Tuesday, April 19, 2011
Brooks Holland (Gonzaga University School of Law) has posted Racial Profiling and a Punitive Exclusionary Rule (Temple Political & Civil Rights Law Review, Vol. 20, No. 1, 2010) on SSRN. Here is the abstract:
This Article develops the case for an equal-protection exclusionary rule. The Article begins by addressing the Supreme Court’s limited recognition of race as an explicit basis for constitutional criminal procedure doctrine. This judicial perspective has resulted in a narrow range of racial-profiling cases where, under the Equal Protection Clause, the Constitution will condemn police discrimination. Yet, this equal protection doctrine thus far lacks an exclusionary rule. Criminal defendants who assert equal protection claims thus are left with no real world remedy to make even this narrow right tangible in a criminal proceeding. This framework has led to a doctrine-driven form of “post-racialism” in much of criminal practice that does not match the often race-conscious reality of criminal justice that many people experience and perceive. Constitutional criminal procedure doctrine instead should empower and oblige defense lawyers, prosecutors, and judges to address whether race has tainted a criminal investigation in a constitutionally intolerable manner. Only a doctrinal remedy like the exclusionary rule can ensure lawyers will confront the issue. This article attempts to justify that remedy as a form of punishment, consistent with the U.S. Supreme Court’s most recent exclusionary rule decisions, such as Herring v. United States and Hudson v. Michigan.