Tag: arrest

“The Mark of Policing: Race and Criminal Records”

This is the title of an important symposium piece by Eisha Jain published by the Stanford Law Review, in which she urges that “racial reckoning in policing” include consideration of the negative credentialing effect of arrest records. Using the sociological framework of “marking,” Jain shows how unjustified arrests “both magnify and conceal race-based discrimination.” She argues that “Reckoning with race in the criminal justice system requires recognizing that the problem is not just the police: It is with a legal regime that entrenches racial subordination through criminal records.” The good news is that many of the criminal record reforms of the last several years provide for automatic or expedited expungement or sealing of non-conviction records. (See our 50-state chart on “Process for expunging or sealing non-convictions” and our Model Law on Non-Conviction Records recommending automatic expungement.) But the bad news is that even the laws streamlining the sealing of non-conviction records in two dozen states frequently fail to extend to records of uncharged arrests, which can linger in police files and repositories long after court records have been sealed. In the hands of police agencies, they may lead to further policing abuses. Disseminated through background checks and the internet they […]

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“Arrests as Regulation”

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.

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