Human Rights

Why Does America Arrest So Many People — and How Can We Stop It?

Law professor Rachel Harmon asks if the costs of arresting people outweigh the benefits.

Last winter, New York City police officers inadvertently conducted a telling criminal justice experiment. In an act of apparent protest against Mayor Bill de Blasio and goaded on by police unions, rank-and-file cops began a work slowdown that resulted in a sharp drop in arrests. In one December week, overall arrests fell by 66 percent compared to the same period the year before.

As many criminal justice activists pointed out at the time, a drop in arrests for low-level crimes is exactly the kind of police reform they were fighting for. Police Commissioner William Bratton was less enthused, pledging to deal with NYPD's work stoppage, "very forcefully.” But even the commissioner admitted that the slow-down, which mostly decreased arrests for low-level crimes like public drinking, did not result in a jump in serious crime. As the Daily Beast reported, some officers were all too happy to participate, since they didn't see busting drunk people for public urination as the stuff of heroic police work. 

But thanks to decades of tough-on-crime rhetoric and the spread of the broken-windows theory, high rates of arrest for minor crimes are the norm nationwide. (And as many have pointed out, the race and class disparities for this kind or enforcement are staggering.)

In an essay published this month on the Social Science Research Network, law professor Rachel Harmon asks whether the costs of arrests might outweigh the benefits in all but the most extreme cases. Harmon notes that our current model causes immeasurable harm to arrestees, their families, communities—even police officers themselves. Given the risks and costs involved, even when everything goes according to plan and everyone conducts themselves in a manner consistent with the Constitution, arrest may not be the ideal way to deal with most common criminal activities. 

AlterNet's Tana Ganeva spoke with Harmon about the invisible costs of arresting and jailing people, and the alternatives.

Tana Ganeva: What are the concrete harms and costs that arrests cause that people tend to overlook?

Rachel Harmon: For the person arrested, arrests can be frightening and humiliating. An arrestee loses income during the length of his (most arrestees are men) arrest, and perhaps his job, if he is fired for not showing up. He often pays arrest fees, booking fees, lawyers’ fees, and sometimes towing and storage fees for his car, if the arrest happened during a traffic stop. And he loses privacy: he will be searched, and so will the area around him when he is arrested. He will be booked, which includes being asked about his home address, his birth place, his medical history, and his psychological conditions. He will be photographed and fingerprinted; he may be strip-searched; and he may have his DNA taken and entered into the federal database.  

In addition, of course, if an arrest does not go smoothly, an arrestee risks being injured or killed. Remember Eric Garner? He didn’t cooperate with police, but we know that often happens, so if we’re thinking from a welfare perspective about the costs and benefits of arrests, deaths that occur when people resist are costs that matter too. 

I’m not talking about illegal arrests or circumstances where police use more force than the law allows. I’m talking about perfectly legal arrests by officers who are doing their job and following policy. As a matter of good public policy, we should take into account that the risks imposed by an arrest in a minor case may outweigh the benefit to the public. If a non-arrest measure, such as issuing a citation, is a viable alternative, it is hard to justify creating the risk of a violent confrontation.

Arrests also have longer term consequences. An arrestee’s family can be kicked out of public housing, he can lose custody of his kids, and he can be deported if he’s a non-citizen. Arrests also affect employment opportunities and income well into the future.  

TG: What about the arrestee's family and community?

RH: Even if you are not sympathetic with the costs experienced by arrestees, it is worth remembering that families suffer too. An arrestee’s financial losses are also his children’s, both immediately and in the long run, and the losses aren’t just financial. 

Harms to bystanders are less common, but they can be caught in the crossfire if a fight ensues, or injured during a high-speed chase to secure an arrest.  

The effect of arrests on communities is more complicated. Some people feel safer if a lot of folks are arrested, but it makes others more fearful and alienated by the police. When people are uncomfortable with the police, they don’t call them when they are victims of crime, and they refuse to cooperate as witnesses, and that can make it harder for police to do their jobs.  

Whatever people feel about arrests, arrests cost taxpayers a lot of officer time and money. An arrest can easily take five hours of officer time. Officers get paid around $30 an hour, not including overtime or the costs of overhead and benefits. More than 12 million arrests take place each year. That means in officer time alone—not jail costs, court costs, booking costs, or anything else—we are talking about spending nearly 60 million officer hours, which means something like $1.8 billion. If there are cheaper, non-arrest methods to achieve the same ends in some cases, it’s simply good policy to pursue them.

