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Cardozo Law Review

Abstract

Arrests and arrest records play an important role in the criminal justice system. Police agencies customarily use suspects' prior record for investigative purposes, and courts use this information to set bail. Yet many arrest practices, and particularly stop-and-frisk, have long been criticized for disproportionately targeting young black and Latino men, and for their overall negative effect on communities of color. Not surprisingly then, arrest practices have received much attention, including among legal scholars and social scientists. However, what effect a prior arrest record has on other decision points, including prosecutorial decision making, is relatively unknown. In particular, we have a limited understanding about the relationship between prior arrest and plea bargaining.

In this Article, we present three arguments - legal, moral, and cost arguments - to demonstrate the negative consequences of arrests and arrest records. We use a unique empirical study of the relationship between prior arrests arid plea offers in the New York County District Attorney's Office, to support two propositions: (a) arrests should be viewed as a last resort to be used whenever issuing warnings, citations, or summonses would be inadequate safeguards of public safety; and (b) prosecutors' offices should not use prior arrest as a factor by default when making plea offer determinations unless they are able to show that using prior conviction record alone would not be sufficient to serve the purposes of justice, safety, and fairness. We argue that using nonconviction prior arrest in determining punishment in subsequent nonrelated cases is contrary to the principles of the presumption of innocence, race-neutral decision making, and wise criminal justice expenditure.

Disciplines

Criminal Law | Criminal Procedure | Law

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