that

Some we argue a great at mostio of mávidual Habilry wil eat is inque and DT THE TEA av enforcement oficials." Four 2018 5 a possibly attogt vers and doctors have not Test accused of fanreasones despre der mávidna Sability for matracca in any event of de nens that the police have TOR TEST SOU STOLET

2a moram for biony the habity of the superior police officer or offical sancılaATA IS MOCEnt to establish affirmaquay & realtrament that the ofcul se fort reguations for the gover tance of the actions of Ts Loordinates Arbough the Ombudsman *KI I BOTE Instances be concerned with the substance of the regulatom as for example, where they appeared to be unlawful or unconstisubotal, the more important aspect of the prociem seems to be the rebuirement that some kind of rules be established After all, as Professor Lon Fluer has stripped mighty to maintain, a legal system presupposes a set of rules" which the lawgver, as well as the citizen, will obey. The exercise of unlimited discretion by public officials is the antithesis of a legal system. I here accept Lon Fuller's assumption that if public officials are required to publicize their standards and policies, a better system of administration will result?

With respect to damages, in addition to the traditional measure of damages, it is necessary to assure the recovery of something (here at least $50) by an aggrieved person. Again, this is essential if the Ombudsman system is to be a substitute for the exclusionary rule.

common-law form of action, that action does not loose its identity merely because it finds itself enmeshed in a statute." United States v. Jepson, 90 F. Supp. 983, 986 (D.N.J. 1950). Surely a statutory cause of action for damages growing out of a violation of constitutional rights, without a request for injunctive relief, would seem to be an action covered by the seventh amendment. For the most recent extended discussion of the seventh amendment by the United States Supreme Court see Ross v. Barard, 396 U.S. 531 (1970).

68. See Barrett, Exclusion of Evidence Obtained by Illegal Searches-A Comment on People v. Kahan, 43 CALIF. L. REV. 566, 593 (1955).

69. The Ombudsman has also sought to improve the administrative process by encouraging the publication of general rules, even where these do not come within the categories of rules which the law requires to be published. In the course of time, he has been instrumental in prompting the publication of a number of standing orders of administrative tribunals.

Christensen, The Danish Ombudsman, 109 U. PA. L. REV. 1100, 1120-21 (1961).

70. L. FULLER, THE MORALITY OF LAW 46 (rev. ed. 1969).

71. Id. at 81.

72. "Even if a man is answerable only to his own conscience, he will answer more responsibly if he is compelled to articulate the principles on which he acts.” Id. at 159. See LaFave & Remington, Controlling the Police: The Judge's Role in Making and Reviewing Law Enforcement Decisions, 63 MICH. L. REV. 987, 1011 (1965).

Because of the imposition of personal liability on individual policemen, the Congress might want to appropriate funds to help pay for police legal advisors for all police departments. Such advisors would not only defend policemen in court, but would also keep the police advised of legal restrictions and thus, hopefully, reduce the number of lawsuits filed against the police.

Subsections (b), (c), and (d): Although the delay and expense of a jury trial cannot be escaped if individual offending officials are to be required to respond in damages for law violations," it is possible at least to assure recovery of something in a single proceeding. Thus provision is made for those situations in which there has been a law violation but in which individual responsibility cannot be assigned. For example, individual policemen would still be permitted the defense of good faith and probable cause." Also in some instances it would not be possible to determine precisely which individual or individuals had been responsible for a law violation. In these latter two situations a special verdict would make possible some recovery from the Federal Government so that the victim would at least be compensated for the official violation. Recovery from the Federal Government rather than from the states would avoid problems created by state governmental immunity protected by the eleventh amendment.75

Subsection (e): If individual officials are reimbursed out of public funds, they are not likely to be deterred by the threat of a lawsuit.

SEC. 13: This provision is deemed essential if incarcerated persons are to be permitted to take advantage of the services of the Ombudsman.

SEC. 14: Although in some ombudsman statutes obstruction is made a criminal offense, I believe that we ought to go slowly before adding new criminal laws. It may be that the present federal criminal law dealing with obstruction of proceedings before agencies of the United States is sufficient to deal with the present problem. Perhaps

73. Supra note 66.

74. Pierson v. Ray, 386 U.S. 547 (1967) (dictum) (police officers immune from suit under 42 U.S.C. § 1983 if their arrest of petitioners was based on probable cause to believe that petitioners had violated a statute subsequently found to be unconstitutional).

75. The Judicial power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. CONST. amend. XI. For a general discussion of the eleventh amendment, including the extension of state sovereign immunity to cases brought against a state by citizens of that state, see Cullison, Interpretation of the Eleventh Amendment, 5 Hous. L. Rev. 1 (1967).

