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CAPITALIZING ON CRIMINAL JUSTICE
EISHA JAIN†
ABSTRACT
The U.S. criminal justice system “piles on.” It punishes too many
for too long. Much criminal law scholarship focuses on the problem of
excessive punishment. Yet for the low-level offenses that dominate state
court workloads, much of the harm caused by arrests and convictions
arises outside the formal criminal sentence. It stems from spiraling
hidden penalties and the impact of a criminal record. The key question
is not just why the state over-punishes, but rather why so many different
institutions—law enforcement institutions as well as civil regulatory
agencies and private actors—find it valuable to do so. This Article
argues that the reach of the criminal justice system is not just the
product of overly punitive laws, but also the product of institutions
capitalizing on criminal law decisions for their own ends. Criminal law
is meant to serve a public purpose, but in practice, key institutions
create, disseminate, and rely on low-level criminal records because they
offer a source of revenue or provide a cost-effective way of achieving
discrete administrative objectives. These incentives drive and expand
the reach of the criminal justice system, even as they work in tension
with the state’s sentencing goals. This dynamic creates obvious harm.
But it also benefits key actors, such as municipalities, privatized
probation companies, background check providers, employers, and
others who have incentives to maintain the system as it is. This Article
identifies how organizational incentives lead a host of institutions to
capitalize on criminal law decisions, and it argues that reform efforts
must, as a central goal, recognize and respond to these incentives.

Copyright © Eisha Jain.
† Assistant Professor of Law, University of North Carolina School of Law. This Article
benefited greatly from comments by Monica Bell, Guy-Uriel Charles, Kami Chavis, Erin Collins,
Debby Denno, Sharon Dolovich, Jessica Eaglin, Ingrid Eagly, Melissa Jacoby, Irene Joe, Joseph
Kennedy, Margaret Colgate Love, Bill Marshall, Sandy Mayson, Tracey Meares, Eric Muller,
Erin Murphy, Sasha Natapoff, Mark Weidemaier, Erika Wilson, and from comments provided at
the Criminal Law Roundtable hosted by Columbia Law School, the Neighborhood Criminal Law
Roundtable hosted by the University of Virginia School of Law, the Culp Colloquium hosted by
Duke University School of Law, and from faculty presentations at Duke, UCLA, and Wake
Forest School of Law, as well as from editorial work provided by the Duke Law Journal.

Electronic copy available at: https://ssrn.com/abstract=3171440

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TABLE OF CONTENTS
Introduction .......................................................................................... 1382
I. The Role of the State ...................................................................... 1388
A. The Overcriminalization Framework .............................. 1388
B. The Missing Picture ........................................................... 1391
II. Institutional Incentives and the Mark of a Criminal Record .... 1395
A. Institutional Structure........................................................ 1396
B. Institutional Incentives ...................................................... 1401
1. Marking and Criminal Justice Decisions...................... 1402
2. Marking Outside the Criminal Justice System ............. 1411
C. Regulatory Oversight......................................................... 1417
III. Implications for Misdemeanor Reform...................................... 1419
A. Identifying Stakeholders ................................................... 1420
B. Cost-Benefit Analysis ........................................................ 1422
C. Realigning Incentives ........................................................ 1427
Conclusion ............................................................................................. 1430

INTRODUCTION
The U.S. criminal justice system “pil[es] on.”1 Police over-arrest,
and the state over-imprisons. Commentators denounce “the challenge
of over-criminalization; of over-incarceration; and over-sentencing.”2
An ideologically diverse coalition views the criminal justice system as
far too large.3 The Heritage Foundation, the Koch Foundation, and the

