Why arrest?

Author:Harmon, Rachel A.
Position::Continuation of III. Do We Need Arrests? through Conclusion: What to Do About Arrests, with footnotes, p. 333-364
  1. Arrests to Start Criminal Proceedings

    The most traditional view of arrests treats them as a critical part of the process leading to criminal punishment. (128) As is well known, we punish criminals both to further retributive aims and to make society safer by deterring and incapacitating those who threaten that safety. Accusing the defendant and adjudicating his guilt are prerequisites for convicting and punishing him, and arrests have long been the first step in accusation and adjudication. (129) Assuming there is good reason to engage in the criminal process to control and punish prohibited behavior, the question is how important arrests are in adjudicating criminal cases and punishing the guilty.

    For much of criminal law history, criminal prosecutions began no other way. (130) But today, of course, not all criminal cases begin with an arrest. Instead, many criminal cases start with some form of summons or citation. (131) A summons--which can be issued by a judge in lieu of an arrest warrant--is an order to a suspect to appear in court on a particular date to answer a criminal charge or violation. A citation, called a summons in some jurisdictions, acts in lieu of an arrest and can be issued by a police official. It permits a suspect to remain out of custody upon the promise or expectation that he will appear to answer charges in court on a later date. Both are distinguishable from arrests in that suspects bring themselves to court rather than being placed there.

    Criminal summonses and citations remind us that even if arrest is the ordinary way to start the criminal process, there is nothing essential in the practice from the perspective of adjudicating criminal guilt. A summons equally demands that an individual answer criminal charges. A defendant responding to one is equally subject to booking and processing. He has a bail hearing, an arraignment, and a probable cause hearing just like an arrestee. Clearly, criminal suspects can be charged, tried, and convicted without an arrest.

    Moreover, summonses and citations have some considerable advantages as substitutes for arrests. Even apart from their benefits for criminal suspects, they offer substantial cost savings for municipalities in officer time, transportation costs, and detention costs. (132) They may reduce conflicts between the police and citizens because giving citations is less confrontational, which could decrease the total number of officers and suspects injured during efforts to start the criminal process. (133) And because they produce fewer consequences and fewer confrontations, citations probably alienate heavily impacted communities less than arrests. In sum, using alternatives to arrest can improve criminal justice as well as minimize deprivations of liberty.

    These advantages explain why most departments use citations to some degree. (134) In fact, some minor offenses, such as trespassing and possession of marijuana, are frequently addressed through citation. (135) But arrests remain the default mechanism for starting the criminal process. Millions of arrests continue to occur each year, and the law continues to favor arrests over citations. (136) Officers have broad discretion to arrest, even when citations or summonses would serve state interests.

    Arrests are likely necessary under some circumstances: some suspects may be so dangerous if released or so unlikely to be brought to justice for a serious offense that their arrest would serve the public interest better than any alternative. (137) But right now we largely take for granted that arrests are widely justified to start criminal adjudication and that departments and individual officers can balance the interests at stake. Citations would seem to have significant untapped potential. So why don't we use them more?

    Partly, tradition. An arrest followed by an appearance before a magistrate was historically the only means of starting the criminal process. Through the early 1900s, even those charged solely with traffic violations in the United States were automatically arrested. (138) As cars became widespread and driving became more heavily regulated, this practice became burdensome. Police departments developed, and states authorized, new procedures to allow police officials to release those detained for traffic offenses at the stationhouse. (139) Eventually, these stationhouse procedures evolved into field citations, in which an officer at the scene could accept a promise to appear without ever taking the suspect into custody. By the 1940s the use of citations for traffic offenses became more widespread. (140)

    Citations for criminal offenses did not become commonly available for several more decades. The expansion of citations to cover minor crimes followed the first bail-reform movement of the early 1960s, which sought to reduce the costs and consequences of pretrial detention. (141) Experiments in pretrial release suggested that a defendant's individual characteristics could be used to predict whether he would be likely to appear in court if he were released until his trial, and that a promise to appear could be as effective as money bail in ensuring that appearance. (142) If criminal suspects could be effectively sorted for release or detention pending trial, it seemed reasonable to believe they could similarly be sorted for citation rather than arrest. (143)

    After successful experiments in the late 1960s in New York City, major police and criminal justice organizations around the country strongly advocated giving police officers discretion to issue citations in place of misdemeanor arrests. (144) States widely adopted laws authorizing police to issue citations for minor crimes, and by the early 1980s, all but nine states authorized citations for some criminal offenses. (145)

    Despite this enthusiasm, in 1984, a major Justice Department report lamented that, though citation release was good policy and good law, it was still relatively uncommon. (146) Among other explanations, the Justice Department speculated that police resisted and misunderstood the use of citations and that policymakers did not adequately support the laws. (147) Whatever the reasons, by the early 1980s, more than a decade after the first experiments with citations for criminal offenses, citations accounted for a small proportion of police encounters resulting in criminal charges in many jurisdictions. (148)

    These obstacles to replacing arrests with citations might have been overcome in time. Certainly, the Justice Department thought the difficulties were manageable. But in the mid-1980s, criminal justice priorities shifted dramatically. Fear of rising violent crime and the crack epidemic led to new "tough on crime" rhetoric and policies. Minimizing harm by releasing criminal suspects suddenly seemed a much less appealing notion and citations have stayed invisible in conversations about criminal justice for decades, except recently and in small pockets. (149) In the meantime, additional criminalization, a greater number of arrests, and additional costs for arrestees made arrests more consequential than ever.

    History is not the only explanation for the ubiquity of arrest today. Arrests have one overwhelming advantage over citations: they guarantee the defendant's presence to answer charges, a critical aspect of contemporary criminal process. (150) A citation is only an effective alternative to an arrest if the defendant actually appears pursuant to its command. Whereas an arrest guarantees that the criminal adjudication will start as planned, a citation risks that it will not. Many people fear that if more citations were given, many defendants would fail to appear, and the state's interest in effective law enforcement would be undermined rather than furthered. (151)

    If we replace arrests with summonses and citations, most criminal defendants would still likely come to court. After all, most people show up when released on their own recognizance, and they (mostly) do not jump bail. (152) Even apart from the social norms that shape legal compliance, most people would accurately expect that if they fail to appear to answer for criminal charges, they could be subject to additional penalties. (153) But even if most defendants appear as intended, some presumably will not.

    When the risk of nonappearance is high, it might not be worth tolerating. But, for most offenders, the fact that a citation would generate uncertainty does not mean that an arrest is better, all told. Arrests are pretty intrusive. To the degree that citations are a meaningful and cost-effective way of achieving the criminal justice ends we now use arrests to serve, they need not be perfect to be preferable. Ultimately, to get the balance between arrests and citations right, we need to know more about the benefits, risks, and costs of each tool. (154) As of now, the research comparing failure to appear rates for arrests and citations suggests that the risks of expanding citations are not overwhelming. (155) But the studies are too few, too limited, and too dated to draw strong conclusions.

    What we do know suggests the rate at which suspects fail to appear for court proceedings is highly malleable. Jurisdictions can increase appearance pursuant to citations by screening out the suspects least likely to appear if cited; by reducing obstacles to appearing as required; and by optimizing consequences for failures to appear. Each of these is a familiar and manageable criminal justice challenge.

    For instance, many people fail to appear pursuant to the terms of citations because they are sick, because they forget the date of their appearance, or because they cannot find the courtroom, rather than because they intentionally resist adjudication. (156) In one study, over half of the failures to appear were solved by continuing the case for a week and informing the suspect of the new day, with no additional penalty for the initial failure to appear...

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