The Need to Overrule Mapp v. Ohio

Abstract

This Article argues that it is time to overrule Mapp v. Ohio. It contends, first of all, that a tough deterrent sanction is difficult to reconcile with a system where victims are increasingly seen to have a stake in criminal cases. Secondly, the Article maintains that a tough exclusionary sanction is inappropriate given what police are asked to do on the street and the fact that concepts such as probable cause or reasonable suspicion are inevitably matters of judgment on which reasonable people will differ. Thirdly, the Article shows how the Court’s epistemological assumption that “hunches” are improper bases for action and that officers must instead have reasons they can articulate for their actions is outdated given social science and neuroscience research showing that humans often “feel” or “sense” danger, sometimes at a subconscious level. The Article’s main attack on Mapp, however, is on the Court's assumption that harsh sanctions deter undesirable behaviors. This is wrong in theory and is highly debatable empirically. Classical deterrence theory always insisted that deterrence must result from the consistent imposition of proportional punishment, not the imposition of harsh punishments. Moreover, our experience with deterrence, especially, the death penalty, demonstrates that the deterrent effect of harsh sanctions will always be speculative and uncertain. Unfortunately, having given harsh deterrent sanctions its imprimatur in Mapp, the Court is not in a position to challenge the many deterrent sanctions that push sentences in the United States higher and higher and set the United States apart from other western countries. The Article concludes that it is time for the Court to overrule Mapp and rebuild the exclusionary rule on a proportional basis, such as one finds in other common law countries.