Rachel Harmon is a leading scholar on policing and the laws that regulate police behavior. Her new casebook,
Mesmo os críticos da polícia muitas vezes assumem que as prisões são essenciais para o policiamento. Este artigo confronta essa ideia e argumenta que o aprisionamento deve ser reduzido. As prisões trazem danos aos indivíduos, às famílias e às comunidades. Dados seus custos, devem ser usadas apenas quando servem a um importante interesse do Estado. No entanto, em geral, elas acontecem mesmo quando não há tal interesse. Nos Estados Unidos, o direito constitucional funciona como a principal restrição ao aprisionamento. Mas ele não garante que o Estado tenha um motivo para realizar uma prisão – em vez de iniciar o processo criminal de outra forma. Embora a polícia realize milhões de prisões para iniciar o processo criminal, manter a ordem, coletar provas e detectar crimes, as prisões, geralmente, são desnecessárias para alcançar esses fins. Na maioria dos casos, existem meios alternativos razoáveis e menos invasivos para atingir tais fins, mesmo para alguns crimes graves. Como o Estado pode atingir seus objetivos de aplicação da lei sem tantas prisões, assim como os departamentos de polícia devem realizá-las em volume muito menor do que o atual, do mesmo modo, os estados devem restringir a autoridade legal para a realização de prisões. Embora haja riscos ao reduzir as prisões, esses riscos são menos problemáticos do que continuar essa forma de coerção estatal generalizada e desnecessária.
Even police critics often assume that arrests are essential to policing. This Article challenges that assumption and argues that arrests should be curtailed. Arrests harm individuals, families, and communities. Given their costs, arrests should be used only when they serve an important state interest. Yet, arrests often happen even when no such interest exists. In United States, constitutional law acts as the primary legal constraint on arrests. But it does not ensure that the state has a reason to make an arrest – as opposed to starting the criminal process in another way. Although the police carry out millions of arrests to start the criminal process, to maintain order, to collect evidence, and to deter crime, arrests are usually unnecessary for these purposes. In most cases, reasonable, less intrusive, alternative means exist for achieving these ends, even for some serious crimes. Because the state can achieve its law enforcement objectives without so many arrests, 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 less problematic than continuing this form of widespread and unnecessary state coercion.
SUMMARY: I – The consequences of arrests; II – The law of arrests; III – Do we need arrests?; A. Arrests to start criminal proceedings; B. Arrests to maintain order; C. Arrests for felonies; D. Arrests to gather evidence; E. Arrests to deter; Conclusion: what to do about arrests.
“You are under arrest.”
Perhaps no words stand more for what it means to be a police officer than these. 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. It is an axiom of criminal justice policy that law enforcement requires arrests.
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. And when they contend that the killings by American law enforcement of Michael Brown, Walter Scott, Eric Garner, Freddie Gray, and George Floyd represent a racist violence 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. Even bitter critics of American criminal justice often accept that arrests are essential to ensuring public safety and order, at least for many crimes, and that the police power to arrest is therefore largely inviolable.
This Article considers whether the axiom is true. Do police need to arrest? Right now, generous law enforcement authority to arrest exists, largely unexamined. Perhaps because United States constitutional doctrine purports to regulate each arrest, Americans 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.
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 United States Constitution’s restrictions on the state’s power to arrest have limited bearing on whether arrests are worthwhile. 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 the United States, we arrest something like ten million people a year and have arrested more than 250 million arrests over the past twenty years. Even this initial look at why we arrest suggests that our existing practice is indefensible.
By its nature, every arrest diminishes a person’s freedom. This alone should lead to caution about arrests. But arrests also have more concrete consequences. In the near term, arrests are often frightening and humiliating. Arrestees lose income during the arrest, and sometimes their jobs when they do not show up for work
As compared to simply charging someone with a crime and giving him a summons to appear in court, arrests may increase the chances that a suspect will be detained prior to trial
Recent high-profile killings by police officers underscore that every arrest involves a confrontation between a suspect and a police officer that can go badly awry.
