Arrests as Regulation

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

Capitalizing on Criminal Justice

The U.S. criminal justice system “piles on.” It punishes too many for too long. Much criminal law scholarship focuses on the problem of excessive punishment. Yet for the low-level offenses that dominate state court workloads, much of the harm caused by arrests and convictions arises outside the formal criminal sentence. It stems from spiraling hidden penalties and the impact of a criminal record. The key question is not just why the state over-punishes, but rather why so many different institutions—law enforcement institutions as well as civil regulatory agencies and private actors—find it valuable to do so. This Article argues that the reach of the criminal justice system is not just the product of overly punitive laws, but also the product of institutions capitalizing on criminal law decisions for their own ends. Criminal law is meant to serve a public purpose, but in practice, key institutions create, disseminate, and rely on low-level criminal records because they offer a source of revenue or provide a cost-effective way of achieving discrete administrative objectives. These incentives drive and expand the reach of the criminal justice system, even as they work in tension with the state’s sentencing goals. This dynamic creates obvious harm. But it also benefits key actors, such as municipalities, privatized probation companies, background check providers, employers, and others who have incentives to maintain the system as it is. This Article identifies how organizational incentives lead a host of institutions to capitalize on criminal law decisions, and it argues that reform efforts must, as a central goal, recognize and respond to these incentives

The Interior Structure of Immigration Enforcement

Deportation dominates immigration policy debates, yet it amounts to a fraction of the work the immigration enforcement system does. This Article maps the interior structure of immigration enforcement, and it seeks to show how attention to its structure offers both practical and conceptual payoffs for contemporary enforcement debates. First, deportation should not be conceptualized as synonymous with immigration enforcement; rather, it is merely the tip of a much larger enforcement pyramid. At the pyramid’s base, immigration enforcement operates through a host of initiatives that build immigration screening into common interactions, such as with police and employers. Second, this enforcement structure has far-reaching hidden costs. Scholars have recognized some of these costs, such as the exploitation of undocumented noncitizens. Yet the full cost of this enforcement structure goes deeper. Beyond enabling exploitative actors, it leaves little room for good faith actors to incentivize socially valuable behavior. In its impact, immigration enforcement bears unappreciated structural similarities to certain low-level criminal law enforcement techniques, where a large population is likewise subject to ubiquitous monitoring by public and private actors alike. As important criminal law and sociological literature shows, this enforcement structure can carry far-reaching costs for society at large. It can create system avoidance (where the regulated population avoids contact with key legal institutions) and law enforcement tradeoffs (where efforts to enforce one law result in underenforcement of other laws). This Article applies structural insights from low-level criminal law enforcement to immigration enforcement to assess the costs of monitoring an undocumented population long-term. It calls for restructuring immigration enforcement to consider the full impact of interior enforcement in light of those who remain present in the United States long term

Prosecuting Collateral Consequences

Criminal law scholars have long agreed that prosecutors wield vast and largely unreviewable discretion in the criminal justice system. This Article argues that this discretion now extends beyond criminal penalties and broadly reaches civil public policy decisions, such as deportation and licensing. As a result of ubiquitous plea bargaining and collateral consequences — state-imposed civil penalties that are triggered by criminal convictions — prosecutors can deliberately exercise discretion to trigger or avoid important civil consequences. This aspect of prosecutorial discretion has been underexamined, partly because of a lack of awareness of collateral consequences. But as a result of important new initiatives designed to promote information about collateral consequences, prosecutors as well as defendants are becoming more likely to know that even minor convictions can trigger much more serious civil penalties. As some commentators have pointed out, prosecutors who are aware of collateral consequences may have powerful incentives to drop charges or otherwise structure pleas to minimize the likelihood of certain collateral consequences. But importantly, prosecutors also have strong structural incentives to take the opposite approach and reach pleas to maximize the likelihood of civil penalties. For some prosecutors, enforcing collateral consequences serves as an administratively efficient substitute for a criminal conviction, as a source of leverage, as a way to circumvent the requirements of criminal procedure, as a means of achieving deterrence or retribution, or as a way to promote their own public policy preferences. This Article develops an analytic framework for understanding the structural incentives that lead prosecutors to influence collateral consequences; exposes legal and ethical problems associated with plea bargaining in light of collateral consequences; and argues that collateral consequences can undermine important interests in transparency and accountability

