Arrests as Guilt, Anna Roberts, Seattle University School of Law, 2018
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ARRESTS AS GUILT Anna Roberts* An arrest puts a halt to one’s free life and may act as prelude to a new process. That new process—prosecution—may culminate in a finding of guilt. But arrest and guilt—concepts that are factually and legally distinct— frequently seem to be fused together. This fusion appears in many of the consequences of arrest, including the use of arrest in assessing “risk,” in calculating “recidivism,” and in identifying “offenders.” An examination of this fusion elucidates obstacles to key aspects of criminal justice reform. Efforts at reform, whether focused on prosecution or defense, police or bail, require a robust understanding of the differences between arrest and guilt; if they run counter to an implicit fusion of the two, they will inevitably falter. Introduction ................................................................................................ 3 I. Arrests ¹ Guilt ........................................................................................ 4 A. Arrests ¹ Factual Guilt ....................................................................... 4 B. Arrests ¹ Legal Guilt .......................................................................... 9 II. The Fusion of Arrest and Guilt ............................................................ 12 A. Consequences of Arrest .................................................................... 13 B. “Recidivism” .................................................................................... 17 C. Risk-Assessment Tools..................................................................... 25 D. Linguistic “Slips” ............................................................................. 27 E. “Everyone Pleads Guilty” ................................................................. 29 III. Possible Explanations ........................................................................ 31 A. “A System of Pleas” ......................................................................... 32 * Associate Professor, Seattle University School of Law. Thanks to Jeff Bellin, Tim Brennan, I. Bennett Capers, Brad Colbert, Brooke Coleman, Erin Collins, Richard Delgado, Jessica Eaglin, Barb Fedders, Charlotte Garden, Lauryn Gouldin, Carissa Hessick, K. Babe Howell, Eisha Jain, Lea Johnston, Alexis Karteron, Paul Leighton, Kate Levine, Sandy Mayson, Victor Mendoza, Ion Meyn, Janet Moore, Dean Olsher, Jocelyn Simonson, Megan Stevenson, MaryAnn Thrush, I. India Thusi, and Janani Umamaheswar, for valuable feedback on this project, and to Katie Farden, Kerry Fitz-Gerald, Courtney Olson, LeighAnne Thompson, and Eva Zhou, for wonderful research help. Special thanks to Jenny Carroll and my family for invaluable help and support, and to Dean Annette Clark for funding and encouraging my research. Thanks also to participants and audience members at the American Society of Criminology Annual Meeting, CrimFest/American Association of Law Schools Midyear Meeting, and ABA-AALS Criminal Justice Section Roundtable, at which earlier drafts were presented. Electronic copy available at: https://ssrn.com/abstract=3167521 2 ARRESTS AS GUILT [23-Apr-18 B. The Costs of Diversion ..................................................................... 34 C. Fusion of Act with Crime ................................................................. 36 D. Media Influence ............................................................................... 38 E. Self-Comforting................................................................................ 40 IV. Why This Matters .............................................................................. 42 A. Defense Representation .................................................................... 43 B. Pre-Adjudication Suffering ............................................................... 45 C. Police Reform .................................................................................. 47 D. Prosecutorial Reform........................................................................ 49 Conclusion................................................................................................ 51 Electronic copy available at: https://ssrn.com/abstract=3167521 23-Apr-18] ARRESTS AS GUILT 3 INTRODUCTION Approximately eleven million arrests are made in this country per year.1 Some arrests lead to prosecutions; some do not;2 some prosecutions lead to convictions; some do not.3 Some arrests—let us assume—correspond to crime commission; some do not.4 Thus, an arrest does not connote legal guilt, or factual guilt, nor is it supposed to. It is supposed merely to be supported by “probable cause,” a standard that is relatively low,5 and that does not require an adjudication of guilt.6 This standard is to be applied on the assumption that things like exculpatory information and defenses are for a later time.7 And yet, in a wide range of ways, in a wide range of contexts, and in the assumptions of a wide range of people, arrests appear to be fused with guilt. The stage that is supposed to lie between arrest and adjudication—that period of diligent investigation, zealous representation, exploration of defenses, and possible dismissal—has too often collapsed in our implicit, and sometimes explicit, understandings of the criminal legal system. This fusion appears in consequences of arrest, discussions of “recidivism,” and assessments of “risk,” that seem to treat an arrest as equivalent to guilt, and linguistic and statistical “slips” that confuse “offenders” with “arrestees,” and “crimes” with “alleged crimes.” Given the many differences—factual and legal—between arrest and guilt, such a fusion demands explanation and critique. In addition, its potential consequences need to be identified and resisted. 1 See Federal Bureau of Investigation, 2016 Crime in the United States, https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/tables/table-18. 2 Surell Brady, Arrests Without Prosecution and the Fourth Amendment, 59 MD. L. REV. 1, 3 (2000) (“[I]n a number of large jurisdictions, the majority of criminal cases at the state level, both misdemeanors and felonies, are dismissed without prosecution”). 3 See Sandra Mayson, Dangerous Defendants, 127 YALE L.J. 490, 562 (2018) (“One-third of arrests lead to dismissal or acquittal.”); Issa Kohler-Hausmann. Managerial Justice and Mass Misdemeanors, 66 STAN. L. REV. 611, 649 (2014) (“Approximately half of misdemeanor case dispositions in 2012 were convictions”). 4 See infra Part I.A. 5 See William Ortman, Probable Cause Revisited, 68 STAN. L. REV. 511, 559 (2016) (“Probable cause to arrest . . . ‘does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands.’ While some states use a stricter formulation of probable cause, many others accord with federal law. When a 1981 survey of judges asked respondents to reduce ‘probable cause’ to a specific probability, moreover, the average was 45.78%.”) (quoting Gerstein v. Pugh, 420 U.S. 103, 121 (1975)). 6 See Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989). 7 See Finigan v. Marshall, 574 F.3d 57, 63 (2d Cir. 2009) (rejecting idea that “an officer must have proof of each element of a crime and negate any defense before an arrest”). 4 ARRESTS AS GUILT [23-Apr-18 Part I lays out key ways in which arrests are distinct from guilt, whether factual guilt (commission of the crime charged) or legal guilt (conviction for the crime charged). Part II identifies a number of manifestations of an apparent fusion of arrest and guilt. Part III explores how the fusion of arrest and guilt might have come about, discussing the influences of pleabargaining, diversionary programs, and media, as well as the desire to comfort ourselves that our criminal legal system makes sense and does justice—or at least isn’t unjust nonsense. Part IV identifies one crucial set of reasons why such a fusion matters. Vital reform of the criminal legal system relies on a robust understanding of the difference between arrest and guilt. If this distinction has indeed collapsed, even for those committed to criminal justice reform, an array of perhaps otherwise puzzling failures of reform—in areas that include defense representation, prosecutorial conduct, police conduct, and pre-adjudication suffering—may make more sense. Exposing this fusion is a necessary first step toward a new stage of reform.8 I. ARRESTS ¹ GUILT Whether one is concerned primarily with “factual guilt” or with “legal guilt,” an arrest is, of course, quite distinct from guilt. While definitions of both “factual” and “legal” guilt are myriad,9 this Part lays out a working definition of each, before discussing the multiple ways in which each differs from arrest. A. Arrests ¹ Factual Guilt While alternative definitions will be discussed below,10 this Article describes someone as “factually guilty” as regards Crime X if she committed Crime X.11 In other words, for her to be factually guilty of Crime X, each of the elements of Crime X must be satisfied (including actus reus and mens rea requirements), and there must be no defense that negates her guilt.12 While 8 For scholarly neglect of arrests, see Eisha Jain, Arrests as Regulation, 67 STAN. L. REV. 809, 814 (2015) (arrests “remain surprisingly understudied.”). 9 See David Shapiro, Should a Guilty Plea Have Preclusive Effect?, 70 IOWA L. REV. 27, 44 (1984) (describing the distinction as “a very controversial one”). 10 See infra Part III.C. 11 See John Hill, What Does it Mean to be a “Parent”?, 66 N.Y.U. L. REV. 353, 362 n.28 (1991) (“[T]he term ‘guilty’ is used to denote both individuals who have committed a crime, whether or not they are convicted—this is ‘factual guilt’—and those who are convicted of a crime, even if they did not in fact commit the crime—‘legal guilt’”). 12 See, e.g., Shapiro, Should a Guilty Plea Have Preclusive Effect?, at 44 (“For me, factual guilt embraces the questions whether the accused committed the acts with which he is 23-Apr-18] ARRESTS AS GUILT 5 selecting this definition removes some complications,13 it leaves one large one. Since there is sometimes no definitive answer to the question “Did she commit the crime?”, it will sometimes be impossible to resolve the question of factual guilt.14 (For example, there may be no definitive answer to the question of whether someone was “reasonable” in using force in selfdefense.15) This caveat does not alter the fact that there are several reasons why an arrest does not equal factual guilt. First, an arrest is at its core a governmental act, rather than the act of a suspect;16 its occurrence, therefore, cannot in and of itself establish that a suspect is guilty of anything.17 (Of course, an arrest is generally claimed to be made in response to a suspect’s act, but that is a different thing.) While this point may seem obvious, that it needs to be made is suggested by the many contexts—discussed below18—in which an arrest is portrayed as the act of a suspect. Second, even if we view an arrest as a response to a suspect’s act, an act is rarely sufficient to establish factual guilt.19 Recall that “factual guilt” is charged and whether he committed them with the requisite mens rea and without legal justification.”). 13 See infra Part III.C. 14 Or, as John Mitchell puts it, “There are cases where factual and legal guilt merge. You may know all the facts in a self-defense case, but whether the defendant was ‘reasonable’ or not in employing the force he did will be a conclusion of the trier of fact. On the other hand, whether he was ‘reasonable’ will be central to the question of his factual guilt.” John Mitchell, The Ethics of the Criminal Defense Attorney, 32 STAN. L. REV. 293, 296 n.12 (1980); see also Costs and the Plea Bargaining Process, 89 YALE L.J. 333, 348 n.85 (1979) (“Frequently it is impossible for either the defendant or his lawyer to know before the trial whether the defendant's actions fit the elements of the crime. For such a defendant the concepts of factual and legal guilt tend to merge and the objective truth exists only as it emerges from the fact-determining process at trial.”); Gary Goodpaster, On the Theory of American Adversary Criminal Trial, 78 J. CRIM. L. & CRIMINOLOGY 118, 130 (1987) (“[T]he kind of historical fact with which the law is concerned may not even exist in any meaningful way independent of the method of proof”); id. at 133 (“[T]here is no truth regarding criminal liability independent of the truth determined at trial, and trials are more truth-producing than truth-finding events.”); Shapiro, Should a Guilty Plea Have Preclusive Effect?, at 44 (“[S]uch matters as state of mind are so subjective and ephemeral that it is hard to speak of a reality distinct from the finding of the trier of fact.”). 15 See Jenny E. Carroll, Graffiti, Speech, and Crime (draft on file with author). 16 See Jessica Eaglin, Constructing Recidivism Risk, 67 EMORY L.J. 59, 94 (2017) (“Arrest is an action taken by police officers under authority of the state.”). 17 See Kohler-Hausmann. Managerial Justice, at 630 (“We can never directly interpret arrest rates as an index of underlying criminal behavior because reporting and police practices mediate criminal events and arrests.”). 18 See infra Part II.B. 19 See, e.g., Michelson v. United States, 335 U.S. 469, 482 (1948) (“Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty.”) 6 ARRESTS AS GUILT [23-Apr-18 defined here as commission of a crime, and recall that in our legal system crimes generally require, in addition to particular acts (or omissions), other elements such as mental states, and also require the absence of successful defenses. An arrest may speak to law enforcement’s assertion vis-à-vis an alleged act (and allegations about alleged acts may suffice to establish probable cause),20 but that falls far short of a demonstration of factual guilt.21 Third, factors other than a belief in guilt incentivize police officers to arrest.22 Law enforcement officers may experience pressure—external and/or internal—to increase the volume of their arrests for job advancement (or job preservation).23 Arrests can also bring other financial benefits, whether by allowing officers to claim overtime pay,24 or to seize property by means of 20 See Adam Gershowitz, Prosecutorial Dismissals as Teachable Moments (and Databases) for the Police, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3052991 (“Police observe what they believe is criminal conduct, and the officers make the decision on the spot whether to arrest the individual.”). 21 See Josh Bowers, Punishing the Innocent, 156 U. PA. L. REV. 1117, 1161 (1008) (“Petty charges often stem from police observation of supposed crime, not police investigation of crime reports. If the defendant is innocent, it is frequently because the police saw something and wrongly assumed that it was criminal.”); id. (“Trespassing is the clearest example. Usually, if the defendant is innocent, it is because she had permission to be at the location, not because another individual trespassed.”); Marks v. Carmody, 234 F.3d 1006, 1009 (2000) (“Issues of mental state and credibility are for judges and juries [and not police officers] to decide.”); Tillman v. Wash. Metro. Area Transp. Auth., 695 A.2d 94, 95-97 (D.C. 1997). 22 See K. Babe Howell, Prosecutorial Discretion and the Duty to Seek Justice in an Overburdened Criminal Justice System, 27 GEO. J. LEGAL ETHICS 285, 293 (2014) (“The pressure on police to exercise discretion to make arrests for minor offenses, such as enjoying a beer on one's own stoop on a summer evening, has significantly increased the number of individuals in the lower criminal courts that the public might deem to be normatively innocent.”); id. at 318 n.181 (discussing pressures on police to meet quotas); Alicia Hilton, Alternatives to the Exclusionary Rule after Hudson v. Michigan, 53 VILL. L. REV. 47, 70-71 (2008). 23 See Gershowitz, Teachable Moments (“[P]olice sometimes make warrantless arrests for their own benefit. Police departments track arrest statistics to prevent officers from ducking work and wasting their shifts. Officers therefore might arrest an individual to improve their arrest numbers.”). 24 See id. (“[I]n some jurisdictions, because police officers are paid overtime for appearing in court they have an incentive to make arrests that will lead to court pay. One prosecutor (who wished to remain anonymous) explained that some police officers are more prone to arrest if they think they will be paid overtime to testify in court, even if the case is weak.”); Rachel Harmon, Why Arrest?, 115 MICH. L. REV. 307, 360 (2016) (police departments “use arrest numbers as a measure of productivity and a basis for overtime pay”). 23-Apr-18] ARRESTS AS GUILT 7 civil forfeiture,25 or by increasing agency revenue.26 In addition, arrests may offer a way to control a situation,27 conduct searches,28 give new recruits experience and training,29 or collect pedigree information for future investigations.30 Perhaps, one might respond, these incentives exist but have no impact; after all, for them actually to bring about arrests might require police officers to lie. Unfortunately, however, it does appear that police 25 See Jain, Arrests as Regulation, at 819 (“Arrests can . . . give police officers the opportunity to respond to incentives that have little to do with crime control—such as seizing property through civil forfeiture laws or responding to arrest quotas.”) Note that forfeiture can occur even when there has been no arrest, see Scott Rodd, Should Police be Allowed to Keep Property Without a Criminal Conviction?, http://www.pewtrusts.org/en/research-andanalysis/blogs/stateline/2017/02/08/should-police-be-allowed-to-keep-property-without-acriminal-conviction (Feb. 8, 2017), but an accusation of criminal wrongdoing may serve to justify such forfeiture. See Vida Johnson, Bias in Blue, 44 PEPP. L. REV. 245, 289-90 (2017). 26 See Karena Rahall, The Green to Blue Pipeline, 36 CARDOZO L. REV. 1785, 1800 n.103 (2015) (stating that certain federal grants were awarded to police departments “based entirely on the number of drug arrests made by each department and drug arrests skyrocketed as a result”); Shelby Grad, Ferguson, Mo.'s, Alleged Revenue Scams Echo in Southeast L.A. County, L.A. Times (Mar. 5, 2015, 9:11 AM), http://www.latimes.com/local/lanow/la-meln-ferguson-missouri-abuses-echo-southeast-los-angeles-county-20150305-story.html (describing the Ferguson Police Department’s use of arrests as a “revenue-generating scheme”); Michelle Alexander, Why Police Lie Under Oath, http://www.nytimes.com/2013/02/03/opinion/sunday/why-police-officers-lie-underoath.html (Feb. 2, 2013) (“In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding. Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence.”); Derek Draplin & Kathryn Riley, “Innocent Until Proven Guilty” Should Mean What it Says, https://www.usatoday.com/story/opinion/2017/03/10/civil-asset-forfeiture-michiganpolice-column/98522526/ (noting, as regards civil asset forfeiture, that “most states allow law enforcement to keep at least 45% of the value of forfeited property, while in Michigan police get to keep up to100%.”); Leonard v. Texas, 580 U.S.—(2017) (Thomas, J., dissenting from denial of certiorari) (many states, and the federal government, allow law enforcement to keep 100% of the value of forfeited property). 27 See, e.g., Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision not to Prosecute, 110 COLUM. L. REV. 1655, 1671 (2010) (“[T]he officer may have made the arrest only to further some control objective. In which case, the officer already may have extracted the full value of the arrest once the arrestee has been processed fully through central booking.”). 28 See id. at 1694-95. 29 See id. 30 See id. 8 ARRESTS AS GUILT [23-Apr-18 officers lie,31 even or especially about important things like probable cause,32 and that such lies may be encouraged or enabled by the work environment,33 and legal system,34 in which they operate. A police statement can be sufficient support for an arrest; evidence of police falsity helps to undermine the notion that an arrest establishes factual guilt. Finally, while it is impossible to quantify the number of people who have been arrested in the absence of factual guilt, we know that there are at least some.35 We also know that many arrests do not lead to convictions.36 31 See Andrew McClurg, Good Cop, Bad Cop: Using Cognitive Dissonance Theory to Reduce Police Lying, 32 U.C. DAVIS. L. REV. 389, 417 (1999) (“American law is rife with examples of criminal injustice attributable to police falsification”); Stanley Z. Fisher, “Just the Facts, Ma’am”: Lying and the Omission of Exculpatory Evidence in Police Reports, 28 NEW ENG. L. REV. 1, 16-17 (1993) (cataloging multiple kinds of police lie); Morgan Cloud, The Dirty Little Secret, 43 EMORY L.J. 1311, 1348 (1994) (cataloging multiple reasons why the problem persists); Julian Darwall & Martin Guggenheim, Funding the People’s Right, 15 N.Y.U. J. LEGIS. & PUB. POL’Y 619, 637 (2012) (“Articles, studies, legal decisions, and investigative commissions have detailed problems of police misconduct and falsifications. . . Police officers frame suspects by planting drugs on them or fabricating evidence; assault individuals and then cover their crimes by arresting the victims and falsely accusing them of crimes; and arrange to have evidence falsified in crime laboratories.”). Note that police perjury happens often enough that the phenomenon has its own name: testilying. See, e.g., Kate Levine, How we Prosecute the Police, 104 GEO. L.J. 745, 763 (2016). 