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October 6, 2006

Sentence reductions to revive an aging Miranda?

As previously noted here, today the Ohio State Journal of Criminal Law is having a symposium on "Miranda at 40."  As detailed in this schedule, this event is bringing together many leading lights on interrogation law and policy (and will be webcast).

I am not a Miranda expert, but I do tend to bring my sentencing prespective to all debates over police practices.  Specifically, when I teach the police practices course and we get to discussing remedies, I often ask students whether a better remedy than the exclusionary rule for police misdeeds might be sentence reductions.  I always find it useful and interesting to speculate about the impact on decision-making by police, prosecutors and judges if a standard remedy for unlawful police behavior was an automatic (and steep?) sentencing discount rather than exclusion. 

For many years, students rightly viewed my remedy talk as an academic flight of fancy.  But, in the wake of Justice Scalia's interesting recent exclusionary rule jujitsu in Hudson, perhaps we might start seeing a more robust and serious discussion of alternatives to the exclusionary rule.

October 6, 2006 at 10:43 AM | Permalink


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The sentence is only one of many consequences of a conviction. While the sentence itself may vary on a "sliding scale," the collateral consequences are usually absolute, such as:

-- Loss of voting rights
-- Ineligibility for certain professions
-- Having to answer "yes" to certain questions on job applications
-- Sentencing enhancements for recidivism, should the defendant re-offend
-- Requirement of sex offenders to register

Of course, one could argue that if the defendant was guilty anyway, these consequences are all appropriate. The reduced sentence "penalizes" the police for the constitutional violation, while ensuring the "obviously guilty" defendant doesn't escape the consequences.

Perhaps there should be different treatment depending on the violation. Evidence seized without a warrant is usually reliable. The exclusionary rule exists mainly to discourage police intrusions into the lives of innocent people.

But there are plenty of examples where "confessions" obtained through illegal interrogations were just plain wrong.

Posted by: Marc Shepherd | Oct 6, 2006 1:52:02 PM

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