California Defender

Deterring Police and Judicial Misconduct Through Compensation

By: Randy E. Barnett *,
Fellow, Institute for Humane Studies, Menlo Park, Calif.

IT IS HIGH TIME for some new ideas about how to deter police misconduct. In the past, courts attempted to accomplish this objective by prohibiting the prosecution from using, at trial, evidence that was obtained illegally by the police.

However, this exclusionary rule has been the subject of recent U.S. Supreme Court decisions which permit the use of evidence that was illegally obtained, if law enforcement officers were acting in "good faith."

On the one hand, supporters of the exclusionary rule decry the recent creation by the Supreme Court of a "good faith" exception to violations of the Fourth Amendment because they perceive that it will reduce the deterrent against such violations. If the police know that exclusion of illegally obtained evidence is less likely in the courtroom, they will be more likely to engage in questionable activities as they go about their work of arresting criminals and obtaining evidence. As a result, innocent citizens are less safe from the power of the state than they were before the ruling.

On the other hand, supporters of the Supreme Court's decision to provide for a "good faith" exception point out that the court upheld the sentences of convicted criminals whose release would constitute a moral outrage and a danger to the innocent. While combating the threat to

innocent citizens of illegal police searches, the remedy of exclusion clearly makes them more vulnerable to the threat posed by criminals. This, in turn, increased public and professional agitation for the weakening of constitutional rights; and when given a choice between safety and the Bill of Rights, many will choose safety.

IT ONLY MAKES SENSE, then, to deter police misconduct by releasing guilty and sometimes dangerous criminals if there is no other way to limit such behavior.

Is there no way out of this dilemma? Are we really faced only with the choice of whose illegal conduct we will ignore: that of the criminal or that of the police? And must newspaper readers and television viewers continue to be subjected to this seemingly endless debate? No. There is an alternative that can deter misconduct at least as well as the exclusionary rule, and maybe better, without interfering with the prosecution of the criminal. And the recent Supreme Court decisions have made it more urgent than ever that we explore alternatives.

First, we must acknowledge the weakness of suppression of evidence as a deterrent. Suppression of evidence occurs only if an arrest is made, a motion filed, the defendant can prove that the offending officer is lying and a judge is willing to enforce constitutional rights by freeing the guilty. While this is a threat to the cop on the street trying to decide what to do, it is a pretty weak threat. And this list understates the difficulty of deterrence by suppression. For one thing, suppressing evidence has no direct effect on the police officer. It does not even indirectly affect an officer who is more concerned with the increased arrests that illegal conduct may provide than with the convictions that such conduct may jeopardize.

The most effective way to discourage police misconduct is by getting police supervisors to police the conduct of the officers under their command. This they will do only if (1) they have an incentive for doing so, and (2) their efforts will no: result in the freeing of criminals as they do now. What is needed is a way of imposing the costs of misconduct on the agency that can do something about it: the police department.

WE CAN THEREFORE preserve and possibly increase deterrence of police misconduct by, first, permitting all citizens - both those who are arrested and those who are not - who can prove that they were victims of police misconduct to collect compensation from the police department, through a "small-claims court"-type of system that specializes in such matters. This will give both guilty and innocent citizens an increased incentive to complain and police departments a major incentive to police their employees.

Second, we should abolish the exclusionary rule altogether for those rights violations where the evidence which is seized is reliable; unlike for example, coerced confessions which should still be suppressed. This step is crucial if judges are to be more receptive to claims against the police and if a department's efforts to investigate and discipline their officers is not to jeopardize the prosecution of the criminal as they would today. It would also get the prosecutor's office out of the business of defending police misconduct to save their cases.

But what about cases where the judge has approved the warranty? Why should the police department pay for the blunder of the magistrate? It shouldn't. Those who have been victimized by officers, who in good faith rely on an unconstitutional warrant issued by a judge, should be able to collect damages as well - but from the judge. This way, police departments will have a much greater incentive to make their officers apply for warrants and judges will have a greater incentive to scrutinize the applications for warrants carefully.

IN OTHER COUNTRIES where judicial liability is recognized, judges are bonded - like many other people in positions of trust - to ensure that they could satisfy a judgment against them. Doctors have to pay for malpractice insurance and this encourages them to be more careful. Requiring judges to carry insurance would have the same effect. Recent federal investigations have revealed, to those who did not already know, that judges now face little effective scrutiny. Requiring them to repay their victims would be a step in the right direction.

Will the remedy of compensation put an end to police or judicial misconduct? No. But neither will severe punishments put an end to other sorts of illegal acts. What it will do is place the onus of police misconduct where it will do the most good: on the police department. And as

long as the police receive taxes, it will place it ultimately on the wallet of taxpayers who can then make the political demand that the department police itself. It will end our current practice of placing the burden of deterring police misconduct on the next murder, rape or robbery victim.

* Randy E. Barnett is a law professor at Illinois Institute of Technology, Chicago-Kent College of Law and a former criminal prosecutor in Chicago. This article was reprinted by permission from the Sept. 11 Daily Recorder.