Studying the exclusionary rule: An empirical classic

University of Chicago Law Review

Volumn 75, Issue 4, 2008, Pages 1365-1384

  Alschuler, Albert W ^a,b  

^a NORTHWESTERN UNIVERSITY   (United States)

^b UNIVERSITY OF CHICAGO   (United States)

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EID: 59549097603     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (133)

1. California v Minjares, 443 US 916, 926 (1979) (Rehnquist dissenting from denial of a stay).
2. Dallin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U Chi L Rev 665 (1970).
3. See United States v Janis, 428 US 433, 450 n 22 (1976) (majority opinion of Blackmun) ("The salient and most comprehensive study is that of Oaks.");
4. Potter Stewart, TAe Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum L Rev 1365, 1394-95 (1983) ("The leading study [on the deterrent effects of the rule] remains the 1970 work of Professor Dallin Oaks.");
5. Timothy Perrin, et al, If It's Broken, Fix If Moving Beyond the Exclusionary Rule, 83 Iowa L Rev 669,696 (1998) ("The Oaks study is plainly the most thorough study of the rule undertaken as of the date of its publication, and few subsequent studies match it in thoroughness or analytical consistency.").
6. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U Chi L Rev 1175 (1989). 5 See Foreword: Demisesquicentennial, 75 U Chi L Rev 33, 35 n 17 (2008).
7. Dallin H. Oaks and Warren Lehman, A Criminal Justice System and the Indigent (Chicago 1968).
8. Harry Kalven, Jr. and Hans Zeisel, The American Jury (Chicago 1966).
9. Albert W. Alschuler, In Memoriam: Norval Morris, 72 U Chi L Rev 455, 463 (2005).
10. See generally Franklin E. Zimring and Gordon J. Hawkins, Deterrence: The Legal Threat in Crime Control (Chicago 1973);
11. Frank Zimring and Gordon Hawkins, Deterrence and Marginal Groups, 5 J Rsrch in Crime & Delinquency 100 (1968).
12. Norval Morris and Gordon Hawkins, The Honest Politician's Guide to Crime Control (Chicago 1970).
13. See generally Jerome H. Skolnick, Justice without Trial: Law Enforcement in Democratic Society (Center for the Study of Law and Society 2d ed 1975).
14. See generally, for example, Hans W. Mattick and Alexander B. Aikman, The Cloacal Region of American Corrections, 381 Annals Am Acad Polit & Soc Sci 109 (1969);
15. Hans W. Mattick, The Prosaic Sources of Prison Violence, (The University of Chicago Law School Occasional Paper No 3, Mar 1972).
16. See generally, for example, Mark H. Haller, Urban Crime and Criminal Justice: The Chicago Case, 57 J Am Hist 619 (1970).
17. See generally Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (Louisiana State 1969).
18. See generally Johannes Andenaes, Punishment and Deterrence (Michigan 1974).
19. See generally, for example, Albert W. Alschuler, The Prosecutor's Role in Plea Bargaining, 36 U Chi L Rev 50 (1968).
20. See Brigham Young University High School, Dallin H. Oaks, online at http://www.byhigh.org/Alumni-K-to-O/Oaks-DallinH/DallinHOaks.html (visited Aug 29, 2008).
21. See also Martin B. Hickman, Succession in the Presidency, in Daniel H. Ludlow, ed, 1 Encyclopedia of Mormonism 1420,1420 (Macmillan 1992) ("Upon the death of the President of The Church of Jesus Christ of Latter-day Saints, the senior apostle in the Church's govering quorums . . . becomes presiding officer of the Church.").
22. Bivens v Six Unknown Named Agents, 403 US 388, 416 (1971) (Burger dissenting).
23. California v Minjares, 443 US 916, 926 (1979) (Rehnquist dissenting from the denial of a stay).
24. See also United States v Calandra, 414 US 338, 348 n 5 (1974) (majority opinion of Powell) (noting "disagreement as to the practical efficacy of the exclusionary rule" and citing Oaks for the proposition that "relevant 'empirical studies are not available'").
