Pricing the Fourth Amendment

Critics have long decried the Fourth Amendment’s lack of an adequate remedy to secure its compliance. Neither the exclusionary rule nor the threat of civil liability deters police misconduct, leaving scholars to cast about for alternative measures. The emphasis on penalties, however, overlooks a different problem: detection. Because of policing’s fast-paced nature, even so-called “flagrant” Fourth Amendment violations trigger insufficient liability due to low probabilities of detection. This Article addresses this problem by drawing on the Pigouvian tax literature. The Pigouvian tax—sometimes referred to as a “corrective tax”—is a pricing instrument imposed by regulators in an amount equal to the expected harm manufacturers or individuals impose on others. Like strict liability, the tax forces an actor to internalize the costs of her activity. How well might a Pigouvian tax scheme curtail Fourth Amendment violations—particularly intentional ones? How much better off would society be, if, in addition to the remedial systems already in place, it devised an additional system, informed by the vast literature on corrective taxes and pricing? This Article seeks to answer these questions by imagining a scheme that charges local police departments an annual fee reflecting (a) their annual volume of search activity; (b) the risk that such activity includes and conceals purposeful misconduct; and (c) the harm arising out of such misconduct. The Article further analyzes the various challenges likely to arise in both the design and implementation of such a scheme. A pricing approach is no panacea for all that ails the Fourth Amendment, but it is a potent tool that policymakers would be foolish to ignore.