32 See, e.g., Michelle Alexander, Why Police Lie Under Oath, N.Y. TIMES (Feb. 3, 2013) http://www.nytimes.com/2013/02/03/opinion/sunday/why-police-officers-lie-underoath.html; Peter Keane, Why Cops Lie, SFGATE (Mar. 15, 2011), https://www.sfgate.com/opinion/openforum/article/Why-cops-lie-2388737.php (“Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”); Fisher, “Just the Facts, Ma’am”, at 17. 33 See Daniel Givelber, Meaningless Acquittals, Meaningful Convictions: Do We Reliably Acquit the Innocent?, 49 RUTGERS L. REV. 1317, 1345 n.87 (1997) (“[I]t is at least arguable that lying on the part of police in drug cases reflects the combination of the radical criminalization of drug offenses, racial bias, and a culture of policing which protects, rather than exposes, miscreants within the force.”); Michelle Alexander, Why Police Lie Under Oath, N.Y. TIMES (Feb. 3, 2013), http://www.nytimes.com/2013/02/03/opinion/sunday/why-police-officers-lie-underoath.html (“[T]he police have a special inclination toward confabulation,” and, “disturbingly, they have an incentive to lie.”). 34 See, e.g., Janet Moore, Democracy and Criminal Discovery Reform after Connick and Garcetti, 77 BROOKLYN L. REV. 1329 (2012) (discussing how evisceration of civil rights remedies promotes police misconduct). 35 See Natalie Lyons, Presumed Guilty Until Proven Innocent, 43 GOLDEN GATE U. L. REV. 485, 489 (2013). 36 See Brady, Arrests Without Prosecution, at 3 (“[I]n a number of large jurisdictions, the majority of criminal cases at the state level, both misdemeanors and felonies, are dismissed without prosecution”); Gary Fields & John R. Emshwiller, As Arrest Records Rise, 23-Apr-18] ARRESTS AS GUILT 9 Indeed, as Issa Kohler-Hausmann puts it, “arrest without conviction is not only possible, but is the norm.”37 Legal guilt is an imperfect proxy for factual guilt,38 but it is the primary proxy that we have, as the next Subpart will discuss. B. Arrests ¹ Legal Guilt Legal guilt is defined in this Article as a procedurally valid conviction.39 Our system for determining legal guilt, which sets up various processes and protections that must be honored in order to permit a valid declaration of legal guilt, is the primary proxy that we have for factual guilt.40 For all its imperfections,41 it is the best that we currently have. Only an all-seeing, allAmericans Find Consequences Can Last a Lifetime, https://www.wsj.com/articles/as-arrestrecords-rise-americans-find-consequences-can-last-a-lifetime-1408415402 (47% of those arrested are not convicted). 37 Kohler-Hausmann, Managerial Justice, at 641. 38 See Preliminary Report on Race and Washington’s Criminal Justice System, 35 SEATTLE U. L. REV. 623, 671 (2012) (“Arrest and conviction rates do not correlate precisely with criminal behavior rates and cannot serve as a proxy for criminality”); Irene Merker Rosenberg & Yale L. Rosenberg, Guilt: Henry Friendly Meets the Maharal of Prague, 90 MICH. L. REV. 604, 613 (1991) (“Factual guilt has always seemed elusive. The best one can do in a criminal trial is to approximate truth, and only rather grossly at that.”); id. at 624-25 (“[I]n our imperfect world there is only one kind of ascertainable guilt, and that is legal guilt. The search for more is nothing less than arrogance.”); Carla Spivack, Killers Shouldn't Inherit from their Victims—Or Should They?, 48 GA. L. REV. 145, 204-05 (2013) (“[P]lea bargaining is commonly acknowledged to be a flawed proxy for actual guilt”); Bowers, Punishing the Innocent, at 1170-71 (“Courts have allowed defendants to plead guilty to daytime burglaries so satisfy lesser charges, even when the crimes indisputably occurred in dark of night. Courts have upheld pleas to ‘hypothetical crimes’ that exist in no penal code and require impossible mens rea.”). 39 See William Laufer, The Rhetoric of Innocence, 70 WASH. L. REV. 329, 331 n.4 (1995) (“If convicted, whether factually guilt or not, one is legally guilty.”); William Genego, The New Adversary, 54 BROOK. L. REV. 781, 844 (1988) (under the concept of “legal guilt,” a person “is deemed to be guilty only after the state establishes this fact by meeting all the procedural demands of the system.”); Stefano Maffei & David Sonenshein, The Cloak of the Law and Fruits Falling from the Poisonous Tree, 19 COLUM. J. EUR. L. 21, 24 n.11 (2012) (“A person may be factually guilty, in that he actually committed the crime, but at the same time not be legally guilty, because the conviction was obtained in violation of the law.”); Mykola Sorochinchsky, Prosecuting Torturers, Protecting “Child Molesters”: Toward a Power Balance Model of Criminal Process for International Human Rights Law, 31 MICH. J. INT’L L. 157, 166 (2009) (“The pronouncement of legal guilt is only possible where there is not only a factual finding supporting the guilt, but where this finding is also made through proper procedures.”). 40 See David Blumberg, Habeas Leaps from the Pan and Into the Fire, 61 ALB. L. REV. 557, 569 (1997) (“Legal guilt presumes factual guilt.”). 41 See Donald H. Zeigler, Harmonizing Rules 609 and 608(B) of the Federal Rules of Evidence, 2003 UTAH L. REV. 635, 689 n.297 (“Guilty pleas may be coerced by threatening 10 ARRESTS AS GUILT [23-Apr-18 knowing entity could speak with absolute accuracy and authority on factual guilt,42 and, as mentioned earlier,43 even she would be unable to provide a definitive answer as regards certain charges that have an inescapably subjective component.44 As with factual guilt, there are several ways in which an arrest is distinct from legal guilt. First, a finding of legal guilt requires different—and more elaborate— process than does an arrest. The gold standard for a declaration of legal guilt is a verdict of guilt from judge or jury at trial.45 Far more commonly, it is declared by a judge, as a result of a guilty plea.46 Arrests, by contrast, are lengthy incarceration or high bail if a defendant asserts her innocence, while offering a short sentence or even probation if the defendant pleads guilty”); Russell Gold et al., Civilizing Criminal Settlements, 97 B.U. L. REV. 1607, 1616 (2017) (“The lack of procedures regulating plea negotiations means that the criminal system cannot effectively sort the innocent from the guilty during those negotiations. And the extremely high punishments imposed after conviction sometimes lead innocent defendants to plead guilty to avoid the risk of receiving those high sentences”); Herbert Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1, 47 (1964) (“It seems clear both as a matter of logical inference and of demonstrable fact that a defendant who is out on bail and who enjoys the services of a lawyer is less likely to plead guilty than is one who lacks one or both of these advantages.”); Eugene Milhizer, Confessions After Connelly, 81 TEMP. L. REV. 1, 9 (2008) (“While the data varies somewhat from study to study, the consistent conclusion of the research is that innocent defendants are convicted with disturbing frequency.”); Keith Findley, Adversarial Inquisitions, 56 N.Y.L. SCH. L. REV. 911, 912 (2012) (“If one were asked to start from scratch and devise a system best suited to ascertaining the truth in criminal cases, and to ensuring that, to the extent any unavoidable errors in fact-finding occur, they do not fall on the shoulders of innocent suspects, what would that system like? It is inconceivable that one would create a system bearing much resemblance to the criminal justice process we now have in the United States.”). 42 See Eleanor Ostrow, The Case for Preplea Disclosure, 90 YALE L.J. 1581, 1585 n.16 (1981) (“[F]actual guilt can never be fully known.”). 43 See supra Part I.A. 44 See George Thomas III, “Truth Machines” and Confessions Law in the Year 2046, 5 OHIO ST. J. CRIM. L. 215, 228 (2007) (proposing the idea of subjecting suspects to a “truth machine,” and in light of complications that this would involve—“[W]hat if the issue is mens rea? Now the fact in the universe about guilt begins to grow fuzzy. What if the crime under investigation is a white collar crime rather than a common law crime? Is there a fact in the universe about, for example, conspiring to restrain trade?”—suggesting that it might be “useful for investigating some crimes and not others”); Robert Mosteller, Why Defense Attorneys Cannot, But Do, Care About Innocence, 50 SANTA CLARA L. REV. 1, 58 (2010) (“Even if we know what happened, many cases turn on issues of human motivation and responsibility, which may remain uncertain or which may properly be viewed from different perspectives.”). 45 See Josh Bowers, Lafler, Frye, and the Subtle Art of Winning by Losing, 5 FED. SENT. R. 126, 129 (2012) (trial “is the best mechanism for the determination of legal guilt.”); Keith Findley, Learning from our Mistakes: A Criminal Justice Commission to Study Wrongful Conviction, 38 CAL. W. L. REV. 333, 334 (2002) (“The jury verdict is our almost sacred test for whether one is guilty or innocent.”). 46 See Laufer, The Rhetoric of Innocence, at 331 n.4 23-Apr-18] ARRESTS AS GUILT 11 typically effected by police officers, and typically require advance approval by neither judges nor prosecutors.47 These different processes bring with them different standards. An arrest is not supposed to occur unless law enforcement has probable cause to believe that the suspect committed a crime.48 This standard is a relatively low one.49 Those applying it, for example, may disregard exculpatory evidence.50 Arrests differ still further from legal guilt in that many arrests fail to meet even the relatively low standard of probable cause.51 By contrast, trial convictions are not supposed to occur unless the factfinders are convinced of the defendant’s guilt beyond any reasonable doubt; 47 See Jain, Arrests as Regulation, at 854 (“An arrest needs only a single police officer’s determination of probable cause.”); Gershowitz, Teachable Moments (“Police officers are not legally trained and thus may not understand that prosecutors will be unable to prove an element of the offense.”); id. (“Even if we assume that most police officers are well intentioned—which I do—they are not infallible in deciding whom to arrest. Police receive very little legal training about their state’s criminal code. And officers rarely consult with prosecutors at the moment of arrest to ask whether it will be feasible to prosecute the individual who is being arrested. Put simply, police are offered little guidance on arrests and must exercise their best judgment in determining whom to take into custody and whom to send on their way.”). 48 Tennessee v. Garner, 471 U.S. 1, 7 (1985). 49 See Harmon, Why Arrest?, at 317 (“Even for more serious crimes, the minimum standard for a lawful arrest, probable cause, is almost by definition not enough proof to establish blameworthiness.”); Ortman, Probable Cause Revisited, at 559 (“Probable cause to arrest . . . ‘does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands.’ While some states use a stricter formulation of probable cause, many others accord with federal law. When a 1981 survey of judges asked respondents to reduce ‘probable cause’ to a specific probability, moreover, the average was 45.78.%”) (quoting Gerstein v. Pugh, 420 U.S. 113, 121 (1975)). 50 See Givelber, Meaningless Acquittals, at 1374 (“Police investigations and reports are incomplete and, generally, police do not consider it their obligation to discover, investigate and record exculpatory matters.”); Fisher, Just the Facts, at 30 (noting, during a discussion of his examination of police reports, that none of the training material that he examined addresses the importance of investigating, reporting, or recording exculpatory facts and that instead they “reflect a psychological set in which the arrestee’s guilt is presumed, and the only use of notes and reports in the criminal process is to ensure conviction”); Laufer, The Rhetoric of Innocence, at 331 n.4; Criss v. City of Kent, 867 F.2d 259, 263 (1988) (“A policeman . . . is under no obligation to give any credence to a suspect’s story nor should a plausible explanation in any sense require the officer to forego arrest pending investigation if the facts as initially discovered provide probable cause.”). 51 See Alexandra Natapoff, Misdemeanors, 85 S. CAL. L. REV. 1313, 1331 (2012) (“A growing literature indicates that urban police routinely arrest people for reasons other than probable cause, that high-volume arrest policies such as zero tolerance and order maintenance create a substantial risk of evidentiarily weak arrests, that mechanisms for checking whether arrests are based on probable cause are sporadic, and finally that, if those mechanisms do kick in, police sometimes lie about whether there was sufficient evidence for an arrest.”); Harmon, Why Arrest?, at 341 (“[T]he vast majority of arrestees are arrested for petty offenses en masse, often without probable cause”). 12 ARRESTS AS GUILT [23-Apr-18 at trial the defense has the right not only to challenge the prosecution’s ability to prove one or more of the elements, but also to mount affirmative defenses. As for the guilty plea, while it does not require proof beyond a reasonable doubt,52 it requires more than does an arrest. For example, a court is not supposed to accept a guilty plea unless “[it is] supported by a factual basis and . . . [unless] the defendant’s waiver of her right to trial is voluntary and knowing.”53 A guilty plea also typically involves an admission of guilt.54 This difference in process and standards corresponds to a difference in permissible consequences: punishment can follow a finding of legal guilt, but cannot follow a mere arrest.55 Post-arrest, there are necessary precursors to a finding of legal guilt, and thus to the imposition of punishment: a prosecutor must first decide to file a charge; if a prosecution begins, defense is supposed to follow, ideally involving effective defense counsel, as well as things like defense investigation, defense strategies, and the possible mounting of defenses. 56 II. THE FUSION OF ARREST AND GUILT If it seemed obvious that an arrest is distinct from guilt, whether legal or factual, then it may be surprising that the concepts of arrest and guilt often 52 Shapiro, Should a Guilty Plea Have Preclusive Effect?, at 43. Gold, Civilizing Criminal Settlements, at 1622 n.57 (citing FED. R. CRIM. P. 11); Gregory Gilchrist, Plea Bargains, Convictions, and Legitimacy, 48 AM. CRIM. L. REV. 143, 165 (2011). Note that some states have not adopted the “factual basis” requirement. See Shapiro, Should a Guilty Plea Have Preclusive Effect?, at 42 n.72. 54 See William Ortman, Probable Cause Revisited, 68 STAN. L. REV. 511, 564 (2016) (“In a typical guilty plea, the defendant solemnly admits in open court that he is guilty of the crime charged, and a judge finds a ‘factual basis for the plea’”); id. at 564 n.302 (“Alford pleas, in which the defendant pleads guilty without confessing guilt, are an uncomfortable exception.”). 55 See Erica Beutler, A Look at the Use of Acquitted Conduct in Sentencing, 88 J. CRIM. L. & CRIMINOLOGY 809, 843 (1998) (“When the legislature statutorily classifies specific conduct as criminal, it can only punish that behavior by recourse to the criminal justice system established by the Constitution. A conviction is a necessary prerequisite to punishment based on that conduct. While not always an accurate barometer of factual guilt, conviction symbolizes legal guilt, thereby legitimizing the government’s authority to deprive a person of his life, liberty or property.”); Michael O’Neill et al., Past as Prologue: Reconciling Recidivism and Culpability, 73 FORDHAM L. REV. 245, 268 (2004) (“The American criminal justice system presumes innocence, not guilt. It is therefore abhorrent to base punishment merely upon the existence of an arrest, without more.”). 56 See Jain, Arrests as Regulation, at 820 (“Criminal procedure is intended to place important safeguards between a police officer's decision to make an arrest and its subsequent consequences. Defendants in criminal cases have the right to constitutionally adequate counsel, the right to suppress evidence that was illegally obtained, and the right to crossexamine witnesses, including testifying police officers.”). 53 23-Apr-18] ARRESTS AS GUILT 13 appear to be fused. The extent of this fusion demands explanation, and merits concern. This Part lays out a variety of indications of such a fusion, before Part III suggests some explanations, and Part IV addresses one particularly urgent set of concerns. A. Consequences of Arrest An arrest brings what Adam Gershowitz calls “a huge litany of consequences for the arrestee.”57 Many of them appear to rely on an assumption of criminal guilt, and this Subpart presents several of these, including consequences imposed through law by the government, consequences imposed privately, and stigma imposed through both governmental and private acts. The legal consequences of arrest that appear to rely on an assumption of guilt (or an assumption that one’s likelihood of guilt is far higher than the low threshold that probable cause represents) are numerous. They include a permanent record that is accessible to the police and to others,58 violations of probation and parole,59 occupational license suspension,60 civil asset 57 Gershowitz, Teachable Moments (mentioning “incarceration, the need to post bail, arrest records that are accessible on the internet, mug shots, immigration and housing consequences because agencies track arrest records, the prospect of job loss because of incarceration, and difficulty in finding new work because of arrest records”). Harmon points out that an arrest can also “affect child custody rights, it can trigger deportation, and it can get a suspect kicked out of public housing.” Harmon, Why Arrest?, at 314. Jain notes that an arrest can subject students at schools and universities to discipline. Jain, Arrests as Regulation, at 812. 58 See Jain, Arrests as Regulation at 823 (“Absent robust sealing laws, police departments and others may widely disseminate criminal records, including arrests that did not result in conviction.”); id. at 824 (“Every state now either requires or permits criminal histories to be released to noncriminal justice agencies, such as those that grant licenses and provide social services. Commercial vendors also collect, store, and search arrest information. A number of states make arrest information publicly accessible, and some allow anyone who pays a fee to access an arrested individual’s criminal history. And the FBI’s fingerprint database—which was designed to provide law enforcement officials with the criminal histories of arrested individuals—has long been used outside the criminal justice system, such as by employers who conduct background checks.”). 59 See id. at 825. 60 See id. at 840 (“As a matter of due process, a licensee may be entitled to a hearing before a license is revoked, but not necessarily before an unpaid license suspension. Until 2006, New York City taxi drivers, for instance, had their licenses automatically suspended for a wide range of arrests, including misdemeanor welfare fraud or forgery.”) (citing Nnebe v. Dause, 644 F.3d 147, 159 (2d Cir. 2011) (“[W]e think that in any given case, an arrest for a felony or serious misdemeanor creates a strong government interest in ensuring that the public is protected in the short term, prior to any hearing [for an arrested taxi driver].”). 14 ARRESTS AS GUILT [23-Apr-18 forfeiture,61 bars on public benefits,62 threats to child custody,63 and the triggering of deportation proceedings.64 An arrest on one’s record can make one ineligible for jury service.65 It can also make one ineligible for legal relief, as exemplified by a New York case in which a judge dismissed misdemeanor charges in the interests of justice as regards those defendants who had no arrest record, but declined to dismiss as regards those who did have such a record.66 Referring to the arrest records as “record[s] of prior unlawful activity,”67 the judge explained his dichotomous decision: dismissal was appropriate where the defendants had previously led “a law-abiding life,”68 but “as to those cases where a defendant previously has had or exercised that opportunity, but has thereafter again disregarded the law, a different matter is presented. Defendants whose criminal records or records of prior unlawful activity thereby present a history of disregard of the law, will not be permitted to benefit” from dismissal.69 Privately-imposed deprivation that appears to stem from an assumption of guilt following arrest includes adverse employment consequences.70 These 61 See Jain, Arrests as Regulation, at 819 (“Arrests can . . . give police officers the opportunity to respond to incentives that have little to do with crime control—such as seizing property through civil forfeiture laws or responding to arrest quotas.”) 