Exclusion or Damages

The exclusionary rule, which sometimes prevents prosecutors from introducing illegally obtained evidence in criminal trials, increases crime rates by weakening deterrence, according to Paul H. Rubin, writing in WSJ.com on Saturday. Rubin cites his own 2003 paper (with Raymond Atkins), which found that the rule substantially increased rates of larceny, auto theft, burglary, robbery, and assault. As a result, he says, Justice Roberts understated the costs of the rule when he wrote recently, in Herring v. United States (which weakened the exclusionary rule), that the rule allows "guilty and possibly dangerous defendants" to go free.

Rubin proposes, as an alternative to the exclusionary rule, "deterrence of police misconduct through a system of civil damages paid by the police department for improper searches." The potential for civil damages, he says, "would give police departments incentives to be cautious in performing searches, but might be less costly for the rest of us in terms of its effect on crime rates."

It is not clear, though, why Rubin assumes that a strong civil damages system would have less of an effect on crime rates than the exclusionary rule. One would expect money damages to reduce operating budgets at police departments, police departments, as a result, to catch fewer criminals, and criminals, as a result, to be less deterred. The comparative efficiency of the exclusionary rule and civil damages as measured by benefit to police conduct and cost in crime is an empirical question that Rubin doesn't mention. (In case it matters to anyone, I support a strong civil damages regime in addition to, not instead of, the exclusionary rule. If I thought I knew which one was more efficient, and I thought it feasible, including politically, to deter misconduct adequately through that one alone, I would, I imagine, oppose the other.)

The civil damages proposal is also surprising coming from Rubin, who not too long ago published (with Joanna M. Shepherd) a law review article concluding that the whole United States tort system is unjustifiable, specifically because it doesn't deter effectively. (SSRN See pages 223, 235). While generalizing to the whole tort system, the focus of that article was on non-motor-vehicle accidental death cases, which, according to the authors, actually increase accidental deaths. The most important reason for this outcome, the article says, is that many of the defendants in these cases—doctors and makers of medicines and protective equipment—are engaged in reducing, not increasing risk. (p. 222). I may well be missing something, but to me it seems that an analogous point applies to police departments, which are, after all, charged with preventing some of the same types of misconduct that can result in exclusion under the exclusionary rule (breaking into your home, for example, and taking your things). If Rubin really does support a strong civil damages system to deter police misconduct, it would be interesting to know why he doesn't view it in the same light as he does other kinds of tort cases.

--posted by David Gold