An economics perspective on the exclusionary rule and deterrence.

• Author: Cicchini, Michael D.

1. INTRODUCTION II. THE EXCLUSIONARY RULE AND THE GOAL OF DETERRENCE III. THE ECONOMIC FALLACY OF DETERRENCE A. The Explanatory Power of Economics B. Crime, Punishment, and the Rational Criminal C. Adapting the Model: The Rational Police Officer and the Sanction of Exclusion 1. The Probability of Suppression 2. The Cost of a Lost Conviction 3. The Lack of Secondary Sanctions D. A Final Word on Economics--The "Dismal Science" IV. OTHER DEFICIENCIES OF DETERRENCE-BASED REASONING A. Why Not Deter Negligent Misconduct? B. Is Deterrence the Only Concern? V. EXCLUSION IS STILL THE SOLUTION VI. CONCLUSION I. INTRODUCTION

   In Herring v. United States, the supreme court affirmed that when the police seize evidence in violation of a citizen's Fourth Amendment privacy rights, that evidence should rarely be excluded from the citizen's subsequent criminal trial. (1) Instead, the so-called exclusionary rule should only be applied if exclusion of the evidence would deter future police misconduct against hypothetical citizens whose constitutional rights have yet to be violated. (2) Additionally, the ill-gotten evidence should only be excluded in cases where this future deterrent effect is substantial and outweighs the societal costs of freeing the guilty citizen. (3)

   Quite emphatically, the court justifies the use of the exclusionary rule by focusing entirely on the concept of deterrence. Specifically, if the exclusion of evidence in a particular case would not deter future police misconduct, or would only minimally deter it, then the costs of exclusion are deemed too great, and the exclusionary rule will be disregarded. (4) This raises the critical question that lies at the heart of this Article: does the exclusionary rule actually deter police misconduct? If it does not deter, then the application of the exclusionary rule should not, and cannot, be limited or at all affected by the concept of deterrence. (5)

   The social science of economics is well suited to answer this important question. (6) More specifically, one economic theory in particular--the economic theory of criminal sanction--can be adapted to predict the exclusionary rule's deterrent effect on future police misconduct. This theory, in its original context, states that criminal behavior can be deterred by increasing either the criminal's risk of apprehension or the severity of the criminal sanction, such as the term of incarceration, or both. conversely stated, the criminal will not be deterred from committing a crime, and will instead choose to commit the crime, if the expected benefits of the crime (B) exceed the expected costs (p x C), where p = the probability of conviction, so that 0

   This theory, however, can be used much more broadly and can explain the deterrent effect of any given sanction on any given behavior, criminal or otherwise. This includes, of course, the exclusionary rule's deterrent effect, if any, on future police misconduct. In short, this economic theory states that the exclusionary rule will not deter police misconduct, and the police will instead choose to violate a suspect's constitutional rights, if the expected benefits to the police (B) exceed their expected costs (p x C), where p = the probability that the evidence will be suppressed, so that 0

   Conversely stated, in order for the exclusionary rule to effectively deter future police misconduct, the expected cost to the police of their misconduct (p x C) would have to be greater than the expected benefits to the police of the same misconduct (B). If the expected costs are too low--that is, if B > p x C--then the police will choose to commit the misconduct and violate the suspect's Fourth Amendment rights, and the exclusionary rule will have failed to deter. (9)

   This Article will demonstrate that the exclusionary rule does not and cannot deter police misconduct. The reason is that the expected cost to the police of their own misconduct (p x C) is nearly always zero. More specifically, the probability that the evidence will be suppressed (p), even in cases of egregious police misconduct, is very close to zero. (10) Additionally, even in the rare case that evidence is suppressed, the cost to the police of a lost conviction (C) is nearly always zero for several reasons: first, the police tend to value arrests, not convictions; second, even if they did value convictions, suppressed evidence does not necessarily mean the conviction is lost; and third, often the police have nothing to lose when they choose to commit misconduct--that is, the conviction would not even be possible unless the police commit the misconduct in the first place. (11)

   Finally, in addition to the very low probability that evidence will be suppressed (p) and the very low cost to the police of a lost conviction (c), there are simply no effective secondary sanctions to fill the void and deter police misconduct. (12) Therefore, the benefit to the police of their misconduct (B) will nearly always exceed the expected costs of the same misconduct (p x c).