62 See id. at 825. 63 Harmon, Why Arrest?, at 314. 64 See id. at 314 n.17 (reading U.S. Immigration and Customs Enforcement statistics as “implying that 41 percent of deportations involved arrests of individuals with no prior criminal convictions”); Alan Aja & Alejandra Marchevsky, How Immigrants Became Criminals, BOST. REV. (Mar. 17, 2017), http://bostonreview.net/politics/alan-aja-alejandramarchevsky-how-immigrants-became-criminals (indicating that hundreds of thousands of immigrants with arrests have faced deportation). 65 See Dobyne v. State, 672 So.2d 1319, 1330-31 (Ala. Ct. Crim. Apps. 1994) (not plain error to excuse a prospective juror on the basis of an arrest, where state’s exclusion statute requires that one be “generally reputed to be honest” and “esteemed in the community for integrity, good character and sound judgment”). 66 See People v. Ben Levi, 149 Misc.2d 394, 397 (1990); Anna Roberts, Dismissals as Justice, 69 ALA. L. REV. 327, 357 (2017) (discussing the case). 67 Ben Levi, 149 Misc.2d at 397. 68 Id. 69 Id. 70 See Josephine Ross, “He Looks Guilty”: Reforming Good Character Evidence to Undercut the Presumption of Guilt, 65 U. PITT. L. REV. 227, 260 n.140 (2004) (“The fact that people are refused employment simply for being arrested attests to the presumption of guilt”); Gary Fields & John Emshwiller, As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime, WALL. ST. J. (Aug. 18, 2014), https://www.wsj.com/articles/as-arrest-records-rise-americans-find-consequences-can-lasta-lifetime-1408415402. 23-Apr-18] ARRESTS AS GUILT 15 consequences can include refusals to hire,71 workplace discipline,72 suspensions,73 reassignments, 74 and terminations.75 Finally, arrests can lead to stigmatizing acts by both governmental and private entities.76 They include publication of arrests in print and electronic media,77 including the distribution of “mug-shots,”78 and the phenomenon of the “perp walk:”79 the parading of an arrestee by law enforcement, frequently in coordination with members of the media.80 “Perp” is, of course, short for “perpetrator,” and both the act and the terminology used to describe it suggest 71 Ross, “He Looks Guilty,” at 260 n.140. See Benjamin Levin, Criminal Employment Law, CARDOZO L. REV. (forthcoming 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2944840. 73 See Jain, Arrests as Regulation, at 815 (“Employers may suspend or fire an arrested worker, even when prosecutors or judges determine that a rogue police officer made a false arrest.”). 74 See id. at 812. 75 See id. at 840 (“Some employers suspend or terminate at-will employees based on the arrest.”). 76 See Shayna Jacobs et al., Hate-fueled Baltimore man saw first victim as ‘practice’ to ‘kill additional black men’ in Times Square, N.Y. DAILY NEWS (Mar. 23, 2017), http://www.nydailynews.com/new-york/white-supremacist-killer-planned-carnage-timessquare-article-1.3006719?cid=bitly (“Jackson was led into court wearing a white Tyvek suit for a second straight day, with his hands cuffed and his feet shackled.”). 77 See François Quintard-Morénas, The Presumption of Innocence in the French and Anglo-American Legal Traditions, 58 AM. J. COMP. L. 107, 147 (2010) (referring to a New York Post front page showing “an accused in shackles with the headline ‘Monster in Chains’,” and noting that “the distinction between accused persons and convicted offenders has become staggeringly blurred in the United States.”). 78 See Tim Stelloh, Innocent Until Your Mugshot is on the Internet, https://www.nytimes.com/2017/06/03/opinion/sunday/innocent-until-your-mug-shot-is-onthe-internet.html?smprod=nytcore-iphone&smid=nytcore-iphone-share (June 3, 2017). 79 See JaneAnne Murray, A Perfect Prosecution: The People of the State of New York versus Dominique Strauss-Kahn, 8 CRIM. L. & PHIL. 371, 383 (2013) (“Strauss-Kahn experienced the presumption of guilt in the early stages following his arrest, most memorably in a humiliating ‘perp walk,’ the prosecutors’ opposition to bail, and the swift decision to indict.”); id. at 378 (“There are . . . few countries that subject high-profile arrestees to the humiliation of the ‘perp walk.’ Rightly condemned worldwide as abhorrent to the ethos of the presumption of innocence, the images of Strauss-Kahn paraded in handcuffs carried enormous potential to sear him in the public's imagination as guilty. These events are not accidents; they are orchestrated as a reward to the investigating officers.”). 80 See Ryan Hagglund, Constitutional Protections Against the Harms to Suspects in Custody Stemming from Perp Walks, 81 MISS. L.J. 1757, 1767-69 (2012) (“Perp walks are a natural outgrowth of the symbiotic relationship between law enforcement and the media. Accordingly, the police often assist the media’s efforts to obtain images of a suspect in custody.”); id. (“In the most egregious instances, the police will stage a perp walk, moving a suspect for a short distance and returning him to the place where he is being held, for no reason other than the creation of an opportunity for the press to observe the suspect being moved while in custody.”). 72 16 ARRESTS AS GUILT [23-Apr-18 an assumption that an arrest equals guilt.81 As JaneAnne Murray puts it, “[t]his walk is an embodiment of the presumption of guilt, and the criminal justice system's faith in the screening role police officers play in separating the culpable from the innocent.”82 In light of these consequences, one may wonder about the extent to which the doctrinal prohibition on pre-conviction punishment is honored.83 Indeed, the law sometimes seems to acknowledge that the criminal process can inflict punishment in advance of adjudication. Thus, for example, when New York established its groundbreaking standards for judges to apply when deciding whether to dismiss prosecutions in the interests of justice, one of the factors to consider was “the punishment already suffered by [the] defendant.”84 Even when the statutory language changed,85 the factor maintained its relevance in the case law of that state and others,86 with courts freely using the term “punishment” to refer to pre-adjudication harms, including harms from and related to arrest, such as post-arrest confinement.87 Thus, these consequences of arrest, and the ways in which the case law portrays them, hint at a regime in which the arrest represents the adjudicative moment,88 and punishment follows therefrom.89 81 See Scott Sayare, et. al., French Shocked by IMF Chief's “Perp Walk,” NY TIMES, (May 16 2011) http://thelede.blogs.nytimes.com/2011/05/16/french-shocked-by-i-m-fchiefs-perp-walk/. 82 Murray, A Perfect Prosecution, at 378. 83 See Bell v. Wolfish, 411 U.S. 520, 535 (1979). 84 People v. Clayton, 342 N.Y.S.2d 106 (N.Y. App. Div. 1993); see People v. James, 415 N.Y.S.2d 342, 346 (N.Y. Crim. Ct. 1979) (“Each of these defendants has been arrested and spent at least some time incarcerated awaiting arraignment. The Court considers this enough punishment to satisfy this element of Clayton.”); Roberts, Dismissals as Justice, at 372 n.330 (discussing these cases). 85 See N.Y. Crim. Proc. Law 170.40, 210.40 (McKinney 2007). 86 See, e.g., People v. Gragert, 765 N.Y.S.2d 471, 476 (N.Y. Crim. Ct. 2003) (“[D]ue to the erroneous warrant, the defendant has already suffered a ‘punishment’ far greater than what would have resulted from her conviction in this case.”). 87 See, e.g., State v. Smith, 480 A.2d 236, 239 (N.J. Super. Ct. Law Div. 1984) (dismissing case alleging bubble gum theft where ‘[t]he consequences which have already attended the arrest of this defendant are more punitive than those which would follow conviction.”); People v. Doe, N.Y.L.J. April 6, 1979, at 12 (N.Y. Crim. Ct. 1978) (“The defendant has been subjected to punishment by virtue of his incarceration from the time of his arrest at approximately 5:40 A.M. on Sept. 22, 1978, until his release from custody upon parole at approximately 8:30 P.M. later that day, a period of about 14 hours.”); id. (stating that postarrest life “effectively amounted to . . . emotional and psychological incarceration”). 88 Jocelyn Simonson has explored the idea that the setting of bail often marks the true adjudicative moment. See Jocelyn Simonson, Bail Nullification, 115 MICH. L. REV. 585, 585 (2017) (“[F]or indigent defendants, [bail] often serves the function that a real trial might, producing guilty pleas and longer sentences when an individual cannot afford to pay their bail.”). 89 See MALCOLM M. FEELEY, THE PROCESS IS THE PUNISHMENT (1979). 23-Apr-18] ARRESTS AS GUILT 17 B. “Recidivism” The legal definition of “recidivism” is relatively straightforward. It means a return to criminal conduct.90 How to measure recidivism is a much bigger issue,91 particularly given the importance of the concept. Experts view recidivism as crucial as regards both the study of individuals92 and the study of policy choices;93 indeed, it has been called “an existential test of the criminal justice system generally.”94 Its importance stems in part from the variety of prescriptions that may be inspired by “recidivism” data. These include prescriptions about whether, how and for how long society should punish,95 what if any rehabilitative or reentry programs should be funded or 90 See, e.g., BLACK’S LAW DICTIONARY (defining “recidivism” as “a tendency to relapse into a previous condition or mode of behavior; especially: relapse into criminal behavior”). 91 See John Nally et al., Post-Release Recidivism and Employment among Different Types of Released Offenders, 9 INT’L J. CRIM. JUSTICE SCI. 16, 20 (2014) (“[F]ive major indicators have been identified as measures of recidivism, including (1) police arrest, (2) a criminal charge for a new offense, (3) a reconviction for a new criminal offense, (4) re-incarceration, and (5) a court-mandated supervision revocation (e.g., a probation or parole violation)”). 92 See, e.g., id. at 19 (“Post-release recidivism is regarded as the primary measure of the success of an offender’s reentry into the community.”) 93 Joan Petersilia, Recidivism, in ENCYCLOPEDIA OF AMERICAN PRISONS 382 (McShane & Williams, eds., 1996) (reducing recidivism is “one of the most important goals of the criminal justice system”); Laura Ravinsky, Reducing Recidivism of Violent Offenders Through Victim-Offender Mediation, 17 CARDOZO J. CONFLICT RESOL. 1019, 1026 (2016) (“Recidivism analyses serve a critical societal role by allowing researchers to determine whether resources are being used efficiently and appropriately.”). 94 Robert Weisberg, Meanings and Measures of Recidivism, 87 S. CAL. L. REV. 785, 788 (2014). 95 See UNITED STATES SENTENCING COMMISSION, THE PAST PREDICTS THE FUTURE: CRIMINAL HISTORY AND RECIDIVISM OF FEDERAL OFFENDERS 2 (2017) (“Recidivism information is central to three of the primary purposes of punishment as described in the [Sentencing Reform Act]—specific deterrence, incapacitation, and rehabilitation—all of which focus on prevention of future crimes through correctional intervention”); id. (“Considerations of recidivism by federal offenders were also central to the [Sentencing] Commission’s initial work on developing the Guidelines Manual’s criminal history provisions . . . and continue to be a key consideration in the Commission’s work today. Recent developments, particularly public attention to the size of the federal prison population and the cost of incarceration, have refocused the Commission’s interest on the recidivism of federal offenders.”); id. (“Recidivism measures can provide policy makers with information regarding the relative threat to public safety posed by various types of offenders, and the effectiveness of public safety initiatives in (1) deterring crime and (2) rehabilitating or incapacitating offenders.”). 18 ARRESTS AS GUILT [23-Apr-18 offered,96 how probation and supervised release should function,97 how bail and pre-trial detention should be used,98 whether “diversionary and treatment programs” are working,99 how policing should happen,100 and so on. Certain knowledge of recidivism can be as elusive as certain knowledge of factual guilt101—indeed, more so, because one would need to know about at least two instances of criminal conduct per person (the initial criminal conduct, and the return to criminal conduct). Therefore, those wishing to measure recidivism rely on proxies. Conviction and incarceration are commonly used as proxies for criminal conduct in the recidivism context.102 So too, at least in this country, is arrest.103 While this Article focuses on the complexities of using arrest, it is worth noting that each proxy has flaws.104 Conviction, for example, might seem the 96 See Charles Rose III, Should the Tail Wag the Dog?: The Potential Effects of Recidivism Data on Character Evidence Rules, 36 N.M. L. REV. 341, 342 (2006) (“Governments use recidivism research to develop programs to handle rehabilitation, incarceration, and sentencing.”); Cecelia Klingele, Measuring Change: From Rates of Recidivism to Markers of Desistance, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3142405 (mentioning decisions about which treatment programs to fund). 97 See Nora Demleitner, How to Change the Philosophy and Practice of Probation and Supervised Release, 28 FED. SENT’G REPTR. 231, 232 (2016) (describing “reduction of recidivism” as “the apparent goal of the efforts to improve supervisory mechanisms”). 98 See UNITED STATES SENTENCING COMMISSION, RECIDIVISM AMONG FEDERAL OFFENDERS: A COMPREHENSIVE OVERVIEW 7 (2016) (“Recidivism measures are used by numerous public safety agencies to measure performance and inform policy decisions and practices on issues such as pretrial detention, prisoner classification and programming, and offender supervision in the community.”) 99 Nora Demleitner, Judicial Challenges to the Collateral Impact of Criminal Convictions? 91 N.Y.U. L. REV. ONLINE 150, 162 (2016) (“Recidivism has become the hallmark of release decisions and of judging the success of diversionary and treatment programs.”). 100 See Roger C. Park, Character at the Crossroads, 49 HASTINGS L.J. 717, 772 (1998). 101 See John Pfaff, @JohnFPfaff, TWITTER (Jun. 21, 2017, 12:58PM) (“None of our recidivism stats actually measure it, whatever ‘recid’ is. They measure CJ contacts (arrests, etc.), not actually offending.”). 102 See Rose, Should the Tail Wag the Dog?, 36 N.M. L. REV at 348. 103 See Demleitner, Philosophy and Practice, at 236 (“Many U.S. recidivism data sets are based on re-arrest rather than reconviction,” but “European recidivism rates, for example, measure only convictions for a new offense, though in some countries violations of conditions of supervision amount to a new offense.”). 104 See Cecelia Klingele Measuring Change, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3142405 (“[W]hile the criminal justice system purports to measure recidivism, what recidivism data usually measure are rates of recapture—outcomes that turn as much on luck and policing patterns as they do on deviant behavior”); id. (stating that longitudinal studies are the “most effective” way of measuring behavior, and adding that “[i]n such settings, researchers follow subjects over long periods of time—often decades—periodically surveying, interviewing, and gathering third party data 23-Apr-18] ARRESTS AS GUILT 19 best candidate, given that denotes legal guilt. The usefulness of conviction rates to signify rates of “reoffending” is complicated by the influence of disparities in law enforcement.105 Convictions may also an over-inclusive measure of factual guilt,106 thanks to, for example, the coercive pressure to take a guilty plea,107 rules that chill trial testimony,108 bias among jurors (and others),109 the inadequacy (including inadequate resources110 and excessive about subjects’ behavior.”). 105 See Daniel Mears et al., Recidivism and Time Served in Prison, 106 J. CRIM. L. & CRIMINOLOGY 83, 100 (2016) (“A focus on felony conviction ensures that more serious offending is examined and reduces, but does not eliminate, some of the problems associated with using arrest, such as the greater likelihood that recidivism in such instances includes situations where no offense occurred or measures both reoffending and differential police responses.”). 106 See Mears, Recidivism and Time Served in Prison, at 100. This makes “recidivism” data that relies on convictions doubly over-inclusive, since it uses both a first conviction and a second conviction as proxies for factual guilt. 107 See Jain, Arrests as Regulation, at 822 (“A 2013 study of low-income defendants facing misdemeanor charges relating to petty marijuana possession in the Bronx, New York, depicts a setting in which defendants routinely take plea agreements because it is too costly to contest charges at trial.”); Lucian Dervan, Overcriminalization 2.0, 7 J.L. ECON. & POL’Y 645, 652-53 (2011) (“[E]ven innocent defendant can be persuaded by the staggering incentives to confess one’s guilt in return for a bargain . . . [O]vercriminalization, the phenomenon that initially created swelling dockets and the need for plea bargaining, makes creating the incentives to plead guilty easy by propagating a myriad of broad statutes from which staggering sentencing differentials can be created.”). 108 See Anna Roberts, Conviction by Prior Impeachment, 96 B.U. L. REV. 1977 (2016). 109 See Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. REV. 1124 (2012) (analyzing the numerous stages within criminal case trajectories at which biases can have an effect. Such stages within criminal case trajectories include the police encounter, the charge and the plea bargain, the trial, and sentencing); Jonathan Rapping, Implicitly Unjust: How Defenders Can Affect Systemic Racist Assumptions, 16 NYU J LEGIS. & PUB. POL. 999, 1007 (2013) (“[E]ven where people of color exercise their right to go to trial, there is a greater chance that the fact-finder—whether a jury or a judge— will interpret the facts in a manner consistent with guilt because of the defendant's skin color. Therefore, defendants of color are more likely to plead guilty and to be found guilty at trial due to forces independent of their own culpability or the merits of the case.”); Justin Levinson et al., Guilty by Implicit Racial Bias, 8 OHIO ST. J. CRIM. L. 187, 190 (2010) (demonstrating that mock jurors “held strong associations between Black and Guilty, relative to White and Guilty, and [that] implicit associations predicted the way mock jurors evaluated ambiguous evidence.”); Ronald Tabak, The Continuing Role of Race in Capital Cases, 37 N. KY. L. REV. 243, 256-57 (2010). 110 See William Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 570 n.242 (2001) (“[L]egislatures . . . fund appointed defense counsel at levels that require an enormous amount of selectivity—counsel can contest only a very small fraction of the cases on their dockets, and can investigate only a small fraction of the claims their clients might have.”). 20 ARRESTS AS GUILT [23-Apr-18 caseloads111) of much defense representation,112 and restrictions on investigation113 and discovery.114 The risk of over-inclusiveness applies to trial convictions;115 it may apply still more forcefully to guilty pleas.116 Convictions are also often said to be an under-inclusive measure of factual guilt,117 as in this discussion by Joan Petersilia of important precautions to be 111 See, e.g., NAT’L ASSOC. OF CRIM. DEF. LAWYERS, MINOR CRIME, MASSIVE WASTE: THE TERRIBLE TOLL OF AMERICA’S BROKEN MISDEMEANOR COURTS 9 (Apr. 2009) (“In Chicago, Atlanta and Miami, defenders carry more than 2,000 misdemeanor cases per year. With these massive caseloads, defenders have to resolve approximately 10 cases a day—or one case an hour—not nearly enough time to mount a constitutionally adequate defense.”). 112 See William Geimer, A Decade of Strickland’s Tin Horn, 4 WM. & MARY BILL RTS. J. 91, 93 (1995) (“In 1984, Strickland v. Washington effectively discarded Gideon’s noble trumpet call to justice in favor of a weak tin horn. Directly contrary to its rhetoric in Strickland, the Court has effectively insured that Gideon guarantees little more than the presence of a person with a law license alongside the accused during trial”); Strickland v. Washington, 466 U.S. 668, 710 (1984) (Marshall, J., dissenting) (“Seemingly impregnable cases can sometimes be dismantled by good defense counsel”); Mary Backus & Paul Marcus, The Right to Counsel in Criminal Cases, a National Crisis, 57 HASTINGS L.J. 1031, 1036 (2006) (“We now have evidence that overworked and incompetent lawyers contribute to wrongful convictions and that truly well-prepared defense lawyers, with adequate support services, can attack the other causes of wrongful convictions, such as mistakes in eyewitness identifications and insufficient investigations”). 