Few debates in American law are as sustained, or as bitter, as the debate over the exclusionary rule. Critics have attacked the exclusion of unconstitutionally obtained evidence for compromising the pursuit of truth in adjudication,(1) for exceeding the constitutional authority of the judiciary,(2) and for fostering police perjury and judicial hypocrisy.(3) Defenders have laid the blame for the "cost" of exclusion on the Fourth, Fifth, and Sixth Amendments that prohibit the acquisition of reliable evidence when complied with, rather than on the exclusionary rule which operates only when these substantive constitutional provisions are violated.(4) Exclusionary rule advocates have insisted on the constitutional necessity for some effective remedy for constitutional violations,(5) and maintain that exclusion offers a far more attractive remedy than reliance on damage actions undermined by valuation problems, immunity defenses, and inadequate legal representation.(6) The Supreme Court seems to have adopted both positions, by continuing to suppress tainted evidence in the government's case-in-chief(7) while also recognizing a host of exceptions to the exclusionary rule. The most obvious of these are the standing doctrine,(8) the good-faith exception,(9) and the impeachment exception.(10)
The debate goes on because both tort remedies and the exclusionary rule have important advantages and serious drawbacks. Although appropriate reforms could overcome most of the defects with tort remedies, such reforms depend on appropriate legislation. Given the legislative incentives bearing on law-and-order issues, no legislature has yet delivered such reforms, nor is any likely to do so. Moreover, because constitutional violations ordinarily do not inflict the kind of material injury that our tort system compensates, tort schemes are plagued by the difficult problem of evaluating the plaintiffs' damages. Set too high and the damages would overdeter by inhibiting the police from vigorous action in cases near the border separating lawful from unlawful searches and seizures. Set too low and the damages would render the Fourth Amendment nugatory.
The exclusionary rule solves the political incentives problem because the Supreme Court imposed the rule as a matter of federal constitutional law. Exclusion also solves the valuation problem, because exclusion comes very close to setting the sanction equal to the government's illegal gain. Exclusion, however, suffers a serious psychological problem. Judges are reluctant to free obviously guilty criminals. Trial judges, therefore, tilt fact-finding against exclusion, while appellate judges give constitutional rights crabbed and grudging interpretations. As a result, it is fair to say that the Fourth Amendment is still underenforced.
This Article proposes a new conversation about constitutional remedies, a conversation about how exclusion and damages might be combined to provide an effective yet politically sustainable remedy for constitutional violations. The gist of the proposal is that courts should begin to experiment with suppression orders that are contingent on the failure of the police department to pay damages set by the court. The government, in this context, has no objection to receiving such an offer. If the government accepts the offer, it waives its objection to damages set by a judge without statutory authorization. If the government declines, it is in no worse position than if the judge had ordered suppression unconditionally.
The defendant might object on the ground that he has a constitutional right to the exclusion of the evidence. With respect to statements compelled in violation of the Fifth Amendment, or uncross-examined declarations admitted in violation of the Sixth Amendment confrontation clause, this claim is probably correct.(11) In other areas of criminal procedure doctrine, however, the courts exclude to deter future violations rather than to repair past violations. …