For an example, recall that in July 2014, New York Police Department officers were videotaped trying to arrest Eric Garner in Staten Island
Many arrests are for crimes that are so minor that the harms of arrest would be far too serious a punishment if they were imposed for a retributive or deterrent purpose. Something like half a million arrests each year are for public drunkenness. People are arrested for loitering, for vagrancy, and for gambling. Eric Garner was selling loose cigarettes
In any case, the harms of arrests extend far beyond criminal suspects. When someone is arrested, his family and community suffer, too. Officers put themselves at risk when they pursue fleeing suspects or counter physical resistance. In fact, more officers are injured and killed during arrests than during almost any other single police activity.
Finally, arrests are expensive for the towns and cities that carry them out. Arrests take officers off the street, place demands on already overburdened courts, and incur jail costs
Taken together, the costs of arrests are substantial. Overwhelmingly, these harms arise even when suspects are arrested legally and without excessive force.
In the United States, the Fourth Amendment is the Constitution’s primary way of regulating arrests, and it seems reasonable to think that when an arrest satisfies the constitutional standard, it will also be justifiable as a policy and normative matter. In practice, however, Fourth Amendment law is a poor proxy for good arrest policy.
Although the United States Supreme Court has set minimum standards for reasonable arrests, those standards do not ensure that arrests serve important government interests or impose costs proportional to those interests. Under Fourth Amendment doctrine, given probable cause, an officer may “make a custodial arrest without balancing costs and benefits or determining whether... [the] arrest was in some sense necessary”
The probable cause standard merely measures how much evidence the government has that the suspect committed a crime. That standard for legal arrests makes sense only because the Supreme Court views the government’s “duty to control crime”,
When confronted with cases that highlight that the government can have probable cause to arrest without a strong interest in making an arrest, the Court has repeatedly doubled down.
The Court has also permitted a variety of exceptionally intrusive government activities on the theory that they are important in carrying out lawful arrests. The Court permits handcuffing arrestees; searches of the arrestee’s person and the area surrounding him incident to arrest; strip searches at the jail; and detention for a night or two, even for trivial offenses and even when there is no indication of dangerousness.
Perhaps most importantly, if an arrest is based on probable cause, the Court has found it reasonable under Fourth Amendment law for officers to use force – including extreme force – to achieve it
In Part I, I argued that we engage in a massive number of arrests and that those arrests impose significant harms. The scope of these consequences suggests that our existing arrest practice must serve significant societal goals well to be justifiable. In this Part, I have argued that Fourth Amendment doctrine does not ensure that legal arrests meet that test. The probable-cause-and-no-more rule does not ensure that legal arrests serve the public interest. Of course, just because the law does not ensure that arrests serve the public interest does not mean that they do not do so. Given the consequences of arrests, evaluating our arrest practice requires determining whether and how well arrests serve societal goals in comparison to less harmful alternatives.
Why, then, do we arrest? Public safety and public order are preconditions of any free society. Sometimes achieving those goals requires controlling individuals who threaten them. If police cannot do that job without arrests, then our practice of arrests might well be justified, despite the harm it causes. This is the position of the Supreme Court, which has all but assumed that “[b]eing able to arrest... individuals is a condition precedent to the state’s entire system of law enforcement”
Is the Supreme Court right? Just how badly do police need arrests?
The Court has frequently noted two specific ways arrests promote public safety and order. First, according to the Court, arrests are essential to start the criminal process and prevent criminals from escaping that process
The most traditional view of arrests treats them as a critical part of the process leading to criminal punishment
For much of criminal law history, criminal prosecutions began no other way
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
These advantages explain why most departments use citations to some degree
Partly, tradition. Through the early 1900s, even those charged solely with traffic violations in the United States were automatically arrested. By the 1940s, law permitted and police used citations for some traffic offenses, though citations for criminal offenses did not become commonly available for several more decades.
Despite early enthusiasm, citation release for criminal offenses remained relatively uncommon, even after it was permissible. Initially, it seems, police resisted and misunderstood the use of citations, and policymakers did not adequately support the laws
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
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. Even apart from the social norms that shape legal compliance, defendants would accurately expect that if they fail to appear to answer for criminal charges, they could be subject to additional penalties
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. 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. Moreover, although data is limited, research suggests that the rate at which suspects fail to appear for court proceedings is highly malleable.
