THE EXCLUSIONARY RULE'S HIDDEN COSTS
March 3, 2009
Television shows and movies routinely show criminals being released because evidence was illegally obtained. But with a recent decision -- Herring v. United States, which allowed the use of evidence obtained from a search that was based on incorrect information -- the Supreme Court may be moving towards eliminating the "exclusionary rule," which says that courts cannot use illegally obtained evidence in criminal trials. As it's interpreted today, the exclusionary rule can hinder the effectiveness of law enforcement, says Paul H. Rubin, a professor of economics and law at Emory University.
How did we get here? When Mapp v. Ohio (the Supreme Court decision applying the exclusionary rule to the states) was adopted in 1961, exactly half of the states (24) already had an exclusionary rule in place, and half did not. This set up an ideal situation for a statistical experiment to determine what the effects of the rule had been on crime rates, says Rubin.
In a 2003 paper published in the Journal of Law and Economics, researchers compared crime rates in states that had adopted their own exclusionary rule with states that had the rule forced on them by the Supreme Court. They statistically controlled for other factors, such as the demographic characteristics of the population. The results were striking:
- In the basic model, the researchers found significant increases in crime in jurisdictions forced by the Supreme Court's ruling to exclude evidence; those increases were 3.9 percent for larceny, 4.4 percent for auto theft, 6.3 percent for burglary, 7.7 percent for robbery, and 18 percent for assault; for murder, the increase was small and statistically insignificant.
- To put these numbers in perspective, for the entire United States in 2007 (the most recent year for which FBI data is available), these percentage increases would translate into 246,000 additional cases of larceny, 46,000 more auto thefts, 129,000 additional burglaries, 32,000 more robberies, and 130,000 more aggravated assaults.
Society might decide that these increases in crime are worth the benefit of deterring police misconduct. But we should be aware that there are significant costs. An alternative might be deterrence of police misconduct through a system of civil damages paid by the police department for improper searches. This 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, explains Rubin.
Source: Paul H. Rubin, "The Exclusionary Rule's Hidden Costs; Deterring crime should always be the priority," Wall Street Journal, February 28, 2009.
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