Disentangling Flight Risk from Dangerousness

There is a growing national consensus about the urgent need to shrink the population of pretrial detainees and to fix our broken money bail system. Even as scholars and reformers are showing renewed interest in pretrial detention and bail, however, they have neglected a fundamental pretrial problem: the conflation (by judges and in statutes) of flight risk and danger. Reformers have offered up an array of proposals and increasingly sophisticated risk assessment tools that promise to improve judicial decision-making, but many of these tools merge flight risk and danger in ways that reinforce problematic legislative and judicial practices. This Article identifies the legal and practical reasons that judges must evaluate flight risk independently of danger. Federal and state constitutions and statutes include detention and bail provisions that require judges to make separate determinations of flight risk and dangerousness. There are also compelling policy arguments for separating flight from danger. First, combining risks may cause judges to overestimate both kinds of risks. Second, forcing separate analyses of pretrial risks may provide judges with much-needed political cover (alleviating pressure to detain). In addition, isolating the two types of risks offers an opportunity to improve judicial accountability and system legitimacy. Finally, the conditions of release that judges employ to mitigate flight risk are different from those that are used to manage danger. Disentangling flight risk from dangerousness will be a critical piece of efforts to improve pretrial decision-making and reduce unnecessary pretrial detention

Crimes of Suspicion

Requiring that officers have suspicion of specific crimes before they seize people during stops or arrests is a fundamental rule-of-law limitation on government power. Until very recently, the Supreme Court studiously avoided saying whether reasonable suspicion for street and traffic stops must be crime specific, and lower courts are sharply divided as a result. Statements made in Kansas v. Glover that the Fourth Amendment requires reasonable suspicion of a “particular crime” or of “specific criminal activity” may reflect an effort to rehabilitate this foundational principle, but crime specificity was not the Court’s focus in Glover. Meanwhile, Fourth Amendment scholars, even those closely focused on the nuances of probable cause and reasonable suspicion, have mostly ignored these developments. Police capitalize on this uncertainty, routinely conducting stops that are not tethered to any particular crime of suspicion. Even when the crime-control stakes for these general suspicion stops are low, they can lead to police violence. The deaths of Elijah McClain and Freddie Gray can be traced back to street stops based only on this sort of formless, general suspicion. This Article develops a comprehensive case for a Fourth Amendment crime-specificity requirement applicable to street and traffic stops. The historical case is strong: the Framers clearly expected probable cause of a particular crime of suspicion for seizures, at least for elites, and those requirements have largely been preserved for arrests. It is also complicated. These formal rules developed alongside regular practices, which persisted long into the twentieth century before being held unconstitutional, of arresting those in poor and minority communities based on status or general suspicion. After marshaling historical evidence about arrests and crime specificity, this Article undertakes a thorough review of modern stop cases that raise these questions and analyzes relevant policy arguments. The impulses that often lead the Court to defer to law enforcement interpretations of suspicious facts in Fourth Amendment cases, do not apply to this question of law. The crime of suspicion is a bright line, drawn by the legislature into the criminal code, and it is a line that police officers are already expected to know. In practice, a robust crime-specificity requirement must be paired with decriminalization efforts. Otherwise, the current bloat of American criminal codes may limit the practical impact of a crime-specificity requirement. Officers already exploit low-level offenses to conduct stops and intrusive Fourth Amendment searches. But there is potential here to rein in problematic street enforcement. During encounters where police are not quite sure of what (if any) crime they suspect, a crime-specificity rule requires that they remain in information-gathering mode and develop more specific suspicion before laying hands on a suspect. It is a requirement that makes space for de-escalation, for investigating alternative interventions, or for officers to walk away