For instance, many of the people who fail to appear pursuant to the terms of citations do so 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
Connected to the issue of failures to appear is the idea that officers cannot always verify the identity of people with whom they interact, and identification doubts have long been argued to justify arrests. While real, the problem of identifying suspects is far less substantial than it used to be. Quite simply, technology that helps officers determine who a suspect is becomes stronger, cheaper, and more pervasive every day, and it is increasingly available to officers in the field. Nearly 90 percent of the United States’ driving age population holds a driver’s license. Most of those cards already comply with recent federal standards designed to make them harder to fake, and more will do so soon. Those without government-issued identification are increasingly identifiable by fingerprints or other biometric data. Police departments have already started using mobile technology that allows officers to quickly fingerprint, photograph, and scan the irises of individuals in the field and check them against federal databases to determine identity, criminal record, and the existence of outstanding warrants. One might lament the loss in privacy these technologies represent, but the means of identifying people on the street are ineluctably expanding. That expansion makes it possible for a police officer to be assured that someone is who he says he is.
Technology also affects how easy it is to find a suspect if he fails to appear. As a result, changing technology not only undermines the case in favor of arrests, it strengthens the case for citations. Almost all of us now leave an extensive digital trail when we use credit cards, bank cards, electronic benefits transfer cards, transit cards, electronic tolling devices (like FasTrak and E-ZPass), and other location-based services and devices. Most departments have automated license plate readers that can be used to track the whereabouts of drivers. More than 90 percent of us own cell phones, which allow police to determine where we are, as well as where we have been. Police departments use surveillance cameras and facial recognition technology to find suspects with outstanding warrants or those who jump bail. Even a skilled person has a difficult time hiding if anyone is looking. Most criminals do not stand a chance against determined law enforcement.
I am not suggesting that if we replaced arrests with citations, everyone who did not appear would be easily found. For the moment, many of the common methods for looking for people remain resource intensive, and those who are now arrested are likely harder than average to find. However, as technologies make it cheaper to find those who hide, it may be possible to locate almost all of those who do not attend court dates. Some defendants would presumably always slip through the cracks – either because they could not be found or were not worth finding – but the end result might still be a significant improvement on current arrest practice, achieving a high level of compliance with legal process while reducing the costs associated with arrests.
These arguments suggest that the most traditional argument for arrests – that arrests are essential to begin the criminal process – is no longer persuasive. Using citations in place of arrests increases liberty and reduces costs. Assuming that failures to appear can be managed in cost-effective ways, something technology increasingly ensures, then for most defendants worth arresting, citations will be a credible alternative. Given how costly our system of arrest is, it is likely that managing failures to appear and accepting that some defendants will be costly or difficult to find is likely to be preferable. Given that, we cannot say that arrests are necessary to start the criminal process.
While lawyers treat arrests as the start of the criminal process, police officers and the scholars who study them often view arrests as a way to resolve threats to order. In many cases, we do not need arrests to achieve this goal; less costly tools would serve.
Many order-maintenance arrests occur when police respond to individuals who are disturbing others. An officer might arrest a mentally ill person who is behaving bizarrely on a street corner, an intoxicated man yelling noisily in a residential area, or a homeless person panhandling aggressively. In each case, an arrest solves the problem. In recent years, many departments have sought to prevent repetitive problems by collaborating with communities to fix the conditions that encourage disorder
Of course, police already have at hand several less coercive measures to resolve disruptive behavior. Police often use verbal commands and orders to disperse before they even consider arrest, and those practices should be encouraged. Officers trained to respond to calls involving mental disturbance can be especially effective in defusing situations with fewer arrests. Still, some disruptions resist these techniques.