113 See Andrew Leipold, Why Grand Juries Do Not (And Cannot) Protect the Accused, 80 CORNELL L. REV. 260, 277 (1995) (“[A] defendant who lacks the resources to investigate or to hire experts and consequently doubts his ability to establish an affirmative defense or rebut the prosecution's evidence may prefer whatever benefit is offered in a plea bargain over the risks of trial”). 114 See, e.g., Murray, A Perfect Prosecution, at 384 (“[S]uppression or late disclosure of Brady material is a recurrent problem nationwide and in New York State courts”); Michael Dann, Free the Jury, 23 LITIG. 5, 6 (1996). 115 See Givelber, Meaningless Acquittals, at 1386, 1396. 116 See Zeigler, Harmonizing, at 689 (“Defendants plead guilty for many reasons not related to guilt, and the charge pled to may not be the crime actually committed.”); id. at 689 n.297 (“Guilty pleas may be coerced by threatening lengthy incarceration or high bail if a defendant asserts her innocence, while offering a short sentence or even probation if the defendant pleads guilty.”); Mayson, Dangerous Defendants, at 556 (“[S]ome number of defendants plead guilty only because they are detained.”); John Blume, The Dilemma of the Criminal Defendant with a Prior Record, 5 J. EMPIRICAL LEGAL STUD. 477, 495 n.70 (2008) (“There are many reasons to question whether many defendants are in fact guilty of the underlying offense. For example, due to jail overcrowding and large criminal dockets in major metropolitan areas, many defendants plead guilty in order to obtain their immediate release or to get to a less restrictive custodial environment rather than spending a substantial amount of time in a local jail awaiting a trial date.”) 117 See Mia Bird & Ryken Grattet, Realignment and Recidivism, 664 ANNALS AM. ACAD. POL. & SOC. SCI. 176, 183 (2016) (“Reconviction is a conservative measure of recidivism because it omits criminal activities for which there is insufficient evidence or any number of reasons for abandoning a prosecution”). 23-Apr-18] ARRESTS AS GUILT 21 taken by “those undertaking recidivism research, reviewing it, or comparing or reporting it:”118 It is critical that the particular type of recidivism event be specified, although there is no agreement on which type of event is the best measure of recidivism. Some have argued that recidivism is best measured closest to the event (at arrest) since later events take us further away from the offense itself and so many arrests fail to result in conviction—leading to an underestimation of recidivism. But others argue that convictions are a more appropriate measure, since many arrests are unfounded and the definition of arrest differs so widely from one jurisdiction to another. In work that uses re-arrest as a proxy for recidivism, one does sometimes find the kind of careful and explanatory approach that Petersilia recommends. Some authors acknowledge the imperfections of arrests as a measure of recidivism, compare those imperfections to the flaws that are inherent in other measures,119 and then explain their decision to use arrest rates (perhaps in conjunction with other measures), with caveats attached.120 But in other instances, one finds references to “recidivism” that suggest the same kind of unquestioned fusion of arrest and guilt that is described elsewhere in this Article. Sometimes this fusion appears in explicit (but unsupported) assumptions. In a report on “Federal Child Pornography 118 Petersilia, Recidivism (offering a kind of “checklist” for those “undertaking recidivism research, reviewing it, or comparing or reporting it,” which involves “specifying exactly the dimensions that will be used in calculating the recidivism rates,” including “the type of recidivism event.”). 119 See Laura Baber & Mark Motivans, Extending our Knowledge About Recidivism of Persons on Federal Supervision, 77-SEP FED. PROBATION 23, 23 (2013) (justifying decision to use re-arrest as a primary outcome measure in part because “unlike convictions, arrests are more available in automated criminal history records”). 120 See, e.g., UNITED STATES SENTENCING COMMISSION, RECIDIVISM AMONG FEDERAL OFFENDERS: A COMPREHENSIVE OVERVIEW 7 (2016) (“Recidivism is typically measured by criminal acts that resulted in the rearrest, reconviction, and/or reincarceration of the offender over a specified period of time. These are the three recidivism measures used in this report, but the report primarily relies on the first, rearrest, due to data quality problems for the other two measures. While states have improved the completeness of criminal history records, a recent federal study found significant gaps in reporting of dispositions following an arrest. Such gaps occur in the criminal record used in this report, and lead to an undercounting of reconvictions.”); id. (“Many rearrests do not ultimately result in a reconviction or reincarceration for reasons relating to procedural safeguards (e.g., the suppression of evidence for an unconstitutional search and seizure), lack of sufficient evidence to convict or revoke, and prosecutorial or judicial resources limitations. Even using the least restrictive measure, rearrest, does not count the full extent of offender recidivism, as many crimes go unreported to police or, if reported, do not result in an arrest.”). 22 ARRESTS AS GUILT [23-Apr-18 Offenses,”121 for example, the Sentencing Commission defined “known recidivism” to include arrests, even where the disposition of the case is unknown.122 The Commission stated that its study “like other studies, assumes that false arrests are exceptional and that the typical arrest of an offender on supervision reflects recidivism (including ‘technical’ violations of the conditions of supervision).”123 More often, an assumption that an arrest equals guilt goes unstated, in sources that refer to re-arrest as “recidivism” without caveat, despite the differences between arrest and both factual and legal guilt. This can occur in primary research, or in secondary sources that fail to mention the fact that the recidivism data being discussed is based in whole or in part on arrest.124 When viewed in combination with the other data that this Article describes, this apparent lapse in careful sourcing and critical analysis may be explained by an underlying pull to fuse arrest with guilt, such that the need to identify and describe the underlying data is overlooked. Since recidivism consists of criminal behavior followed by further criminal behavior, arrests can be—and are—used as a proxy for either initial criminal behavior or subsequent criminal behavior, or in some instances both. Arrests appear fused with initial criminal behavior in assertions that judges considering whether to set bail—on a legally innocent defendant—need to consider the risk of “further offenses,”125 or in assertions that those diverted from the criminal justice system (before guilt is determined) may “recidivate,”126 or in language that lumps “arrestees” into the family of 121 UNITED STATES SENTENCING COMMISSION, FEDERAL CHILD PORNOGRAPHY OFFENSES (2012). 122 Id. at 296 n.17. 123 Id. “‘Technical’ violations of supervision encompass a wide range of behavior, including absconding from supervision, refusing to participate in mental health or substance abuse treatment, and failing drug tests. In addition, sex offenders typically are subject to additional restrictions, such as prohibitions on associating with minors or frequenting places where minors regularly appear, and accessing the Internet without permission.” Id. at 297. Note that recidivism figures on arrest often include not only arrests for alleged crimes, but also “arrests for alleged violations of supervised release, probation, or state parole.” UNITED STATES SENTENCING COMMISSION, RECIDIVISM AMONG FEDERAL OFFENDERS: A COMPREHENSIVE OVERVIEW 7. A parole violation is “generally something that is not a crime for anyone who is not on parole—things like going to a bar or visiting a friend who’s also an ex-felon.” Ira Mark Ellman & Tara Ellman, “Frightening and High”: The Supreme Court’s Crucial Mistake About Sex Crime Statistics, 30 CONST. COMMENTARY 495, 501 (2015). Arrests based on alleged violations, as opposed to alleged crimes, are beyond the scope of this Article. 124 See Keith Soothill, Sex Offender Recidivism, 39 CRIME & JUST. 145, 159 (2010) (“Assessing sources is tedious but essential work in interpreting recidivism rates”). 125 See, e.g., R.A. Duff, Pre-Trial Detention and the Presumption of Innocence at 20, in PREVENTION AND THE LIMITS OF THE CRIMINAL LAW (ASHWORTH, A., ET AL., EDS.). 126 See, e.g., Michael Mueller-Smith & Kevin T. Schnepel, Diversion in the Criminal 23-Apr-18] ARRESTS AS GUILT 23 “offenders”:127 in the words of one article, “in terms of offenders’ likelihood to engage in future criminal conduct, it makes little sense to separate those offenders who have only arrests from those who have convictions.”128 Arrests appear fused with subsequent criminal behavior when those arrested after prison are described as “recidivists.”129 These sources equate arrests with “criminal acts”130 “antisocial behavior,”131 “misbehavior,”132 or “misconduct,”133 despite the many factors that can lead to an arrest in the absence of crime commission.134 One article even talks about arrests being “committed.”135 In these sources, RAP (“Record of Arrests and Justice System, https://sites.lsa.umich.edu/mgms/wpcontent/uploads/sites/283/2017/08/Diversion_in_the_Criminal_Justice_System.pdf (Aug. 2017 draft) (stating that deferring convictions for “drug offenders” reduces “recidivism,” even though without a conviction we have no “offender,” and no first conviction for the purpose of alleging “recidivism”). 127 See, e.g., Patrick Kenneally, Legislation to Admit Evidence of Propensity When Prosecuting DUI Recidivists, 37 N. ILL. U. REV. 126, 129 & n.7 (2016). 128 O’Neill et al., Past as Prologue, at 268 (emphasis added). 129 See, e.g., Patrick Langan & David Levin, Recidivism of Prisoners Released in 1994, 15 FED. SENT. R. 58 (2012). 130 See UNITED STATES SENTENCING COMMISSION, RECIDIVISM AMONG FEDERAL OFFENDERS: A COMPREHENSIVE OVERVIEW 7 (2016) (“Recidivism is typically measured by criminal acts that resulted in the rearrest, reconviction, and/or reincarceration of the offender over a specified period of time.”). 131 Compare Jason Matejkowski & Michael Ostermann, Serious Mental Illness, Criminal Risk, Parole Supervision, and Recidivism, 39 LAW & HUM. BEHAV. 75, 79 (2015) (“By combining rearrests and revocations into a measure of ‘recidivism,’ we represent the first officially recognized antisocial behavior that is exhibited by the former prisoner”); with MARK H. MOORE ET AL., REPORT OF THE PROJECT ON PUBLIC DANGER, DANGEROUS OFFENDERS AND THE CRIMINAL JUSTICE SYSTEM, ch. III, at 21 (Aug. 1981) (“A criminal record (whether arrest or conviction) is produced by a social process in which the actual conduct of the individual is a trivial part.”). 132 Matejkowski & Ostermann, at 79 (2015) (“[T]he definition of recidivism used here [rearrest or parole revocation] reflects the first officially recognized misbehavior that is temporally closest to the individual’s release date.”). 133 See Rose, Should the Tail Wag the Dog?, at 348 (stating that rearrest “is the first point where verifiable and reliable information identifies and quantifies the substantive contact between convicted criminals and new misconduct that potentially resembles the misconduct that formed the basis for previous conviction(s).”). 134 We can assume, conversely, that some crimes are committed without arrests having been made, see Jeffrey Fagan & Martin Guggenheim, Preventive Detention and the Judicial Prediction of Dangerousness for Juveniles, 86 J. CRIM. L. & CRIMINOLOGY 415, 427 (1996) (“Rearrest rates may be underinclusive because they do not reflect undetected crimes. However, at the same time, they may be overinclusive because they equate an arrest with guilt”), but there is no reason to believe that these two inaccuracies cancel each other out. 135 Jeffrey Sandler et al., Does a Watched Pot Boil?: A Time-Series Analysis of New York State’s Sex Offender Registration and Notification Law, 14 PSYCHOL. PUB. POL’Y & L. 284, 284 (2008) (“[O]ver 95% of all sexual offense arrests were committed by first-time sex offenders, casting doubt on the ability of laws that target repeat offenders to meaningfully 24 ARRESTS AS GUILT [23-Apr-18 Prosecutions”) Sheets are given credence as accurate indicators not only of arrests but of criminal conduct lying behind those arrests.136 Indeed, the words “arrest” and “crime commission” are sometimes used interchangeably, as in this article on “recidivism of prisoners:” Some released prisoners crossed State lines and committed new crimes. For example, some of the prisoners released in Delaware in 1994 were arrested for new crimes in Pennsylvania in 1995. 137 Arrests appear fused with both initial and subsequent criminal behavior in sources that detect “recidivism” in the scenario where participation in diversionary programs (absent a conviction) is followed by re-arrest.138 Thus, in numerous writings on recidivism, one sees arrests being used, without caveat or analysis, as equivalent to guilt. The concepts seem to be fused,139 despite their distinctness, and despite the particular need for precision when addressing a topic of this importance. Some notice this.140 Some seem annoyed by it.141 But none seem to have posited an explanation, or tied this phenomenon to the other manifestations reduce sexual offending.”). 136 UNITED STATES SENTENCING COMMISSION, FEDERAL CHILD PORNOGRAPHY OFFENSES 295 (2012) (stating that RAP sheets can “be used to determine the rate of known recidivism”) (emphasis added). 137 LANGAN & LEVIN, RECIDIVISM OF PRISONERS RELEASED IN 1994, at 60 (emphasis added). For an analogous example of “arrest” and “offense” being used interchangeably, see Teresa Welch & Samuel Newton, The History and Problems of Utah's Sex Offender Registry, 47 No. 6 CRIM. LAW BULL. ART 3 (2011) (“National and Utah statewide statistics do not show a decline in sex offense arrests resulting from the implementation of sex offender registry and notification laws. If the registries were truly effective, we would see a substantial decline in sex offenses within the last ten years based upon the increase in registry requirements. Instead, arrests for sex offenses have basically maintained their numbers.”) 138 See Virginia Hiday et al., Effectiveness of a Short-Term Mental Health Court, 37 LAW & HUM. BEHAV. 401 (2013) (discussing “recidivism”—that is, arrest—of participants in a mental health court, into which participants are diverted pre-adjudication); Jennifer Skeem et al., Correctional Policy for Offenders with Mental Illness, 35 LAW & HUM. BEHAV. 110, 112 (2011) (table headed “Contemporary program for offenders with mental illness” and tracking the “recidivism” of those in each study includes a “jail diversion” program, in which participants with mental illness are diverted from jail into treatment, either pre- or postbooking, and as regards their “recidivism” rates there is “[n]o difference between groups in rearrests over one year.”). 139 Cf. Roberts, Conviction by Prior Impeachment, at 2015 (suggesting that prior conviction impeachment continues, despite all the critiques that it has received, because it squares with underlying assumptions that criminal convictions are useful indicators of criminal propensity). 140 See Benjamin Levin (@hashtagblevin), TWITTER (Aug. 22, 2017, 10:49 AM), https://twitter.com/hastagblevin/status/900022109136494593 (noting a flaw in the study of recidivism, namely that “rearrest =/= reoffending”). 141 See Jocelyn Simonson, @j_simonson, TWITTER, 23-Apr-18] ARRESTS AS GUILT 25 of an assumption that an arrest equals guilt. This assumption, while always problematic, may be particularly problematic in the recidivism context, given the fact that once one has a criminal record one is particularly vulnerable to re-arrest.142 C. Risk-Assessment Tools Risk-assessment tools are used both to help decide whether to detain or set bail on a defendant pre-adjudication and to help decide what sentence to impose.143 In both settings, defendants are vulnerable to fusions of arrests with guilt. And in both settings the tools are gaining significant popularity. Risk assessment tools in the pre-adjudication context are found in about forty jurisdictions,144 and in the sentencing context in more than twenty states.145 https://twitter.com/j_simonson/status/844540912504111105 (Mar. 22, 2017, 8:26am) (“Also can law profs and social scientists stop equating an arrest with criminal conduct/ ‘reoffending’/ dangerousness?”); John Pfaff, @JohnFPfaff, TWITTER, https://twitter.com/JohnFPfaff/status/844541272442507265 (Mar. 22, 2017, 8:28am) (retweeting Simonson with appended message (“‘Recidivism’ is probably the most abused/misused/misunderstood word and statistical measure in all of criminal justice.”)). 142 See Mark Kielsgard, Myth-Driven State Policy, 47 CREIGHTON L. REV. 247, 257 (2014) (“[S]ex offenders are frequently targeted if any crime is committed nearby. This is supported by the data . . . showing a nearly fifty-percent acquittal rate for new offenses”); Keith Soothill, Sex Offender Recidivism, 39 CRIME & JUST. 145, 160 (2010) (“I need to highlight a matter of increasing concern in discussing reoffending and recidivism. There is a tendency, particularly in the United States, to accept, for example, arrest figures as a valid measure of sexual offending. Rearrest is a hazard for known sex offenders and is likely to happen on much less evidence than for other members of the population. Without the scrutiny of the court, there is the danger of recidivism rates being inflated by police simply acting on the stereotype of the repeat sex offender.”); Josh Bowers, Punishing the Innocent, at 1126 (“[P]olice are prone to arrest recidivists on less concrete evidence, because police often start with the recidivists--for instance, by directing crime victims to mug-shot books composed exclusively of prior arrestees”); MICHAEL MALTZ, RECIDIVISM 56-57 (1985) (“[S]uppose that a person convicted of child molesting has actually been rehabilitated. This does not make him immune from arrest; on the contrary, that person may be subject (and subjected) to arrest frequently, whenever a child is molested anywhere nearby. An arrest of this type should not be an indicator of recidivism.”). 143 Indeed, there are many other uses. See Jon Schuppe, Post Bail, NBC NEWS, https://www.nbcnews.com/specials/bail-reform (Aug. 22, 2017) (“There are dozens of risk assessment tools in use today, developed by universities, governments, private companies and nonprofit agencies. They are used at various points of the criminal justice system, from pretrial to sentencing to parole.”); Cecelia Klingele, Measuring Change: From Rates of Recidivism to Markers of Desistance, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3142405 (mentioning their use in “correctional decisionmaking”). 144 See Mayson, Dangerous Defendants, at 510 (adding that the number “is growing fast”). 145 See Schuppe, Post Bail. 26 ARRESTS AS GUILT [23-Apr-18 As Jessica Eaglin points out, most risk assessment tools used at sentencing “rely on arrest as the measure of recidivism.”146 Similarly, in the pre-adjudication context, Sandra Mayson notes that what is described as an assessment of the risk of “new criminal activity” usually equates to an assessment of the risk of arrest.147 Treating arrest as synonymous with criminal activity is one example of a fusion of arrest and guilt, and Mayson lays out some of its weaknesses: [R]isk assessment tools should stop measuring crime risk in terms of the likelihood of arrest for anything. “Any arrest” is an overbroad proxy for harm. Some eleven million people are arrested each year; their charges range from unpaid traffic fines to murder. One-third of arrests lead to dismissal or acquittal. And members of poor communities of color are disproportionately arrested for low-level crimes.148 Hannah Jane Sassaman echoes some of these concerns, emphasizing the key point that to predict risk in the form of arrest is actually to predict law enforcement activity: Almost all risk-assessment tools use criminal justice data as proxies for crime. Most forecast future arrest, which is actually predicting law enforcement behavior.149 The fusion of arrest and guilt appears as regards past arrests, in addition to future (anticipated) arrests.150 In the sentencing context, past arrests are 146 Eaglin, Constructing Recidivism Risk, at 76 (noting, however, that “some variation exists within this principle across tools”). 