Crimes of Suspicion

Requiring that officers have suspicion of specific crimes before they seize people during stops or arrests is a fundamental rule-of-law limitation on government power. Until very recently, the Supreme Court studiously avoided saying whether reasonable suspicion for street and traffic stops must be crime specific, and lower courts are sharply divided as a result. Statements made in Kansas v. Glover that the Fourth Amendment requires reasonable suspicion of a “particular crime” or of “specific criminal activity” may reflect an effort to rehabilitate this foundational principle, but crime specificity was not the Court’s focus in Glover. Meanwhile, Fourth Amendment scholars, even those closely focused on the nuances of probable cause and reasonable suspicion, have mostly ignored these developments. Police capitalize on this uncertainty, routinely conducting stops that are not tethered to any particular crime of suspicion. Even when the crime-control stakes for these general suspicion stops are low, they can lead to police violence. The deaths of Elijah McClain and Freddie Gray can be traced back to street stops based only on this sort of formless, general suspicion. This Article develops a comprehensive case for a Fourth Amendment crime-specificity requirement applicable to street and traffic stops. The historical case is strong: the Framers clearly expected probable cause of a particular crime of suspicion for seizures, at least for elites, and those requirements have largely been preserved for arrests. It is also complicated. These formal rules developed alongside regular practices, which persisted long into the twentieth century before being held unconstitutional, of arresting those in poor and minority communities based on status or general suspicion. After marshaling historical evidence about arrests and crime specificity, this Article undertakes a thorough review of modern stop cases that raise these questions and analyzes relevant policy arguments. The impulses that often lead the Court to defer to law enforcement interpretations of suspicious facts in Fourth Amendment cases, do not apply to this question of law. The crime of suspicion is a bright line, drawn by the legislature into the criminal code, and it is a line that police officers are already expected to know. In practice, a robust crime-specificity requirement must be paired with decriminalization efforts. Otherwise, the current bloat of American criminal codes may limit the practical impact of a crime-specificity requirement. Officers already exploit low-level offenses to conduct stops and intrusive Fourth Amendment searches. But there is potential here to rein in problematic street enforcement. During encounters where police are not quite sure of what (if any) crime they suspect, a crime-specificity rule requires that they remain in information-gathering mode and develop more specific suspicion before laying hands on a suspect. It is a requirement that makes space for de-escalation, for investigating alternative interventions, or for officers to walk away

Defining Flight Risk

Our illogical and too-well-traveled paths to pretrial detention have created staggering costs for defendants who spend unnecessary time in pretrial detention and for taxpayers who fund a broken system. These problems remain recalcitrant even as a third generation of reform efforts makes impressive headway. They are likely to remain so until judges, attorneys, legislators, and scholars address a fundamental definitional problem: the collapsing of very different types of behavior that result in failures to appear in court into a single, undifferentiated category of nonappearance risk. That single category muddies critical distinctions that this Article’s new taxonomy of pretrial nonappearance risks clarifies. This taxonomy (i) isolates true flight risk (the risk that a defendant will flee the jurisdiction) from other forms of “local” nonappearance risk and (ii) distinguishes between local nonappearance risks based on persistence, willfulness, amenability to intervention, and cost. Upon examination, it is clear that flight and nonappearance are not simply interchangeable names for the same concept, nor are they merely different degrees of the same type of risk. In the context of measuring and managing risks, many defendants who merely fail to appear differ in important ways from their fugitive cousins. Precision about these distinctions is constitutionally mandated and statutorily required. It is also essential for current reform efforts that are aimed at identifying less intrusive and lower-cost interventions that can effectively manage the full range of nonappearance and flight risks. These distinctions are not reflected in the pretrial risk-assessment tools that are increasingly being employed across the country. But they should be. A more nuanced understanding of these differences will be a key piece of broader efforts to reduce judicial reliance on pretrial detention and to mitigate the risks posed by defendants on release

Criminal Records and Immigration: Comparing the United States and the European Union

Because the revolution in information technology has made individual criminal history records more comprehensive, efficient, and retrievable, an individual’s criminal history has become an ever more crucial marker of character and public identity. The broad range of collateral consequences of criminal convictions has become a very salient issue for criminal justice scholars and reformers. A single criminal conviction can trigger thousands of potentially applicable restrictions, penalties, or other civil disabilities. There is no better example of this phenomenon than immigration law and policy, where developments in data storage and retrieval converge with opposition to immigration, especially to immigrants who bear a criminal stigma. In debates in the United States over immigration reforms, even those politicians and legislators who advocate more liberal immigration policies generally concede the desirability of excluding those with serious criminal records from eligibility for new benefits or status. In the European Union, by contrast, although a criminal record may impact an individual’s ability to travel to or reside in an European Union country, it is not as readily dispositive of immigration outcomes. As immigration policy evolves on both sides of the Atlantic, a key question for policymakers is whether excluding persons with criminal convictions is justifiable on grounds of public safety or as a criterion for preferring some visitors and immigrants over others. Aliens seek entrance to a foreign country for three (legal) purposes: permanent residency and citizenship (immigrants); temporary visiting (persons traveling for family reasons, tourism, educational purposes, or temporary work); and refugee status (persons fleeing persecution). For the United States, at least, criminality in a foreigner’s home country is relevant to obtaining a visa to enter this country. In both the United States and the European Union, a foreigner’s criminality in the host country can have fateful consequences for being allowed to remain. This Article compares the ways that the United States and the European Union use criminal records (including both conviction records and, in the United States, some arrest records) for immigration purposes. Toward this end, because US immigration policies are exclusively governed by federal laws, regulations, and executive orders, the United States is treated as a single entity. The European situation is more complicated. Understanding the effect of criminal records on immigration requires attention to the laws and policies of both the European Union and individual Member States. Part I documents the ways that criminal records are used in making immigration determinations in the United States. Part II analyzes the role that criminal records play in regulating immigration into (and within) the European Union. Part III concludes with guidance for policymakers in both jurisdictions