New Ideas on Police Conduct By: Randy E. Barnett
(c) Copyright 1984 Chicago Tribune
Chicago Tribune, September 8, 1984
Page 10, Section 1
Given the recent Supreme Court decisions limiting the reach of the exclusionary rule, it is high time for some new ideas about how to effectively deter police misconduct. Moreover, the recent
column by Stephen Chapman, "Eroding the 4th Amendment," and the response by D. Lowell Jensen, "Sensible Decision on Warrants," illustrate that the seemingly endless debate over the exclusionary rule has
long been at a deadend. Mr. Chapman correctly notes that the recent creation by the Supreme Court of a "good faith" exception to violations of the 4th
Amendment will reduce the deterrent against such violations. If the police know that, for whatever reason, the exclusion of [legally obtained evidence is less likely, then when they are deciding whether to engage in questionable
activity, they will be less influenced by the threat of exclusion than they would otherwise have been. It is sheer fantasy to dispute this point. The assertion by the
Court that evidence may still be suppressed where warrants were obtained from judges who are merely "rubber stamps" for the police borders on the disingenuous. Such a relationship would be next to impossible for a
defendant ever to demonstrate. As things stand now, there is no effective remedy whatsoever for violations that occur as a result of an error of the magistrate. As a result, innocent citizens are less safe from the power of the
state than they were before the .ruling. But Mr. Jensen is also correct to point out that the Supreme Court decisions upheld the sentences of convicted criminals, whose
release would constitute a moral outrage and a danger to the innocent. While combating the threat to innocent citizens of illegal police searches, the remedy of exclusion clearly makes them more vulnerable to the threat posed by
criminals. [And Is there no way out of this dilemma? Are we really faced only with the choice of ignoring the illegal conduct of either
the criminal or the police? [And must newspaper readers and television viewers continue to be subjected to this debate?] No. There is an alternative. First, we must
acknowledge the weakness of suppression as a deterrent. Suppression only occurs if an arrest is made, a motion is filed, the defendant can prove that the offending officer is lying and a judge is willing to enforce constitutional
rights by freeing the guilty. While this is a threat to the cop on the street trying to decide what to do, it is a pretty weak threat. And this list understates the difficulty of deterrence by suppression. For one thing,
suppressing evidence does not nave any direct effect on the police officer. It does not even indirectly affect an officer who is more concerned with arrests than with convictions.
The most effective way to discourage police misconduct is by getting police supervisors to police the conduct of the officers under their command. This they will only do if [1] they have an incentive for doing so, and [2] their
efforts will not result in the freeing of criminals as they do now. We can, therefore, preserve and possibly increase deterrence by, first, permitting all citizens—both those who
are arrested and those who are not—who can prove that they were victims of police misconduct to collect compensation from the police department, through a "small-claims court" type system that specialize in such matters.
This will give both guilty and innocent citizens an increased incentive to complain and police departments a major incentive to police their employees.
Then, second we should abolish the exclusionary rule altogether for those rights violations
where the evidence seized is reliable, unlike, for example, coerced confessions [which should still, therefore, be suppressed]. This step is crucial if judges are to be more receptive to"-claims against the police and if a
department's efforts to investigate and discipline their officers is not to jeopardize the prosecution of the criminal as they would today. It would also get the prosecutors office out of the business of defending police misconduct
to save their cases. But what about cases where the judge has approved the warrant? Why should the police department pay for the blunder of the magistrate? It
shouldn't. Those who have been victimized by officers who in good faith rely on an unconstitutional warrant issued by a judge, should be able to collect damages as well—but from the judge. This way police departments will have a
greater incentive than they do today to make their officers apply for a warrant and judges will have a greater incentive than they do today to scrutinize the applications for warrants carefully.
In other countries where judicial liability is recognized, judges are bonded [like lots of other people in positions of trust] to ensure that they could satisfy a judgment
against them. Doctors have to pay for malpractice insurance and this encourages them to be more cautious. Requiring judges to carry insurance would have the same effect. And, as Operation Greylord indicates, judges now face little
effective scrutiny. Requiring them to repay their victims would be a step in the right direction. Will the remedy of compensation to an end to police misconduct? But neither will severe punishments put an end to other sorts of
illegal acts. What it will do is place the onus of police misconduct where it will do the most good: on the police department [and, as long as the police receive taxes, ultimately on the wallet of taxpayers who can then make the
political demand that the department police itself]. It will end our current practice of placing the burden of deterring police mi-conduct on the next murder; rape robbery victim.