Citations, tickets, and summonses are not as useful as alternatives to arrests for quickly addressing disorder as they are for starting the criminal process. After a citation, people who are drunk may continue to be excessively noisy, those who are angry may return to their fight, and those who are soliciting clients for prostitution to support a drug habit may persist in walking the street. Moreover, disruptive conduct of the kind that leads to police intervention is often closely tied to mental illness, homelessness, drug abuse, and alcoholism
If a suspect is unresponsive or likely to continue disorderly conduct, then police may find removing the disruptive person from the situation the most effective way to defuse an order problem. But the need to remove a person does not always justify an arrest. First, a police officer can take someone off of the street without taking him to jail. If an individual with a serious mental condition poses a threat to himself or others, he can be detained for further psychiatric evaluation. If he needs social services, he can be taken to a crisis response drop-off center for the mentally ill, a detox center for those who are high or drunk, or a drop-in shelter for the homeless, to the degree one is available
Second, a police officer can often prevent someone from continuing a crime by removing him from the scene of the incident briefly rather than by an arrest. Two men engaged in a shoving match outside a bar might stop if given a few minutes to cool down. Just as United States’ constitutional doctrine permits officers with probable cause to detain a suspect in a traffic or pedestrian stop for the purpose of giving a warning, ticket, or citation or at the stationhouse in order to gather evidence, it may similarly permit short field detentions based on probable cause that criminal activity has occurred and would be likely to recur absent some brief form of restraint. During a short detention, many suspects will sober up, calm down, or lose the opportunity to be disorderly. A field detention could hinder continuing offenses without imposing the full negative consequences of an arrest.
The idea of field detentions raises obvious objections. For example, detentions would be less time consuming for a officer than an arrest. As a result, officers might do many more of them, including in circumstances in which they would have been unlikely to make an arrest. Introducing field detentions therefore risks reducing the harm of individual police-citizen interactions only to make it up in volume.
Given this risk, field detentions may not be good policy, especially if they are more intrusive than other means of maintaining order that have not yet been implemented to their full potential, such as the multidisciplinary police-community response teams recommended by the President’s Task Force on 21st Century Policing. But if implemented well, field detentions would probably be less harmful than widespread order-maintenance arrests. An arrest is not the only way to solve order problems, and given the harms of arrests and the potential of alternatives, it is one that is increasingly difficult to justify.
So far, I have mostly discussed alternatives to arrest using examples of misdemeanors, which account for more than 80 percent of arrests
Arrest and pretrial detention are motivated by many of the same concerns, namely that suspects may fail to appear or may commit crimes in the interim. But the contrast between current decisions whether to arrest and decisions whether to detain pending trial is stark. Arrest is the default policy, especially for those suspected of serious crimes. By contrast, the law of pretrial detention has maintained a presumption
Pretrial detention decisions are hardly perfect. Still, comparing our existing arrest practice to our system of pretrial release shows how bizarre it is that we take for granted the necessity of so many arrests. Most felony defendants in the United States are released until trial, and 90 percent of those detained are held only because they do not have the money for bail.
Pretrial release decisions are made after an adversarial hearing in court, based on clear and often objective, evidence-based criteria. The decisions can be revisited in short order, and they can be appealed. Despite these procedural protections, we favor release over detention. By contrast, arrest decisions are often made in the field. The decision to arrest rather than cite is usually uncontestable, irreversible, and unreviewable. Yet, in this context, we favor detention.
One could argue that pretrial release decisions are made in an environment much more conducive to assessing risk than the environment in which arrests for violent crimes are made. Pretrial release decisions happen in court at a bail hearing with input from pretrial agencies, prosecutors, defendants, and – when they are present – defense lawyers. The decision to arrest is more often made by police officers in the field in what are rapidly evolving circumstances. Nevertheless, risk assessment is not as impossible in the latter case as one might think.
First, police officers have the power to improve the conditions in which the decision to arrest is made. Just as an officer may hold a suspect during a traffic stop to check his driver’s license, determine whether he has outstanding warrants, and inspect the car’s registration and proof of insurance before issuing a ticket or warning
Second, police officers have (or could have) all the information they need to make a determination about whether an arrest is necessary for a completed crime
We might even develop a risk-assessment tool for the decision to arrest. Research could identify objective factors that help predict whether a suspect is likely to reoffend or fail to appear if cited rather than arrested, such as the nature of the crime at issue, and the suspect’s prior history of failing to appear. Once those factors are identified, police could input information related to those factors on a simple paper form, a computer program, or a phone app. The tool could then either guide the officer’s arrest decision, by labeling a suspect high, medium, or low risk, as some pretrial release tools do, or perhaps more helpfully, spit out a directive to arrest or not to arrest.
