University of Colorado Law Review
William T. Pizzi, The Need to Overrule Mapp v. Ohio, 82 U. Colo. L. Rev. 679 (2011), available at http://scholar.law.colorado.edu/articles/176.
This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious level, and these feelings may provide a valid basis for action.
The Article's main attack on Mapp, however, is an attack on the assumption behind the rule-that a harsh sanction will deter undesirable behaviors. This is not consistent with classic deterrence theory, which insists that deterrence results from the consistent imposition of proportional punishment, not the occasional imposition of very 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 criminal sentences in the United States higher and higher, setting the United States apart from other Western countries.
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