25. Oaks, 37 U Chi L Rev at 756 (cited in note 2), quoted in Calandra, 414 US at 366 (Brennan dissenting) (quoting this passage in full);
26. United States v Caceres, 440 US 741, 70 n 14 (1979) (Marshall dissenting) (quoting this passage in part).
27. Oaks, 37 U Chi L Rev at 755 (cited in note 2).
28. 367 US 643 (1961). Mapp held that the Due Process Clause of the Fourteenth Amendment incorporates the Fourth Amendment's prohibition of unreasonable searches and seizures and requires state courts to exclude unlawfully seized evidence. See id at 657.
29. Oaks, 37 U Chi L Rev at 716 (cited in note 2).
30. See id at 682 table 3.
31. Id at 690-91.
32. See generally Bradiey C. Canon, Is the Exclusionary Rule in Failing Health? Some New Data and a Plea against a Precipitous Conclusion, 62 Ky L J 681 (1973).
33. Id at 704.
34. Id at 706.
35. Id at 707. See also Bradley C. Canon, Testing the Effectiveness of Civil Liberties Policies at the State and Federal Levels: The Case of the Exclusionary Rule, 5 Am Polit Q 57, 73 table 3 (1977) (concluding-strangely- that Mapp had a greater effect in states that excluded unlawfully obtained evidence before that decision than in states that did not).
36. See Oaks, 37 U Chi L Rev at 687 (cited in note 2) (noting, for example, that "[t]he figures on motions to suppress in Chicago and the District of Columbia are in sharp contrast at every level").
37. Elkins v United States, 364 US 206, 218 (1960),
38. quoted in Harrison v United States, 392 US 219,224 (1968);
39. United States v Janis, 428 US 333,453 (1976).
40. See also Janis, 428 US at 450 n 22 ("The final conclusion is clear. No empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect.").
41. The Supreme Court has sought to ban the useful word "standing" from the Fourth Amendment discourse. See, for example, Minnesota v Carter, 525 US 83, 7 (1998);
42. Rakas v Illinois, 439 US 128, 139 (1978). But I refuse to yield to the Court's linguistic tyranny.
43. See, for example, Pennsylvania Board of Probation and Parole v Scott, 524 US 357, 365 (1998) (holding that the exclusionary rule does not apply in parole revocation proceedings);
44. Immigration and Naturalization Services v Lopez-Mendoza, 468 US 1032, 1050 (1984) (holding that the exclusionary rule does not apply in civil deportation hearings);
45. Janis, 428 US at 460 (holding that the exclusionary rule does not apply in federal civil tax proceedings in which the challenged evidence has been seized by state law enforcement officers).
46. More precisely, the police are likely not to gain a conviction they otherwise could easily have obtained.
47. See Canon, 62 Ky L J 681 at 714 (cited in note 26); Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U Colo L Rev 75,124 (1992) (finding that judges, prosecutors, and public defenders in Chicago reported increased use of search warrants);
48. Myron W. Orfield, Jr., Comment, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U Chi L Rev 1016, 1017 (1987) (finding that police officers in Chicago reported increased use of search warrants);
49. Neil A. Milner, Supreme Court Effectiveness and the Police Organization, 36 L & Contemp Probs 467, 475 (1971) ("Prior to the 1961 Mapp decision search warrants in New York City were hardly ever issued, but in 1963 over 5000 search warrants were issued."); Perrin, et al, 83 Iowa L Rev at 700 (cited in note 3) ("[F]ew would dispute . . . that there has been a large increase in the use of search warrants since Mapp"). Oaks sought information on the frequency of arrest warrants before and after Mapp without success.
50. See Oaks, 37 U Chi L Rev at 714 (cited in note 2).
51. The Supreme Court confounded these two concepts in a frequently quoted statement in Elkins: "The rule is calculated to prevent, not to repair. Its purpose is to deter-to compel respect for the constitutional guaranty in the only effectively available way-by removing the incentive to disregard it." 364 US at 217.
52. 338 US 25 (1949) (holding that "in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure"), overruled by Mapp, 367 US at 654.
53. See Elkins, 364 US at 225 (reviewing the law in each state).
54. Oaks, 37 U Chi L Rev at 711 (cited in note 2) (citations omitted).
55. Carl C. Gaither and Alma E. Cavazos-Gaither, eds, Statistically Speaking: A Dictionary of Quotations 143 (CRC Press 1996).