To be sure, this is nothing like the way decisions to arrest are presently made. Citations are overwhelmingly forbidden by state law for all felonies and many misdemeanors. Even when there is no
Police might be reluctant to give up what has long been viewed as a core part of their discretion. Some judges probably resist constraints on their pretrial release decisions too. But arguments in favor of the discretion to arrest depend on the idea that refined, situational analysis by officers best serves the public interest, because it most effectively identifies those suspects who should be arrested
Of course, risk assessment will not necessarily lead to fewer arrests for defendants charged with violent crimes. But if we actually engage in research to construct and validate risk-assessment instruments for the decision to arrest, we might be surprised by what we find. We might well discover that choosing not to arrest a suspect – even one charged with a violent crime – is far less risky than we imagine. We generally have accepted preventive arrests as easily justified because we think that the cost of arrest is small and the threat the suspects pose is significant. In Part I, I argued the first claim is not true. The argument here suggests that perhaps the second one is not either.
I have focused on arrests used to start criminal adjudication, to maintain order, and to protect public safety. There is, however, one additional argument that is sometimes used to defend arrests on pragmatic grounds that might require more analysis: evidence collection.
When an officer arrests a suspect, the law in the United States permits a full search incident to arrest of the person and the immediately grabbable area
Many of the arrest-conditional methods of gathering evidence have non-arrest substitutes, including
The risk of losing evidence from custodial interrogations seems especially high. Suspects and witnesses are often arrested precisely so that the police can question them. If the arrest does not happen, neither will the interrogation. It is not enough to say that the suspect could be questioned at a different time. Before the arrest, the arrestee can choose to walk away from the police rather than talk. After the arrest culminates in an arraignment, he will usually have a court-appointed lawyer, who will put a stop to further questioning. The practicalities of arrest in combination with criminal procedure doctrine permit officers to generate a space in which suspects and witnesses are isolated and unrepresented and therefore likely to cooperate.
The key aspects of arrest for this purpose are the uncounseled interview and the threat of criminal charges. We have already seen that criminal charges are not dependent on arrest. If we truly believe that brief, uncounseled interviews are necessary to solve crimes, perhaps we should permit them. If doing so is inconsistent with other criminal justice values, then we might not want to permit arrests in order to create a workaround. In any case, given the costs generated by other aspects of arrests – for example, the criminal record – arrests seem unnecessarily broad for the job. Simply put, we can forgo the evidence; allow arrests; allow interrogations without arrests; or invest in alternative evidence-gathering methods. I do not assume arrests are the right answer.
It could be that, whether or not any specific arrest is necessary to achieve a law enforcement function, arrests have benefits more generally because they allow police to deter crime. As it turns out, however, contemporary criminological research suggests that police do not deter crime best by arresting criminals
In recent years, several policing strategies have been shown to reduce crime effectively, including mostly notably, hot spots policing, problem-oriented policing, and focused deterrence strategies. None of them is arrest-intensive. By contrast, arrest-intensive policing strategies, including traditional patrol and arrest strategies, zero-tolerance policing, and some versions of broken-windows policing, have much less evidence to support their effectiveness. It seems that police can deter without making many arrests.
How do police deter if not by arresting criminals? Daniel Nagin, a prominent criminologist, has argued that police deter crime more by persuading would-be offenders that they will not succeed than by arresting some criminals to make others afraid of future arrest. That is to say, police deter as “sentinels”, not as “apprehension agents”
Right now, arrests are deeply embedded in our system of criminal justice. They are often unnecessary to achieve our law enforcement goals, and we have not yet seriously explored the range of possible alternatives. Nevertheless, while other criminal justice practices are subject to intense scrutiny and proposals for profound reform, arrests are left largely intact, if they are considered at all.
Clearly, police departments could, starting any time, conduct far fewer arrests than they currently do. They should, and some have. Still, we cannot expect individual officers, police chiefs, and departments to balance adequately the interests of individuals and society in formulating arrest practices or to retain a commitment to doing so. Given competing demands, even a police department that states an intent to reduce arrests may find it difficult to do so, especially over time.