1. Christopher Uggen & Robert Stewart, Piling On: Collateral Consequences and
Community Supervision, 99 MINN. L. REV. 1871, 1872 (2015).
2. Marie Gottschalk, The Folly of Neoliberal Prison Reform, BOS. REV. (June 8, 2015),
http://bostonreview.net/books-ideas/marie-gottschalk-neoliberal-prison-reform-caught [https://
perma.cc/7JXH-MKZJ] (quoting Senator Mike Lee, “an influential Tea Party Republican”);
Adam Liptak, Right and Left Join Forces on Criminal Justice, N.Y. TIMES (Nov. 23, 2009) (“The
problem of overcriminalization is truly one of those issues upon which a wide variety of
constituencies can agree . . . . Witness the broad and strong support from such varied groups as
the Heritage Foundation, the Washington Legal Foundation, the National Association of
Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the
A.C.L.U.” (quoting Dick Thornburgh, attorney general under Presidents Ronald Reagan and
George H.W. Bush)).
3. See, e.g., MICHAEL B. MUKASEY & PAUL J. LARKIN, JR., THE HERITAGE FOUND., THE
PERILS OF OVERCRIMINALIZATION 1 (2015), http://www.heritage.org/report/the-perilsovercriminalization [https://perma.cc/77P3-Y3AJ]; Charles G. Koch & Mark V. Holden, The
Overcriminalization of America: How to Reduce Poverty and Improve Race Relations by
Rethinking Our Justice System, POLITICO (Jan. 7, 2015), http://www.politico.com/magazine/story/
2015/01/overcriminalization-of-america-113991 [https://perma.cc/95RK-7SMY].

Electronic copy available at: https://ssrn.com/abstract=3171440

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American Civil Liberties Union, among others, denounce the
overcriminalization of America.4 Commentators agree that the harms
of excessive punishment reach well beyond prison walls.5 Criminal
penalties can trigger economic loss, break up families, damage
communities, erode faith in the police, and lead to outcomes that
appear arbitrary and procedurally unfair.6 Those released from prison
can face collateral consequences long after the sentence has been
served.7
4. Ellen S. Podgor, Overcriminalization: The Politics of Crime, 54 AM. U. L. REV. 541, 541
(2005) (“The Heritage Foundation and the National Association of Criminal Defense
Lawyers (NACDL), two groups with very distinct missions, joined together . . . to examine the
topic of overcriminalization.”). Others likewise warn that overbroad criminal laws make it
possible for anyone to be treated “like a criminal.” See, e.g., Alex Kozinski & Misha Tseytlin,
You’re (Probably) a Federal Criminal, in IN THE NAME OF JUSTICE: LEADING EXPERTS
REEXAMINE THE CLASSIC ARTICLE, “THE AIMS OF THE CRIMINAL LAW” 43–56 (Timothy Lynch
ed., 2009); Cara Sullivan, Criminalizing America: How Big Government Makes a Criminal out of
Every American, AM. LEGIS. EXCH. COUNCIL (Nov. 12, 2013), https://www.alec.org/
article/criminalizing-america [https://perma.cc/Z3QW-5EGP]. For examples of other criticisms,
see MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS 58 (2010) (arguing that the criminal justice system is designed to promote
racial subordination); INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS
IMPRISONMENT 1–2 (Marc Mauer & Meda Chesney-Lind eds., 2002) (arguing that collateral
consequences function as an invisible form of punishment); Gabriel J. Chin, The New Civil Death:
Rethinking Punishment in the Era of Mass Conviction, 160 U. PA. L. REV. 1789, 1790 (2012).
5. Though commentators on the right and left agree on the need for criminal justice reform,
there are important differences between their approaches. For a discussion of these differences,
see MARIE GOTTSCHALK, CAUGHT: THE PRISON STATE AND THE LOCKDOWN OF AMERICAN
POLITICS 2–3 (2015).
6. The literature is far too voluminous to catalogue here. For selected recent contributions,
see Monica C. Bell, Police Reform & the Dismantling of Legal Estrangement, 126 YALE L.J. 2054,
2068–73 (2017); Tracey L. Meares, Tom R. Tyler & Jacob Gardner, Lawful or Fair? How Cops
& Laypeople Perceive Policing, 105 J. CRIM. LAW & CRIMINOLOGY 297, 307–11 (2016).
7. Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the
Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 700 (2002) (arguing that collateral
consequences can be far more meaningful than the formal criminal sentence); Eisha Jain,
Prosecuting Collateral Consequences, 104 GEO. L.J. 1197, 1208–09 (2016) (cataloguing different
types of collateral consequences); Sandra G. Mayson, Collateral Consequences and the Preventive
State, 91 NOTRE DAME L. REV. 301, 306–09 (2015); Michael Pinard, Collateral Consequences of
Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. REV. 457, 489–94
(2010); Michael Pinard & Anthony C. Thompson, Offender Reentry and the Collateral
Consequences of Criminal Convictions: An Introduction, 30 N.Y.U. REV. L. & SOC. CHANGE 585,
593–98 (2006); J.J. Prescott, Portmanteau Ascendant: Post-Release Regulations and Sex Offender
Recidivism, 48 CONN. L. REV. 1035, 1038–41, 1055–58 (2016) (discussing sex offender registries);
Jenny Roberts, The Mythical Divide Between Collateral and Direct Consequences of Criminal
Convictions: Involuntary Commitment of “Sexually Violent Predators,” 93 MINN. L. REV. 670,
720–23 (2008) (arguing that the severity of a collateral consequence should be relevant in
determining a defendant’s constitutional criminal procedure rights); McGregor Smyth, Holistic Is
Not a Bad Word: A Criminal Defense Attorney’s Guide to Using Invisible Punishments as an
Advocacy Strategy, 36 U. TOL. L. REV. 479, 479–80 (2005); see also MARGARET COLGATE LOVE,

