Jain on Arrests as Regulation (AdLaw Bridge Series)

by Chris Walker — Thursday, Jan. 29, 2015@chris_j_walker

The intersection of criminal law and administrative law is a fascinating one. It has been explored primarily and extensively in the context of immigration—so much so that there’s a whole field called crimmigration, with a terrific blog by César Cuauhtémoc García Hernández that covers the field. And most (though not all) of the focus there has been on the effect of criminal convictions (as opposed to arrests) on immigration status.

Enter Georgetown Law Fellow Eisha Jain with a terrific new piece entitled “Arrests as Regulation.” The article will be published in the Stanford Law Review later this year, and a draft is available on SSRN here. As the title suggests, the article outlines the various ways arrests are used in other regulatory contexts. Jain of course focuses extensively on the effect of arrests in the immigration context, but she also details a number of other contexts, including child protective services, education foster care, and public housing. Here’s more detail, from the 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.

This piece is a fun read, and like some of my favorite administrative law scholarship I’m left with more questions than answers. And, in particular, I’m not sure what the solution(s) should be to using arrests as proxies for other factors. Jain suggests that regulators should exercise more administrative discretion when considering arrests. I’m skeptical (and Jain seems to be) that regulators will do so absent some legislative or regulatory command. She also suggests that the sharing of arrest information should be restricted or at least monitored, or that the actors in the criminal justice system (the prosecutors, criminal defense attorneys, etc.) should better patrol the criminal history created by an arrest. The latter seems like a lot of extra work to put on the criminal justice system, but perhaps it’s the best solution out there. (To be clear, the focus of Jain’s paper is not on solutions, but on mapping out the intersection and exploring the effects and implications. My guess is that Jain will explore solutions further in subsequent work.)

Along the lines of Jain’s suggestion for better information management, I wonder if encouraging better information would be helpful. For example, would it improve the regulatory use of arrests if the criminal history database included more information about the arrest (similar to a college transcript with details on the back)? Or, similar to credit reports, would it help to guarantee arrestees access to this information and an opportunity to challenge its accuracy? Part of the problem with any potential solutions is that they would require more federal-state cooperation and uniform standards (at least for the gathering and maintaining of information).

In all events, the paper is a great read for those interested in regulatory fields where arrests play a role. This appears to be Jain’s first article-length piece. I look forward to reading more of her work going forward.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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