76. Obstruction of Justice Act, 18 U.S.C. § 1505 (1970). In addition, consider S. 1, 93d Cong. Ist Sess. § 2-6B1 (1973).

the goal of protecting the Ombudsman can be achieved through the availability of injunctive relief.

SEC. 15: This provision is similar to that contained in several other ombudsman statutes and is merely designed to protect the independence of the Ombudsman.

SEC. 16: The remarks set forth under section 15 above are pertinent here.

SEC. 17: As it may take a while for the existence of the Ombudsman to have some effect on the enforcement of the constitutional and other restrictions on criminal procedure and detention generally, it seems desirable to postpone the effective date of the elimination of the exclusionary rule for a period of three years.

SEC. 18: This is designed merely to create a greater likelihood that the Ombudsman would receive information regarding possible law violations. This, in effect, would also help to publicize the existence of the remedy.

SEC. 19: This severability clause expresses an underlying assumption: Even if the Ombudsman cannot be a substitute for the exclusionary rule, his existence and his activities will substantially reduce the instances in which it will be necessary to make use of the exclusionary rule. Therefore, it is desirable to permit the Ombudsman to function even though the courts should find that section 17 is unconstitutional.

CONCLUSION

Many writers have emphasized that an ombudsman is not a panecea. Given the pervasiveness and seriousness of the problems which have given rise to the exclusionary rule and which also have been created by that rule, the risks involved in the adoption of a statute such as the one proposed in this article seem slight in comparison with the potential benefit.

ONE JUSTICE FOR ALL: A PROPOSAL TO ESTABLISH,
BY FEDERAL CONSTITUTIONAL AMENDMENT,
A NATIONAL SYSTEM OF CRIMINAL JUSTICE

Robert P. Davidow

ONE JUSTICE FOR ALL: A PROPOSAL TO ESTABLISH, BY FEDERAL CONSTITUTIONAL AMENDMENT, A NATIONAL SYSTEM OF CRIMINAL JUSTICE ROBERT P. DAVIDOW*

I. INTRODUCTION

At a time when most people are talking about revenue sharing' and other schemes by which the administration of government in the United States can be decentralized, it may seem strange even to suggest the possibility of a uniform system of administration of criminal justice by the federal courts. Nevertheless, the time has come to look beyond mere tradition and to ask some pertinent questions, the answers to which logically suggest the desirability of an exclusive, uniform system

*Associate Professor of Law, Texas Tech University. This article is a substantial revision and condensation of an unpublished paper entitled Exclusive, Uniform Federal Justice, prepared while the author was doing graduate work at the Harvard Law School, 1968-1969. The author wishes to acknowledge the very great assistance provided by the following persons in the preparation of the statistical analyses referred to in notes 17-20, infra: Dr. Dwane Anderson (member of the faculty, Department of Mathematics, Texas Tech University), Mrs. Mary Whiteside (graduate student, Department of Mathematics, Texas Tech University), and Robert Haynes (Computer Center, Texas Tech University).

'See, e.g., 117 Cong. Rec. 167 (1971) (State of the Union Address by President Nixon). "Many persons will not, of course, be sympathetic to the general proposition that the federal government ought to be strengthened in any way. A common attitude has been expressed as follows: "We believe that strong state and local governments are essential to the effective functioning of the American system of federal government; that they should not be sacrificed needlessly to leveling, and sometimes deadening, uniformity . . . .” Conference of Chief Justices, Report of the Committee on Federal-State Relationships as Affected by Judicial Decisions, in WE THE STATES 367, 399 (Va. Comm'n on Constitutional Gov't 1964). See Liebmann, Chartering a National Police Force, 56 A.B.A.J. 1176, 1180 (1970), in which the author concludes his criticism of the study draft of the proposed new federal criminal code by saying in part: “It cannot be said that the Bar and the public have not been warned. This study draft, if enacted, will be the charter of a national police force, with all that this implies. Members of the Bar, state and local officials and the public cannot make known their views about its provisions too soon." In addition, see Armstrong, The Proposed National Court Assistance Act, 56 A.B.A.J. 755, 759 (1970), in which Judge Armstrong states:

I am confident that from a lack of knowledge of our dual system of courts many persons do not realize that the Tydings bill is another step—and a long one-toward a unitary judicial system in America. If that is the ultimate objective, it should be approached openly and constitutionally. The architects of our system of courts were judiciously and bitterly opposed to a unitary system for the same reasons that it should be rejected today. The concentration of excessive power invites corruption and collapse. If the proposals for recodification of the federal criminal code and for a court assistance act elicit these kinds of responses from Mr. Liebmann and Judge Armstrong, it may be anticipated that the proposal contained in this article will elicit similar but perhaps more vigorous responses.