The Optimum Remedy for Constitutional Breaches: MultiAccessed Civil Penalties in Equity

Abstract

As discussed below, the exclusionary rule, as a remedy, scores low on both of the basic criteria for measuring remedy efficacy: it lacks effective connection to the wrong addressed, and it imposes considerable collateral costs on others. Its shortcomings make the exclusionary rule less preferred than a long list of options that more directly impacts the persons engaging in unconstitutional behavior and that would hold them accountable based on the nature and prior record of such breaches. However, before passing judgment on the courts, consider their position: it is the only remedy they have. The blame for the current reliance on a remedy, which is not only ineffective, but also imposes considerable external costs, rests squarely with the Congress and the state legislatures that have the authority to formulate such options, but have failed to do so. This Article analyzes some of the current options proposed and concludes that there is an optimum option which would avoid the external costs of the exclusionary rule, serve its purposes to secure police compliance with constitutional standards more directly and effectively, and lie within sufficient judicial control to allow its substitution for the exclusionary rule. As outlined below, and in a model statute attached, the best option is a multiaccessed civil penalty sanction in equity imposed against the department or the agency employing those who violate such standards.