Congress is (Not) Repealing the Exclusionary Rule! Symbolic Politics and Criminal Justice (Non)Reform

Abstract

In 1984, the U.S. Supreme Court approved a good faith exception to the exclusionary rule in cases where a warrant was wrongfully issued, but the Court has declined to extend it to warrantless cases. Because the majority of searches fall under exceptions to the warrant clause and thus are conducted without warrants, providing a good faith defense to constitutional challenges in these caseswould in effectrepeal the exclusionary rule. Such legislation has been proposed in Congress, but it is unlikely to pass. Even if it did pass, however, it would not change police accountability to the Fourth Amendmentmuch, because the exclusionary rule probably only minimally deters police misconduct, a matter that is difficult to explore empirically. Furthermore, the proposed legislation would apply only to federal and not state law enforcement-with exceptions for the federal police agencies that the bill's sponsors do not like. Despite the fact that the effect of this law would be minimal if it were passed, such legislation will continue to be proposed because the exclusionary rule is a condensation symbol for law and order ideologues who oppose it as a means of symbolically marking their political territory.