Tag: Jain

“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 limit employment, housing, and other opportunities. When considering how to neutralize the effect of non-conviction records, jurisdictions must concern themselves with this neglected source of racial inequity. Here is the abstract of Professor Jain’s article: This Essay argues that racial reckoning in policing should include a racial reckoning in the use of criminal records. Arrests alone—regardless of whether they result in convictions—create criminal records. Yet because the literature on criminal records most often focuses on prisoner reentry and on the consequences of criminal conviction, it is easy to overlook the connections between policing decisions and collateral consequences. This Essay employs the sociological framework of marking to show how criminal records entrench racial inequality stemming from policing. The marking framework recognizes that the government creates a negative credential every time it creates a record of arrest as well as conviction. Such records, in turn, trigger cascading consequences for employment, housing, immigration, and a host of other areas. The credentialing process matters because it enables and conceals race-based discrimination, and because a focus on the formal sentence often renders this discrimination invisible. This Essay considers how adopting a credentialing framework offers a way to surface, and ultimately to address, how race-based policing leaves lasting marks on over-policed communities. See the full essay here. Read more

“Prosecuting Collateral Consequences” is an important contribution

On Monday, the CCRC posted the abstract of an extensive new law review article, Prosecuting Collateral Consequences, 104 Georgetown L. J. 1197 (2016). The article, by a brand new University of North Carolina Law Professor, Elisha Jain, argues that new awareness of the collateral consequences of criminal conviction has extended the largely unreviewable discretion of public prosecutors into civil public policy decisions like deportation and licensing. This should not be news to anyone who has followed the developing scholarship in the field, but it is a point worth making at some length. The article makes unmistakable a point that is only now emerging among many participants in the criminal justice system: that because the collateral consequences of conviction are often, particularly as to minor crimes, more important than the direct consequences of conviction, sophisticated defense lawyers, prosecutors, and judges will make negotiating about collateral consequences a central feature of the plea bargaining process. Jain also suggests three models for thinking about the way prosecutors deal with the collateral consequences of criminal convictions. First, she suggests that some prosecutors use a Collateral Mitigation Model to soften the blow of a conviction. Second, she argues that some use a Collateral Enforcement Model, structuring pleas to maximize the impact of certain collateral consequences. Third, she suggests a Counter Balance Model, where prosecutors substitute “criminal and civil penalties to find the appropriate penalty.” This seems a useful way to think and communicate about the use of collateral consequences in plea bargaining. But the second major point of the Article, that informed consideration of collateral consequences does not necessarily equal “better outcomes,” seems misguided. Certainly, it is true that some prosecutors will misuse collateral consequences in the plea bargaining process. But this is no less true of collateral consequences than it is of the direct consequences of conviction. And the consequences of conviction are out there in American Law, and almost all of them will apply even if no participant in the system appreciates them. One of the essential elements of a valid plea agreement is that the plea be a “knowing” one. By definition, knowledge of the collateral consequences will inevitably increase the extent to which a plea is truly a knowing plea. Whether prosecutors try to use collateral consequences for worthy or nefarious purposes, the system is, by definition, better off if the participants in it understand the implications of their decisions. Finally, an otherwise excellent article is marred by reliance on inaccurate data contained in the National Inventory of the Collateral Consequences of Conviction. So, for example, Jain relies on the NICCC for the proposition that a misdemeanor conviction in the District of Columbia is an automatic bar to licensure as a security officer, a real estate appraiser, a pharmacist or a barber, and that is what the NICCC indicates. But it’s not quite right. Although the NICCC is a great leap forward in our collective understanding of the size and scope of the problem presented by collateral consequences, the careful lawyer is not well-advised to rely on the accuracy of the specific entries it contains. Used properly, as least as it stands, the NICCC is a point of entry into legal research on collateral consequences, not the end of research. The fact remains that, even with its flaws, the Jain article is an important contribution to scholarship in the field and it prefaces the day when the collateral consequences of conviction occupy a central role in the ubiquitous world of plea bargaining criminal charges. It’s well worth a read. Read more

How prosecutors use collateral consequences

A new article published in the Georgetown Law Journal argues that collateral consequences are becoming a valuable tool for prosecutors in the plea bargaining process, enabling them to leverage their existing power to control the outcome of criminal cases.  In Prosecuting Collateral Consequences, Eisha Jain of the University of North Carolina law faculty attributes this trend to a new awareness of collateral consequences made possible by initiatives like the National Inventory of the Collateral Consequences of Conviction, which show that even minor convictions can trigger serious civil penalties.  She explains the “structural incentives” that offer prosecutors an opportunity to avoid or trigger important civil penalties, or to bargain for enhanced criminal penalties in exchange for circumventing a particularly unwelcome collateral consequence (like deportation or eviction). Jain concludes that, for some prosecutors, “enforcing collateral consequences serves as an administratively efficient substitute for a criminal conviction” and a way to “promote their own policy preferences.”   In this fashion, prosecutors’ largely unreviewable discretion is extended to “an array of legal consequences, regulatory policies, and public interests.” Here is the abstract: Criminal law scholars have long agreed that prosecutors wield vast and largely unreviewable discretion in the criminal justice system. This Article argues that this discretion now extends beyond criminal penalties and broadly reaches civil public policy decisions, such as deportation and licensing. As a result of ubiquitous plea bargaining and collateral consequences — state-imposed civil penalties that are triggered by criminal convictions — prosecutors can deliberately exercise discretion to trigger or avoid important civil consequences. This aspect of prosecutorial discretion has been underexamined, partly because of a lack of awareness of collateral consequences. But as a result of important new initiatives designed to promote information about collateral consequences, prosecutors as well as defendants are becoming more likely to know that even minor convictions can trigger much more serious civil penalties. As some commentators have pointed out, prosecutors who are aware of collateral consequences may have powerful incentives to drop charges or otherwise structure pleas to minimize the likelihood of certain collateral consequences. But importantly, prosecutors also have strong structural incentives to take the opposite approach and reach pleas to maximize the likelihood of civil penalties. For some prosecutors, enforcing collateral consequences serves as an administratively efficient substitute for a criminal conviction, as a source of leverage, as a way to circumvent the requirements of criminal procedure, as a means of achieving deterrence or retribution, or as a way to promote their own public policy preferences. This Article develops an analytic framework for understanding the structural incentives that lead prosecutors to influence collateral consequences; exposes legal and ethical problems associated with plea bargaining in light of collateral consequences; and argues that collateral consequences can undermine important interests in transparency and accountability. The present article is an important companion piece to Professor Jain’s 2014 article on Arrests as Regulation, in which she showed how mere 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.  We hope she will continue her interest in this emerging area of scholarship that has such value for practitioners. Read more

“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. 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.” Read more