Administrative Replacements: How Much Can They Do?

Abstract

After an exhaustive review of empirical studies of the exclusionary rule (including their own), Professors Timothy L. Perrin, H. Mitchell Caldwell, Carol A. Chase and Ronald W. Fagan (Pepperdine Study) propose in their Article, If it's Broken, Fix It: Moving Beyond the Exclusionary Rule, an alternative to our current approach. Rather than applying the exclusionary rule, the Pepperdine Study proposes that in all but the most egregious situations an administrative process should be used to review alleged violations of civilians' constitutional rights during searches and seizures. While I agree with these distinguished scholars that the exclusionary rule, as presently implemented, is far from perfect, I am reluctant to embrace their proposal for several reasons. My primary concern is that an administrative system would not accomplish the goal of reforming police behavior, but would only add an additional level of administrative frustration to those who feel that their rights have been violated. As a rule, government bureaucracies have not been particularly effective in addressing individuals' problems. Before we invest in yet another government bureaucracy, it is worthwhile to examine what the likely impact of such an administrative remedy would be and whether it is worth the investment.

Because I am not an expert in statistical studies or interpretation, I proceed on the assumption that police misconduct continues notwithstanding the Court's adoption of the exclusionary rule in Mapp v. Ohio. Moreover, I agree that it is a worthwhile goal to obtain maximum police compliance with constitutional standards for searches and seizures. In my own experience as a former federal prosecutor, I found the reasons for police violations of constitutional rights range from an honest misunderstanding of the constitutional standards to a flagrant disregard for defendants' constitutional rights. Thankfully, the majority of instances were the former, rather than the latter. I also found that courts were generally reluctant to exclude evidence, if the exclusion would result in releasing a defendant who was clearly guilty of the charged offense. Thus, search and seizure law was made on a case-by-case basis, making it nearly impossible for an officer to know exactly what standard would be applied by the court at the time of a suppression hearing.

In adopting a new approach to the exclusionary rule, it is important to adopt a procedure that would accomplish the following goals: (1) deter police misconduct; (2) provide efficient and effective processing of misconduct claims; and (3) preserve the integrity of criminal proceedings. Unfortunately, the proposed administrative process has significant weaknesses in accomplishing each of these goals-there are so many weaknesses that it seems imprudent to adopt it as a satisfactory alternative to the exclusionary rule. While I agree that the exclusionary rule may be somewhat broken, it is not broken enough to adopt this alternative process.