Is the Exclusionary Rule a Prohibition-Era Relic?

By Hardiman, Thomas M.; Gailey, Lauren | Michigan Law Review, April 2019 | Go to article overview

Is the Exclusionary Rule a Prohibition-Era Relic?


Hardiman, Thomas M., Gailey, Lauren, Michigan Law Review


IS THE EXCLUSIONARY RULE A PROHIBITION-ERA RELIC? THE PROHIBITION ERA AND POLICING: A LEGACY OF MISREGULATION. By Wesley M Oliver. Nashville: Vanderbilt University Press. 2018. Pp. x, 202. Cloth, $69.95; paper, $27.95.

Introduction

In his engaging new book, The Prohibition Era and Policing: A Legacy of Misregulation, Wesley M. Oliver1 advances a novel view: the legal regime that regulates modern policing is a vestige of the Prohibition Era. During Prohibition, when intrusive and unreasonable police searches were commonplace, courts attempted to deter these affronts to privacy by introducing the exclusionary rule. Decades later, the Warren court continued to adhere to this approach, expanding the exclusionary rule's reach from the searchand-seizure context to new and very different problems, like coerced confessions and the excessive use of force. Oliver argues that excluding evidence in excessive-force cases was problematic because that remedy fails to address the underlying police misconduct and precludes the admission of reliable evidence.

Oliver's insights into the provenance of the exclusionary rule lead him to conclude that the Supreme Court's apparent retreat from it in recent years is less an outright rejection (as is commonly thought) than a course correction. After all, the remedy of exclusion has been unmoored from its original purpose-deterring unconstitutional searches and seizures of illegal alcoholfor nearly a century. oliver's hope is that the court's focus will shift away from the exclusion of reliable evidence (however obtained) and toward remedies he views as better suited to addressing the types of police misconduct that are more pressing today: coerced confessions and excessive force.

The erosion of the exclusionary rule has been a recurring theme in criminal procedure scholarship for years, and many of the arguments predicting its demise are by now familiar.2 But The Prohibition Era and Policing adds a new prologue to this story. Oliver rejects the prevailing view that the exclusionary rule originated around the turn of the twentieth century and then went dormant, only to be resurrected by the Warren Court decades later.3 Instead, he claims the exclusionary rule actually became the default judicial remedy for search-and-seizure violations in state courts during Prohibition, in response to societal concerns about police overreach. The exclusion from evidence of illegally seized alcohol was a sensible remedy when courts and citizens alike were primarily concerned with overzealous searches and seizures. And because much of the country disagreed with Prohibition anyway, there was little outrage when prosecutions were discontinued. But after Prohibition ended, illegal searches and seizures became a less pressing concern than coerced confessions and the use of force by police.

Oliver's thesis is that the law of criminal procedure has not evolved to keep up with the changing times. Instead of formulating new legal doctrines and remedies to address these new concerns, the Warren Court stretched Prohibition-Era search-and-seizure precedent-including the exclusionary rule-to apply to these other forms of police misconduct as well. In Oliver's view, it was a poor fit, and the Court's Fourth and Fifth Amendment case law fails to deter police excesses, excludes reliable evidence in a manner that undermines prosecutions, and frustrates the development of a body of law that would provide officers with more specific guidance regarding the appropriate use of force.

By supplying historical context, The Prohibition Era and Policing ties together subjects that are of interest to both constitutional scholars (the erosion of the exclusionary rule) and the general public (police use of force, coerced confessions, and wrongful convictions).

I. Modern Policing and Its Effects on Criminal Procedure

In Part One of his book, Oliver begins with an interesting discussion of the history of policing. …

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