THE DEMISE OF CRIMINAL PROCEDURE
Justice Ginsburg’s dissent in Herring v. United States suggested there is more to the exclusionary rule than just deterring police misconduct. She explained that the rule was an “essential auxiliary” to the Fourth Amendment right, which is owed “a more majestic conception” due to the important purpose of preserving judicial integrity. With this reference to judicial integrity, Justice Ginsburg and three of her colleagues reminded us of the importance of this fundamental principle. This article joins with Justice Ginsburg’s vision to argue for a reinstatement of judicial integrity as the historical basis of the exclusionary rule. The concerns of judicial integrity are reflected in the desire to give effect to the Fourth Amendment right and to prevent the courts from serving as accomplices to unlawful behavior. A return to these important considerations will ensure the continued viability of the Fourth Amendment and avoid reducing the constitutional right to an “empty promise.” The Court’s recent decisions in Hudson v. Michigan and Herring v. United States have explained that the exclusionary rule is a “massive remedy” to be applied only as a “last resort.” In order to be applied, the rule must overcome a balancing test that weighs the benefit of “some incremental deterrent” to police misconduct against the “substantial social cost” of setting a known criminal free. As applied, the balancing test embodies all the ambiguities and subjectivity of a Rorschach test. Justice Brennan characterized it as rife with “intuition, hunches and occasional pieces of partial and often inconclusive data.” Predictably, the exclusionary rule does not fare well when these imbalanced factors are weighed. Instead, the Court has used the balancing test to repeatedly uphold the introduction of evidence despite constitutional violations, leaving the Fourth Amendment right to protect itself through a set of anachronistic remedies announced over six decades ago in Wolf v. Colorado. Despite the Roberts Court’s assurances that the exclusionary rule can be ignored due to the increasing professionalism of police forces and greater availability of civil rights suits, we will show that the alternative remedies mentioned in Wolf have not progressed as far as the Roberts Court would have us believe. As this article will argue, the true cost of the crude balancing test used to determine whether to apply the exclusionary rule is the damage levied upon the Fourth Amendment. In failing to apply a remedy to an acknowledged constitutional violation, the Court is sacrificing its judicial integrity for the sake of a criminal conviction and threatening the legitimacy of a just government. As Justice Brandeis explained in Olmstead: In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means--to declare that the Government may commit crimes in order to secure the conviction of a private criminal-- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
Somewhere along the way, the Court has forgotten that judicial integrity is a substantial benefit to the enforcement of constitutional rights and a legitimate cost associated with any decision that impliedly sanctions government misconduct. Part IA of this article provides a brief history of the foundations of the exclusionary rule, paying particular attention to the Court’s original interest in safeguarding judicial integrity. Part IB traces the rise of the...
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