Jailhouse Immigration Screening

Within the past decade, U.S. interior immigration enforcement has shifted away from the street and into the jailhouse. The rationale behind jailhouse screening is to target enforcement efforts on those who fall within federal removal priorities. This Article shows how a program undertaken with the stated aim of targeting immigration enforcement has had precisely the opposite effect: it has massively expanded the reach of immigration enforcement and created extended carceral treatment within the criminal justice system based on suspected immigration status. This approach, in turn, leads to removals that lack adequate process, are inaccurate, or that reflect underlying racial biases in criminal arrests. Jailhouse immigration screening resuscitates what is experienced as a punitive model of immigration enforcement but without the procedural protections that ought to accompany the criminal process. This approach imposes an enormous cost on racial minorities disproportionately subject to low-level arrest, and it cuts against immigration enforcement officials’ stated aim of targeting immigration enforcement. By laying bare how jailhouse screening extends the impact of criminal arrest, undermines due process, and magnifies racial disparities, this Article makes the case for uncoupling immigration screening from the jailhouse altogether. Barring that approach, arrested immigration screening from the jailhouse altogether. Barring that approach, arrested individuals are entitled to greater front-end procedural protections, including neutral review of immigration detainers

Policing the Polity

The era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full reach of the law and its impact on U.S.communities. Through case studies of immigration policing and “anti-illegal immigrant” nuisance ordinances, this Essay argues that a “deportation-centric” framework continues to provide too limited a lens to recognize and redress unjustified surveillance within the United States. It argues for adopting what I call a “polity-centric” framework, which treats immigration status as necessarily fluid rather than fixed, and which considers the impact of front-end enforcement practices — including race-based demands to justify one’s presence — in light of the aim of building an integrate dpolitical community. This Essay closes by considering how a polity-centric framework could reorient how we understand the reach of immigration enforcement as it relates to antidiscrimination and Fourth Amendment doctrine

Prosecutorial Discretion and Immigration Arrest: How Criminal Arrests Set Immigration Enforcement Priorities

Prosecutorial discretion is once again at the forefront of immigration enforcement debates. In June 2022, a federal district court effectively rescinded Executive guidelines for prosecutorial discretion in immigration enforcement. The court struck down these guidelines – longstanding as a means of establishing priorities for the arrest, detention, and removal of noncitizens– on the basis that they conflicted with provisions of the INA. According to the district court, the “core” of the legal dispute centered on “whether the Executive Branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress.” The district court concluded that the Executive Branch overstepped its authority by implementing guidelines for issuing immigration detainers. In July 2022, the U.S. Supreme Court denied to stay the federal district court’s order and granted certiorari on the issue of immigration enforcement guidance. In this essay, I seek to show that framing the debate as primarily a conflict between the President and Congress elides a core underlying issue: the extent to which domestic policing decisions set the agenda for immigration enforcement. As is now well known, immigration and criminal law are deeply intertwined fields. Criminal law plays a gatekeeping role for immigration enforcement; certain criminal convictions render noncitizens subject to both mandatory detention and mandatory deportation. Yet well before any criminal conviction, domestic police exert a key influence over immigration enforcement policy decisions. With the emergence of universal jailhouse immigration screening—which, for approximately the past decade, has made every custodial criminal arrest a site of immigration screening—changes in domestic policing practices necessarily also affect immigration screening practices. In this symposium essay, I make three points regarding the role of domestic police in immigration enforcement. First, domestic police establish the agenda for immigration enforcement; policing decisions determine who is subject to immigration enforcement in the first place. Second, immigration enforcement decisions, in turn, have a feedback effect on the criminal law enforcement system; they give domestic police and prosecutors more expansive power over civil outcomes like immigration detention. Third, a major consequence of this approach is not to reduce enforcement discretion, but rather to make the exercise of discretion less visible. These decisions, in turn, insulate immigration enforcement decisions from oversight and accountability

The Mark of Policing: Race and Criminal Records

This Essay argues that racial reckoning in policing should include a racial reckoning in the use of criminal records. Arrests alone—regardless of whether they result in convictions—create criminal records. Yet because the literature on criminal records most often focuses on prisoner reentry and on the consequences of criminal conviction, it is easy to overlook the connections between policing decisions and collateral consequences. This Essay employs the sociological framework of marking to show how criminal records entrench racial inequality stemming from policing. The marking framework recognizes that the government creates a negative credential every time it creates a record of arrest as well as conviction. Such records, in turn, trigger cascading consequences for employment, housing, immigration, and a host of other areas. The credentialing process matters because it enables and conceals race-based discrimination, and because a focus on the formal sentence often renders this discrimination invisible. This Essay considers how adopting a credentialing framework offers a way to surface, and ultimately to address, how race-based policing leaves lasting marks on over-policed communities