More meaningful change likely requires state law reform. States could expand the authority to issue summonses and citations where it is lacking, and they could limit statutory authority to arrest when it is least needed. They could impose evidence-based criteria on officers’ decisions to arrest, and they could establish external mechanisms for reviewing those decisions. Federal law is less important, but at the very least, the federal government could reconsider its policy of actively incentivizing arrests through federal grant programs, as it now does.
Efforts to reduce arrests would likely create new risks. As the United States Department of Justice’s investigation into unconstitutional law enforcement practices in Ferguson, Missouri forcefully reminds us, tickets, fines, fees, and outstanding warrants for failure to appear can be as effective as arrests and convictions at reinforcing inequality
These risks suggest that we should take care in how we restrict arrests, not that we should avoid the project. For example, it cannot possibly be that the best way to avoid overloading people with fines they cannot pay and issuing warrants to arrest them is to arrest them in the first instance instead. In Ferguson, the Justice Department suggested that this problem can be mitigated by improving municipal court practices, tailoring fines to ability to pay, and instituting community service alternatives to fines and fees, all of which reduce the consequences for failing to pay for tickets or appear in court. Experience will likely lead to additional strategies for minimizing the tradeoffs that come from embracing alternatives to arrests.
If you think substantially reducing or eliminating arrests sounds impossible, consider that the civil process made this very transition. By the end of the sixteenth century, at common law in England, most civil defendants were arrested to start civil court proceedings. Though the practice lasted for centuries, over time “[t]he harshness of arresting a defendant on trumped--up charges and forcing him to raise bail, especially in small cases, brought about the development of procedures which helped to mitigate the rigors of the arrest system”
This article draws in large part on Rachel A. Harmon,
Cf.
For states charging police investigation fees for arrests, see, for example, Mich. Comp. Laws Serv. § 769.1f (LexisNexis Supp. 2016), 42 Pa. Stat. and Cons. Stat. Ann. § 9728(g) (West 2014), and Wash. Rev. Code Ann. § 10.01.160 (West Supp. 2016).
See
See 24 C.F.R. § 966.4(l)5(iii)(A) (2016) (stating that a public housing lease may be terminated “regardless of whether the covered person has been arrested or convicted for such activity and without satisfying the standard of proof used for a criminal conviction”); 24 C.F.R. § 982.553(c) (2016) (analogous provision for Section 8 voucher); Clare M. Nolan,
See, e.g., Fields & Emshwiller, supra note 13 (citing a study by Tia Stevens Andersen of the University of South Carolina indicating that those who were arrested, but not convicted, earned $2,000 less on average and were 8 percent more likely to be in poverty than those from a similar background who were never arrested);
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The deprivation of freedom that arises solely from the arrest is the deprivation between the moment the suspect is taken into custody and the moment he is seen for a bail determination or released. That can be within a few hours, for stationhouse bail, or up to two days in the case of a first appearance before a magistrate. See Cty. of Riverside
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001); see Dunaway, 442 U.S. at 208 (1979) (“The standard of probable cause ... applie[s] to all arrests, without the need to ‘balance’ the interests and circumstances involved in particular situations.”).
See Atwater, 532 U.S. at 354
See id
See Whren v. United States, 517 U.S. 806, 811–13 (1996) (“[O]nly an undiscerning reader would regard these cases as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause ...”).
Cty. of Riverside
532 U.S. at 354. Atwater dealt with a fine-only misdemeanor. 532 U.S. at 323. The Court has since extended its Atwater analysis to arrests for fine-only noncriminal traffic violations. See Arkansas
Atwater, 532 U.S. at 346-47 (“If we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might well prevail.”).
See Graham
Tennessee v. Garner, 471 U.S. 1, 10 (1985) (quoting Brief of Petitioners, Garner, 471 U.S. 1 (No. 83-1070), 1984 WL 566026, at *14).