147 See Mayson, Dangerous Defendants, at 509 (“Existing pretrial tools assess the risk of two outcomes: failure to appear (‘FTA’) and rearrest.”). 148 Id. at 562. Rather than repudiating altogether the use of arrest in this context, Mayson reaches the conclusion that “arrest for violent crime” is currently “the best measure available,” and thus proposes its use: “Pretrial risk assessment tools should instead measure crime risk in terms of the likelihood of rearrest for a serious violent crime in the pretrial phase. This measure does not avoid all difficulties. The harm is the actual commission of violent crime. Many people are wrongfully arrested, and many people who commit violent crimes escape arrest. So, arrest for a serious violent crime is still both over- and underinclusive as a proxy for the commission of violent crime itself.” Id. 149 Hannah Jane Sassaman, Debating Risk-Assessment Tools, MARSHALL PROJ. (Oct. 25, 2017), https://www.themarshallproject.org/2017/10/25/debating-risk-assessment-tools (adding that “[w]e know that certain communities, especially communities of color, are disproportionately over-policed, more likely to be over-charged by prosecutors, and forced into pleas that result in convictions.”) 150 See Eaglin, Constructing Recidivism Risk at 97 (“[R]isk tool developers often choose 23-Apr-18] ARRESTS AS GUILT 27 sometimes factored into the risk calculation.151 In the bail context, risk assessment tools may also consider past arrests as indicative of future risk.152 In addition, in the bail context, the existence of a charge in the current case is frequently taken as indicative of guilt.153 As Mayson puts it, judges assess the risk of “new criminal activity,” thus assuming that there has already been “criminal activity,”154 and thus provoking due process concerns.155 D. Linguistic “Slips” In at least some instances, “recidivism” is consciously chosen to denote the re-arrest of someone with a criminal record; other terms that are sometimes consciously deployed in a way that fuses arrest and guilt include “criminogenic” (when referring to factors that appear to lead to arrest)156 and “sex offender” (when describing someone arrested for a “sex offense”).157 But there are also an array of terms that fuse arrest and guilt in a way that appears unintended. Thus, for example, one frequently finds the terms to estimate recidivism risk as chance of arrest based upon factors like prior arrest.”); id. at 98 (arrest data is, thus, used “as both a predictor and an outcome”). 151 See id. at 82-83 (describing a number of tools that use past arrests). 152 See Mayson, Dangerous Defendants at 509 (“Having been arrested before age eighteen might be three points, for example . . . “). Some, however, have rejected this as a predictor. See Schuppe, Post Bail (“[T]he [Public Safety Assessment’s] developers excluded factors that were predictive but also likely served as proxies for race, such as a person’s arrest history and number of misdemeanor convictions.”). 153 Here, the fusion seems to be between charge and guilt, rather than arrest and guilt. The relationship between these two fusions will be addressed further below. See infra Part II.E. 154 See Mayson, Dangerous Defendants at 537. 155 See id. (“[T]o invoke a defendant’s guilt as justification for pretrial restraint threatens fundamental due process values, which tend to run under the heading of the ‘presumption of innocence.’ Defendants, after all, have only been accused. Many are not guilty. Fewer than seventy percent of felony arrests nationwide lead to conviction. And the protection of accused people against false condemnation and punishment is a core commitment of the criminal justice system.”). 156 See, e.g., Avinash Singh Bhati & Alex R. Piquero, Estimating the Impact of Incarceration on Subsequent Offending Trajectories: Deterrent, Criminogenic, or Null Effect?, 98 J. CRIM. L. & CRIMINOLOGY 207, 207 (2007) (using arrest histories of released prisoners to investigate whether prison has a “criminogenic” effect). 157 Assembly Bill 488: Access to Information on Registered Sex Offenders over the Internet Reduces Recidivism, 12 FLA. COASTAL L. REV. 429, 446 (2011) (“We identify a sex offender in the California Department of Justice arrest data as any person who has been arrested for a registrable sexual offense.”). The fact that “sex offender”—one of the most inflammatory and stigmatizing terms within the criminal lexicon—is used in this way helps to illustrate the strength of this fusion. 28 ARRESTS AS GUILT [23-Apr-18 “offender,”158 “offense,”159 “reoffending,”160 and “crime,”161 where the legally correct terminology would be “alleged” offender/offense/reoffending/crime. Here, as often, language seems to serve as a “window into the unconscious,”162 and, specifically, into an unconscious fusion of arrest and guilt. 158 See, e.g., Brian D. Shannon, Prescribing a Balance: The Texas Legislative Responses to Sell v. United States, 41 ST. MARY’S L.J. 309, 339 n.117 (2009) (“Bexar County and the Center for Health Care Services have been leaders in efforts to create meaningful diversion programs for offenders with mental illness caught up in the criminal justice system”); SANFORD H. KADISH ET AL., CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 3 (9th ed. 2012) (“Because officers cannot possibly arrest all the offenders they encounter, they must decide which scuffles warrant an arrest for assault.”); Michael F. Caldwell, Quantifying the Decline in Juvenile Sexual Recidivism Rates, 22 PSYCHOL. PUB. POL’Y & L. 414, 414 (2016) (referring to juvenile sexual offense arrestees as “juvenile sexual offenders”; Florence v. Burlington, 566 U.S. 318, 330 (2012) (“Atwater did not address whether the Constitution imposes special restrictions on the searc hes of offenders suspected of committing minor offenses once they are taken to jail.”). 159 Henry Gass, Meet a New Breed of Prosecutor, CHRIST. SCI. MONITOR (July 17, 2017), https://www.csmonitor.com/USA/Justice/2017/0717/Meet-a-new-breed-of-prosecutor (“From Texas to Florida to Illinois, many of these young prosecutors are eschewing the death penalty, talking rehabilitation as much as punishment, and often refusing to charge people for minor offenses.”). 160 Note that “reoffend” is sometimes used when there has been (at least as the law sees it) no first “offense,” and that this can occur even in work that is critiquing the expansive use of arrests, and that emphasizes the minimal nature of the evidentiary threshold that arrests are supposed to clear. See Harmon, Why Arrest?, at 348 (“Our experience with pretrial release suggests that we can make evidence-based predictions about which suspects are likely to reoffend before arraignment or are likely to fail to appear for court dates.”); id. at 352 (“Research would be used to identify objective factors that help predict whether a suspect is likely to reoffend or fail to appear if cited rather than arrested, such as the nature of the crime at issue, and the suspect’s prior history of failing to appear.”); id. at 354 (“If more people can, through a less discretionary process, be released with only a low increase in failures to appear and reoffending, then broad discretion to arrest is no longer justified”). 161 See, e.g., Dana Houle (@DanaHoule), TWITTER (Mar. 21, 2017, 8:51 AM), https://twitter.com/DanaHoule/status/844184770049392642 (attaching image of headline describing crimes followed by first paragraph describing arrests, and stating “Most broke thing in US journalism is headlines, example infinity: headline says crimes, lede says alleged. BIG DIFFERENCE.”). 162 See Richard Delgado & David Yun, The Neoconservative Case Against Hate-Speech Regulation, 47 VAND. L. REV. 1807, 1814 (1994) (“Thought and language are inextricably connected. A speaker who is asked to reconsider his or her use of language may begin to reflect on the way he or she thinks about a subject. Words, external manifestations of thought, supply a window into the unconscious. Our choice of word, metaphor, or image gives signs of the attitudes we have about a person or subject.”); Peggy Cooper Davis, The Proverbial Woman, 48 REC. ASS’N B. CITY N.Y. 7, 16 (1993) (“When we are made to realize that, to take a simple example, we use the verb ‘to father’ to refer to impregnation but use the verb ‘to mother’ to refer to nurturing, we learn a great deal about the unconscious assumptions we unwittingly continue to make with respect to parenting.”). 23-Apr-18] ARRESTS AS GUILT 29 E. “Everyone Pleads Guilty”163 The final example involves a statistical error. Legal scholars, as well as others,164 commonly assert that ninety or ninety-five percent of criminal cases end in a guilty plea.165 It is unclear whether those making this assertion are thinking that a “criminal case” begins with an arrest or with a prosecution166—or if they fail to give that distinction any thought. Either way, these statements are inaccurate. They mistakenly characterize the percentage of convictions that are pleas as the percentage of cases that are pleas, and thus they erase something important. The erroneous statistics erase those cases that end in dismissal or acquittal.167 That is a significant erasure. For example, Gershowitz points out that prosecutors “dismiss a huge number of cases with no conviction being entered.”168 163 David Sklansky, The Nature and Function of Prosecutorial Power, 106 J. CRIM. L. & CRIMINOLOGY 473, 487 (2016) (quoting, and disagreeing with, Marc L. Miller, Domination and Dissatisfaction: Prosecutors as Sentencers, 56 STAN. L. REV., 1211, 1252 (2004)). 164 See Jeffrey Stein, The Plea Bargain Trap, WASH. POST. (Jan. 12, 2018), https://www.washingtonpost.com/opinions/why-innocent-people-pleadguilty/2018/01/12/e05d262c-b805-11e7-a908a3470754bbb9_story.html?utm_term=.d28072535321 (“It’s no wonder 95 percent of all defendants accept plea offers.”); Jessica Pishko, Prosecutors are Banding Together to Prevent Criminal-Justice Reform, THE NATION (Oct. 18, 2017), https://www.thenation.com/article/prosecutors-are-banding-together-to-prevent-criminaljustice-reform/ (“Today, around 95 percent of federal and state criminal cases end in a plea bargain.”); Adam Gopnik, Rattling the Cage, THE NEW YORKER 71, 72 (Apr. 10, 2017) (“Some ninety-five per cent of criminal cases in the U.S. are decided by plea bargains.”). 165 See Ellen Yankiver Suni, Who Stole the Cookie from the Cookie Jar?: The Law and Ethics of Shifting Blame in Criminal Cases, 68 FORDHAM L. REV. 1643, 1653 n.38 (2000) (“Statistics indicate that over 90% of defendants charged with violent felonies plead guilty.”); Lucian E. Dervan, Bargained Justice, 2012 UTAH L. REV. 51, 84 (“Today, over 95 percent of defendants in the criminal justice system plead guilty.”); Carrie Menkel-Meadow, For and Against Settlement, 33 UCLA L. REV. 485, 502 (1985) (“Over 90% of all cases (both civil and criminal) are currently settled and taken out of the system.”). As Sklanksy points out, some just go ahead and say that “[e]veryone pleads guilty.” David Sklansky, The Nature and Function of Prosecutorial Power, 106 J. CRIM. L. & CRIMINOLOGY 473, 487 (2016) (quoting and disagreeing with Marc Miller, Domination and Dissatisfaction: Prosecutors as Sentencers, 56 STAN. L. REV., 1211, 1252 (2004)). 166 See John Pfaff, @JohnFPfaff, TWITTER (Oct. 18, 2017, 9:34AM) (pointing out that when people assert that “95% of criminal cases end in a plea bargain” it is unclear whether they are using “case” to mean “prosecution” or “arrest”); Adam Gershowitz, @AdamGershowitz, TWITTER (Oct. 18, 2017, 9:36AM) (tweeting in response to Pfaff that “I think the average arrested defendant processed in a jail would think case means arrested”). 167 David Sklansky & Stephen Yeazell, Comparative Law Without Leaving Home, 94 GEO. L.J. 683, 696 n.37 (2006) (“[T]his [95% figure] disregards all dispositions that were unilaterally terminated or that were otherwise dismissed”). 168 Gershowitz, Teachable Moments (citing BJS statistics indicating that “prosecutors 30 ARRESTS AS GUILT [23-Apr-18 Accurate renditions of the percentage of cases ending in guilty pleas vary according to jurisdiction, but they are less than 90%. So, for example, according to one recent study, a little under two-thirds of felony defendants arraigned in state courts in the seventy-five largest counties pled guilty.169 In D.C. Superior Court, 42% of all defendants pled guilty; 53% had their cases dismissed post-filing.170 In federal court, where there is a smaller drop-off between prosecution and conviction, the figures diverge less dramatically from the erroneous version, but they still diverge. In 2015, 88% of federal defendants ended their cases with a plea of either guilty or nolo-contendere; the percentage of convictions that involved a guilty or nolo contendere plea was 97.5%.171 Again, some have noticed this error.172 Some are annoyed by it.173 None appear to have posited a suggestion as to its cause. The frequency of this dismiss twenty-five percent or more felony charges” and citing sources in support of the proposition that the rate “is much higher in some jurisdictions”). Cases may also be judicially dismissed. See Sklansky & Yeazell, Comparative Law Without Leaving Home, at 696 n.37. 169 In a 2009 study of large urban counties by the Department of Justice’s State Court Processing Statistics project, “[A]mong cases that were adjudicated within the 1-year study period, 66% resulted in a conviction. . . Nearly all convictions were the result of a guilty plea rather than a trial.” BRIAN A. REAVES, BUR. OF JUST. STATS., FELONY DEFENDANTS IN LARGE URBAN COUNTIES, 2009—STATISTICAL TABLES 22 (2013), https://www.bjs.gov/content/pub/pdf/fdluc09.pdf. 170 See UNITED STATES ATTORNEYS’ ANNUAL STATISTICAL REPORT 65 (2016), https://www.justice.gov/usao/page/file/988896/download. 171 See Annual Report of the Director: Judicial Business of the United States Courts, Table D-4, http://www.uscourts.gov/sites/default/files/data_tables/Table5.04.pdf. 172 See Adam Gershowitz, @AdamGershowitz, TWITTER (Oct. 18, 2017, 9:30am) (stating, in response to Jessica Pishko article that “95% of criminal *cases* do not end in a plea bargain. 95% of convictions do. There is a difference between those two things!!!”); Carissa Hessick, @CBHessick, TWITTER (Oct. 18, 2017, 9:56AM) (reproducing Gershowitz tweet and adding that “Adam makes an important point here. We should all be careful to use the 95% statistic carefully (and correctly).”); Sklansky, Comparative Law Without Leaving Home, at 696 n.37 (“It is remarkably difficult to get robust statistics on the rate of civil or criminal consensual settlement. The most common mistake is to subtract the percentage of trials from the percentage of filings and thereby arrive at a figure of over 95% of settlements or plea bargains. That is an error because it disregards the circumstance that many civil cases end with dispositive adjudication before trial. Those cases end because of a judicial decision that concludes the case, not because the parties decide to control the risks of adjudication with an agreement. An analogous calculation on the criminal side would put consensual agreements at approximately 95%, but, again, this disregards all dispositions that were unilaterally terminated or that were otherwise dismissed. Our own estimates, for which we claim no great statistical sophistication, put both the rate of plea bargain and the rate of civil settlement at about 60-70% of filed cases--very high but not overwhelming.”) 173 See Ron Wright, @wrightrf, TWITTER (Jul. 25, 2017, 1:17PM), https://twitter.com/wrightrf/status/889912552876126209 (“Agreed. This is annoying”), retweeting Jeffrey Bellin, @BellinJ, TWITTER (Jul. 19, 2017, 6:42PM), https://twitter.com/BellinJ/status/887819941721669632 (“Keep reading ‘95% of crim cases 23-Apr-18] ARRESTS AS GUILT 31 mistake—by people who understand the need for accuracy, precision, and appropriate sourcing, and who are committed to exposing and deconstructing harmful assumptions about the criminal legal system—suggests that the error is allowed to slip through because it aligns with an assumption that is pervasive, albeit implicit: 174 that a governmental act that requires only probable cause (whether an arrest or a prosecutorial charge) is in fact equivalent to guilt. If one is conditioned to think of a finding of legal guilt as following on from a finding of probable cause,175 then one may be less likely to double-check figures that suggest the same. * As to several of these phenomena, one might proffer explanations such as inattention, sloppiness, or shorthand. Perhaps it could be said, for example, that it’s a little sloppy to refer to “recidivism” data without acknowledging that the metric is re-arrest, or to make the plea rate error, or to use “offender” to mean “arrestee.” But sloppiness is more likely to occur when there is no resistance to it. This Article suggests that these many slips, mistakes, and elisions meet with little resistance because of the strength of an underlying assumption (namely, that arrest equals guilt) that facilitates them all. But how to explain that assumption? The next Part turns to that question. III. POSSIBLE EXPLANATIONS To be sure, there may be some explanations for the fusion that are unique to a particular context mentioned above. For example, a partial explanation for widespread acceptance of “recidivism” rates that include arrests (and thus that lie on the expansive end of the spectrum) may be a widespread, if implicit, belief that certain people (or groups) have a propensity to commit criminal acts.176 There are also some potential are resolved by guilty pleas’ when authors mean to say 95% of _convictions_are guilty pleas. Big difference.”); Jeffrey Bellin, @BellinJ, TWITTER (Apr. 11, 2018, 7:13 AM), https://twitter.com/BellinJ/status/984041645267210241 (“‘plea deals, which is how more than 90 percent of criminal cases end’ Why can no one get this stat right? Don’t fancy news sites have fact checkers—or is this said wrong so often it checks out each time?”) (attaching a National Public Radio story that makes the quoted error). 174 For the notion that hoaxes thrive and skepticism sleeps when the hoaxes square with our assumptions and biases, see R. A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. REV. 803, 824-25 (2004). 175 Probable cause is the standard to which prosecutorial charges, like arrest charges, are held. See Brandon Buskey, If the Convictions Don’t Fit, You Must Acquit: Examining the Constitutional Limitations on the State’s Pursuit of Inconsistent Criminal Prosecutions, 36 N.Y.U. REV. L. & SOC. CHANGE 311, 320-21 (2012). 176 See Roberts, Conviction by Prior Impeachment, at 2015 (suggesting that part of what 32 ARRESTS AS GUILT [23-Apr-18 explanations that have been thoroughly explored in the literature, including “tunnel vision” affecting law enforcement and others.177 This Part will focus on explanations that are more broadly applicable, and less well explored. A. “A System of Pleas”178 It may be unsurprising that an arrest, whose core evidentiary requirement is an assertion of probable cause by law enforcement, has come to seem equivalent to guilt, given that our predominant means for declaring guilt—the guilty plea—has as its core evidentiary requirement an assertion of probable cause by law enforcement.179 While of course there is a key distinction between an arrest and (the majority of) guilty pleas, namely that for the latter a defendant is required to make some sort of admission of guilt,180 various scholars have pointed out that in light of the coercive pressure to enter a guilty plea,181 the “admission” should be seen as little more than a formality,182 and indeed a formality that sustains the practice of impeaching criminal defendants with their prior convictions is a societal belief in propensity); Ekow N. Yankah, Good Guys and Bad Guys: Punishing Character, Equality and the Irrelevance of Moral Character to Criminal Punishment, 25 CARDOZO L. REV. 1019, 1032-33 (2004). 177 See, e.g., Keith Findley & Michael Scott, 2006 WIS. L. REV. 291, 292 (defining “tunnel vision” as “that compendium of common heuristics and logical fallacies, to which we are all susceptible, that lead actors in the criminal justice system to focus on a suspect, select and filter the evidence that will build a case for conviction, while ignoring or suppressing evidence that points away from guilt”); id. (“This process leads investigators, prosecutors, judges, and defense lawyers alike to focus on a particular conclusion and then filter all evidence in a case through the lens provided by that conclusion.”). 