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Why Liberals Should Chuck the Exclusionary Rule Christopher Slobogin

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Why Liberals Should Chuck the Exclusionary Rule Christopher Slobogin Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 1999 Why Liberals Should Chuck the Exclusionary Rule Christopher Slobogin Follow this and additional works at: http://scholarship.law.vanderbilt.edu/faculty-publications Part of the Law Commons Recommended Citation Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 University of Illinois Law Review. 363 (1999) Available at: http://scholarship.law.vanderbilt.edu/faculty-publications/298 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. WHY LIBERALS SHOULD CHUCK THE EXCLUSIONARY RULE Christopher Slobogin* In this article, Professor Christopher Slobogin makes a com- pelling new case against the exclusionary rule, from a "liberal"per- spective. Moving beyond the inconclusive empirical data on the efficacy of the rule, he uses behavioraland motivational theory to demonstrate why the rule is structurally unable to deter individual police officers from performing most unconstitutionalsearches and seizures. He also argues, contrary to liberal dogma, that the rule is poor at promoting Fourth Amendment values at the systemic, de- partmental level. Finally, ProfessorSlobogin contends that the rule stultifies liberal interpretation of the Fourth Amendment, in large part because of judicial heuristics that grow out of constant expo- sure to litigants with dirty hands. He also explains why noninstru- mental justificationsfor the rule, even when viewed from a liberal bias, fail to support a broad policy of exclusion. In place of the exclusionary rule, ProfessorSlobogin proposes an administrative damages regime in which actions for Fourth Amendment violations would be brought directly againstpolice of- ficers and departments. The proposed regime includes: (1) liqui- dated damages for all constitutional violations, (2) personal liability for officers who knowingly or recklessly violate the Fourth Amendment, (3) departmental liability for all other violations, (4) state-paid legal assistance for all Fourth Amendment claims, and (5) a judicial decisionmaker.Professor Slobogin demonstrateshow this regime would be superior to the exclusionary rule not only in deterring individual Fourth Amendment violations, but also in en- couraging use of warrants, invigoratingjudicial review, diminish- ing racism on the beat, curbing perjury, improving hiring and trainingpractices, and promoting respect for the system. Why Lib- erals Should Chuck the Exclusionary Rule adds considerable in- sight to the Fourth Amendment debate and promises to challenge the way both liberals and conservatives think about the exclusion- ary rule. * Stephen C. O'Connell Professor of Law, University of Florida School of Law. A.B., Princeton University; J.D., LL.M., University of Virginia Law School. I would like to thank David Baddley, Jerold Israel, John Jeffries, Rick Matasar, Lars Noah, William Stuntz, and the participants in the University of Florida Levin College of Law faculty workshop seriesfor their help on this article. HeinOnline -- 1999 U. Ill. L. Rev. 363 1999 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 1999 TABLE OF CONTENTS I. Introduction ............................................ 364 II. Utilitarian Concerns: The Rule and the Damages Action as Enforcement Mechanisms .................... 368 A. Impact on the Police: Specific and General D eterrence .......................................... 368 1. Behavioral Theory .............................. 373 2. Legitimacy-Compliance Theory ................. 381 3. The Implications of Theory for Alternatives to Exclusion ....................................... 384 4. Sum m ary ....................................... 390 B. Impact on Police Institutions: Systemic D eterrence .......................................... 392 C. Impact on the Courts: Development of the Law .... 400 D. The Proposed Damages Regime: Overdeterrence and Underdeterrence ............................... 405 1. Overdeterrence of Individual Officers .......... 406 2. Overdeterrence of Police Departments ......... 412 3. Underdeterrence of Police and Police D epartm ents .................................... 416 4. Underdeterrence of Magistrates ................ 418 E. Conclusion: A Tort or an Administrative R em edy? ........... 420 III. Noninstrumental Justifications for Exclusion ............ 423 A. The Fifth Amendment Theory ...................... 425 B. The Property Theory ............................... 427 C. The Status Quo Ante Theory ....................... 