56. Wayne R. LaFave, 1 Search and Seizure: A Treatise on the Fourth Amendment 1.2(b) at 33 (West 4th ed 2004).
57. See William Mertens and Silas Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo L J 365, 399-401 (1981)
58. (describing the effect of Delaware v Prouse, 440 US 648 (1979)).
59. Id at 400.
60. See Oaks, 37 U Chi L Rev at 679-81 (cited in note 2).
61. See Stuart S. Nagel, Testing the Effects of Excluding Illegally Seized Evidence, 1965 Wis L Rev 283, 283-84.
62. Id at 298.
63. Id at 287.
64. Michael Katz, The Supreme Court and the States: An Inquiry into Mapp v. Ohio in North Carolina. The Model, the Study and the Implications, 45 NC L Rev 119, 134 (1966).
65. Orfield, Comment, 54 U Chi L Rev at 1018 (cited in note 35).
66. Id.
67. Orfield, 63 U Colo L Rev at 80 (cited in note 35).
68. Perrin, et al, 83 Iowa L Rev at 720 (cited in note 3).
69. Id at 732. The researchers who conducted the survey were exclusionary rule critics.
70. I have noted: Critics of the exclusionary rule may have followed too closely Justice Holmes's advice to view the law from the perspective of a "bad man" who wishes only to evade it. From a "bad cop" perspective, it is easy to ridicule the exclusionary rule's supposed deterrent effect. . . . [A]lthough the "bad cop" deserves attention, the "good cop" merits notice as well. Albert W. Alschuler, Fourth Amendment Remedies: The Current Understanding, in Eugene W. Hickok, Jr., ed, The Bill of Rights: Original Meaning and Current Understanding 197, 203-04 (Virginia 1991).
71. Hudson v Michigan, 547 US 586, 595 (2006).
72. See also Illinois v Gates, 462 US 213, 257 (1983) ("We will never know how many guilty defendants go free as a result of the rule's operation.");
73. Bivens v Six Unknown Federal Narcotics Agents, 403 US 388,416 (1971) (Burger dissenting) ("Some clear demonstration of the benefits and effectiveness of the exclusionary rule is required to justify it in view of the high price it extracts from society - the release of countless guilty criminals.").
74. Oaks, 37 U Chi L Rev at 736 (cited in note 2).
75. Id at 754.
76. See Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions 9-11 (GAO 1979);
77. Thomas Y. Davies, A Hard Look at What We Know (and Still Need to Learn) about the "Costs" of the Exclusionary Rule: The NIJ Study and Other Studies of "Lost" Arrests, 8 Am Bar Found Rsrch J 611, 660 (1983).
78. See Peter Nardulli, The Societal Costs of the Exclusionary Rule: An Empirical Assessment, 8 Am Bar Found Rsrch J 585, 596 (1983).
79. Davies, 8 Am Bar Found Rsrch J at 635 (cited in note 58).
80. Id at 619.
81. 468 US 897 (1984).
82. Id at 950-51 (Brennan dissenting).
83. Id at 908 n 6 (majority opinion of White).
84. See Oaks, 37 U Chi L Rev at 739-54 (cited in note 2).
85. See id at 739.
86. See id at 740, citing Skolnick, Justice without Trial at 215 (cited in note 11).
87. See Comment, Effect of Mapp v. Ohio on Police Search-and-Seizure Practices in Narcotics Cases, 4 Colum J L & Soc Probs 87,94 table II (1968).
88. Oaks dutifully noted another possible explanation that New York police officers and prosecutors had suggested to him. After Mapp, narcotics officers might have conducted fewer unlawful searches of narcotics suspects. Instead, they might have "rushed" these suspects, "hoping to produce a panic in which the person would visibly discard the narcotics." Oaks, 37 U Chi L Rev at 699 n 90 (cited in note 2).
89. Orfield, Comment, 54 U Chi L Rev at 1050 (cited in note 35).
90. Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department, Commission Report 36 (City of New York 1994) ("Mollen Report").