178 See Murray, A Perfect Prosecution, at 372 (“The presumption of innocence may be the foundational principle of the American criminal justice system, but the presumption of guilt is its operational force. The US Supreme Court acknowledged this reality in two notable criminal law decisions in 2012, Lafler v. Cooper and Missouri v. Frye, when it described the criminal process as ‘a system of pleas, not a system of trials.’”). 179 See Shapiro, Should a Guilty Plea Have Preclusive Effect? at 43 (stating that a summary by law enforcement of evidence providing a “factual basis” for a plea is probably sufficient where it establishes probable cause). 180 See Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam) (“[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.”); North Carolina v. Alford, 400 U.S. 25, 32 (1970) (pleas typically accompanied by admission of guilt). 181 See John Jeffries, Jr., The Liability Rule for Constitutional Torts, 99 VA. L. REV. 207, 226 (2013) (“For all but the simplest crimes, prosecutors can pile up charges to the point where the incentive to plea bargain becomes overwhelming.”). 182 See Stephanos Bibas, Designing Plea Bargaining From the Ground Up, 57 WM. & MARY L. REV. 1055, 1059 (2016) (describing the required allocution as “bare-bones”). 23-Apr-18] ARRESTS AS GUILT 33 may make a mockery of a system that is sometimes said to be interested in truth.183 So, perhaps it is not that strange, for example, to use “offender” to refer to someone (an arrestee) who might be guilty,184 given that in our system of pleas “offender” (used in the “proper” sense, i.e. to refer to someone who is legally guilty) itself only means that the person convicted might be (factually) guilty.185 This may be particularly true given the centrality of pleas within our legal system: ours is not just a “system of pleas” in the sense that defendants are permitted to (and in large numbers do) take pleas, but also a system that, given the current rate of charging and resourcing, relies on pleas 183 See Bowers, Punishing the Innocent, at 1153 (mentioning critics who find that the propensity of defendants facing weak charges to “plead guilty to cheap pleas” has the effect of “undermin[ing] the system’s central truth-seeking function”) ; id. at 1171 (noting that the criminal justice system “finds something sacrosanct and inviolable—even magical—in the bottom-line accuracy of the defendant's admission that she behaved (in some fashion) illegally. Institutional actors (who should know better) hold on to this last vestige of an antiquated truth-seeking ideal”); GUILTY PLEA-BARGAINING AND PRISONER ATTITUDES, REPORT OF THE JOINT LEGISLATIVE COMMITTEE ON CRIME, STATE SENATOR JOHN H. HUGHES, CHAIRMAN 15-16 (“The final climactic act in the plea bargaining procedure is a charade which in itself has aspects of dishonesty which rival the original crime in many instances. The accused is made to assert publicly his guilt on a specific crime, which in many cases he has not committed; in some cases he pleads guilty to a non-existing crime. He must further indicate that he is entering his plea freely, willingly, and voluntarily and that he is not doing so because of any promises or considerations made to him”); Albert Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652, 701 (1981) (“It . . . may seem strange suddenly to seek the virtues of consent at one stage of a stigmatizing, miseryproducing, and involuntary proceedings. Indeed, in most nations of the world, although civil disputes are compromised as freely as here, American plea bargaining apparently is regarded as a reductio ad absurdum of our nation’s commercial mentality”); ARTHUR ROSETT, The Negotiated Guilty Plea, 374 Annals 70, 75 (1967) (“In many courts, the guilty plea process looks more like the purchase of a rug in a Lebanese bazaar than like the confrontation between a man and his soul.”). 184 See John Pfaff, @JohnFPfaff, TWITTER, https://twitter.com/JohnFPfaff/status/844538941311201281 (Mar. 22, 2017, 8:19AM) (characterizing an arrest as “[a] cop’s suspicion. Maybe a crime, maybe not.”). 185 See Albert W. Alschuler, Straining at Gnats and Swallowing Camels, 88 CORNELL L. REV. 1412, 1413-14 (2003) (“The plea bargaining system effectively substitutes a concept of partial guilt for the requirement of proof of guilt beyond a reasonable doubt. It is marvelously designed to secure conviction of the innocent.”); Talia Fisher, Conviction Without Conviction, 96 MINN. L. REV. 833, 851 (2012) (noting the probabilistic nature of pleas, and stating that “plea bargains, by and large, adjust sentencing to the level of proof regarding culpability.”); Michael Tonry, From Policing to Parole: Reconfiguring American Criminal Justice, in 46 CRIME AND JUSTICE: A REVIEW OF RESEARCH (2017) (conducting a comparative review, and concluding that “[a] guilty plea is nowhere else enough by itself for a conviction: a judge must determine the facts, decide whether the defendant is guilty and of what, and impose a sentence.”); Alschuler, Plea Bargaining, at 703 (“Adjudication is designed to answer the question of which side is correct on a case-by-case basis. Settlement is not designed to answer this question but to produce an acceptable middle ground.”). 34 ARRESTS AS GUILT [23-Apr-18 in order to continue to operate.186 If this standard and mode of “proof” establishes guilt in the plea bargaining context, it does not seem surprising that it has the same effect earlier in the process. If our system of plea bargaining—at its most coercive when a defendant is in custody—“shortcircuits” the process of determining guilt,187 then perhaps it is unsurprising if we in our assumptions do the same. B. The Costs of Diversion The hardships caused by the criminal process, including convictions, are so grave that numerous innovators have created mechanisms that aim to avoid some of those hardships. A variety of such innovations, such as diversionary programs, “alternative” courts, and “problem-solving” courts, have been developed,188 and a significant component of many of them is that participation can ward off the imposition of a criminal conviction and its manifold consequences.189 For all the relative advantages that participation in such programs may offer, one trade-off for this escape from some aspects of the criminal process appears to be that hardships can be inflicted without what the criminal legal system would (at least in theory) first require—some sort of finding or acknowledgment of guilt. Thus, to be in such a program—even if one has not pled guilty as a condition of participation190—is often to be classed as an 186 See Ortman, Probable Cause Revisited, at 554. See Packer, Two Models, at 38 (“[A] decision that the defendant will remain in custody once he has been charged may itself induce him to plead guilty, thereby short-circuiting the part of the process concerned with guilt determination and moving directly to the question of ultimate disposition”); Alschuler, Plea Bargaining, at 692 (“A prosecutor or defense attorneys whose primary concern is to cut corners probably would find a regime of plea bargaining ideally suited to his goals.”). 188 See, e.g., Bruce A. Green, The Right to Plea Bargain with Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process “Too Long, Too Expensive, and Unpredictable . . . In Pursuit of Perfect Justice”?, 51 DUQ. L. REV. 735, 745-46 (2013). 189 See Whitney Wootton, Diversion not Deportation: Mitigating the Harsh Immigration Consequences of Minor Crimes, 16 SEATTLE J. SOC. JUST. 217, 236 (2017) (“[P]retrial diversion programs] lead to lower recidivism and allow individuals to avoid the long-term negative consequences of a criminal conviction, such as difficulty in finding housing and employment.”). 190 See id. at 242 (“[P]re-file diversion programs do not require participants to stipulate to the charges against them in order to qualify for diversion.”). 187 23-Apr-18] ARRESTS AS GUILT 35 “offender,”191 and a possible “recidivism” risk,192 and to be seen as in need of “accountability,”193 rehabilitation,194 and penance.195 Thus, by leaping over any requirements that guilt be established by means of evidence, these programs may help to support a notion that guilt is established at the time of arrest. The LEAD (“Law Enforcement Assisted Diversion”) program in Seattle, for example, holds iconic and influential status,196 in part because it diverts so early—post-arrest but pre-booking—in an effort to whisk one away as quickly as possible from certain harms that the criminal process imposes. And yet, this innovation may bring a cost: reinforcement of the fusion of 191 See, e.g., Mueller-Smith & Schnepel, Diversion in the Criminal Justice System, https://sites.lsa.umich.edu/mgms/wpcontent/uploads/sites/283/2017/08/Diversion_in_the_Criminal_Justice_System.pdf (2016) (stating that deferring convictions for “drug offenders” reduces “recidivism,” even though without a conviction we have no “offender,” and no first conviction for the purpose of alleging “recidivism”). 192 See, e.g., Cory R. Lepage & Jeff D. May, The Anchorage, Alaska Municipal Pretrial Diversion Program: An Initial Assessment, 34 ALASKA L. REV. 1, 8-9 (2017) (“Impact on future criminality (also known as recidivism) is important. Approximately one-third of the participants were rearrested for any offense between two years and four and one-half years after they were admitted into the program, mirroring the recidivism rates in other states’ pretrial diversion programs.”). 193 See Jillian Cavanaugh, Helping Those Who Serve: Veterans Treatment Courts Foster Rehabilitation and Reduce Recidivism for Offending Combat Veterans, 45 NEW ENG. L. REV. 463, 471 (2011) (“Drug courts operate on the principles of treatment and accountability. Eligible offenders are taken before the drug court immediately upon arrest or apprehension. . . ”). 194 See Jerome Hall, Objectives of Federal Criminal Procedural Revision, 51 YALE L.J. 723, 728 (1942) (“The presumption that to be charged means to be guilty has been tenaciously, if unconsciously, entertained by well-intentioned reformers lulled into complacency by humanitarian motives to substitute ‘treatment’ for punishment, and enlightened by negligible insight into the functions of criminal procedure."). 195 See King County, Washington’s “Theft 3 and Mall Safety Project,” in which young people, suspected of shoplifting, but formally accused of nothing, write letters of “apology.” http://www.kingcounty.gov/~/media/depts/executive/performance-strategybudget/documents/pdf/RLSJC/2017/July27/RLSJC-072717.ashx?la=en (“[A] young person gets picked up by a loss prevention specialist, calls [Tukwila Police Department], who walks them down to a community resource area staffed by [Glover Empowerment Mentoring (“GEM”)], GEM calls the parents and explains that the child has an opportunity to participate in a program. The youth is referred to a geographically and culturally specific group for case management. The youth writes an apology letter to the business, the theft charge doesn’t get filed, and the youth participates in voluntary programming and services.”). 196 For Obama White House July 2015 national convening on the LEAD program, and praise of the program in a White House blog post, see https://obamawhitehouse.archives.gov/blog/2015/07/02/lead-ing-way-more-efficientcriminal-justice-system; for a 2018 map detailing where in the United States LEAD is being explored, where it is being developed, where it is launching, and where it is currently operating, see https://www.leadbureau.org/. 36 ARRESTS AS GUILT [23-Apr-18 arrest and guilt. LEAD’s website, for example, describes the program like this: “LEAD is a pre-booking diversion program that allows officers to redirect low-level offenders engaged in drugs or prostitution activity to community-based services instead of jail and prosecution.”197 C. Fusion of Act with Crime As mentioned above,198 proving the commission of an act is typically not enough to prove the commission of a crime. Our criminal codes have been set up to include additional elements, such as mens rea elements,199 and to provide for numerous defenses.200 Yet in the assumptions of the police and the public,201 and sometimes of legal scholars, establishment of an act (or even an assertion thereof) frequently seems to be taken as establishment of a crime. This phenomenon may contribute to the tendency to equate an arrest with guilt, since the assertion most easily made in support of an arrest is that the defendant committed a particular act. One commonly sees the act/crime fusion in public discourse. Thus, for example, only some homicides are crimes, and only some criminal homicides are murders. It is not unusual, however, for reporting of homicide rates to 197 LEAD: Law Enforcement Assisted Diversion, http://leadkingcounty.org/about (emphasis added). 198 See supra Part I.A. 199 See Alexandra Natapoff, Aggregation and Urban Misdemeanors, 40 FORDHAM URB. L.J. 1043, 1052 (2013) (defining the “mens rea requirement” as “the demand that in all but a handful of cases, criminal guilt requires inquiry into what the defendant subjectively, actually intended at the time of the offense.”). 200 See Paul H. Robinson, A System of Defenses, 1 CRIM. L. DEF. § 21 (“Possible bars to conviction include alcoholism, alibi, amnesia, authority to maintain order and safety, brainwashing, chromosomal abnormality, consent, convulsion, custodial authority, defense of habitation, defense of others, defense of property, de minimis infraction, diplomatic immunity, domestic (or special) responsibility, double jeopardy, duress, entrapment, executive immunity, extreme emotional disturbance, hypnotism, immaturity, impaired consciousness, impossibility, incompetency, insanity, intoxication (voluntary and involuntary), involuntary act defenses, judicial authority, judicial immunity, justification, law enforcement authority, legislative immunity, lesser evils, medical authority, mental illness (apart from insanity), military orders (lawful and unlawful), mistake (of law and fact), necessity, official misstatement of law, parental authority, plea bargained immunity, provocation, public duty or authority, reflex action, renunciation, self-defense, somnambulism, the spousal defense to sexual assaults and theft, statute of limitations, subnormality, testimonial immunity, the unavailable law defense, unconsciousness, and withdrawal.”). 201 See Joseph A. Colquitt, Rethinking Entrapment, 41 AM. CRIM. L. REV. 1389, 1400 (2004) (“For the police and the public alike, the problem is explaining that a difference exists between the fact of the bad act and the finding of guilt necessary to establish culpability.”). 23-Apr-18] ARRESTS AS GUILT 37 betray the assumption that they are crime rates, and indeed to refer to them as “murder rates.”202 One sees this fusion creeping into legal scholarship, too. For example, among the various definitions given for “factual guilt,” a popular one assigns factual guilt where the defendant “committed the act.”203 It is puzzling that this definition gets so much traction, given that in and of itself commission of the act is typically not enough to establish guilt. It is as if there is a concept of crime, for which an act suffices, that is in a constant tussle with our societal decision, via statutory law, to say that more is needed.204 If one looks for explanations of this explanation, one can perhaps speculate about the influence of the “innocence movement.” In its first cases, this movement focused on situations in which DNA could establish that law enforcement had the wrong person.205 The person seeking exoneration was able to say “That wasn’t me”/ “I wasn’t there”/ “I didn’t do it.” This became the emblematic form of a “wrongful conviction,”206 and may have created a corollary risk that convictions of someone who was there, and did appear to have done something, would be assumed to be rightful.207 Thus, the variety and potential robustness of all the many ways of saying that I may have done the act alleged, but I did not commit a crime, are easily obscured. Larry L. Archie, a defense attorney from North Carolina, provoked some chuckles when his billboard advertisement—“Just Because You Did It Doesn’t Mean 202 See Thomas Abt, How Not to Respond to the Rising Murder Rate, N.Y. TIMES (Sept. 26, 2017) (in contrast to headline, article discusses rising homicide rate). 203 See, e.g., Paul J. Mishkin, The High Court, the Great Writ, and the Due Process of Time and Law, 79 HARV. L. REV. 56, 81 n.84 (1965) (“As used throughout this paper, the term ‘factual guilt’ or more simply ‘guilt’ refers to the individual having done the acts which constitute the crime with which he is charged.”); Craig Haney, Exoneration and Wrongful Condemnations, 37 GOLDEN GATE U. L. REV. 131, 134 (2006) (“Factual guilt” is “the actus reus, the physical or behavioral component of the criminal act.”); id. (adding that “factual guilt is what most laypersons mean when they talk about whether someone is guilty--or in the case of miscarriages of justice and subsequent exonerations, whether an ‘innocent’ person has been wrongly convicted”); Genego, The New Adversary, at 845 (an individual is “factually guilty” when she “performed a given act”). 204 See, for example, the common usage of phrases like “unsolved crimes,” or “unsolved murders.” If we were to be true to legal definitions of crimes and murders, there could be no such thing as an unsolved crime or murder, since it is only in the “solving” that we determine whether there was a “crime” or a “murder.” 205 See Keith Findley, Toward a New Paradigm of Criminal Justice, 41 TEX. TECH. L. REV. 133, 141 n.62 (2008). 206 See Daniel S. Medwed, Innocentrism, 2008 U. ILL. L. REV. 1549, 1571 (2008) 207 See, e.g., Rudolf Koch, Process v. Outcome: The Proper Role of Corroborative Evidence in Due Process Analysis of Eyewitness Identification Testimony, 88 CORNELL L. REV. 1097, 1127 (2003) (appearing to treat being “the right guy” as equivalent to “being criminally guilty”). 38 ARRESTS AS GUILT [23-Apr-18 You’re Guilty”208—hit social media, with one commentator stating “That can’t be real!.”209 But it is real, and his work of reminding us of this is valuable. D. Media Influence Media can, of course, both reflect and shape public perceptions.210 When media outlets equate an arrest to guilt, they risk reinforcing this fusion. In one recent example, a Univision headline stated that “Trump publishes a list of crimes committed by immigrants; the majority are Latinos who haven’t been convicted.”211 This headline provoked at least some pushback, on the basis that the list reflected not crimes, but arrests.212 The version of the Univision story now available on the website reads differently: “Trump publishes list of alleged crimes by immigrants. . .”213 Two recurring media practices seem likely to fuel the fusion of arrest and guilt. The first involves the “perp walk”—a coordinated effort between media and police,214 in which images of a legally innocent suspect being marched from place to place are published and/or broadcasted. Other nations find this practice abhorrent,215 as they do our other methods of identifying and stigmatizing arrestees.216 A second example involves the common media practice of reporting the content of police accounts as if it were truth.217 This includes presenting 208 Kevin Underhill, Lowering the Bar, http://loweringthebar.net/2015/02/just-becauseyou-did-it.html (Feb. 3, 2015). 209 Naomi Seu, @naomiseu, TWITTER (Nov. 18, 2017, 5:51PM), https://twitter.com/NaomiSeu/status/932033575804862464 (exclaiming “That can’t be real!” in response to a photograph of the billboard), 210 See CAPTURED BY THE MEDIA: PRISON DISCOURSE IN POPULAR CULTURE (Paul Mason, ed., 2006) (explaining ways in which media constructs punitive public attitudes, which, in turn, encourage punitive constructions of “offenders” and increasingly punitive policy approaches). 211 See John Pfaff, @JohnFPfaff, TWITTER (Mar. 22, 2017, 8:19AM), https://twitter.com/JohnFPfaff/status/844538941311201281 (reproducing this headline). 212 See id. (“Stop. Calling it. A list. Of crimes. It’s arrests. A cop’s suspicion. Maybe a crime, maybe not.”). 213 See Damià Bonmatí & Jorge Cancino, UNIVISION (Mar. 20, 2017), https://www.univision.com/univision-news/immigration/trump-publishes-list-of-allegedcrimes-by-immigrants-the-majority-are-latinos-who-havent-been-convicted. 214 See supra Part II.A. 215 See Murray, A Perfect Prosecution, at 378. 216 See JAMES B. JACOBS, THE ETERNAL CRIMINAL RECORD (2015). 