all we have so long as the police retain their immunity from civil liability. (Their exchange is Glenn, Jonah, Glenn, Jonah.)
I agree with Glenn that, when it comes to police misconduct, the exclusionary rule is better than nothing. And in my experience as a prosecutor in the late 70’s and early 80’s the exclusionary rule had a definitely salutary effect on police conduct. But I also agree with Jonah that it is fundamentally wrong to let free those against whom we have proof beyond a reasonable doubt, and also (as Glenn notes) that the exclusionary rule fails to protect those victims of police misconduct against whom no incriminating evidence was uncovered. There being no incriminating evidence to suppress, truly innocent victims of police misconduct have no effective remedy. I also do not think that holding individual officers personally liable for their misconduct is likely to be effective enough given the credibility contest between them and their accusers, coupled with the justified sympathy of the general public for the demands placed on police officers. But there is another alternative that neither Glenn nor Jonah consider.
In my very first scholarly article as a professor–Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 Emory Law Journal 937 (1983)–I proposed replacing the exclusionary rule with an administrative “court of claims” type system of monetary compensation to victims of police misconduct, whether the claimants are innocent or guilty of committing crimes. Most importantly, it would be police departments, and indirectly taxpayers, and not individual police officers who would be liable for making compensation. If the public wants the whatever increased security results from inadequately constrained police searches and seizures, it can pay for this by compensating the victims of this behavior. If it does not like paying compensation, it can use political mechanisms to impose greater constraints on police conduct. Ultimately, supervisors have a much greater influence on how officers behave than do judges disposing of some future prosecution.
This article is all about deterrence, and compares the actual mechanism by which deterrence is achieved by the exclusionary rule with the deterrence that would be provided by such a system of compensation. I conclude that we have good reason to believe that a compensatory remedy would deter more effectively than exclusion of incriminating evidence. This comparative deterrence analysis is too complicated to summarize in a blog post, but you can read the original here.
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