Rachel Harmon (University of Virginia School of Law) has posted Why Arrest? on SSRN. Here is the abstract:
It is no exaggeration to say that arrests are the paradigmatic police activity. While many debate the necessity of particular arrests, neither participants in the criminal justice system nor contemporary critics have seriously considered whether law enforcement – as a general matter -- requires arrests. This essay challenges the long-held assumption that, even if not every arrest is legitimate, arrests as a general matter are worthwhile because they are critical to law enforcement goals. As recent news events have suggested, arrests are more harmful than they first seem, not only to the individuals arrested but also to their families and to society as a whole. More importantly, our traditional justifications for arrests -- starting the criminal process and maintaining public order – at best support a much more limited practice of arrest than we currently permit. Overwhelmingly, arrests can be replaced with alternatives, even for serious crimes, and neither public safety nor public order will likely much suffer. As a result, whether or not arrests are fairly imposed on individuals, contemporary arrest practice is illegitimate because the coercion it involves is largely unnecessary.
