The Penalty of Exclusion - A Price or Sanction?
Sharon L. Davies
Ohio State University College of Law
Southern California Law Review, Vol. 73, P. 101, 2000
In this article, Professor Davies applies the economically-based theory of prices and sanctions (developed by Professor Robert Cooter in Prices and Sanctions, 84 Colum. L.Rev. 1523 (1984)), to the Supreme Court's exclusionary rule jurisprudence.
Under price and sanction theory, penalties that "sanction" harmful human conduct do so in an effort to signal that the conduct is wrongful and prohibited and to deter its occurrence. By contrast, penalties that "price" harmful human behavior permit actors to impose harms on others, provided they "internalize" the costs they impose when they elect to do so. A community's decision to adopt a pricing stratagem over a sanctioning stratagem (or vice versa) is important because the choice can cast light on the community's fundamental attitude toward particular harmful conduct. If a community prices harmful conduct, the community is essentially morally-neutral toward the occurrence of the harm; it seeks to deter the harmful behavior only if it is inefficient, permitting efficient harmful behavior to occur, provided the actor responsible for the harm pays for any costs imposed on others. A community that sanctions harmful conduct, however, considers the conduct to be wrongful and prohibited and seeks to deter the conduct by adopting a penalty that is sufficiently hefty to convince a reasonable actor to choose compliant over non-compliant behavior.
Applying price and sanction theory to what Professor Davies calls "the penalty of exclusion" ? i.e., the penalty for police transgressions of Fourth and Fifth Amendment rights ? the author highlights important strengths and weaknesses in the Supreme Court's exclusion jurisprudence. The article concludes that although the penalty of exclusion is best described as a sanction, certain aspects of the Court's exclusionary rule decisions have diluted the penalty's ability to function as an effective sanctioning device. In particular, rulings that have severely limited the scope of the exclusion penalty have led some police forces to conclude that constitutionally defective evidence-gathering conduct is no longer prohibited, and thus if penalized at all, will be priced, not sanctioned. The article argues further that other aspects of the Court's exclusionary rule jurisprudence are consistent with and supported by price and sanction theory. Citing as an example the much maligned "good faith exception" to the exclusionary rule, the author argues that the exception is supported by price and sanction theory and contributes to the exclusion penalty's internal coherence and moral suasion.
Accepted Paper Series
Date posted: October 3, 2000
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