Atwater v. City of Lago Vista, 532 U.S. 318, 351 (2001) (“An officer not quite sure that the drugs weighed enough to warrant jail time or not quite certain about a suspect’s risk of flight would not arrest, even though it could perfectly well turn out that, in fact, the offense called for incarceration and the defendant was long gone on the day of trial. Multiplied many times over, the costs to society of such underenforcement could easily outweigh the costs to defendants of being needlessly arrested and booked...”); Gerstein
This is true in the Court’s view of both serious offenses and minor ones. Compare United States v. Watson, 423 U.S. 411, 419 (1976) (“The public safety, and the due apprehension of criminals, charged with heinous offences, imperiously require that such arrests should be made without warrant by officers of the law.” (quoting Rohan v. Sawin, 59 Mass. 281, 284-85 (1850))), with Atwater, 532 U.S. at 349 (“But is it not fair to expect that the chronic speeder will speed again despite a citation in his pocket ...?”).
See Virginia v. Moore, 553 U.S. 164, 173 (2008) (“Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation.”); id. at 174 (“[A]rrest will still ensure a suspect’s appearance at trial, prevent him from continuing his offense, and enable officers to investigate the incident more thoroughly.”).
See Wayne R. LaFave, Arrest: The Decision to Take a Suspect into Custody 3 (1965) (“In most cases, decisions to charge, to convict, and to sentence are made only with respect to those persons whom the police have first arrested. Thus, to a large extent, this decision determines those offenders against whom the official process is to be invoked.”); Cyril D. Robinson, Alternatives to Arrest of Lesser Offenders, 11 Crime & Delinq. 8, 8-9 (1965) (“Arrest has thus become the ordinary mode of beginning a criminal prosecution. As a result, arrest is not a process merely preliminary to possible punishment; it frequently is the punishment where the lesser offender is concerned.”).
Terry, 392 U.S. at 26 (“An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows.”).
See Barrett, supra note 123, at 16–18; Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 334 (1942).
Debra Whitcomb et al., Nat’l Inst. of Justice, Citation Release 17–18 (1984),
See Int’l Ass’n of Chiefs of Police, Citations in Lieu of Arrest, Literature Review 18 (2016) [hereinafter IACP, Literature Review],
IACP, supra note 131, at 10, 18 (finding that while most departments use citations, they do so to varying degrees, and only weakly track their use in lieu of arrest).
See
For the change in arrest definitions over time, compare the pre-Terry case, Henry v. United States, 361 U.S. 98, 103 (1959) (“When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete.”), with the post-Terry decision in Berkemer
See id. at 117; see also Illinois
Cf. Bell v. Wolfish, 441 U.S. 520, 534 (1979) (“[T]he Government has a substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences, [and] confinement of such persons pending trial is a legitimate means of furthering that interest.”).
E.g., Ala. Code § 11-45-9.1(h) (LexisNexis 2008) (“If the defendant fails to appear as specified in the summons ... any person who willfully violates his written promise or bond to appear ... shall be guilty of the separate offense of failing to appear...”); Neb. Rev. Stat. § 29-426 (2008) (“Any person failing to appear or otherwise comply with the command of a citation shall be guilty of a misdemeanor...”); Tenn. Code Ann. § 40-6-215(b)(3) (2015) (“The failure to appear in court on the date and time specified is a separate criminal offense regardless of the disposition of the charge for which the person is originally summoned[.]”).
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Citations also raise other special problems for vulnerable populations, who may have trouble appearing at fixed court dates and paying fines, and who can be more difficult to find if they fail to appear.
See
R. LaFountain et al., Nat’l Ctr. for State Courts, Examining the Work of State Courts: An Analysis of 2008 State Court Caseloads 47 (2010),
Rodriguez v. United States, 135 S. Ct. 1609, 1611 (2015).
If an officer stops an offender during the act, the decision to arrest might involve an additional consideration: whether the person would continue criminal activity in the absence of an arrest.
See, e.g.,
United States
See Maryland
See Colorado
Pennsylvania
Terry v. Ohio, 392 U.S. 1 (1968).
See,
California
See Cynthia Lum & Daniel S. Nagin, Reinventing American Policing: A Seven-Point Blueprint for the 21st Century 9-12 (Feb. 9, 2016) (unpublished manuscript) (on file with Michigan Law Review).
See
Cynthia Lum & Daniel S. Nagin, Reinventing American Policing: A Seven-Point Blueprint for the 21st Century 9-12 (Feb. 9, 2016) (unpublished manuscript) (on file with Michigan Law Review).
See
Nathan Levy, Jr.,