Arrests as regulation.

Author:Jain, Eisha
Position:II. Arrests Outside the Criminal Justice System C. Other Contexts through Conclusion, with footnotes, p. 838-867
 
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  1. Other Contexts

    A number of other actors also rely on arrest information as a way of screening and monitoring arrested individuals, including employers, professional license providers, foster care agencies, social services providers, and educational providers.

    1. Employment

      Employers and professional licensing authorities can use arrest information to monitor off-duty workers. The vast majority of employers require at least some employees to undergo background checks as a condition of employment. (155) A significant number of employers now also receive notifications whenever an employee is arrested and fingerprinted. (156) Every state has a criminal justice repository that maintains databases of fingerprints and criminal records, including the fingerprints of certain public employees or licensees. (157) If an employee is later arrested, her fingerprints are sent to the state law enforcement repository during the booking process, which then may automatically notify the employer or licensing agency. (158)

      In New York, arrest data are automatically transmitted to dozens of public employers and licensing authorities, such as the New York City Department of Education, New York State Department of Education, New York City Taxi and Limousine Commission, and others. (159) Home health care workers, security guards, and taxi drivers are among those whose employers or license providers may automatically be notified of an arrest. Neither the arresting officer nor the jail has a role in initiating the notification, so the arrested individual will not be informed of the notification at the time of her arrest.

      The transmission occurs once and contains limited information. In New York, the notification contains the arrested individual's identifying information, the date and location of the arrest, the arrest charges (as listed by the arresting officer), and the penal code section relating to the arrest; the transmission does not contain the alleged factual basis for the arrest. (160)

      Licensing authorities and employers have considerable discretion in deciding how to proceed after learning of an arrest. (161) Some employers use arrest notifications in tandem with self-reporting requirements. (162) Failure to comply with this self-reporting requirement may itself be the basis of employee discipline or termination. (163)

      Some employers suspend or terminate at-will employees based on the arrest. As a matter of due process, a licensee may be entitled to a hearing before a license is revoked, but not necessarily before an unpaid license suspension. (164) Until 2006, New York City taxi drivers, for instance, had their licenses automatically suspended for a wide range of arrests, including misdemeanor welfare fraud or forgery. (165) Employers also vary in terms of how they disseminate arrest information. The New York City Department of Education, for instance, disseminates employee arrest information to the general counsel's office, human resources, the district superintendent, and to the Special Commissioner of Investigation. (166) Some arrested individuals will never know that they were screened because their employer might take no immediate action--but the employer may consider the arrest at a later date when making decisions about whom to promote or terminate.

      Depending on the circumstances, an employee might be asked to explain the arrest, or she may be suspended pending the disposition. (167) Employers may have an interest in suspending or reassigning workers because they are concerned about liability for negligence claims--such as negligent hiring and retention--if they do nothing after learning of an arrest. (168)

      Like immigration enforcement officials and public housing authorities, employers and licensing agencies use arrests as one potential monitoring tool. They could also rely on a number of other methods. For instance, they could rely on subjective methods, such as the complaints of other workers, or more objective methods, such as a drug screening. When employers rely on these types of methods, they have incentives to ensure fairness and compliance with antidiscrimination laws. If an employer relies on drug screening, for instance, it cannot disproportionately target minorities. But when employers and licensing authorities rely on arrests, they leave front-end decisions about whom to screen to the police, without similar regard for racially disparate impact. Employers may also treat arrests as independently reliable, rather than engage in their own investigation. Reliance on arrests carries the risk that the arrest will be an unreliable proxy, for reasons relating to the inaccuracy of the arrest itself or because the arrest does not correlate to characteristics that the employer values. And even if arrests are a reasonable proxy, they might nonetheless be overly broad and unfairly exclude qualified employees. (169)

      When employers and licensing agencies rely on arrests, they might be motivated by rational interests, such as the desire to prevent harm to third parties and others who rely on their services. But without appropriate checks, their use of arrests can result in significant harm, including lengthy unpaid suspensions for workers who were unlawfully arrested or pose no security risk.

    2. Child protective services

      Some police departments now have protocols in place for notifying social services after a custodial parent's arrest. (170) As a matter of due process, police have a relatively minimal obligation to provide for the immediate safety of children if they are aware that children may experience harm as a result of their caretaker's arrest. (171) But due in part to a growing awareness of how parental arrests can affect children, some police departments have expanded their efforts to address the needs of potentially vulnerable children after a caretaker's arrest.

      Rising arrest rates have had a devastating effect on families. Between 1991 and 2007, the number of parents in prison increased by close to eighty percent. (172) During the same period, the number of children whose mothers were imprisoned increased by 131%. (173) Since a majority of incarcerated mothers--and a significant minority of incarcerated fathers--live with their children at the time of their arrest, (174) their arrests can have an immediate impact on minor children. (175)

      Some local law enforcement officials have responded by taking measures to notify social services in the case of a known caretaker's arrest. (176) The notification seeks to ensure that children are left with adequate care while the caretaker is in police custody. This type of notification can provide a critically important early warning sign that a child might be at risk. Like most parents, ararrested caretakers may have no plan in place for care of their minor children in case of an arrest. They may be unable to arrange for care after they have been taken into custody. Or they may be unwilling to discuss the need for a caretaker with the police, out of fear that their custody will be threatened.

      Reporting of arrests in the child protective services context is intended to provide timely information about whether a child is at risk for neglect. But even this compelling use of arrests can carry serious unintended consequences. An arrest that leads to nothing further in the criminal justice system may lead to lasting and unnecessary involvement with child protective services. Parents who are good caretakers, and who are arrested for minor offenses, may run the risk of having their custody disrupted. Consider the case of Penelope Harris, who was arrested after police discovered a third of an ounce of marijuana in her apartment. As a result of her arrest and the attendant notification to social services, her ten-year-old son was placed in another home for over a week, and her niece, who lived with her as a foster child, was removed from her care and placed in another foster home for over a year. (177) Arrests thus may exacerbate harmful effects of contact with the criminal justice system on children and may unnecessarily disrupt custody arrangements.

    3. Foster care

      In the foster care context, arrests are used to determine whether a household is a good placement for a foster child. Licensing agencies use initial background checks to determine whether a household will be a safe placement for a foster child. Some states require that adult household members submit to background checks, while others require background checks of even some juvenile household members. (178) A household member's subsequent arrest can trigger a reevaluation of whether the family remains a good placement. For the foster care system, the intent is to monitor households and prevent mistreatment of foster children, who are uniquely vulnerable to high rates of abuse and neglect. (179) This type of notification can be particularly valuable when licensing agencies have insufficient funding or resources to conduct in-home inspections. (180) The use of arrests can provide an early warning sign that a home is potentially unsafe for a child, but as with the social services context, it carries the risk of overbroad identifications.

    4. Education

      Similar to how arrests operate in the social services context, police departments may notify schools about a juvenile's contact with the criminal justice system. Some notifications are statutorily mandated, (181) while others are discretionary. The notification may be motivated by the desire to protect other students or to identify the need for counseling or other interventions. But it may also have the effect of stigmatizing the student and undermining the confidentiality of juvenile justice proceedings. Arrested students whose identities are disclosed may be subject to lasting stigma--precisely the result that sealing laws in the juvenile justice context are designed to guard against. (183)

  2. Conclusion

    In a variety of settings, noncriminal actors rely on arrests...

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