430 D. The Judicial Review Theory ........................ 433 E. The Due Process Theory ............................ 436 F. Summ ary ........................................... 441 IV. Of Costs and Benefits: Concluding Thoughts ........... 442 I. INTRODUCTION The Fourth Amendment "exclusionary rule" is one of the main- stays of liberal ideology. Among those who place themselves some- what left of center, a stance against using unconstitutionally seized evidence is as de rigueur as being anti-death penalty or pro-choice. As a liberal (yes, I admit it) who grew up with the exclusionary rule, I resisted questioning its preeminence as a Fourth Amendment remedy for some time. Today, however, I have come to believe that the rule actually disserves the liberal cause. In this article, I argue that the rule ought to be limited dramatically and that an administrative damages regime should take its place. The liberal creed, in Justice Holmes's oft-cited language, is that without the exclusionary rule the Fourth Amendment would be a HeinOnline -- 1999 U. Ill. L. Rev. 364 1999 No. 2] DUMPING THE EXCLUSIONARY RULE mere "form of words."' In modern parlance, the argument is that the rule does a good job at deterring illegal searches and seizures, or at least a better job than any other realistic alternative. In case it does not, however, liberals hold in reserve a whole series of noninstru- mental arguments on behalf of the rule, all of which conclude that criminal defendants have a personal constitutional right to exclude ev- idence regardless of exclusion's real-world effects. Convinced of some or all of these propositions, most liberals (or at least most academics who have considered the Fourth Amendment remedy issue)2 cling to the exclusionary remedy despite its costs-not just of lost prosecu- tions, but of truncated Fourth Amendment law, corrupted police, prosecutors, and judges, and public disrespect for the criminal justice system. Contrary to our wishful thinking, the utilitarian argument for the rule does not wash. The exclusionary rule is significantly flawed as a deterrent device, especially when compared to more direct sanctions on the police and police departments. Such sanctions would do a much better job than the exclusionary rule at deterring police misbe- havior, motivating police departments to take the Fourth Amendment seriously, and ensuring the Fourth Amendment is fairly construed by the courts. Indeed, the greatest concern with a direct remedy is that it could overdeter the police, a consequence which, for many liberals, might well be preferable to the underdeterrence of the rule. Nor do the noninstrumental arguments for the rule fare much better. Even 1. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). In its original con- text, this language may merely have stood for the proposition that courts must provide judicial review of Fourth Amendment claims. See infra text accompanying notes 307-09. Today, it has a much broader meaning. See, e.g., James v. Illinois, 493 U.S. 307, 311 (1990) (linking Holmes's statement with the proposition that "[t]he occasional suppression of illegally obtained yet proba- tive evidence has long been considered a necessary cost of preserving overriding constitutional values"). 2. Among those who have indicated support for the rule (perhaps not all of whom would refer to themselves as "liberals") are the following: Albert W. Alschuler, "Close Enough for Government Work": The Exclusionary Rule After Leon, 1984 Sup. CT. REV. 309; Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MiNN.L. REV. 349, 429 (1974); Donald A. Dripps, Beyond the Warren Court and Its Conservative Critics: Toward a Unified Theory of ConstitutionalCriminal Procedure, 23 U. MICH. J.L. REFORM 591, 622-24 (1990); William C. Heffernan, On Justifying Fourth Amendment Exclusion, 1989 Wis. L. REV. 1193, 1242-43; Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "PrincipledBasis" Rather Than an "Empirical Proposition?", 16 CREIGH rON L. REV. 565, 665-67 (1983); Wayne R. LaFave, "The Seductive Call of Expediency": United States v. Leon, Its Rationale and Ramifications, 1984 U. ILL. L. REv. 895; Tracey Maclin, When the Cure for the Fourth Amendment Is Worse Than the Disease, 68 S.CAL. L. REV. 1, 49-50 (1994); William J. Mertens & Silas Wasserstrom, The Good Faith Exception to the Exclusionary Rule Reconsidered: Deregulating the Police and Derailing the Law, 70 GEO. L.J. 365 (1981); Jerry E. Norton, The Exclusionary Rule Reconsidered: Restoring the Status Quo Ante, 33 WAKE FOREST L. REV. 261 (1998); Thomas S. Schrock & Robert C. Welsh, Up from Calandra: The Exclusionary Rule as a ConstitutionalRequirement, 59 MrNN.L. REV. 251 (1974); William
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