Arrests as Regulation

Abstract

For some arrested individuals, the most important consequences of their arrest arise outside the criminal justice system. Arrests alone — regardless of whether they result in conviction — can lead to a range of consequences, including deportation, eviction, license suspension, custody disruption, or adverse employment actions. But even as courts, scholars, and others have drawn needed attention to the civil consequences of criminal convictions, they have paid relatively little attention to the consequences of arrests in their own right. This Article aims to fill that gap by providing an account of how arrests are systemically used outside the criminal justice system. Noncriminal justice actors who rely on arrests — such as immigration enforcement officials, public housing authorities, employers and licensing authorities, child protective service providers, among others — routinely receive and use arrest information for their own objectives. They do so not because arrests are the best regulatory tools, but because they regard arrests as proxies for information they value, and because arrests are often easy and inexpensive to access. But when noncriminal justice actors rely on arrests, they set off a complicated and poorly understood web of interactions with the criminal justice system. Regulatory bodies and others that make decisions based on arrests can coordinate and pool resources with prosecutors and police officers, achieving a level of enforcement that neither could achieve alone, or they can make decisions that undermine important aspects of the criminal justice process. This Article maps different regulatory interactions based on arrests, and illustrates the need for greater oversight over how arrests are used and disseminated outside the criminal justice system.

Keywords: criminal law, arrests, immigration law, public housing, employment, licensing, collateral consequences