Accountability-Based Policing: Using Measures In Addition to the Exclusionary Rule

Professor David Harris of Pittsburgh Law School recently published an article entitled, “How Accountability-Based Policing Can Reinforce – Or Replace – The Fourth Amendment Exclusionary Rule.” See (2009), 7 Ohio State Journal of Criminal Law. He proposes that in light of recent attempts before the U.S. Supreme Court to repeal the exclusionary rule altogether, legislatures should require the use of newly-developed police accountability mechanisms by law enforcement officials.

Professor Harris refers to the controversial decision of Justice Scalia in Hudson v. Michigan to highlight the dangers of abandoning the exclusionary rule all together. That ruling seems to have suggested that police generally follow the law, and when they do not, other robust remedies less costly to society than the exclusion of evidence to ensure that officers change their behaviour and obey search and seizure rules.

Professor Harris challenges Justice Scalia’s argument that the exclusionary rule has outlived its usefulness because police officers now almost always do their jobs by and large in accordance with those rules. He relies on empirical studies by criminologists to shows that Justice Scalia’s assumptions simply do not square with reality.

He suggests that instead of repealing the Fourth Amendment’s exclusionary rule, the legislatures should require the use of newly-developed mechanisms to ensure police accountability.

To this end, he proposes the following:

First, that a system for tracking police search and seizure activity, based on successful work on early intervention systems now used to head off police misconduct, holds great promise for advancing the ability of supervising officers to assure that those under their commands obey the law.

Second, that strengthening the ability of members of the public allegedly subjected to police misconduct to bring suit for redress in federal court would create real incentives for better police behaviour. This would do much to address the issue of Fourth Amendment violations that uncover no evidence, making the exclusionary rule an inapplicable remedy.

Third, that new technologies can enable police departments to make video and audio recordings of nearly all police activity.

Posted by Minoo Alipour Birgani (Law III)