217 See, e.g., Adam H. Johnson, @adamjohnsonNYC, TWITTER (Apr. 5, 2018, 10:33AM, https://twitter.com/adamjohnsonNYC/status/981917661515960322 (appending comment “i see the New York Times has mind-readers on staff” to New York Times story headlined “Police Fatally Shoot a Brooklyn Man After Falsely Believing He Had a Gun”); 23-Apr-18] ARRESTS AS GUILT 39 police accounts of what suspects are alleged to have said as if those accounts were fact,218 despite documented examples of false police claims about what suspects are alleged to have said,219 and of police mendacity more generally.220 This media choice echoes, and may fuel, common assumptions about the truthfulness and accuracy of police accounts,221 and of law enforcement more generally.222 If a police account is seen as the truth, and if acts are commonly assumed to equal crimes,223 then the police account of an alleged act, which can suffice for the purposes of an arrest,224 may also be taken as sufficient to establish guilt.225 Benjamin Mueller & Nate Schweber, Police Fatally Shoot a Brooklyn Man, Saying They Thought He Had a Gun, N.Y. TIMES, Apr. 4, 2018 (subsequent version of headline); Robert Entman & Kimberly Gross, Race to Judgment: Stereotyping Media and Criminal Defendants, 71 LAW & CONTEMP. PROBS. 93, 95-96 (2008) (“In covering crime stories, journalists typically rely on law-enforcement officials’ views, downplaying the defense perspective while minimally acknowledging the innocence presumption. Thus, news of crime generally exhibits a pro-prosecution bias, rooted most importantly in this dependence of reporters on official and, therefore, purportedly credible sources.”). 218 See, e.g., Shayna Jacobs et al., Hate-fueled Baltimore man saw first victim as ‘practice’ to ‘kill additional black men’ in Times Square, N.Y. DAILY NEWS (Mar. 23, 2017), http://www.nydailynews.com/new-york/white-supremacist-killer-planned-carnage-timessquare-article-1.3006719?cid=bitly (“A hate-fueled white supremacist told cops his killing of a random black man was merely a practice run for a racist mass murder spree.”); N.Y. Times, @nytimes, TWITTER, Mar. 22, 2017, 5:44PM, https://twitter.com/nytimes/status/844682114901721088 (“A white veteran with a hatred of black men told the police that he killed a homeless man to make a statement.”); James McKinley, Jr., A Question Hangs Over a Trial: Why Did a Nanny Kill 2 Children in Her Care?, N.Y. TIMES (Feb. 11, 2018). 219 See, e.g., Mitchell Schwartz, Compensating Victims of Police-Fabricated Confessions, 70 U. CHI. L. REV. 1119 (2003). 220 See supra Part I.A. 221 See Nancy Gertner, Is the Jury Worth Saving?, 75 B.U. L. REV. 923, 931 (1995); Phoebe Ellsworth et al., Juror Comprehension and Public Policy, 6 PSYCHOL. PUB. POL’Y & L. 788, 811 (2000) (“Most White Americans believe that police officers are the most trustworthy witnesses”); Andrew Taslitz, Trying Not to Be Like Sisyphus: Can Defense Counsel Overcome Pervasive Status Quo Bias in the Criminal Justice System?, 45 TEX. TECH. L. REV. 315, 371 (2012) (claiming that “the public too readily accepts . . . police judgment without adequate criticism”). 222 See Anna Roberts, Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions, 98 MINN. L. REV. 592 (2013) (mentioning empirical indications that jurors put “unjustified stock in the credibility of governmental employees”). 223 See supra Part III.C. 224 See Gershowitz, Teachable Moments, supra n.20. 225 See Packer, Two Models, at 12 (“If there is confidence in the reliability of informal administrative factfinding activities that take place in the early stages of the criminal process, the remaining stages of the process can be relatively perfunctory without any loss in operating efficiency. The presumption of guilt, as it operates in the Crime Control Model, is the expression of that confidence.”). 40 ARRESTS AS GUILT [23-Apr-18 E. Self-Comforting Assertions and assumptions that serve a self-comforting purpose are more likely to prosper than those that do the opposite,226 and they may prosper even in the absence of empirical support. Thus, for example, law professors commonly assert that “Law professors have the best job in the world.”227 In a system in which arrests are disproportionately visited upon poor people of color,228 and in which arrests lead to stringent and permanent consequences,229 some of which appear even to judges to resemble “punishment,”230 it might be self-comforting to assume that those arrested are guilty.231 (Otherwise, one might have to conclude that we are stymying the 226 Daniel Givelber uses the term “ego-syntonic” to capture a similar idea. See Punishing Protestations of Innocence, 37 AM. CRIM. L. REV. 1363, 1404 (2000). 227 See LawProfBlawg, The 10 Truths of Academia for New Tenure-Track Law Professors, ABOVE THE LAW, https://abovethelaw.com/2017/02/the-10-truths-of-academiafor-new-tenure-track-law-professors/ (Feb. 14, 2017) (“I have the best job in the world, and so will you.”); Florencia Marotta-Wurgler, Why Law Teaching, http://www.law.nyu.edu/acp/why-law-teaching (“I find law teaching and legal academia to be the best job in the world”); Brad Areheart, Advice on Becoming a Law Professor, https://law.utexas.edu/career/paths/academic/advice-on-becoming-a-law-professor/ (“[T]his is the best job in the world (seriously)”); Sarah Burstein, Law by Design, MS. JD (Feb. 21, 2013), https://ms-jd.org/blog/article/law-design-interview-professor-sarah-burstein (“Seriously, I have the best job in the world.”); Erwin Chemerinsky, Keynote Speech: Reimagining Law Schools?, 96 IOWA L. REV. 1461, 1462 (2011) (“Being a law professor is probably the best job on the planet.”); Osamudia James, Examining Identity and the Law, https://www.law.miami.edu/news/2016/november/professor-osamudia-james-examiningidentity-and-law (Nov. 2, 2016) (“I have the best job in the world.”); Interim Dean James Gardner, Q & A, http://www.law.buffalo.edu/links/2017-June/news-gardner.html (“In the long term, I plan simply to resume my former life as a UB law professor—just about the best job in the world.”). 228 See Mayson, Dangerous Defendants, at 553. 229 See Harmon, Why Arrest?, at 312 (“Unlike many other encounters with the police, a suspect who is arrested and booked faces practical, reputational, and privacy consequences that persist whether or not he is subject to further legal proceedings”); Gershowitz, Teachable Moments (“[W]e should not want arrestees to suffer needless incarceration, expensive bail bonds, embarrassing mug shots, possible job loss, and other consequences of arrest if their cases will ultimately be dismissed outright without conviction“). 230 See supra Part II.A. 231 JEROME SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN A DEMOCRATIC SOCIETY 241 (1966) (“The negation of the presumption of innocence permeates the entire system of justice. . . [A]ll involved in the system, the defense attorneys and judges, as well as the prosecutors and policemen, operate according to a working presumption of the guilt of persons accused of crime.”); Roberts, Conviction by Prior Impeachment, at 2017 (“even at the trial stage, to raise the specter of innocence is to make uncomfortable suggestions: not only that law enforcement (both police and prosecution) has made costly mistakes, and that out beyond the courthouse a factually guilty person may be enjoying freedom, but also that 23-Apr-18] ARRESTS AS GUILT 41 life chances of, stigmatizing, and stripping away the liberty of people on the basis of their race and poverty.232) If a desire to self-comfort is indeed operative, then perhaps those people who are erased from the common pleabargaining statistical error—people whose cases ended without a finding of guilt—are erased because dwelling on their existence and numerosity is troubling. Similarly, a view of the police that associates them with truthfulness and accuracy may be more comforting than the opposite.233 A view of arrests as acts of the suspect,234 and thus within the suspect’s control, may be more comforting than the view of arrest as a threat that may be incentivized by factors other than evidence,235 and that may be visited upon you no matter how you behave. An additional self-comforting assumption that might be at play is the assumption that there exists a clean binary of “guilty” and “innocent,” “offender” and “not an offender.” Under this binary, guilt is revealed by conduct (the arrest), and thus exists before the lawyering begins, and is not subject to the vagaries of resources or skill. It would be—for some, it is— highly disturbing that one’s chances of being found legally guilty are deeply influenced by the quality (and often the resources) of one’s defense counsel.236 It may also be unsettling to acknowledge that in some cases factual guilt does not exist in a definitive sense,237 and that the only real an innocent person's life has been harmed or ruined in all the ways that pre-adjudication process can achieve.”). The point suggested in the text is particularly the case if one is less concerned about hardships when they fall on those believed to be guilty; Radley Balko, The case for releasing violent offenders, WASH. POST (Aug. 14, 2017), https://www.washingtonpost.com/news/the-watch/wp/2017/08/14/the-case-for-releasingviolent-offenders/?utm_term=.bc9b2f5f97cf (“We want to punish criminals. We want them to suffer. We create hostile prison environments rife with violence, racial resentment and rape.”). 232 See Packer, Two Models, at 19 (stating that, in “the system as it operates, the relative financial inability of most persons accused of crime sharply distinguishes their treatment from the small minority of the financially capable.”). 233 See David Luban, Are Criminal Defenders Different?, 91 MICH. L. REV. 1729, 1741 (1993). 234 See O’Neill et al., Past as Prologue, at 268 (“[T]he existence of an arrest indicates some familiarity with the criminal justice system on the part of the arrestee[, and] familiarity with the criminal justice system may bear a role in assessing culpability.”); Myrna Raeder et al., Convicting the Guilty, Acquitting the Innocent, 20-WTR CRIM. JUST. 14, 19 (2000) (referring to Givelber’s assertion that there is a “core belief by virtually all personnel who work within the criminal justice system that defendants formally accused of crime are guilty” and asserting that it stems in part from a tendency to “believe in a just world.”). 235 See supra Part I.A. 236 See, e.g., James Anderson & Paul Heaton, How Much Differences Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes, 122 YALE L.J. 154 (2012) (a lot). 237 See supra Part I.A. 42 ARRESTS AS GUILT [23-Apr-18 answer one can get on that question is what a fact-finder concludes (thus again implicating the quality/resources differential). Some may be tempted to substitute this “maybe-maybe not”/ “let’s see what your lawyer can do with that” world—a world in tension with the Supreme Court’s declaration that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has”238—for a world of a nice clean binary, in which it is not money, or chance, or legal skill that determines your guilt, but rather your misconduct, embodied by your arrest.239 IV. WHY THIS MATTERS There are various reasons why one might be concerned by a fusion of arrest and guilt.240 This Article highlights just one set of such reasons, selected because of the breadth of its impact. It focuses on a variety of components of our criminal legal system that require urgent reform, and as regards to which the slowness of reform may be a puzzle.241 It posits that reform in these areas requires a robust understanding of the difference between arrest and guilt, and that the depth and breadth of those concepts’ fusion might provide at least a partial explanation of the obstacles to reform. 238 Griffin v. Illinois, 76 S.Ct. 585, 591 (1956). See Erin Murphy, Indigent Defense, 26-FEB Champion 33 (2002) (“In the short time that I have been a public defender, I have learned that most people who ask the ‘how can you’ question have already divided the world into neat categories of ‘us’ and ‘them.’ They assume that ‘those people’ are in fact guilty criminals and therefore undeserving of constitutional protections. Sometimes the ‘us’ and the ‘them’ is simply the speaker's distinction between the lawless and the lawful, the good citizen and the bad. Often race or economic privilege bolsters the speaker's confidence that he or she will always be counted among the ‘us.’ Regardless of how the division is justified, however, the ‘them’ is always a group to which the speaker cannot relate, or to which the speaker is confident he or she will never belong. It is also always a group comprised only of the guilty — as though our laws and procedures were just impediments to the efficient adjudication of guilt, rather than the engine through which we determine whether guilt exists at all”); Janet Reno, OFFICE OF JUSTICE PROGRAMS, U.S. DEPT. OF JUSTICE, NAT'L SYMPOSIUM ON INDIGENT DEFENSE 2000: REDEFINING LEADERSHIP FOR EQUAL JUSTICE vii (2000) (“In the end, a good lawyer is the best defense against wrongful conviction.”). 240 See supra Part II.B, for example, for the many potential effects of recidivism calculations that are maximized through the choice to use arrest as a metric. 241 See Andrew M. Siegel, Moving Down the Wedge of Injustice: A Proposal for a Third Generation of Wrongful Convictions Scholarship and Advocacy, 42 AM. CRIM. L. REV. 1219, 1230 (2005) (“The rules and structures of which I speak—indigent defense systems, prosecutorial incentive structures, plea bargaining procedures, docket control mechanisms, etc.—are over-determined candidates for reform campaigns in that they both impose unfairness up front in all criminal cases and lead to the incarceration of innocents on the back end.”). 239 23-Apr-18] ARRESTS AS GUILT 43 A. Defense Representation If guilt is commonly seen as something revealed by an arrest—if, in other words, the relevance of the entire part of the criminal process between arrest and adjudication has fallen out,242 and if the law is viewed less as a means by which guilt can be constructed and more as a construct that can be used by defense attorneys to “get their clients off,”243 a variety of failings in the area of defense representation may become less surprising. These include government-funded defense resources,244 the standards and policing of attorney performance,245 the incentive structures operating on defense attorneys,246 defender caseloads,247 and, as a result, the inability of defense 242 See Ion Meyn, Why Civil and Criminal Procedure are so Different: A Forgotten History, 86 FORDHAM L. REV. 697, 725-26 (2017) (highlighting the thinness of the center of criminal, as compared to civil, procedure.) 243 Entman & Gross, Race to Judgment, at 96 n.8 (“The defense attorneys, the contending side, are likely viewed as more biased than prosecutors—their job is to try to get their clients off—and thus their claims are likely to be viewed more skeptically.”). 244 James Forman Jr., Justice Springs Eternal, N.Y. TIMES (Mar. 25, 2017), (https://www.nytimes.com/2017/03/25/opinion/sunday/justice-springseternal.html?smprod=nytcore-iphone&smid=nytcore-iphone-share&_r=1 (“[N]o aspect of our criminal justice system is as overworked and underfunded as public defender services. Of the more than $200 billion that states and local governments spend on criminal justice each year, less than 2 percent goes to public defense. Yet improving indigent defense gets scant attention in the conversation about how to fix our criminal justice system.”); see Adele Bernhard, Take Courage: What the Courts Can Do to Improve the Delivery of Criminal Defense Services, 63 U. PITT. L. REV. 293, 311 (2002) (“Judges are not likely to order the expenditure of funds to hire lawyers and support staff when convinced of guilt and worried that additional support will only slow the process of adjudication not change results.”) 245 See Bernhard, Take Courage, at 311 (“[C]ourts may have been dissuaded from taking action [on 6th Amendment right to counsel claims] by the unacknowledged but pervasive belief that anyone who has been arrested is guilty—a belief which inevitably minimizes the significance of all else in the criminal justice system besides the swift resolution of cases. The presumption of guilt is a ‘core belief shared by virtually all personnel who work within the criminal justice system’ and a major hindrance to improving criminal defense services. If judges suspect that everyone arrested is guilty, it is hard to convince them to strike as unconstitutional state-funded criminal defense systems that rush pleas or discourage legal research and creative investigation”) (quoting Givelber, Meaningless Acquittals, at 1329); Bernhard, Take Courage. at 312 (“The presumption of guilt helps to explain why the Supreme Court formulated an almost insurmountable standard of review for ineffective assistance claims on appeal”); Rodney Uphoff, Convicting the Innocent, 2006 WIS. L. REV. 739, 741–42 (2006) (describing assistance of counsel as often involving “little more than counsel’s help in facilitating a guilty plea”). 246 For defense attorney incentives in our system that militate in favor of performing the “minimum amount necessary to convince clients to plead guilty as quickly as possible,” see Tigran Eldred, Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases, 65 RUTGERS L. REV. 333, 351 (2013). 247 See Peter Joy, Rationing Justice by Rationing Lawyers, 37 WASH. U. J.L. & POL’Y 44 ARRESTS AS GUILT [23-Apr-18 attorneys to meet their ethical obligations.248 James Forman Jr. has commented on the apparent tension between the dire state of public defense and the “scant attention” focused on it in some quarters.249 A fusion of arrest and guilt may make the phenomenon that he notes more understandable because if factual guilt is viewed as something established by arrest, then many or all of the functions of defense counsel may be seen as a waste of money. Who wants to support those who are trying to get people off on a technicality?250 Who wants to fund smoke and mirrors?251 To the extent that problems exist with defense lawyering that are within defense attorneys’ power to ameliorate, the fusion may again have some explanatory weight. Thus, Abbe Smith finds that attorneys’ assumptions of guilt underlie “the bad lawyering at the root of many wrongful convictions: feckless or beleaguered lawyers feeling that their client is guilty anyway, so what the hell?”252 205, 215-16 (2011) (“The Strickland standard and the “guilty anyway” syndrome combine to produce a criminal justice system that accepts excessive caseloads resulting in poor lawyering”). 248 See Eldred, Prescriptions for Ethical Blindness, at 335 (“[U]nderfunded and overworked public defenders are constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession's rules. They cannot interview their clients properly, effectively seek their pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources.”). 249 James Forman Jr., Justice Springs Eternal, N.Y. TIMES. (Mar. 25, 2017) (“[N]o aspect of our criminal justice system is as overworked and underfunded as public defender services. Of the more than $200 billion that states and local governments spend on criminal justice each year, less than 2 percent goes to public defense. Yet improving indigent defense gets scant attention in the conversation about how to fix our criminal justice system.”). 250 See Elizabeth Ortecho, Book Review, Guilty: The Collapse of the Criminal Justice System, by Judge Harold Rothwax, 6 B.U. PUB. INT. L.J. 377, 378 (1996) (“Rothwax does not view the defense attorney's role as any better than the defendant's since she also serves to prevent, distort, and mislead the court from discovering the truth, i.e., her client's guilt.”). 251 See Michael Minerva, Letter, Court Funding, FLA. B. NEWS 2 (Sept. 1, 2008) (“Sen. Victor Crist, R-Tampa, decries the proposed moratorium [by public defenders on taking new cases, as a response to a funding crisis] as grandstanding, saying along the way that most defendants are guilty anyway. No wonder public defenders lack adequate funds when that highly placed legislator has such an outlandish view of the defense function.”); Erin Murphy, Indigent Defense, 26-FEB CHAMPION 33, 33 (2002); Raeder et al., Convicting the Guilty, at 19 (“Why pay high fees to protect the guilty?”); John Gross, The Cost of Representation Compared to the Cost of Incarceration, 37=MAR CHAMPION 22, 22 (2013) (“The reluctance to adequately fund indigent defense is undoubtedly based on an unwillingness to spend money on attorneys to represent defendants who are perceived as most likely guilty. Providing defendants with representation is therefore seen as a waste of money; attorneys will only delay the inevitable and will make the criminal justice system less efficient.”). 