NCJ Number
93540
Journal
Washington Law Review Volume: 57 Issue: 4 Dated: (November 1982) Pages: 647-667
Date Published
1982
Length
21 pages
Annotation
Posner's recommendation to abandon the exclusionary rule rests on inadequate theoretical and practical gournds; he makes no attempt to justify his policy recommendation on grounds of social policy, beyond his claims of theoretical 'economic efficiency.'
Abstract
Judge Posner argues that economic theory demonstrates that the fourth amendment's exclusionary rule and other judicially developed doctrines implementing the Constitution impose excessive sanctions for governmental misconduct in criminal cases. A critique of this argument must begin with an examination of the rationale for the use of the exclusionary rule. One justification for the exclusionary rule given by its proponents is its application of the principle of judicial integrity and faithfulness to the fourth amendment, which prohibits searches and seizures that do not conform to specified conditions. The second justification is for the deterrence of illegal searches and seizures. Posner focuses exclusively on the second justification in stating that the rule was adopted because, until recently, there was no alternative sanction for violations of the fourth amendment that did not cause severe 'underdeterrence.' On the basis of economic analysis, Posner argues that the tort remedy for unlawful searches and seizures is the more appropriate means of deterrence. Posner's arguments fail to deal with the important issue of the constitutional integrity of the judicial system, which must be addressed on grounds other than principles of economic efficiency. A total of 61 footnotes are given.