Collateral Incentives to Arrest

76 Pages Posted: 4 Aug 2015 Last revised: 25 Aug 2015

See all articles by Elina Treyger

Elina Treyger

affiliation not provided to SSRN

Date Written: August 3, 2015


In the 1960s, criminal procedure experts such as Wayne LaFave documented the use of custodial arrests for all sorts of purposes, from arrests of gamblers to disrupt their activities to arrests of prostitutes for medical examinations. The same experts also claimed that arrests made for purposes other than prosecution are illegitimate. Today, police arrest in pursuit of a comparably broad set of aims and are influenced by a variety of considerations in that decision. This Article draws attention to a problematic subset of influences on arrest decisions, which arise as a result of “collateral incentives.” Incentives to arrest are “collateral” when they lead police to arrest on the basis of factors irrelevant to the suspect’s likely guilt of the crime of arrest, and when police may reap the full benefits offered by these incentives irrespective of the suspect’s guilt of, or prosecution for, the crime of arrest. Collateral incentives may be created by a variety of policies: this Article focuses on two on-arrest biometric screening regime as examples, one set up by the federal government’s Secure Communities program and another regime set up by the state and federal laws authorizing the collection of DNA from arrestees. These policies create incentives to target likely immigration violators and likely criminal recidivists, respectively.

Notwithstanding the fact that both immigration screening and DNA collection advance important public goals, collateral incentives to arrest are a cause for concern for two sets of reasons. First, if the principles asserted by the scholars of the 1960s remain viable, collateral incentives plainly lead police to misuse their arrest discretion. And, as the Article suggests, the claim that prosecution is the proper purpose of custodial arrests largely survived into the modern era as a normative principle. Second, collateral incentives are likely to exacerbate unwarranted inequalities in arrest patterns, in addition to reducing the quality of arrests for a subset of crimes. The Article generates empirical expectations about the effects of collateral incentives, suggesting in particular that the effects are not limited to high-discretion petty crimes that commonly cause concern about discretionary power. As the number and scope of electronic databases increases, so does temptation to use the moment of arrest to advance other public policy goals with their aid. This Article articulates the normative and practical case for resisting the temptations to use data-driven technological advances to reshape the use of a key instrument of state coercion, the custodial arrest.

Keywords: arrest quality, collateral incentives, criminal procedure, custodial arrest, DNA collection, Fourth Amendment, immigration screening, police discretion, pretextual arrest, prosecution principle, Secure Communities, Terry v. Ohio

JEL Classification: K14

Suggested Citation

Treyger, Elina, Collateral Incentives to Arrest (August 3, 2015). Kansas Law Review, Vol. 63, No. 3, pp. 557-631, 2015, George Mason Legal Studies Research Paper No. LS 15-02, Available at SSRN:

Elina Treyger (Contact Author)

affiliation not provided to SSRN

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