CLE Workshop: "Justice in the Age of Criminal Records"

The Murphy Institute's Center on Law and the Economy hosts workshops each semester featuring both Tulane and guest faculty in law, economics, and political science who present their latest research in regulation, civil rights, the criminal legal system, and other key issues in law and the economy. Papers are distributed beforehand to the participants who read the paper and prepare discussion questions for the presenter. 

Hosted by Adam Feibelman, Director of the Center on Law and the Economy and Sumter D. Marks Professor of Law at Tulane Law School, CLE workshops are open to faculty, students, and the Tulane community. 

Eisha Jain is the Henry P. Brandis Distinguished Professor of Law. Her research examines how policing decisions shape civil society. Her recent work has focused on immigration enforcement, criminal records, misdemeanors, and collateral consequences. Her scholarship has been published widely in leading law journals, including the Yale Law Journal, the Stanford Law Review, the University of Pennsylvania Law Review, the Duke Law Journal, and the Georgetown Law Journal. 

Jain previously worked as a civil rights lawyer, where she focused on police misconduct and wrongful conviction. For her work, she was recognized as a Public Justice Trial Lawyer of the Year Finalist. She clerked for the Hon. Walter K. Stapleton of the U.S. Court of Appeals for the Third Circuit. She earned her J.D. from Yale Law School, where she served as student director of the Immigration and Child Advocacy Clinics and won the Michael Egger Prize for the best student article published in the Yale Law Journal on a current social problem. She organizes the Carolina Law Scholarship Roundtable, which brings innovative scholars to Carolina Law to workshop book manuscripts and other works-in-progress relating to public law topics. Previously, she served as the Louis A. Horvitz Visiting Professor of Law at Harvard Law School.

ABSTRACT:

An arrest has long been defined as a temporary detention of liberty, or a seizure, for Fourth Amendment purposes. But today, when the government arrests someone, it engages in more than a seizure. The government also marks an arrested individual with a criminal record, and that record functions as a regulatory bullhorn. Arrest records alone trigger systemic consequences for immigration, public housing, social services, professional licensing, and a host of other arenas. These penalties often unfold contemporaneously with arrest, and they take place even without conviction. In the aggregate, these consequences have an enormous impact. Yet they remain insulated from traditional avenues of accountability. Penalties triggered by arrest are untethered from both substantive criminal law and procedure. As a result, society at large experiences profound uncertainty about the nature and reach of arrest decisions. This uncertainty extends to visualizing the most basic pathways between arrest and downstream regulatory consequences. The irony is this: even as the government tracks, publishes, and utilizes arrest records on a scale never before seen, the public has increasingly little opportunity to visualize, much less address, the systemic consequences of arrest. This Article explains how arrests create a legibility gap, shows that it is linked to doctrinal path dependence, and it offers one possibility for reform: reconceptualizing arrest not as one process, but rather three, namely i) a seizure for Fourth Amendment purposes, ii) a marking process, through the creation of the criminal record, and iii) a regulatory process tied to dissemination of that record. Taking this approach offers potential payoffs for doctrine, institutional design, and lawyering, which this Article begins to explore.