It Is Broken: Breaking the Inertia of the Exclusionary Rule

Abstract

Change is hard. Inertia begets inertia. The American exclusionary Rule has been in place for thirty-eight years, meaning that two generations of lawyers have practiced in the wake of Mapp v. Ohio, and that the vast majority of criminal law practitioners have never practiced under any other rule. Naturally, any proposal to alter a long standing, entrenched rule in the criminal justice system will evoke serious challenge. Despite the mounting evidence that the Rule fails in its essential function, and the fact that the Rule exacts tremendous costs, the exclusionary rule survives mostly, it seems, because of inertia and the perceived absence of any viable alternatives.

The critiquers of the proposed civil administrative remedy have rightfully focused on perceived problems in the proposed remedy, while failing to offer any justification for retaining the existing exclusionary rule. Part of a thorough evaluation of any new approach should include a comparative analysis of the new proposal with the status quo. Reading the Totten, Fellmeth, and Levenson articles, one is hard-pressed to identify any passages extolling the virtues of the exclusionary rule. They do not claim that the Supreme Court got it precisely right in 1961. Nor do they claim that the current rule strikes the thoughtful, proportionate balance necessary to meet the competing goals of preserving individual liberties and protecting public safety. Perhaps the length of time we have lived with the Rule has numbed us to its defects, but its lack of support, even among those critical of our proposal, is very telling.

Even if the Rule is not fatally flawed, it has tremendous drawbacks. And, as the late Justice Blackmun noted fifteen years ago, "[i]f a single principle may be drawn from this Court's exclusionary rule decisions, from Weeks through Mapp ... it is that the scope of the exclusionary rule is subject to change in light of changing judicial understanding about the effects of the rule outside the confines of the courtroom." Our proposal was crafted with Justice Blackmun in mind. We firmly believe our proposal is a workable solution to a difficult issue, and we appreciate the opportunity to respond to the criticisms raised by our colleagues.

In Part II we respond to criticisms of our empirical study of law enforcement officials from Ventura County, California and elsewhere (the "Pepperdine Study"), which formed part of the basis for our proposed administrative remedy. Part III addresses the criticisms of our proposed civil administrative remedy to partially replace the exclusionary rule (the "Pepperdine Proposal'?), including criticisms that it will not be cost-effective; that it will not be efficient; that it will overdeter police officers; that it will increase the incentive for police perjury; and that it fails to right constitutional wrongs. In Part IV we address issues related to the implementation of our proposal, concluding that state and/or federal legislatures should be able to enact our proposal consistent with notions of federalism. We conclude in Part V with a demonstration of how our proposal will work when applied to the facts of five exclusionary rule cases and one police search that did not lead to a prosecution.