252 Abbe Smith, In Praise of the Guilty Project, 13 U. PA. J. L. & SOC. CHANGE 315, 327 23-Apr-18] ARRESTS AS GUILT 45 A final example concerns the very provision of defense counsel. To some, the failure to provide defense counsel at stages of the criminal process that include arraignment253—and during the guilty plea process that arraignment may encompass254—is a disgrace.255 But those who fuse arrest with guilt may reject the idea that defense counsel needs to be provided at such points.256 And, where defense counsel is provided, those who fuse arrest and guilt may view the model of “meet 'em and plead 'em” not as a monstrosity, but rather as an efficient way of proceeding.257 The phrase nicely encapsulates a system in which the period between arrest and adjudication is largely seen as pointless filler,258 and thus one in which a lack of funding and support for vigorous defense becomes understandable. B. Pre-Adjudication Suffering Pre-adjudication practices, such as bail, seem finally to be getting broad recognition as practices that not only resemble the “punishment” that is (2009); see Rapping, Implicitly Unjust, at 1020 (describing how “through their subconscious assumptions about their clients, what the evidence against them means, and what consequences are appropriate, defenders can be pushed to accept a lower standard of justice, and to fight a little less aggressively, for their clients of color”). 253 See Packer, Two Models, at 51 (“The assistance of counsel, to the extent that it is available at arraignment, is perfunctory in the majority of cases. Waiver is easily accomplished and widespread.”). 254 See id. at 48; Douglas L. Colbert, Prosecution Without Representation, 59 BUFF. L. REV. 333, 387-88 (2011). 255 See, e.g., NAT’L ASSOC. OF CRIM. DEF. LAWYERS, MINOR CRIME, MASSIVE WASTE: THE TERRIBLE TOLL OF AMERICA’S BROKEN MISDEMEANOR COURTS (Apr. 2009). 256 See Packer, Two Models, at 48 (characterizing the Crime Control Model as holding that “[t]he general run of criminal defendants are capable of making up their own minds as to whether they want to plead guilty. If a defendant has a lawyer and wants to consult him about the guilty plea, that is proper. But the state should be under no obligation to provide counsel for a defendant at arraignment. All that is required for a plea of guilty is that the defendant understand its nature and consequences in a general kind of way, and that he enter it of his own free will. The judge's duty is to ensure that these conditions are met. It would involve a needless duplication of resources to insist that a defense lawyer as well as a judge must participate in the entry of a guilty plea.”); id. at 61 (“The criminal process as it actually operates in the large majority of cases probably approximates fairly closely the dictates of the Crime Control Model.”). 257 For notion that the criminal justice system in America is “plagued by . . . a ‘meet 'em and plead 'em’ methodology”, see Lahny R. Silva, Right to Counsel and Plea Bargaining, 99 IOWA L. REV. 2219, 2230 (2014). 258 See Meyn, Why Civil and Criminal Procedure are so Different, at 725-26 (highlighting the thinness of the center of criminal, as compared to civil, procedure.) 46 ARRESTS AS GUILT [23-Apr-18 forbidden in advance of conviction, but specifically punishment for the crime of poverty.259 But it took a long time.260 If one is searching for explanations of how pre-adjudication practices of this nature can have gone on so long, and to such adverse effect,261 it may again be worth considering the assumptions of guilt attaching to those arrested. Jeffrey Manns, for example, notes that the “conventional wisdom of the culpability of anyone that the government has probable cause to arrest goes far towards explaining popular apathy to pretrial detentions and the dearth of remedies for detainees who are not convicted.”262 This apathy makes sense if, as R.A. Duff suggests, “the defendant is seen as being in fact an offender, who awaits only the formal verdict of the court before receiving the punishment he deserves.”263 And indeed, if punishment is deserved, one might as well get started as soon as possible:264 something that our system permits, by folding “time served” into the formal sentence.265 As Human Rights Watch puts it, “the time in pretrial detention (as well as in police lockup pre-arraignment)” can serve as “punishment paid in advance.”266 A lack of concern about pre-trial custody has ripple effects. Part of what justifies speedy trial guarantees is that a limit on the time spent to bring a case to trial necessarily means a temporal limit on pre-trial custody.267 If those 259 See, e.g., Shaun Ossei-Owusu, Poverty's Punishment: America's Oppressive Bail Regime, AM. PROSPECT (Nov. 18, 2016). 260 See Lauryn Gouldin, Disentangling Flight Risk from Dangerousness, 2016 B.Y.U. L. REV. 837, 839. 261 See Simonson, Bail Nullification, at 608 (“Even a few days in jail are profoundly destabilizing: defendants experience declines in physical and mental health, and potentially lose wages, jobs, stable housing, and custody of their children.”). 262 Jeffrey Manns, Liberty Takings: A Framework for Compensating Pretrial Detainees, 26 CARDOZO L. REV. 1947, 1956 (2005). 263 Duff, Pre-Trial Detention and the Presumption of Innocence, at 120 (adding that “that is why it is so easy (and so revealing) to slide into talking about the danger that the defendant will commit, not ‘offences,’ but ‘further offences’ while on bail.”) 264 See id. at 119 (“Now pre-trial detention is not (formally) punishment; it does not presuppose that the defendant is guilty of the crime for which she is to be tried (although if the defendant is convicted and sentenced to imprisonment, time spent on pre-trial remand can be counted towards that sentence as ‘time served’)”); Packer, Two Models, at 39 (characterizing the Crime Control Model as taking the view that “[t]he vast majority of persons charged with crime are factually guilty,” and that “[f]or all practical purposes, the defendant is a criminal. Just because the assembly line cannot move fast enough for him to be immediately disposed of is no reason for him to go free. If he does go free, he may not appear for trial, a risk that is heightened when he has a strong consciousness of guilt and a lively expectation of probable punishment.”). 265 See Duff, Pre-Trial Detention and the Presumption of Innocence, at 119. 266 HUMAN RIGHTS WATCH, THE PRICE OF FREEDOM: BAIL AND PRETRIAL DETENTION OF LOW INCOME NONFELONY DEFENDANTS IN NEW YORK CITY (2010), available at https://www.hrw.org/sites/default/files/reports/us1210webwcover_0.pdf. 267 See Barker v. Wingo, 92 S.Ct. 2182, 2193 (1972). 23-Apr-18] ARRESTS AS GUILT 47 held in custody are assumed to be guilty, then we can see an explanation for the widespread failure to make speedy trial guarantees meaningful.268 Similarly, while one might be concerned that pre-trial custody helps to bring about pleas,269 if one assumes that those in custody are guilty, then that may appear to be not coercion but welcome efficiency.270 C. Police Reform If the kind of assumptions mentioned in this Article—that arrests are tantamount to guilt, that police are truthful, and that police are essential as the primary mechanism for bringing the guilty to light—are indeed widespread, then it may be unsurprising how halting reform has been of policing problems, including racially disparate policing and arrests,271 widespread use of arrest,272 inappropriate incentives to arrest,273 police untruth,274 and the incentives and culture that may encourage that untruth.275 If arrests are seen as tantamount to guilt, then those who bear the burden of making arrests—and thus of taking control of criminal wrongdoers—are likely to garner esteem and protection. The fusion of arrest and guilt thus may act as an obstacle to reform, even in those areas where widespread support 268 See, e.g., Benjamin Weiser & James McKinley Jr., Chronic Bronx Court Delays Deny Defendants Due Process, Suit Says, N.Y. TIMES (May 10, 2016). 269 See Packer, Two Models at 40 (explaining the antipathy of the “Crime Control Model” to reducing the rate of pretrial confinement: “The main risk is that the increased consumption of time required to litigate cases that do not really need to be litigated would put an intolerable strain on what is already an overburdened process. That consideration alone argues against a policy that makes pretrial liberty the norm.”). 270 See id. at 38 (“[A] decision that the defendant will remain in custody once he has been charged may itself induce him to plead guilty, thereby short-circuiting the part of the process concerned with guilt determination and moving directly to the question of ultimate disposition.”). 271 See Tammy Rinehart Kochel et al., Effect of Suspect Race on Officers' Arrest Decisions, 49 CRIMINOLOGY 473, 498 (2011) (minorities at least thirty percent more likely to be arrested than similar non-minority suspects); Tonry, From Policing to Parole (“Black men are arrested at younger ages and more often than white men for reasons that have as much to do with racially differentiated exercises of police discretion as with racial differences in offending behavior. Racial profiling by the police targets blacks and Hispanics and exposes them proportionately more often than whites to arrest. Police drug enforcement policies target substances that black drug dealers sell and places where they sell them, resulting in rates of arrests for drug offenses that have been four to six times higher for blacks than for whites since the mid-1980s”). 272 See supra n. 1 and accompanying text. 273 See supra Part I.A. 274 See supra Part I.A. 275 See, e.g., Michelle Alexander, Why Police Lie Under Oath, N.Y. TIMES (Feb. 3, 2013), http://www.nytimes.com/2013/02/03/opinion/sunday/why-police-officers-lie-underoath.html. 48 ARRESTS AS GUILT [23-Apr-18 for reform may exist. Judges, for example, play a role in overseeing police conduct and testimony. But Ronald Uphoff and others have suggested that judicial assumptions of guilt may dilute that power.276 This Article also suggests that traveling along with an assumption that an arrest equals guilt is an assumption that a lack of arrest equals a lack of guilt.277 (It is hard to make much sense of “recidivism rates” that rely on arrests, or “crime rates” that rely on arrest rates,278 unless this second 276 See Ronald J. Uphoff, On Misjudging and its Implications for Criminal Defendants, Their Lawyers and the Criminal Justice System, 7 NEV. L.J. 521, 543-44 (2007) (“In my view, the attitudinal blinders that many judges possess contribute significantly to the inadequacies of the criminal justice system. Most judges, especially those with prosecutorial experience, presume that most defendants are, in fact, guilty, even though some are, in fact, innocent. This presumption of guilt, pro-prosecution perspective not only affects the manner in which many judges rule on motions, evaluate witnesses, and exercise their discretion, but it also adversely affects the willingness of many judges to police law enforcement agents and prosecutors. Judges tolerate sloppy police work because they do not want to be viewed as micro-managing the police. Judicial reluctance to let the guilty go free has meant a decreased use of the exclusionary rule. Similarly, courts are hesitant to dismiss cases because of Brady violations or take other steps to rein in prosecutorial misconduct. Finally, even when courts find error, too many errors are deemed harmless. The expanded use of harmless error not only allows questionable verdicts to stand, it does little to discourage misconduct and sloppy practices in the administration of justice.”); Andrew Taslitz, Slaves No More!: The Implications of the Informed Citizen Ideal for Discovery Before Fourth Amendment Suppression Hearings, 15 GA. ST. U. L. REV. 709, 764 (1999) (suggesting that the fact that “many judges believe most defendants are guilty” provides one of five reasons why judges are “all too willing to ignore police perjury.”); Bowers, Punishing the Innocent, at 1163 (“[T]here are strong reasons to doubt the efficacy of the exclusionary rule in policing the police. Judges are especially loath to discredit even incredible police testimony if it means razing evidence against defendant—especially recidivist defendants—whom judges may already believe are wasting judicial resources by not plea bargaining.”). 277 See, e.g., Petersilia, Recidivism ("[C]riminal activity in the general population is assumed to be relatively rare."). 278 See Jerome Miller, From Social Safety Net to Dragnet: African American Males in the Criminal Justice System, 51 WASH. & LEE L. REV. 479, 481 (1994) (“Meanwhile, the FBI Uniform Crime Reports (UCR), upon which the media routinely base their official estimates of crime, inflated both the numbers and the seriousness of the types of incidents reported. Whereas most European nations report their crime statistics on the basis of convictions, the UCR reports are based on complaints or arrests. However, about thirty-eight of every one hundred individuals arrested for a felony either were not prosecuted or had their cases dismissed outright at their first court appearances. This had nothing to do with plea bargains; usually there was not sufficient reason to proceed with the cases.” (internal citations omitted)”); Linda S. Beres & Thomas D. Griffith, Habitual Offender Statutes and Criminal Deterrence, 34 CONN. L. REV. 55, 60 (20010 (“[W]e have no direct measure of the crime rate, but must rely on either the Federal Bureau of Investigation Uniform Crime Reports (“UCR”) or the National Crime Victimization Surveys (“NCVS”). The UCR only shows reported crimes and the NCVS is dependent upon the memory of the individuals surveyed and the method of questioning.”) (internal citation omitted). For spillover effects of these choices, see, e.g., Tess Owen & Isabella Corbo, When Cops Commit Crimes: Inside the First 23-Apr-18] ARRESTS AS GUILT 49 assumption is in play.279). This second assumption may serve to insulate the police from concerns about disparate enforcement, since it may mean that potential concern about failure to arrest is diluted,280 just as is potential concern about decisions to arrest. D. Prosecutorial Reform Commentators frequently lament a widespread failure by prosecutors to put much meaning into their constitutional and ethical mandate to “do justice.”281 This mandate all too often seems to be interpreted as a mandate to score convictions, in direct contravention to the Supreme Court’s indication, in Berger v. United States, that the interest of the prosecution “is not that it shall win a case, but that justice shall be done.”282 Paul Butler describes this statement, in the current system, as just “words on paper;”283 others despair of the idea that the “do justice” mandate can ever be made meaningful.284 One would need, for example, to set up an appropriate incentive system for prosecutors, and that has not yet been done.285 Database that Tracks America’s Criminal Cops, VICE NEWS (Sept. 12, 2017), https://news.vice.com/story/police-crime-database (discussing use of police arrests to populate a database of police “crime,” and stating that “We should also bear in mind that an arrest is not equivalent to a conviction. Just as with the general population, officers are presumed innocent until proven guilty. But Stinson [the creator of a ‘police crime database’] thinks looking at arrests is a fair way to examine cop crime, because that’s how law enforcement (including the FBI’s Uniform Crime Report) collects information on crime in general”). 279 See Anna Roberts, Impeachment by Unreliable Conviction, 55 B.C. L. REV. 563 (2014) (discussing question of whether a criminal record is not just a reliable indicator of culpability, but a reliable indicator of relative culpability). 280 See I. Bennett Capers, Race, Policing, and Technology, 95 N.C. L. REV. 1241, 1252 (2017) (discussing “underenforcement”). 281 See AM. BAR ASS'N, ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION AND DEFENSE FUNCTION § 3-1.2 (3d ed. 1993) , available at http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_stan dards_pfunc_blk.html (“The duty of the prosecutor is to seek justice, not merely to convict.”) 282 Berger v. United States, 295 U.S. 78, 88 (1935). 283 Paul Butler, Gideon's Muted Trumpet, N.Y. TIMES, at A21 (Mar. 17, 2013). 284 See, e.g., State v. Starrish, 544 P.2d 1, 9 (Wash. 1975) (Utter, J., dissenting). 285 Siegel, Moving Down the Wedge of Injustice, at 1225 (noting “the failure of our system to develop an incentive structure for prosecutors that rewards the pursuit of justice rather than the pursuit of competitive advantage.”); Leipold, The Problem of the Innocent, Acquitted Defendant, at 1328 (“[E]ven in the absence of bad faith prosecutors have incentives to resolve nagging doubts about a suspect's guilt in favor of prosecution.”); Rachel E. Barkow, Organizational Guidelines for the Prosecutor’s Office, 31 CARDOZO L. REV. 2089, 2091 (2010) (“[C]onvictions are the lodestar by which prosecutors tend to be judged.”). 50 ARRESTS AS GUILT [23-Apr-18 An assumption regarding the guilt of those arrested may help elucidate some of these failures.286 If those arrested are assumed to be guilty, then (for those who believe that guilt should be met with a conviction) justice might well be seen as identical to the pursuit of convictions, and incentives that further that pursuit might be seen as beneficial. In addition, if those arrested are assumed to be guilty, then concerns about prosecutorial misconduct are likely to lessen, given the tendency to worry less about misconduct when its victim is thought to be guilty.287 Judges have a potential role in overseeing aspects of the prosecutorial role, and curbing its worst excesses. 288 But if they too are liable to fuse arrest with guilt, their relative inaction may make more sense.289 Prosecutors, in turn, have a potential role in overseeing aspects of police conduct, screening its output,290 and curbing its worst excesses.291 If they are liable to fuse arrest with guilt,292 their relative failure to play this role may make more sense.293 286 See HUMAN RIGHTS WATCH, THE PRICE OF FREEDOM: BAIL AND PRETRIAL DETENTION OF LOW INCOME NONFELONY DEFENDANTS IN NEW YORK CITY 31(2010), available at https://www.hrw.org/sites/default/files/reports/us1210webwcover_0.pdf (quoting Timothy Murray, at that time Executive Director of the Pretrial Justice Institute, as saying that woven into the mindset of prosecutors across this country is “the idea you should somehow ‘pay’ from the moment of arrest, that you owe the system something just by virtue of being accused . . . because they implicitly believe—and must believe—that people who are arrested are guilty.”). 287 See Radley Balko, The case for releasing violent offenders, WASH. POST (Aug. 14, 2017) (“We want to punish criminals. We want them to suffer. We create hostile prison environments rife with violence, racial resentment and rape.”). 288 See, e.g., Roberts, Dismissals as Justice, at 327 (suggesting that the judicial role in monitoring and regulating prosecutorial conduct is greater than commonly suggested). 289 See Uphoff, On Misjudging, at 543-44., 543 n.129 (“Many commentators have highlighted the serious systemic problems of prosecutorial misconduct and criticized judicial inattention to the problem”). 290 See NYU School of Law, New Frontiers in Race and Criminal Justice -- Panel 2: Race and Prosecution 29:58-31:07 (Apr 17, 2012), online at http://www.youtube.com/watch?v=qUtgqDaJN_g#t=29m58s (visited Nov 21, 2015) (showing Whitney Tymas saying: “Prosecutors need to understand the real leadership that they can exercise when it comes to not endorsing all police action - - - [I]t's really OK to tell a police officer, ‘I'm not ... prosecuting this case.’ . . . [P]rosecutors can say no, and . . . not just be case processors—really be leaders.”). 291 See id. 292 See Daniel Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U. L. REV. 125, 140 (2004) (“The perception, even among prosecutors, that the police only arrest guilty people in the first place reinforces the belief that the right person was charged and later convicted.”). 293 See Natapoff, Aggregation and Urban Misdemeanors, at 1068 (“With respect to minor offenses, . . . prosecutors in some jurisdictions forgo the screening inquiry and convert arrests into charges more or less automatically. This fact is reflected in low rates at which prosecutors decline cases. In New York and Iowa, for example, Josh Bowers found declination rates for certain minor offenses as low as 2% or less, meaning that 98% of those 23-Apr-18] ARRESTS AS GUILT 51 *** CONCLUSION Criminal justice reform is hard. However strong one’s commitment, one faces obvious barriers, whether fear or financing or resistance to change. This Article has brought to light a less obvious barrier: a widespread fusion of arrest and guilt. If even those committed to criminal justice reform are vulnerable to this fusion, the slowness of reform in areas that rely on a robust understanding of the distinctions between arrest and guilt may make more sense. Yet criminal justice reform is crucial. If, as this Article suggests, the fusion of arrest and guilt is indeed a potent force, we must investigate its many possible explanations. Identifying the fusion, and attempting to understand it, is a necessary precursor to efforts to combat it. police arrest decisions converted to criminal charges. A Vera Institute study found similarly low prosecutorial declination rates in misdemeanor drug cases in North Carolina.”).