August 20, 2009
Featured Download: Laurin on Rationing of Remedies
Constitutional criminal procedural rights can be enforced through civil actions for damages and through remedies that are part of the criminal proceeding itself, such as exclusionary rules. For a brief and interesting critique of the Court's approach to choosing among these remedies, read the recent manuscript by Jennifer E. Laurin entitled Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing (Columbia Law Review Sidebar, Vol. 109, 2009).
Here is the abstract:
Criminal procedure rights are most commonly thought of as adduced and enforced in the context of criminal proceedings, in the course of which defendants litigate criminal procedure guarantees and thereby both obtain individual relief and, the story goes, generate systemic incentives for the conduct of law enforcement. This regulatory process also occurs, however, though civil litigation of criminal procedure rights, most commonly through the federal civil rights statute 42 U.S.C. s. 1983. This recursive dynamic is eschewed, however, by what this short essay identifies as a recent trend of "remedial rationing" in the Supreme Court's criminal procedure jurisprudence: the cabining of criminal procedure litigation in either the criminal or civil realms. The Supreme Court's recent Confrontation Clause decision in the criminal case Melendez-Diaz v. Massachusetts, and a recent civil rights verdict in the case Rodriguez v. City of Houston - both cases that concern constitutional limitations on the conduct of law enforcement with respect to forensic science practices - provide an opportunity to reflect on the limits of both criminal and civil litigation as mechanisms for generating law enforcement incentives, and to consider the possible coordinate and synergistic advantages of the availability of both remedial regimes. Such a dynamic suggests that the Court's “remedial rationing” approach is misguided.
In addition to documenting some of the instances in which the Court has limited civil remedies in reliance on the availabilty of exclusionary remedies, and limited exclusionary remedies in reliance on the availability of civil remedies, the piece suggests that civil remedies might have advantages in terms of general deterrence of constitituonal violations and that exclusionary remedies might be more effective in terms of specific deterrence.
August 20, 2009 | Permalink
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