Why arrest?

AuthorHarmon, Rachel A.
PositionIntroduction into III. Do We Need Arrests? p. 307-333

Arrests are the paradigmatic police activity. Though the practice of arrests in the United States, especially arrests involving minority suspects, is under attack, even critics widely assume the power to arrest is essential to policing. As a result, neither commentators nor scholars have asked why police need to make arrests. This Article takes up that question, and it argues that the power to arrest and the use of that power should be curtailed. The twelve million arrests police conduct each year are harmful not only to the individual arrested but also to their families and communities and to society as a whole. Given their costs, arrests should be used only when they serve an important state interest; yet, they often happen even when no such interest exists. Governments have allowed constitutional law to become the primary constraint on arrest practices, and it has proved a poor proxy for good policy analysis. The Fourth Amendment permits arrests whenever an officer has probable cause: it has no mechanism for ensuring that the state has any interest in making an arrest--as opposed to starting the criminal process in another way. More broadly, traditional arguments for arrests cannot justify existing arrest practice. Arrests are usually unnecessary to start the criminal process effectively, to maintain order, to collect evidence, or to deter crime. In most cases, reasonable, less intrusive, alternative means exist or could exist for achieving these ends. Even arrests for some serious crimes might be curbed significantly without risking substantial harm to public safety or order. If the state can achieve its law enforcement objectives without arrests, then police departments should conduct far fewer arrests than they currently do, and states should restrict the statutory authority to arrest accordingly. Though there are risks to reducing arrests, those risks are far less problematic than continuing what is presently a massive, and largely unnecessary, enterprise of state coercion.

Table of Contents

Introduction I. The Consequences of Arrests A. What an Arrest Is B. The Costs of Arrests II. The Law of Arrests A. Fourth Amendment Law and the State's Interest in Arrests 1. Probable Cause and Arrests 2. Warrants and Arrests 3. How Arrests Are Conducted B. Constitutional Reasoning in Delineating Lawful Arrests III. Do We Need Arrests? A. Arrests to Start Criminal Proceedings B. Arrests to Maintain Order C. Arrests for Violent Crimes D. Arrests to Gather Evidence E. Arrests to Deter Conclusion: What to Do About Arrests Introduction

"You are under arrest."

Perhaps no words stand more for what it means to be a police officer than these. There is a reason for this preeminence. It is no exaggeration to say that handcuffing a suspect and taking him to jail is the paradigmatic police activity. Police make arrests to start most criminal prosecutions, to take control of dangerous people, and to solve problems on the street. Arrests are so central to our way of thinking about law enforcement that we often measure the success of policing by the number of arrests officers make. It is an axiom of criminal justice policy that law enforcement requires arrests.

If you want to see just how strong this assumption is, consider that, although arrests are at the heart of today's most contentious critiques of criminal justice, critics almost never suggest that the power to arrest is part of the problem. When law enforcement detractors protest that police practices are abusive and discriminatory, they are frequently talking about arrests. When critics argue that we incarcerate far too many people for far too long and then continue to punish them after they are free, they view arrest as an important step towards incarceration and the use of arrest records as part of the extended punishment. And when they contend that the killings by law enforcement of Michael Brown, Walter Scott, Tamir Rice, Eric Garner, Freddie Gray, and Samuel Dubose represent a racist violence so extreme that it is analogous to lynching, they are often speaking of force used during arrests. To address these problems, commentators attack the judgment exercised in individual arrests, and they advocate reforms such as eliminating some low-level crimes, lowering sentences, discouraging racial disparities in policing, collecting more data, and prosecuting police officers more often. But they do not question police authority to make an arrest when a crime occurs. Like almost everyone else, even bitter critics of American criminal justice accept that arrests are generally essential to ensuring public safety and order, and that the police power to arrest is therefore largely inviolable.