TG: You point out that arrests aren't even good for cops. How so?

RH: Arrestees are not the only ones injured and killed during arrests. In 2013, for example, nearly 20% of nearly 50,000 officers assaulted were injured attempting to arrest suspects. By contrast less than 10% were assaulted during traffic stops, a far more common activity.  Moreover, when the frequency of arrests alienates communities, officers may suffer low morale and high stress.  

TG: The opposing argument would be that these risks and bad outcomes on the individual level are worth it to maintain public safety. What would you say to that?

RH: Some arrests are important to public safety. If we think a dangerous suspect is likely to flee or hurt someone if he isn’t arrested, then arresting him helps protect us. But overwhelmingly, arrests aren’t like that.  

Mostly, we arrest people in order to bring criminal charges or to stop them from doing something at the moment. They aren’t dangerous.  If they are told to show up in court, they likely will, and if not, they can be often be easily found. Even if some people fall through the cracks, it seems like, all things considered, the world might be better off if we arrested fewer people. At least, we should seriously consider which arrests are necessary and which aren’t.

Right now, we default to arrest as a way to start the criminal process, and we put the decision to arrest in the hands of police departments and individual officers.  

TG: So even when everything goes right —no one is hurt or killed, no one’s constitutional rights are too badly trampled—you argue that the arrest model is still not ideal. Why?

RH: Constitutional rights prohibit an arrest unless there is probable cause to believe that the person committed a crime. They prohibit the police from selecting a person for arrest because he is black or because of his national origin. And they prohibit a police officer from using unreasonable force to make an arrest. All of these protections are important.  

But they fall far short of ensuring that we conduct arrests only when they are worthwhile. Arrests come with considerable costs. Our current practices reflect that fact to some extent. For example, officers generally issue traffic tickets for minor traffic offenses rather than conduct arrests, and some states don’t permit arrests for very minor offenses. But under current Supreme Court doctrine, it is constitutional for the police to conduct an arrest even for a trivial offense, such as failing to wear a seatbelt, even if the punishment for the crime is only a minor fine and even if the arrest is prohibited under state law.  

Constitutional rights can only determine what police may not do. They don’t help us figure out what they should do under a wise policy. I wrote about that in an earlier article.

TG: What's the alternative?

RH: It depends what the purpose of the arrest is. If it is to start criminal charges, then police can often give someone a summons or citation demanding that he show up in court to answer charges. If we are worried that they might not show up, we can make it easier to do so. It turns out that many people fail to appear pursuant to a summons because they are sick or forgot the date rather than because they are attempting to avoid going to court. New York City is experimenting with robocalls and text message to help people remember.   

Many arrests arise because of social problems, like homelessness, drug abuse and mental illness that really should be addressed before they become visible in disorder. But since that hasn’t yet happened, we should encourage officers confronting public disorder to use less intrusive alternatives to arrest: dropping someone off at a day shelter or giving them a ride home, or even a brief field detention to let someone calm down, is better in many cases than an arrest that will lead to a permanent criminal record.

The alternatives are tricky, and they have risks of their own. I worry that efforts to reduce arrests could backfire or exacerbate the unequal impact of law enforcement on minority communities. After all, tickets, fines and outstanding warrants for failure to appear can be as effective as arrest at reinforcing inequality and holding people down, as the Justice Department report on the use of these practices in Ferguson made clear. But arresting more 12 million people a year can’t be the best way to avoid loading people with fines they can’t pay or to deal with inequality.  

TG: Most criminal justice reformers would agree that the broken windows model of policing, where people are busted for minor crimes like loitering or public urination, is not worth it. But you argue that arrest is not ideal even when it comes to more serious crimes. 

RH: It isn’t that I think that we should never arrest people for serious crimes, but I think we could be a lot more discriminating. Consider that, even for felonies, most arrestees are released shortly after arrest either on their own recognizance or on bail. For serious crimes, those decisions are often made based on risk assessment tools that use criminal history and other factors to predict how likely it is that the person will fail to appear or commit a new crime before trial or a plea. I suggest in the essay that we should start developing similar tools for officers to use when they are making arrest decisions. 

Impact Justice, a great new criminal justice non-profit in California, is exploring the feasibility of developing risk assessment tools along the lines I have suggested. With some work, we may be able to equip officers to make evidence-based decisions about when to avoid arrests.  

   

Tana Ganeva is a reporter covering criminal justice, drug policy and homelessness. Follow her on Twitter @TanaGaneva.

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