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To Preserve These Rights - Remedies for the Victims of Constitutional Deprivations

NCJ Number
74234
Author(s)
R L Spurrier
Date Published
1977
Length
165 pages
Annotation
Remedies for people deprived of Federal constitutional rights are examined and found to be inadequate, and a plan for a model State law providing adequate remedies is outlined.
Abstract
An adequate remedial system is one that provides compensation for both the actual deprivation of a constitutional right and for out-of-pocket expenses resulting from the deprivation, as well as a source of recovery to satisfy the amount of the damages award, removal of legal and social consequences of the deprivation, speedy resolution and compensation, and availability of remedies to all segments of society. Four present remedies -- civil suits against individual employees of State governments and against governmental units for which they work, exclusion of evidence unconstitutionally seized from criminal suspects, and compensation of victims of criminal wrongdoing at the hands of State employees by fines paid by the wrongdoers -- are not effective either as deterrents of future wrongful actions or as remedies. The failures of these remedial schemes can be attributed to loopholes in the law, extensions of common-law immunities from prosectuion or tort action for civil servants and State governments, and erosions of protections of the exclusionary rule. These shortcomings could be corrected by widespread adoption of a Model State Constitutional Deprivation Liability Act. The Act defines which government officials will be liable for damages and what standard of care they must breach to be liable, the damages for which they are liable, interest on the damages, allocation of court costs and attorneys fees, and satisfaction of judgment. Provisions for docket preference for civil suits, civil procedure and rules of evidence, jurisdiction, type and amount of damages, jury trial, exclusivity of remedy, out-of-court settlement, and insurance are also included in the act. The proposed text of the Model Act is included in an appendix. Footnotes and an alphabetical table of cases cited in the text are also included.