Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the same kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access.

Here is the abstract:

For some arrested individuals, the most important consequences of their arrest arise outside the criminal justice system. Arrests alone — regardless of whether they result in conviction — can lead to a range of consequences, including deportation, eviction, license suspension, custody disruption, or adverse employment actions. But even as courts, scholars, and others have drawn needed attention to the civil consequences of criminal convictions, they have paid relatively little attention to the consequences of arrests in their own right. This Article aims to fill that gap by providing an account of how arrests are systemically used outside the criminal justice system. Noncriminal justice actors who rely on arrests — such as immigration enforcement officials, public housing authorities, employers and licensing authorities, child protective service providers, among others — routinely receive and use arrest information for their own objectives. They do so not because arrests are the best regulatory tools, but because they regard arrests as proxies for information they value, and because arrests are often easy and inexpensive to access.

 

 

But when noncriminal justice actors rely on arrests, they set off a complicated and poorly understood web of interactions with the criminal justice system. Regulatory bodies and others that make decisions based on arrests can coordinate and pool resources with prosecutors and police officers, achieving a level of enforcement that neither could achieve alone, or they can make decisions that undermine important aspects of the criminal justice process. This Article maps different regulatory interactions based on arrests, and illustrates the need for greater oversight over how arrests are used and disseminated outside the criminal justice system.

Jain shows how immigration officials use arrests to expand the reach of interior enforcement efforts through the efforts of state and local law enforcement, public housing officials rely on arrests to identify existing tenants who are potentially in breach of their lease, and employers and professional licensing authorities use arrest information to monitor off-duty workers.  Some employers suspend or terminate at-will employees based on the arrest.

Many employers are automatically notified by law enforcement agencies whenever an employee is arrested.  (In New York this includes home health care workers, security guards, and taxi drivers.)  Because neither the arresting officer nor the jail has a role in initiating the notification, the arrested individual will not be informed of the notification at the time of arrest.  Until 2006, New York City taxi drivers, for example, were automatically suspended for a wide range of arrests, including misdemeanor welfare fraud or forgery.  (The New York taxi litigation, Nnebe v. Daus, is the subject of a recent post.)  As a matter of due process, a licensee may be entitled to a hearing before a license is revoked, but not before an unpaid period during which the license is suspended. Notice of arrests is also frequently mandated in the child welfare and education contexts.

Jain  makes the case that use of arrests to grant or deny benefits has a number of negative systemic consequences:

In a variety of settings, noncriminal actors rely on arrests as a means of achieving their own regulatory agendas. This use of arrests can serve important societal interests. But it can come at a significant cost. It can magnify the effect of unwise or unjustified policing and arrest decisions. Across a number of settings, arrests are an overbroad and imperfect proxy for the information that noncriminal justice actors value. This fact, combined with inadequate oversight and a lack of transparency in how arrest information is used, can create serious consequences for arrested individuals – ones that far outstrip any penalty imposed by the criminal justice system.

Moreover, when actors outside the criminal justice system rely on arrests, one potential effect is to expand the enforcement powers of both actors.  In delegating front-end screening discretion to individual police officers, they magnify the effects of underlying and problematic police practices based on racial profiling.  Noncriminal justice actors may also work against certain criminal law enforcement goals —such as when they deport, evict, or terminate individuals after a demonstrably unlawful arrest. These consequences can undermine the aims of prosecutors and police who seek to encourage witnesses to come forward and report crime.

Jain has little faith that the exercise of administrative discretion in civil settings can place appropriate limits on the power of police to tag people in ways that are counterproductive to a healthy social order.  Noncriminal justice actors who rely on arrests are driven by their own organizational priorities, and they take an instrumental view of arrests that is at odds with the principle that an arrest alone is not indicative of guilt.

Jain argues that a more reliable way of introducing transparency and procedural fairness in the use of arrest information is through restrictions on sharing and storing of arrest information. Prompt and automatic expungement of arrest records that do not result in charges is one important step, so that they are available going forward only to law enforcement.  She also proposes that a third party (“one that is not committed to either the goals of criminal law enforcement actors or to the interests of the noncriminal actor”) may be in the best position to systemically evaluate considerations such as “whether the underlying arrest information is accurate, whether it provides a meaningful informational proxy, whether it disproportionately affects certain groups, whether the evaluation process is fair and transparent, and whether the use of arrests has undesirable or unintended public policy consequences.”  It is not clear what such a third party might look like, although Massachusetts’ Criminal Offender Records Information (CORI) system performs such a function, at least on paper.  Through CORI, Massachusetts regulates dissemination of criminal history information to non-justice actors, ensuring both accuracy and appropriate restrictions on dissemination.

We agree with Jain that it is high time to start talking about “how arrests regulate individuals outside the criminal justice sphere, and to evaluate when and whether it is appropriate to allow an individual police officer’s decision to arrest to do so much work.”