   The economic theory of criminal sanction, therefore, answers the question in the negative: the exclusionary rule does not, and cannot, deter police misconduct. As a result, this Article argues that the application of the exclusionary rule should not be limited or affected in any way by the fallacious concept of deterrence. Further, the exclusionary rule should neither be eliminated nor be replaced with an alternative remedy. Instead, other important societal concerns previously ignored by the court--concerns such as the integrity of the judiciary and remedying the individual that was actually harmed by the police misconduct (13)--mandate that the exclusionary rule be made inseparable from the underlying constitutional right it was designed to protect. (14) As a result, evidence should be excluded from any subsequent criminal trial whenever a citizen's Fourth Amendment rights are violated.

2. THE EXCLUSIONARY RULE AND THE GOAL OF DETERRENCE

   When the police violate a citizen's Fourth Amendment rights through an illegal search and seizure, the seized evidence will rarely be suppressed at the citizen's subsequent criminal trial. (15) In fact, the exclusion of evidence--the only realistic remedy available to all but the most wealthy and powerful citizens--will only be ordered if the trial court finds that exclusion would deter future police misconduct. (16) Most recently, the Supreme Court held that

   [t]he fact that a Fourth Amendment violation occurred ... does not necessarily mean that the exclusionary rule applies. Indeed, exclusion has always been our last resort, not our first impulse, and our precedents establish important principles that constrain application of the exclusionary rule. First, the exclusionary rule is not an individual right and applies only where it results in appreciable deterrence. We have repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation. Instead, we have focused on the efficacy of the rule in deterring Fourth Amendment violations in the future. In addition, the benefits of deterrence must outweigh the costs. We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence. To the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against its substantial social costs. (17) This holding has several bizarre effects. First, it makes the exclusionary rule a misnomer; in fact, when exclusion is treated as a last resort, it would be far more accurate to label it the exclusionary exception rather than the rule. Second, by proclaiming that the exclusion of illegally obtained evidence is not an individual right, the Court has effectively turned the Fourth Amendment into a right without a remedy. This, of course, reduces our protection "against unreasonable searches and seizures" (18) to little more than an empty catchphrase. (19) After all, without the remedy of exclusion, "[t]here can be no serious assertion that relief is available under 42 U.S.C. [section] 1983" (20) or, for that matter, under any other imaginable remedy.

   Third, despite the Court's mantra that the benefits of deterrence must be weighed against the social costs of excluding the evidence, the Court never attempts to actually do so. Instead, it has replaced the weighing of costs and benefits with the simple assumption that, in nearly every circumstance, the social costs are too great to justify exclusion. (21) Fourth, by focusing exclusively on future deterrence, the Court has neglected numerous other equally important concerns, including maintaining the integrity of the judiciary and providing redress for the citizen that was actually harmed by the constitutional violation. (22)

   These last two issues--the Court's failure to actually weigh the benefits of exclusion against the costs and its exclusive focus on deterrence to the neglect of other concerns--will be addressed more fully in Part IV of this Article. The first and more compelling question, however, is whether the Court's focus on deterrence--even in small part, let alone exclusively--is justified. In other words, the critical question is this: does the exclusionary rule actually deter future police misconduct? With regard to this issue, one author recently commented,

   It is surprising that the Court's assumption, that the exclusionary remedy does deter abuses of constitutional rights, has gone mostly unremarked in the voluminous commentary on the exclusionary rule. Subsequent judicial decisions and academic scholarship have ignored or accepted this dubious contention.... Thus the very assertion that the Court made, that exclusion promises to [deter,] ... has escaped scrutiny. (23) This question--whether the exclusionary rule actually deters police misconduct--is an incredibly important one and is the primary focus of this...