Thursday, August 15, 2013
Scott E. Sundby (University of Miami School of Law) has posted Everyman's Exclusionary Rule: The Exclusionary Rule and the Rule of Law (or Why Conservatives Should Embrace the Exclusionary Rule) (Ohio State Journal of Criminal Law, Vol. 10, No. 2, Spring 2013) on SSRN. Here is the abstract:
It should come as little surprise that the exclusionary rule has been the continual target of strong criticism for a very long time. The rule appears to run head-on into a basic principle of justice learned as early as one’s playground days: "Two wrongs don’t make a right." Justice Cardozo expressed the same sentiment in one of the most famous judicial lines ever penned, "The criminal is to go free because the constable has blundered." Far more of a surprise, then, given such an entrenched critique from a variety of quarters, is that the exclusionary rule has continued to remain a centerpiece of Fourth Amendment jurisprudence for almost a century. The rule’s lengthy reign suggests that the exclusionary rule, like its critique, also draws upon some basic wellspring of justice. This Essay searches for that wellspring and argues that when rule-of-law principles are used as the prism through which the exclusionary rule is viewed, the exclusionary rule’s fundamental value to our criminal justice system becomes far more compelling.By returning the focus from the Court’s current view of the exclusionary rule as a ‘punishment’ or ‘deterrent’ for individual law enforcement officials back to the rule’s original role as a critical linchpin in preserving the Constitution’s structural limitations on government power, we can begin to make far greater sense of the rule’s longevity and understand the importance of the exclusionary rule for the future.