The Exclusionary Rule and Damages: An Economic Comparison of Private Remedies for Unconstitutional Police Conduct

I. INTRODUCTION Apart from its constitutional status,1 the exclusionary rule is nothing more than an instance of the common law remedy of restitution.2 Like restitutionary remedies in general, it is founded on the principle of unjust enrichment.3 The exclusionary rule requires that the prosecution of a criminal defendant who is a victim of unconstitutional police conduce must proceed without the benefit of its illgotten gain; for example, incriminating evidence discovered by virtue of an illegal police search must be suppressed.5 The use of exclusion as a remedy for unconstitutional police conduct is problematic. Restitutionary remedies are not generally favored in civil law.6 Although their use may be growing,7 their importance remains small in comparison to the dominant position of civil damages, a remedy that measures compensation by the victim's losses caused by the wrongdoer, not by the defendant's gain.8 The relative dominance of civil damages raises the question why, when the Supreme Court chose from the menu of private civil remedies to address the problem of unconstitutional police conduct,9 it selected the more uncommon remedy of restitution instead of damages.10 The Court's answer is found in its declaration that, among civil remedies, only exclusion adequately protects the underlying constitutional right.11 This declaration assumes that damages are not as effecfive as exclusion at discouraging constitutional wrongs and that exclusion is in fact adequate to the task. 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.12 Although many commentators have debated the jurisprudence of exclusion, they focus on the problem of the connection between the right and the remedy13 or the practical and theoretical shortcomings of using damages to address police misconduct.14 For the most part, the virtues and shortcomings of exclusion have not been extensively considered.15 Thus the very assertion that the Court made, that exclusion promises to provide more deterrence than does a damages remedy, has escaped scrutiny.16 Examined along several dimensions borrowed from the more robust scholarship on civil remedies, exclusion does not appear to constitute a clearly superior device to deter constitutional harms in comparison to damages. Part II of this paper will consider exclusion in terms of its allocative efficiency.17 From this perspective, exclusion is intended to provide a solution to the problem of externalities, here the positive externality of deterring wrongful conduct.18 This part will suggest that exclusion, like restitutionary remedies more generally, does not promise to generate as much deterrence as would a damages remedy arrayed against miscreant officers. This part will conclude by suggesting that damages are so productive of positive externalities that they could substantially replace other public sanctions in shaping officer conduct. Part III will reconsider exclusion, not as a response to the positive externality problem, but rather as an attempt to overcome the Prisoner's Dilemma that can be employed to model the police-citizen interaction.19 This part will suggest that a damages remedy, not exclusion, appears more likely to induce the cooperative behavior that will ensure maximum joint returns. Part IV compares the tendencies of exclusion and damages to minimize principal/agency problems, thus minimizing unconstitutional police conduct.20 Finally, Parts V21 and VI22 consider practical advantages frequently cited in favor of exclusion. The analysis here, as throughout the paper, suggests that damages are at least as good as exclusion in meeting the stated social objectives, and in fact are probably better, offering a more refined solution to the perpetual problem of constraining police behavior. …