Michael Mannheimer (Northern Kentucky University – Salmon P. Chase College of Law) has posted An Originalist Defense of Mapp (82 pages) on SSRN. Here is the abstract:
There is an inherent contradiction in applying the exclusionary rule to the States. On the one hand, the Supreme Court in Mapp v. Ohio held that the rule is “part and parcel” of the Fourth Amendment and, because the Amendment applies to the States, therefore so too does the exclusionary rule. On the other hand, the Court soon began to characterize the rule as a judicially created remedy that exists separate and apart from the Fourth Amendment. Thus, the Court declined to apply the rule in certain contexts, such as grand jury proceedings and civil cases, where the Court surmised that the rule provided insufficient incremental deterrence of police misconduct. Likewise, the Court created a “good faith” exception, applicable in cases where the nature of the Fourth Amendment violation led the Court to believe that applying the rule would not provide a marginal deterrence benefit. But, it seems, the Court cannot have it both ways. Either the rule really is “part and parcel” of the Fourth Amendment, and thus applies to the States by constitutional mandate by virtue of “jot-for-jot” incorporation of the Amendment, or it is purely a judge-made mechanism and the Cout has no authority to apply it to the States.
Yet Mapp is actually defensible on originalist grounds. An originalist defense of Mapp requires that we look to the language of and history behind the correct Amendment: the Fourteenth, not the Fourth. While the Constitution does not require any particular remedy when police and other government agents violate the law, the concepts of “equal protection of the laws” and “due process of law” imply that some remedy is required. The framers and ratifiers of the Fourteenth Amendment understood the bar against deprivations of “life, liberty, [and] property without due process of law” to mean that government agents are bound by state law. They understood the promise of “equal protection of the laws” to guarantee to victims of harm the use of state criminal and tort law against their transgressors. Together, these guarantees mean that state officials who violate state-law rights protecting security of persons and property must be held to answer, primarily through state criminal prosecution.
But state criminal prosecutions against police are rare because prosecutors – typically, the same prosecutors bringing charges against the victims of unlawful police conduct – virtually always exercise their discretion not to prosecute. Thus, the primary method that the framers and ratifiers of the Fourteenth Amendment contemplated to deter and punish state officials who violated civil rights, the criminal sanction, almost never actually applies to the police. The exclusionary rule, then, can be understood as a surrogate for state criminal prosecution of bad state actors. More pragmatically, the rule can be justified as a mechanism to prod prosecutors to charge state officials with crimes in appropriate cases. Thus, instead of continuing to justify the exclusionary rule by pretending that it deters the police, we should see it both as a stand-in for the due process protections that States could but generally do not provide for victims of police illegality and as a way to encourage state prosecutors to charge police with crimes in appropriate cases.
At the risk of oversimplifiying an important and ambitious paper, in my view this just isn't how originalism works. The fact that a remedy anticipated by the Fourteenth Amendment's framers has turned out in the modern world to be less effective than they expected is not grounds for the federal courts to impose a different remedy the courts think will be more effective. Further, the Fourteenth Amendment's text, in Section 5, is clear as to what body has power to "enforce this article" by providing additional remedies, and it's not the federal courts.
UPDATE: Matt Espin comments:
Posted at 7:30 AM