91. Id at 38. Christopher Slobogin collects many additional sources See Christopher Slobogin, Testifying: Police Perjury and What to Do about It, 67 U Colo L Rev 1037,1041-16 (1996).
92. See, for example, Oaks, 37 U Chi L Rev at 684 (cited in note 2) (noting that in 1969, 86 percent of the motions to suppress evidence in Chicago gambling cases were granted); Nardulli, 8 Am Bar Found Rsrch J at 596 (cited in note 59) (reporting that, in a nine-county state court sample, 25 percent of all motions to suppress evidence were granted in drug cases, and 33 percent of all motions to suppress evidence were granted in weapons cases).
93. 547 US 586 (2006). " See id at 595.
94. Id at 597. This statement and others prompted academic concern that the Supreme Court might be about to scrap the exclusionary rule. See, for example, David A. Moran, The End of the Exclusionary Rule, Among Other Things: The Roberts Court Takes on the Fourth Amendment, 2006 Cato S Ct Rev 283, 283;
95. Note, Fourth Amendment - Exclusionary Rule - "Knock and Announce" Violations, 120 Harv L Rev 173,183 (2006). Nevertheless, Justice Anthony Kennedy, who endorsed the majority's language and who supplied the fifth vote in favor of the Hudson ruling, declared in a concurring opinion, "[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt." 547 US at 603 (Kennedy concurring).
96. 42 USC § 1983 (2000).
97. See Monroe v Pape, 365 US 167, 172 (1961), overruled on other grounds by Monell v Department of Social Services, 436 US 658 (1978).
98. 28 USC § 1331(a) (2000).
99. See Bivens v Six Unknown Named Agents, 403 US 388, 396 (1971). The Court's decisions leave many Fourth Amendment violations without a remedy. The Court has held that unless the police "violate clearly established . . . constitutional rights of which a reasonable person would have known," they are immune from suit.
100. Harlow v Fitzgerald, 457 US 800, 818 (1982).
101. See also Anderson v Creighton, 483 US 635, 638 (1987).
102. Hudson, 547 US at 597, citing Monell, 436 US 658. Monell, however, allowed recovery from municipalities only when an officer's unlawful actions could "fairly be said to represent official policy." Monell, 436 US at 659. A later ruling held that only violations by officials expressly given final policymaking authority by law could meet this standard.
103. See City of St. Louis v Praprotnik, 485 US 112, 123 (1988). Under the Court's decisions, governmental entities other than municipalities remain immune from suit.
104. 42 USC § 1988(b) (2000). Another statute, 42 USC § 1997e(d) (2000), limits attorney fees to 150 percent of the plaintiff's monetary recovery when the plaintiff is a prison inmate. The Tenth Circuit recently considered a case in which, after an officer unlawfully broke an automobile window, a federal district court awarded nominal damages of $1. The court held that, because the plaintiff was incarcerated at the time of his lawsuit, the award of attorney fees could not exceed $1.50. See Robbins v Chronister, 435 F3d 1238, 1239 (10th Cir 2006).
105. Hudson, 547 US at 598.
106. Id at 610 (Breyer dissenting).
107. Id at 598.
108. Oaks, 37 U Chi L Rev at 676 (cited in note 2).
109. Oaks wrote: The present tort remedy is ill suited for controlling the police since the measure of damages is not related to the enormity of the wrong committed by the defendant (police officer). Instead, the damages are determined by the injury suffered by the plaintiff, and that injury often cannot be determined in economic terms. Id at 718. The Supreme Court later held that courts may not invite juries to place a value on the loss of intangible constitutional rights and that "when § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts." Memphis Community School District v Stachura, All US 299, 306 (1986). In appropriate cases, however, juries may award punitive damages.
110. See Smith v Wade, 461 US 30,56 (1983) (holding that a jury may assess punitive damages in a § 1983 action "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others"). The effectiveness of civil remedies also is hampered by the doctrine of qualified immunity, which bars civil recovery for many violations of Fourth Amendment rights.
111. See Malley v Briggs, 475 US 335,341 (1986) (noting that qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law"). In addition, most victims of police abuse are not well advised; they lack easy access to lawyers; they may fear reprisals; and they are likely to seem unattractive to jurors.
