Arrests As Guilt

Abstract

An arrest puts a halt to one’s free life and may act as prelude to a new process. That new process—prosecution—may culminate in a finding of guilt. But arrest and guilt—concepts that are factually and legally distinct—frequently seem to be fused together. This fusion appears in many of the consequences of arrest, including the use of arrests in assessing “risk,” in calculating “recidivism,” and in identifying “offenders.” An examination of this fusion elucidates obstacles to key aspects of criminal justice reform. Efforts at reform, whether focused on prosecution or defense, police or bail, require a robust understanding of the differences between arrest and guilt; if they run counter to an implicit fusion of the two, they will inevitably falter.

Keywords: arrest, recidivism, risk assessment, plea bargaining, diversion, alternative courts, problem-solving courts, wrongful conviction, ineffective assistance of counsel, prosecutorial misconduct, bail, policing

JEL Classification: K14, K41