Wednesday, November 7, 2012
Kit Kinports (Pennsylvania State University - Dickinson School of Law) has posted Culpability, Deterrence, and the Exclusionary Rule (William & Mary Bill of Rights Journal, Forthcoming) on SSRN. Here is the abstract:
This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence – economic rational choice theory, organizational theory, and the expressive account of punishment – the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions the Court’s recent decision to incorporate the culpability of the police officer into the deterrence calculus. Given the empirically speculative nature of the deterrence inquiry, the Article then pushes back on the Court’s one-dimensional emphasis on deterrence, comparing other areas where law has a deterrent aim and finding that they – like the Court’s earlier version of the exclusionary rule – are designed to serve other interests as well. The Article concludes that balancing other non-deterrence goals in determining the reach of the exclusionary rule would eliminate the need to focus exclusively on the intractable questions surrounding deterrence and thereby help inform the structuring of the remedy.