The Optimum Remedy for Constitutional Breaches: Multi Accessed Civil Penalties in Equity

In the seminal case of Weeks v. United States, the prosecution sought to uphold a conviction where the incriminating evidence was allegedly obtained through an unconstitutional search and seizure by law enforcement. At the time of the Weeks trial, there were no effective remedies in place to deter such police exercises. Further, the federal mechanism lacked the means to detect, adjudicate, enjoin, or punish such constitutional violations. There was no deterrent and, indeed, little disincentive on police excesses. Lest our founding document become a repository of dead letters and hypocrisies, our constitutional checks must be actualized. But the judiciary, with the important task of providing a check on the other two branches, is inherently passive. It does not tax or spend, enact laws, or adopt rules applicable outside its own domain. Its power to interpret the law is confined to cases brought to it by others. Even within this rubric, constitutional doctrines pertaining to ripeness, mootness, justiciability, advisory opinions, and real controversies limit judicial check as to those cases it receives. And as to those it may act upon, its power is largely limited to granting the prayer of a party or refusing it. Accordingly, in 1914, the Weeks Court took the only remedial action it could by overturning the conviction and ruling that the evidence obtained by law enforcement in violation of constitutional standards could not be used against a defendant at trial. What other remedy was available to the Court? Although the Court often lacked enthusiasm for the exclusionary rule, over the next forty-seven years Congress and state legislatures failed to formulate a more direct and satisfactory remedy. Accordingly, in 1961, when the Court faced the question of applying a remedy to the state courts throughout the nation, it had little choice. In Mapp v. Ohio, the exclusionary rule as a remedy for constitutional breaches was extended to the states through the Fourteenth Amendment, and it has since become the primary means to enforce constitutional compliance by public officials, particularly police authorities at local, state, and federal levels. The remedy of excluding evidence for police constitutional transgressions was not created tabula rasa. Were the Court to have the same broad, proactive authority as Congress and state legislatures have had and retain, how might it have proceeded logically? The first thing the Court probably would consider is the purpose of a remedy: to provide redress for, halt, and, ideally, deter wrongdoing. A remedy should be measured based on its efficacy in accomplishing its goals while minimizing collateral harm unrelated to its purposes. As such, if presented with the problem of the police breaching constitutional standards, a decisionmaker with comprehensive options would seek a remedy to halt such practices by providing an effective disincentive sufficiently focused to prevent harm to outside persons or interests. There are numerous theoretical remedies which might be measured along such a paradigm, such as sanctions imposed on individual officers, their police departments, or even the larger political jurisdiction that governs state agents transgressing applicable standards. These sanctions could involve, for example, criminal prosecution, damage awards, civil penalties, and employment sanctions. They could be overseen or decided by an agency, a separate court, existing courts, or an independent citizen review board. As discussed below, the exclusionary rule, as a remedy, scores low on both of the basic criteria for measuring remedy efficacy: it lacks effective connection to the wrong addressed, and it imposes considerable collateral costs on others. Its shortcomings make the exclusionary rule less preferred than a long list of options that more directly impacts the persons engaging in unconstitutional behavior and that would hold them accountable based on the nature and prior record of such breaches. However, before passing judgment on the courts, consider their position: it is the only remedy they have. The blame for the current reliance on a remedy, which is not only ineffective, but also imposes considerable external costs, rests squarely with the Congress and the state legislatures that have the authority to formulate such options, but have failed to do so. This Article analyzes some of the current options proposed and concludes that there is an optimum option which would avoid the external costs of the exclusionary rule, serve its purposes to secure police compliance with constitutional standards more directly and effectively, and lie within sufficient judicial control to allow its substitution for the exclusionary rule. As outlined below, and in a model statute attached, the best option is a multiaccessed civil penalty sanction in equity imposed against the department or the agency employing those who violate such standards.