Visionary Legal Scholarship

Rachel Harmon's article "Why Arrest?" is one of those rare pieces of legal scholarship that fundamentally challenges the mainstream worldview upon which a major institution, arrests in our criminal justice system is based.

She marshals unexceptional and widely known facts, together with counterintuitive empirical realities about the way people act in the criminal justice system to argue that good policy dictates that the tool of an arrest should be used far less often, even when the law clearly permits arrests.

There are two main alternatives that she suggests.

One is  a "criminal citation" in which persons suspects of crimes are issued a summons to appear in a criminal court to face charges similar to a traffic ticket for non-traffic crimes.  The utility of this option is driven by the high rate at which people receiving criminal citations appear in court, even for serious crimes, and by the strong predictability with which objective factors can determine that someone is likely not to appear.  This follows naturally from the long known observation that people released on personal recognizance without bail pending a criminal trial are just as likely to show up for trial, for the most part, as people who post-bail.  She also notes that tools like cheap mobile digital photography and mobile fingerprint scanners, can make criminal citations even more effective.

She notes as a precedent the fact that civil actions, like criminal prosecutions today, once used to be routinely initiated with arrests.

Another key alternative, somewhat paradoxically, is the "field detention", in which an officer detains an individual who presents a threat to public order, briefly depriving him of his liberty and perhaps transporting the person to someplace other than a jail, such as a mental health treatment center or homeless shelter or home, rather than booking the individual and charging that individual with a crime.

In her view, arrests should largely be reserved for people with histories of failure to appear at trial, people with significant criminal records, and people who pose such a threat of violence that pre-trial release on bond would also not be appropriate, dramatically reducing the many hidden costs of a policy of the predominant use of arrests as tools in the criminal justice system.

The problems associated with the excessive use of arrests as a criminal justice tool are similar to those associated with our excessive use of pre-trial detention and bail, and the sharing of information from the booking process even when someone is not charged with or convicted of crime leads to increasingly serious reputational harm with real economic consequences.

Her more human vision of criminal justice could make us a more human ad civil society without sacrificing safety and personal security to nearly the degree that our intuition, untrained by empirical evidence, would suspect.

Emily Ryo's article, "Less Enforcement, More Compliance: Rethinking Unauthorized Migration", meanwhile examines the paradox that undocumented immigrants tend to be much more law abiding than native born citizens with similar demographic profiles.  Her key conclusion is that illegal immigration is rampant, even among otherwise law abiding people, because there are a variety of widely held viewpoints which permit people to conclude that undocumented immigration is illegal, but not immoral.  The secret to great compliance, she reasons, is to better align immigration laws with widely held views regarding moral imperatives.

For example, if a temporary guest worker program allowed many undocumented aliens to work on a temporary basis in the U.S. in fields where there are labor shortages and workers face the economic need to support their families in their home countries, it is likely that there would be more voluntary compliance with immigration laws because they recognize the legitimate needs of employers and workers alike.