Culpability, Deterrence, and the Exclusionary Rule
Kinports, Kit, The William and Mary Bill of Rights Journal
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 theylike 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.
By this point, the regrettable state of the Supreme Court's Fourth Amendment jurisprudence comes as no surprise to anyone. Academics and jurists of all stripes agree that the Court's case law in this area is a mess.1 In part, this state of affairs reflects the Court's failure to agree on a doctrinal framework for the Fourth Amendment's exclusionary rule. Although it is well accepted that the Court now treats the exclusionary remedy as exclusively deterrence-driven,2 the Court has not articulated a coherent theory explaining how it expects exclusion to deter unconstitutional searches and why it considers deterrence a worthy goal. Further complicating the analysis, the Court has recently injected the concept of police culpability into the deterrence calculus.3
Nowhere is this lack of analytical rigor more striking than in the so-called "good faith" cases. The good-faith exception to the exclusionary rule, initially recognized in United States v. Leon,4 has now been part of the Fourth Amendment legal landscape for almost thirty years. Scholars and dissenting Justices have offered trenchant, at times withering, critiques of Leon and its early progeny,5 and now of the Court's three recent forays into this area-Hudson v. Michigan,6 Herring v. United States,7 and Davis v. United States? And others have more generally despaired completely of the exclusionary rule's efficacy as a deterrent,9 at times advocating alternative remedies for Fourth Amendment violations.10
Stepping back from the well-deserved criticism leveled at the Court's rulings in these individual cases, and while questions surrounding the wisdom - and, perhaps more important, the political feasibility - of alternative proposals remain unresolved,11 this Artide takes the Supreme Court at its word that it cares about deterring Fourth Amendment violations and evaluates the Court's opinions on its own terms. After introducing the good-faith cases in Part I, Part ? explores three different models of deterrence that the Article uses in assessing the deterrence analysis found in the Court's decisions: economic rational choice theory, organizational theory, and the expressive account of punishment. Part HI then draws on these different theories in evaluating the Court's narrative on the mechanics of deterrence - i.e., how the Court expects the exclusionary rule to deter police misconduct. This Part argues that the deterrence arguments the Court has advanced in this line of cases are internally inconsistent, and that considering a police officer's culpability in exempting negligent Fourth Amendment violations from the reach of the exclusionary rule is not clearly called for by any of the three theories of deterrence. …