Arrests as regulation.

• Author: Jain, Eisha
• Position: Introduction through II. Arrests Outside the Criminal Justice System B. Public Housing, p. 809-838

INTRODUCTION I. Criminal Law Use of Arrests. A. Arrests in the Criminal Justice System. B. The Consequences of Arrests. II. Arrests Outside the Criminal Justice System. A. Immigration Enforcement B. Public Housing C. Other Contexts 1. Employment 2. Child protective services 3. Foster care 4. Education D. Conclusion III. ARRESTS, REGULATORY COOPERATION, AND REGULATORY CONFLICT A. Cooperative Relationships B. Conflicting Interactions 1. Crime victims 2. Unlawful arrests 3. Regulation of police 4. Transparency IV. EXERCISING OVERSIGHT OVER THE USE OF ARRESTS A. Administrative Discretion and Its Limits B. Other Policy Alternatives 1. Restrict arrest sharing 2. Exercise oversight CONCLUSION INTRODUCTION

Arrests are more than the point of entry into the criminal justice system. They also drive a host of other decisions. A number of actors outside the criminal justice system, such as immigration enforcement officials, public housing authorities, public benefits administrators, employers, licensing authorities, social services providers, and education officials, among others, routinely receive and review arrest information. These actors use arrest information for their own purposes and in ways that are distinct from the aims of the criminal justice system. Arrests now serve as a significant source of regulation, separate and apart from their role in the criminal justice system.

Immigration enforcement officials use arrests as a screening tool--as a way of winnowing down a population of eleven million unauthorized immigrants and selecting approximately 400,000 for deportation in any given year. (1) Landlords and public housing authorities use arrest information to initiate breach of contract claims. Public employers and licensing authorities use arrest to monitor off-duty workers, such as home health care workers, taxi drivers, public school employees, and private security guards. And in the foster care, social services, and education contexts, arrests are used to monitor potential risks to children. In each of these contexts, it is the fact of an arrest itself--not only a subsequent conviction--that triggers a regulatory decision, such as deportation, eviction, loss of a professional license, or loss of custody.

With the national rollout of an ambitious information-sharing program now known as the Priority Enforcement Program, immigration officials use arrests to check the immigration status of every person arrested anywhere in the country. (2) Immigration enforcement officials use arrests to identify and deport certain noncitizens who come into contact with the criminal justice system, while strategically ignoring those who do not. (3) For immigration enforcement officials, arrests function as a way of determining whether the arrested individual falls within an immigration removal priority. Criminal law determinations of guilt or innocence are distinct from the immigration screening process. (4)

In the public housing context, (5) authorities use arrests to evaluate breach of contract claims and to monitor entry into households. (6) Leases for publicly owned or subsidized housing prohibit criminal activity by any tenant, household member, or guest. (7) Arrests are used as a proxy for determining whether a tenant breached her lease and to predict whether a household is likely to cause future disruptions or damage to the property. Public housing authorities use arrests to initiate eviction proceedings and as negotiating tools. They may use the threat of eviction to leverage an agreement that the household will bar the arrested individual from entry--sometimes permanently. The housing decision may take place prior to a criminal trial and may affect innocent tenants; evictions affect the entire household, not only those who come into contact with the criminal justice system. (8)

Other examples abound. In the public employment and licensing context, arrests are used to monitor off-duty workers. Many public employers and licensing agencies automatically receive notifications when certain workers are arrested and booked by local law enforcement agencies. (9) Upon receiving the notification, some employers launch their own investigation, while others reassign or suspend an arrested worker. Employers focus on their own institutional motivations when taking adverse employment actions, including their potential liability for torts such as negligent hiring and retention. (10) They may automatically suspend or terminate workers after learning of the arrest, making a calculated judgment that it is easier to replace a worker than it is to investigate whether she poses a security risk.