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In the past fifty years, overcriminalization has become the
dominant conceptual framework for understanding the reach of the
U.S. criminal justice system.8 Critics warn about the impact of
overbroad criminal laws and their potential to suppress individual
rights,9 and about the devastating toll of mass incarceration and its
potential to operate as a new form of “civil death” or as the “new Jim
Crow.”10
The overcriminalization framework is powerful. It draws attention
to the problem of excessive punishment, well beyond what can be
justified by the state’s sentencing goals. Yet in focusing on excessive
criminal penalties, this framework is also incomplete. It obscures how
harm unfolds for the low-level offenses that consume the bulk of state
criminal court caseloads.11 For these offenses, the criminal penalty
itself may not appear disproportionate, at least as an initial matter.
Rather, harm arises over time, including from spiraling criminal justice
debt and ubiquitous reliance on criminal records by employers and
others. The key question is not why the “state” imposes so much harm;
it is why so many actors—police and prosecutors, as well as private
actors and regulatory agencies—find it valuable to do so.
This Article argues that the reach of the criminal justice system is
not only the product of the state “piling on.” It is also the product of
disaggregated institutions—both state and nonstate actors—making
choices that they view as rational responses to discrete organizational
incentives. That is not to say that these incentives themselves are
JENNY M. ROBERTS & CECELIA KLINGELE, COLLATERAL CONSEQUENCES OF CRIMINAL
CONVICTIONS: LAW, POLICY AND PRACTICE (2013) (cataloguing collateral consequences).
8. See Roger A. Fairfax, Jr., From “Overcriminalization” to “Smart on Crime”: American
Criminal Justice Reform—Legacy and Prospects, 7 J.L. ECON. & POL’Y 597, 597–98 (2011)
(describing rhetoric relating to being “smart on crime” as a welcome change from rhetoric relating
to being “tough” on crime); Sanford H. Kadish, Legal Norm and Discretion in the Police and
Sentencing Processes, 75 HARV. L. REV. 904, 909 (1962) [hereinafter Kadish, Legal Norm];
Sanford H. Kadish, The Crisis of Overcriminalization, 7 AM. CRIM. L.Q. 17, 17 (1967); Erik Luna,
Prosecutorial Decriminalization, 102 J. CRIM. L. & CRIMINOLOGY 785, 791 (2012). See generally
Reining in Overcriminalization: Assessing the Problem, Proposing Solutions: Hearing Before the
Subcomm. on Crime, Terrorism, and Homeland Sec. Comm. on the Judiciary, 111th Cong. (2010);
DOUGLAS HUSAK, OVERCRIMINALIZATION: THE LIMITS OF THE CRIMINAL LAW (2009)
(arguing that American criminal punishment is increasingly unjust and excessive and is in need of
limiting principles).
9. Kozinski & Tseytlin, supra note 4, at 43–56; Sullivan, supra note 4.
10. ALEXANDER, supra note 4, at 58; Chin, supra note 4, at 1790.
11. This Article uses the term “low-level” arrests to refer to arrests below the grade of felony.
It encompasses both misdemeanors (typically punished by a maximum of a year in prison, and in
practice, punished by little or no prison time) as well as infractions or violations (noncriminal
offenses in penal law, typically punished by a fine).

