In the U.S., evidence obtained through an unconstitutional search, seizure, or interrogation is usually excluded from trial. The application of this “exclusionary rule,” which stems from the Fourth Amendment, results in a fair number of guilty people – a conservative estimate is roughly 10,000 felons and 55,000 misdemeanants – evading punishment for their crimes each year.
The Supreme Court has signaled through recent opinions that the exclusionary role may be on its last legs, but a better alternative for holding police accountable has yet to surface. The civil damage remedy is severely restricted by caselaw, criminal charges are often harsh and difficult to prove, internal police sanctions lack punch, and community oversight boards do not have the authority to impose adequate punishments.
In his new book Rehabilitating Criminal Justice, criminal law expert Christopher Slobogin advocates for scrapping the exclusionary rule in favor of a financial penalty for Fourth Amendment violations. Sought by the state, the penalty would be payable by the officer who acts in bad faith and by the officer’s department in the more common situations where the officer acts in good faith. It would be independent of any civil damages and accrue to the victim and the state.
“The most important advantage of such an administrative penalty regime is that it would provide uncompromising vindication of Fourth Amendment rights” Slobogin writes.
A financial penalty, he argues, would create a stronger incentive for police to follow the Constitution while reducing instances of criminal offenders going free because of police mistakes.
“A remedy that is actually effective, such as the proposed regime, would not only better deter those bad faith police actions that should never occur (for instance, arbitrary stops and frisks) but also provide greater incentive to take the extra steps needed to legalize those searches and seizures that should take place,” he writes. “If so, more guilty people will be brought to justice than if the (exclusionary) rule is the remedy.”
Chapter 4 of Rehabilitating Criminal Justice begins by unpacking the shortcomings of the exclusionary rule, centering around the meager impact the rule has on police misconduct, as evidenced by the frequency of unconstitutional search and seizures, and the significant impact the rule has on Fourth Amendment law, which is under-interpreted and under-enforced by judges worried about the consequence of exclusion. He continues with an explanation of how his proposed administrative penalty regime will dissuade police from unconstitutional street policing, encourage them to seek warrants, incentivize better training by police departments, and reinvigorate judicial review of Fourth Amendment claims.
With the Supreme Court inching toward abolition of the exclusionary rule, Slobogin contends that now is the time for introduction of an alternative.
“The primary goals of any remedy should be vindication of the harmed interest and prevention of further harms,” he writes. “Some version of the regime proposed here… would be far more effective at achieving that goal than either the exclusionary rule or the current complex of damages and departmental remedies that exist today.”
Rehabilitating Criminal Justice, published by Cambridge University Press, publishes in March and is currently available for pre-order.
Christopher Slobogin is the Milton R. Underwood Chair in Law and Director of the Criminal Justice Program at Vanderbilt Law School.
