The Prohibition Era and Policing: A Legacy of Misregulation

By Wesley M. Oliver | Vanderbilt University Press | $27.95 | 280 pages | 2018

An ancient attic in Maine held an antebellum treasure until Professor Wesley Oliver ferreted it out. Lying prone before him in a rusty, dusty trunk was the origin of the exclusionary rule. Once thought to be the creation of the Supreme Court in 1886, the exclusionary rule actually came to life in 1854 in Maine and then lay dormant for 32 years. This keystone discovery inspired Oliver to embark on an odyssey of the development of the exclusionary rule and discover how it has been misapplied as a check on police powers.

Prohibition — first at the state level in the 1850s and then at the national level in the 1920s — fundamentally revamped the way courts evaluated the work of police. Before the Prohibition magistrates were not even required to review the factual basis for an allegation of probable cause in a warrant application. The exclusionary rule, a reaction to over-zealous liquor raids, gave courts a way to sanction and deter what had become a very particular brand of widespread lawlessness by officers. The zeal and corruption of officers during Prohibition shook a recently acquired faith in law enforcement to its core. Judicial supervision over physical searches was not the only legal innovation prompted by Prohibition. State and federal authorities initially tolerated wiretaps but aggressive policing of prohibition caused a backlash — and maybe we can thank Elliot Ness for this mess.

Unfortunately, according to Oliver, legal developments aimed at addressing Prohibition-era fears took on a life of their own and continue to define the regulation of police in an era of very different concerns. Criminal procedure underwent what is often described as a revolution during the 1960s at the hands of the Warren Court. Oliver argues that the developments in this era are more akin to a restoration than a revolution. The court applied principles developed to address Prohibition era concerns in a very different era.

Mapp v. Ohio required states to exclude unlawfully obtained evidence in criminal trials, and Miranda v. Arizona required that suspects be advised of their rights and waive them prior to custodial interrogations. A confession without a waiver of rights would no longer be admitted into evidence without regard to the reliability of the evidence or the greater purpose of justice. Each decision looks to deter misconduct rather than address concerns about reliability — and while Mapp creates a framework for courts to address police-citizen encounters, it does nothing to address the use of force or harassment. The activist Warren Court missed an opportunity to address issues that were more significant in the public’s mind than illegal searches and seizures. Oliver traces the roots of each of these decisions to Prohibition and advocates for stricter tests for the reliability of confessions and identification procedures and clearer rules on the appropriate use of police force.

Oliver makes a case that regulating police almost exclusively with the exclusionary rule forsakes opportunities to address concerns about life and liberty — issues recently raised by groups from Black Lives Matter to the Innocence Project. The regulation of police forces has evolved organically as a reaction to publicized and sensationalized crimes. Prohibition renewed a fear of the existence of police departments that had existed since the country’s founding, but focused the nation’s concern on one specific type of police misconduct — illegal searches for liquor. The pursuit of justice took a backseat to “we gotta do something about this because it’s in the paper” mentality. We have reluctantly accepted the development of limitations of modern police powers in response to the crime du jour (e.g., pornography, prohibition and drugs), which may have limited admissible evidence but failed to address legitimate concerns about the reliability of evidence or uses of police force.

As a nation we have a natural and primal fear of long-standing armies. This fear opened the door for the evolution of the exclusionary rule as a limitation on police powers where perhaps no limitation or a more sensible limitation would be a better solution. Prohibition shifted the law’s focus to the mechanics of evidence collection and took away the focus on the the reliability of the evidence obtained.

Oliver makes a compelling case for evaluating the foundations of our criminal procedure. For years we have heard complaints about “technicalities” freeing guilty defendants, while at the same time the sad phenomenon of wrongful conviction has revealed the law’s failure to address reliability concerns with confessions and eyewitness identifications. Oliver posits that perhaps it’s time to look deeper into the abyss and make sure our rules make sense. The most-frequent cost of the exclusionary rule was very different when state courts began to embrace it in the 1920s. Bootleggers were not distributing meth, and excluding a case of whiskey did not compromise a murder conviction. The price we pay for the exclusionary rule in the 21st century may be too great. Violent criminals may not deserve the same protections as nonviolent criminals. Alternatively, we may not be getting an adequate bang for our buck. The exclusionary rule might not be the best tool for addressing police tactics. The problems of police violence and the use of unreliable confessions and out-of-court identifications are not adequately addressed by application of the exclusionary rule.

Oliver’s solution is to rely on our courts and common law rule making — give courts power to punish police for Fourth and Fifth Amendment violations as contempt. Judicial rulemaking has defined relatively clear rules for search and seizure violations. A broad power to punish police misconduct under a court’s contempt power would unmoor the supervisory role of courts from a prerequisite seizure of incriminating evidence. The solution proposed is contrary to the movement by legislatures to restrict judicial discretion and abrogate common law in criminal prosecutions. A fundamental belief in the justice system is required, a trust in the system is required to adopt this proposal, but given the abject failure of formulaic statutes, it’s definitely worth considering.

Law enforcement excesses when publicized can but don’t always inspire a public backlash. Developing legal doctrines based on headlines is dangerous and short sighted. Bad police practices should and must be addressed by those closest to the ground, those engaged daily in the administration of justice, but unless and until there is the same outrage at the enforcement excesses that were published and popularized during Prohibition, we are likely to see little progress under our current framework. Oliver has a valid point in that we need to trust our justice system and let the checks and balances we have organically develop the law.

The Prohibition Era and Policing caused me to reconsider how I felt about a bedrock principle of criminal procedure. The exclusionary rule is taught as gospel in law schools, police academies and universities. The history and evolution of the rule is significant to the development of criminal procedure — and ignoring history is dangerous. Police excesses are and forever will be a problem and they must be addressed. Dr. Oliver sets forth a novel approach that we could all benefit from thinking about.


KEITH D. STEWART is a member of Market Street Law PLLC in Knoxville and a graduate of the University of Tennessee College of Law.

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