In the social services context, child protective services may be notified when a child's caretaker is arrested. (11) The purpose is to provide resources for children who may be at risk, but the notification can trigger unintended consequences. It may embroil caretakers who are innocent or arrested on only petty charges with unnecessary and long-term involvement with social services. In the foster care context, licensing agencies use arrests to monitor foster families and to determine whether a household member poses a risk to a foster child. In the context of schools and universities, arrests are used to monitor whether a student poses a risk to others, to impose discipline, and, in some cases, to evaluate whether to offer counseling or other services to the arrested individual. (12)

In each of these contexts, arrests are used as screening tools or as a relatively low-cost audit mechanism. Arrests provide a way to monitor individuals, to evaluate whether the arrested individual falls into a regulatory priority, and ultimately to determine whether to modify a preexisting social or legal arrangement.

In spite of the extensive effects that arrests have outside the criminal justice context, they remain surprisingly understudied. Even as advocates, criminal law scholars, and courts have drawn greater attention to the civil consequences of criminal convictions, (13) they have paid relatively little attention to the effects of arrests--particularly subfelony arrests, such as misdemeanors. Scholars have provided compelling accounts of how aggressive order-maintenance policing and broken misdemeanor courts take a toll on the poor and on communities of color, (14) and chronicled how criminal punishment and the threat of punishment has become a pervasive mechanism of social control. (15) But these accounts--troubling as they are--understate the full consequences of arrests outside of the criminal justice system. (16)

On the noncriminal justice side, immigration scholars in particular have given sustained attention in recent years to how criminal law actors affect civil immigration enforcement. They have argued that partnerships between criminal justice actors and civil immigration enforcement officials cede significant enforcement authority to state and local police (17) and create an enforcement system in which noncitizens receive a different type of justice than citizens. (18) These scholars typically depict the relationship between police and prosecutors, on the one hand, and civil immigration enforcement authorities, on the other, as collaborative. Indeed, immigration scholars and practitioners not infrequently describe themselves as working in the merged field of "crimmigration" (19)--with the label suggesting that "[i]mmigration enforcement and criminal justice

are now so thoroughly entangled it is impossible to say where one starts and the other leaves off." (20)

This Article seeks to supplement this account and to place a number of actors that rely on arrests in relation to each other. I want to suggest that one way of understanding arrests is as a regulatory tool--a means of monitoring, ordering, and tracking individuals. The aim of this type of regulation can be quite distinct from certain criminal law concerns--adjudicating guilt or innocence, maintaining law and order, deterring crime, and meting out punishment.

Noncriminal justice actors rely on arrests not necessarily because they are the best screening tools from the perspective of institutional design. Rather, they value arrests because they are relatively easy and inexpensive to access and because they regard arrests as proxies for information they value, such as the potential for violence, unreliability, or instability. Using arrests in this manner can be a rational administrative decision. If done with appropriate restraints and oversight, it can serve important safety objectives.

But using arrests to monitor, control, and ultimately reach regulatory decisions also has the potential to carry serious costs--ones that the actors who rely on arrests are poorly situated to understand. Reliance on arrests alone magnifies the significance of a police officer's decision to arrest and has important feedback effects on the criminal justice system. Noncriminal justice actors who rely on arrests may act in coordination with police and prosecutors, or they may act autonomously. Coordination has the potential to expand the reach of criminal justice actors. For criminal prosecutors, civil enforcement can serve to supplement, or even supplant, criminal law enforcement. For instance, criminal prosecutors who are unable to proceed with unlawfully obtained evidence in criminal court can present that evidence in civil proceedings, which have more lax evidentiary standards. (21) Deportation, eviction, or other civil consequences can thus serve to supplement or to replace criminal consequences.

But at other times, criminal and noncriminal law actors operate autonomously and at cross-purposes. For instance, immigration officials may deport a cooperating witness in a criminal case. (22) Public housing officials may evict a domestic violence victim along with her abuser. (23) Employers may suspend or fire an arrested worker, even when prosecutors or judges determine that a rogue police officer made a...