Thursday, May 31, 2012
Thomas K. Clancy (University of Mississippi School of Law) has posted The Fourth Amendment's Exclusionary Rule as a Constitutional Right (Ohio State Journal of Criminal Law, Vol. 10, 2012) on SSRN. Here is the abstract:
I am a proponent of the view that the rule is constitutionally based and is an individual remedy for the violation of that person’s Fourth Amendment rights. Both sides of the exclusionary rule debate regarding whether it is a mere tool to enforce deterrence or whether it is an individual right-based remedy have weighty authority and supporters. In my view, the constitutionally-based argument is persuasive: in constitutional law, there can be no right without a remedy. Subsidiary arguments reinforce that view. Those include the absence of any rational or empirical justification for the rule if based on deterrence theory, the lack of authority of the Court to apply the rule to the states absent a constitutional basis, and the coherence of justification of exceptions to the rule’s application if constitutionally based, unlike the ad hoc deterrence rationale, which is a mere substitute for each justice’s subjective assessment as to whether to apply the sanction.
In this essay, I make several additional points. First, there are no articulate proponents on the current Court who embrace Weeks’s view that the rule is constitutionally based. Also, the evolution of the basis of the rule in the states is particularly convoluted, based on the influence of Supreme Court developments over the decades. However, in reaction to the high Court’s rejection of a constitutional basis for the rule in recent decades, there have developed some spokespersons for the Weeks rationale – albeit grounding that view on independent state constitutional grounds. Finally, although we are reaching the nadir in the current United States Supreme Court regarding the justification for – and application of – the exclusionary rule, it may simply be another moment in time.