112. See Caleb Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn L Rev 493, 499-500 (1955).
113. Oaks, 37 U Chi L Rev at 755 (cited in note 2).
114. Id.
115. Id at 756. Oaks considered other alternatives to the rule, including criminal prosecution of the offending officer and internal police discipline, but he judged all existing alternatives ineffective. See id at 673-74.
116. Id at 725, quoting Irvine v California, 347 US 128, 136 (1954).
117. Oaks, 37 U Chi L Rev at 725 (cited in note 2).
118. Richard A. Posner, Economic Analysis of Law (Little, Brown 1973).
119. See Note, 120 Harv L Rev at 181 (cited in note 76) ("Police officers internalize only a fraction of the social benefits of law enforcement, so making them personally liable for the full costs of their actions would result in overdeterrence."). Governments today commonly indemnify officers for financial liability incurred in the course of their employment; but when an officer's unlawful action could lead to substantial governmental liability, he might fear that this action would lead to discipline, transfer, or other unpleasant personal consequences Reformers who would substitute civil remedies for the exclusionary rule usually intend this effect, as Oaks did. But see Oaks, 37 U Chi L Rev at 717-18 n 145 (cited in note 2) (reporting unpublished research by William A. Briggs, which noted that although eighteen of thirty-six damage actions filed against Chicago police officers in a federal district court between 1960 and 1967 resulted in indemnification payments by the city, no officer responsible for these payments was disciplined even by reprimand).
120. Alschuler, Fourth Amendment Remedies at 205 (cited in note 54). See also Orfield, Comment, 54 U Chi L Rev at 1053 (cited in note 35).
121. Alschuler, Fourth Amendment Remedies at 205 (cited in note 54) (discussing Orfield's work).
122. See Bivens, 403 US at 421-22 (Burger dissenting) (calling for Congress to develop an "administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose Fourth Amendment rights have been violated").
123. Alschuler, Fourth Amendment Remedies at 205 (cited in note 54).
124. Max Farrand, 2 Records of the Federal Convention of 1787 278 (Yale 1911).
125. Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical Proposition?, " 16 Creighton L Rev 565, 565 (1983).
126. Oaks, 37 U Chi L Rev at 668 (cited in note 2).
127. Raymond A. Atkins and Paul H. Rubin, Effects of Criminal Procedure on Crime Rates: Mapping Out the Consequences of the Exclusionary Rule, 46 J L & Econ 157 (2003).
128. Id at 165.
129. Id at 174 (emphasis added).
130. Actually, the authors do not say that it is a bad thing. They say only that we need to think about it: "These increases in crime rates are a weighty cost attached to each of the Supreme Court's decisions to change criminal procedure. Society may decide that our new protections are worth these costs, but an informed debate requires that these costs be known and considered." Id.
131. See Oaks, 37 U Chi L Rev at 682 table 3 (cited in note 2). The drug, weapons, and gambling offenses whose investigation most often involves searches and seizures were not among the index crimes included in the Uniform Crime Reports, and Atkins and Rubin apparently did not examine them. As this Article has noted, the findings of Oaks and other researchers who have examined post-Mapp arrests for these crimes are mixed. See notes 24-30 and accompanying text. An economist worth his salt might not be troubled by a finding that the exclusionary rule had a dramatic impact in areas of investigation in which searches and seizures rarely occur. Here is what must have happened: when the police responded to Mapp by reducing the number of unlawful narcotics searches they had made previously, they were required to devote greater resources to investigating narcotics by other means. They drew these resources from the investigation of crimes like assault. Criminals sensed this shift in resources, and they grew less hesitant about starting bar fights and knifing their domestic partners.
132. The only scholars to have taken note of Atkins and Rubin's findings appear to have ingested them whole. See, for example, Alicia M. Hilton, Alternatives to the Exclusionary Rule after Hudson v. Michigan: Preventing and Remedying Police Misconduct, 53 Vill L Rev 47, 51 (2008);
133. Keith N. Hylton and Vikramaditya Khanna, A Public Choice Theory of Criminal Procedure, 15 S Ct Econ Rev 61, 61-62 (2007).