This Article considers whether the axiom is true. Do police need to arrest? In a liberal society, government coercion that intrudes upon individual freedom must be justified. To be legitimate, our practice of arrest should be at least plausibly necessary to achieve important public aims, the costs of arrests should be broadly proportionate to the ends they serve, and the harms of arrests should be distributed fairly. (1) Yet, right now, generous law enforcement authority to arrest exists, largely unexamined. Perhaps because constitutional doctrine purports to regulate each arrest, we take the power to arrest for granted. If anything, when we consider arrests, we tend to assume that arrests are not too costly, at least for most crimes, because they are so briefly intrusive and because--even if not every arrest is legitimate--arrests are critical to law enforcement goals.

I argue that these assumptions are flawed. First, arrests are more harmful than they seem, not only to the individuals arrested but also to their families and communities and to society as a whole. Second, the law we use to evaluate arrests cannot fairly weigh these harms. The Constitution's restrictions on the state's power to arrest have limited bearing on whether individual arrests are worthwhile and much less bearing on whether the present heavy reliance on arrest as a tool of policing is legitimate. And third, our traditional justifications for arrests--starting the criminal process and maintaining public order--at best support far fewer arrests than we currently permit.

In Part I, I provide a working definition of an arrest, a term which has no standard definition in the law. Under this definition, an arrest occurs when an officer takes a suspect into custody, transports him to a police facility, takes identifying information, creates a record of the arrest, and detains the suspect until release or judicial review. I then review the costs of legal arrests for suspects, families, officers, and municipalities. In Part II, I contend that Fourth Amendment law does not ensure that arrests are imposed only when these costs are worth bearing or normatively justified. In developing its Fourth Amendment doctrine, the Supreme Court takes for granted that the government has a strong interest in arresting those suspected of crimes, and it weighs this interest heavily in evaluating arrests. Moreover, the Court's Fourth Amendment rules often allow arrests (and the serious intrusions that accompany them) for reasons internal to constitutional doctrine rather than because the arrests reflect an adequate balance between individual and societal interests. In Part III, I consider the state interests in arrests and find that they are not as strong as they are commonly imagined to be. Arrests are usually unnecessary to start the criminal process because alternative--and less harmful--legal mechanisms can largely identify defendants and ensure they appear in court. Similarly, arrests are not essential either to defuse most ongoing disorder or to collect evidence or to fight crime because police have, or could adopt, less intrusive alternative means of achieving the same ends. I conclude that, given that arrests are extremely costly and often unnecessary, we should consider significant reforms to reduce police reliance on arrests as a commonplace law enforcement tool, including reducing police authority to arrest.

In the United States, we arrest something like twelve million people a year, adding up to more than 250 million arrests over the past twenty years. (2) Even this initial look at why we arrest suggests that our existing practice is indefensible.

  1. THE CONSEQUENCES OF ARRESTS

    1. What an Arrest Is

      There is no standard definition of an arrest and no shared nomenclature for the various police practices that start the criminal process and deprive people of their freedom. Court decisions and statutes sometimes apply the term to simply handcuffing a suspect or issuing a traffic ticket, but in other instances exclude charging a suspect and hauling him off to jail if he is soon let go. Moreover, definitions of arrests are frequently instrumental and unstable. (3) Courts define arrests differently when distinguishing them from Terry stops, when evaluating a wrongful arrest claim, and when considering whether evidence stemmed from a legitimate search incident to arrest. (4)

      This paper evaluates contemporary arrest practice by examining the effects of arrests on individuals and government interests. Towards that end, it adopts a functional definition of arrests, one that focuses on what arrests do. In this view, the key components of an arrest are a significant deprivation of liberty, some formal step toward criminal prosecution, and getting "booked." More specifically, the police arrest a suspect whenever they, on the basis of suspicion that he has committed a criminal offense or violation, (1) take him into custody by handcuffing or otherwise depriving him of his freedom; (2) transport him to a police station, jail, or detention facility; (3) process him by creating a permanent record of the arrest, taking identifying information, including photographs, fingerprints, and the like; and (4) detain him until either he is released or...

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