Adapted from “Why Arrest?” 115 Mich. L. Rev. 307 (2016).
“You are under arrest.” Perhaps no words stand more for what it means to be a police officer than these. Police make arrests to start most criminal prosecutions, to take control of dangerous people and to solve problems on the street. Arrests are so central to our way of thinking about law enforcement that we often measure the success of policing by the number of arrests officers make.
Though 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. When critics argue that we incarcerate far too many people for far too long and then continue to punish them after they are free, they view arrest as an important step towards incarceration and the use of arrest records as part of the extended punishment. And when they contend that the killings by law enforcement of Michael Brown, Walter Scott, Tamir Rice, Eric Garner, Freddie Gray and Samuel Dubose represent a racist violence so extreme that it is 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. Like almost everyone else, even bitter critics of American criminal justice accept that arrests are generally essential to ensuring public safety and order, and that the police power to arrest is therefore largely inviolable. But—even assuming that suspects commit crimes that are worth prosecuting—do police need to arrest?
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. While traditional justifications for arrests—starting the criminal process and maintaining public order—are important goals, police departments could conduct far fewer arrests than they currently do and could still achieve them.
Some have already taken steps in this direction. The New York Police Department, for instance, announced in March 2016 that it would “no longer arrest individuals who commit [minor] offenses—such as littering, public consumption of alcohol, or taking up two seats on the subway—unless there is a demonstrated public safety reason to do so.” Instead, it issues summonses for these offenses.
Other recent reform ideas might have some impact. Many have suggested decriminalizing some misdemeanors, which could—at least in theory—reduce the number of arrests conducted for the least serious crimes, though substitute grounds for arrest are often plentiful. Others have suggested ways to limit some of the harms of arrests by restricting the consequences for employment, public housing and immigration status, or by forbidding the use of force to subdue some suspects.
Though these reforms might have benefits, meaningful change likely requires additional 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. Local governments could impose evidence-based criteria on officers’ decisions to arrest when arrests might be appropriate, and they could establish external mechanisms for reviewing those decisions. Federal law is less important, but it could also encourage better arrest policies and practices. At the very least, the federal government could reconsider its policy of actively incentivizing arrests through federal grant programs.
Any efforts to reduce arrests would create new risks. As the Justice Department’s investigation into unconstitutional law enforcement practices in Ferguson, Missouri, reminds us, tickets, fines, fees and outstanding warrants for failure to appear can be as effective as arrests and convictions at reinforcing inequality.
Arrest reform seems more possible than it has in decades, in significant part because crime rates are relatively low. Policymakers care about promoting cost-efficient and evidence-based criminal justice solutions. There is a new national dialogue about the problems of policing and increased sophistication about what it means to strengthen law enforcement. And through videos, the risks of violent confrontations during arrests are more visible than ever. Given that arrests are far more problematic and perhaps far less necessary than we have previously acknowledged, now is the moment to reconsider arrests rather than continue to take this widespread form of state coercion for granted.