“No Rules…Just Right” is the slogan of Outback Steakhouse; when this famous chain began operations, they determined to operate based on a food cost level that conventional wisdom claimed was impossible to maintain (Finegan, 1994, p. 52). The Exclusionary Rule was developed according to conventional wisdom over the course of several decades to answer the problem of enforcing the proscriptions in the 4th Amendment. However, the Exclusionary Rule is often seen by conventional wisdom as a hindrance to justice. Conventional wisdom alone cannot resolve this issue.
In 1761, future President John Adams attributed the move for Independence to Writs of Assistance that were general warrants issued by the English crown providing agents the ability to enter any premise and take any person or property desired. Hence, when adding the 4th Amendment to the Constitution, the framers clearly believed that unnecessary encroachment by the new government into the lives of it citizens was dangerous to the maintenance of liberty (Zalman, 2008).
Intent of the Exclusionary Rule
The 4th Amendment requires that the government of the United States abstain from needlessly encroaching on the fundamental liberties of life, property, and person but fails to include punitive remedies for prevention. Over time, it was recognized by the Supreme Court that some form of penalties must be needed if there is to be incentive for the agents of the government to curtail their policing activities in accord with this prohibition. Some believe the Exclusionary Rule to be “essential” (Zalman, 2008, p. 62).
One purpose of the rule was to deter future wrongful police actions by effectively slapping the hands of prosecutors under the conventional assumption that this would bring pressure on police to operate more cleanly (Zalman, 2008; Cicchini, 2010). The rule was developed over-time by the Warren Court to address growing national concerns regarding excessive violations by police (Logan, 2011).
In addition, there is the matter of judicial integrity. For a free nation to remain such, public confidence in the judiciary is necessary. In Mapp v. Ohio, Justice Clark put it this way, “The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence” (Zalman, 2008, p. 70).
In other words, the matter of judicial integrity is central to keeping the nation together and functioning as a free society (Dripps, 2010; Zalman, 2008).
Exceptions to the Rule
No sooner than the Warren Court was replaced by the Burger Court, holes began to be shot into the Exclusionary Rule by the more conservative judges who leaned in the direction of crime control theory. This attitude was carried through to the Rehnquist and currently the Roberts Courts, creating a hodge-podge blend of exceptions to the rule. Some of these exceptions include the use of such evidence to prove perjury, enable efficient deportations, and frame grand jury questions (Zalman, 2008). Recent years have led law enforcement personnel to find creative methods to circumvent entirely the Exclusionary Rule, such as seizing property without making an arrest (Logan, 2011).
Costs and Benefits of the Rule
Cicchini (2010) argues “the economic theory of criminal sanction” can be applied to police abuse of the 4th Amendment to demonstrate that there is zero deterrent effect from the Exclusionary Rule (Cicchini, 2010, p. 460). Never-the-less, he concludes that the Exclusionary Rule as a means of protecting the integrity of the judiciary is vital.
A commonly understood cost of the rule is the loss of evidence (Dripps, 2010); however, as the lesson of One 1958 Plymouth Sedan v. Pennsylvania demonstrates, the Warren Court considered such seizures to be “quasi-criminal procedures in which the penalty is often more onerous than a criminal sentence” (Zalman, 2008, p. 72).
This indicates that the cost of ignoring the rule could prove higher than the cost of maintaining. In the classic work, The Prince, the assertion is made that “above all things [the Prince] must keep his hands off the property of others, because men more quickly forget the death of their father than the loss of their patrimony” (Machiavelli, 1532, p. 63). Comparing this to the belief of John Adams that the unlawful seizures were the reason for the Revolution of 1776 can only lead to the conclusion that this is a major issue of the day.
Alternative Remedies to the Rule
Given how serious this issue of policing the 4th Amendment is, it becomes necessary to seek alternative remedies. Time has proven that the Exclusionary Rule as a means of deterring police is minimal at best (Zalman, 2008; Cicchini, 2010); experience has shown that something is needed to deter agents of the current government from acting like the crown officials of King George (Zalman, 2008; Dripps, 2010).
Understanding the need for some punitive aspect to 4th Amendment enforcement, the Court stated in the 1803 case Marbury v. Madison, “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested right” (Zalman, 2008, p. 84).
Civil lawsuits and criminal prosecution of police are two possible alternatives offered by some (Zalman, 2008; Bradley, 2010). However, it has been demonstrated that civil suits are rare and civil victories in such cases even rarer (Zalman, 2008) making lawsuits a useless remedy.
Another option offered is to codify into law the actions that are and are not permitted by law enforcement officials, such as found in England today and numerous other nations (Bradley, 2010). The reality is that studies are needed to determine the best way to proceed (Zalman, 2010). Conventional wisdom is not sufficient.
Rules Are for Fools
Most generally understand and agree that no two cases are alike and that justice means each receives according to their due. Equally understood is the idea that rules, especially in the form of laws must apply equally to be effective. However, these two concepts are contrary. In the first case, justice demands fair treatment, which calls for each case to be handled as unique and in the second, justice is sacrificed to the interest of efficiency. Hence, rules have no place in the halls of justice.
This is why there are many problems with the Exclusionary Rule – as a rule it cannot meet the demands of justice in every case. If one considers the Bill of Rights and the Constitution as a documents of principle rather than mere law, everything needed is written within. Taking the Constitution as a holistic document allows judges to independently and individually judge the merits of each case and proceed accordingly. Rules and laws do nothing but remove this latitude and create the kind of problems currently faced by the nation.
The best solution may simply an educated citizenry, something that is woefully lacking in America today. If all citizens of the United States clearly understood their rights and the responsibilities associated with those rights, many of the problems currently faced would be eliminated. When rights are violated, civil lawsuits would have a greater degree of success and would act as a deterrent. Judges would have a free hand to judge each case individually. Police, most of whom try to do their job properly, would be more informed and abuses would be minimized. Prosecutors would be less inclined to continue the trampling of rights, knowing that they could be held personally liable.
To believe that more is needed is to take the attitude that the framers of the Constitution were somehow lacking in their understanding of government and that the Constitution is somehow incomplete. This is not the case. Simply shifting the view of the Constitution from a document of law to a document of principle would radically alter the thinking and results of law in America. There should be no rules, just rights.
- Bradley, C. M. (2010, Summer). Reconceiving the Fourth Amendment and the Exclusionary Rule. Law & Contemporary Problems, 73(3), 211-238.
- Cicchini, M. D. (2010). An Economics Perspective on the Exclusionary Rule and Deterrence. Missouri Law Review, 75(2), 459-491.
- Dripps, D. A. (2010, May). The “New” Exclusionary Rule Debate: From “Still Preoccupied with 1985” to “Virtual Deterrence”. Fordham Urban Law Journal, 37(3), 743-801.
- Finegan, J. (1994, December). Unconventional Wisdom. Inc., 16(14), 3.
- Logan, W. A. (2011). Police Mistakes of Law. Emory Law Journal, 61(1), 69-110.
- Machiavelli, N. (1532). The Prince. Florence, Italy: Antonio Blado d’Asola.
- Zalman, M. (2008). Criminal Procedure: Constitution and Society (5th ed.). Upper Saddle River, NJ: Prentis Hall.