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desirable, nor that they create rational public policy outcomes. Rather,
the organizational logic that motivates key institutions is distinct
from—and often in tension with—the sentencing interests of the state.
In theory, criminal justice decisions—arrests, convictions, and the
use of criminal records—should reflect the state’s interest in
punishment, such as in deterring crime. The institutions that generate
and rely on criminal records are at times motivated by these concerns.
But they also pursue other goals. They value arrests and their attendant
criminal records as a source of revenue, as a way to demonstrate
productivity, or because they offer a relatively low-cost way to monitor
and manage populations over time. State actors, in effect, wear two
hats; at times, they respond to public safety interests, but at other times,
they respond to other incentives, particularly perceived financial
incentives. Once criminal records are created, noncriminal legal
institutions have incentives to appropriate them for a host of reasons.
Criminal records fulfill a credentialing function. They offer a relatively
cheap way to select job applicants, manage risk, insulate against
liability for torts such as negligent hiring, and allocate scarce resources
such as public benefits. The process of checking records can ease
psychological anxiety about crime and, in some cases, it can deter
crime. The financial benefits of this system are diffuse; they are
experienced by employers, landlords, and regulatory agencies such as
those tasked with providing professional licenses. The costs,
meanwhile, are disproportionately experienced by the poor and people
of color, who are the most likely both to be arrested and to experience
disproportionate penalties as the result of a criminal record.12
Because criminal law theory tends to conceptualize criminal
punishment as driven by the state’s interest in the abstract, it has
overlooked the importance of disaggregated interest group
preferences in maintaining the current system. By contrast, in other
areas of policy, scholars and courts recognize how rational interest
group preferences lead to policies that deviate from the state’s interest.
To offer an imperfect analogy, consider the funding structure for public
schools. If public education seeks to provide each child with an equal
12. See Poverty and Opportunity Profile, Americans with Criminal Records, SENTENCING
PROJECT,
http://www.sentencingproject.org/wp-content/uploads/2015/11/Americans-withCriminal-Records-Poverty-and-Opportunity-Profile.pdf
[https://perma.cc/CK6X-NZBJ]
(reporting that “[b]lack men are six times more likely to be incarcerated than white men, and
Hispanic men are 2.5 times more likely to be incarcerated than white men”). See generally Paul
D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 YALE L.J. 2176 (2013)
(arguing that poor African Americans are disproportionately the targets of mass incarceration).

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opportunity,13 then a funding structure tied to local property taxes
misses the mark. It permits significant funding disparities.14 Yet reform
requires more than assessing how these disparities undercut society’s
interest in education.15 It also requires identifying the interests of
stakeholders, such as homeowners or local governments in well-funded
districts.16 These stakeholders have interests in maintaining a system
that promotes their own interests, even when they recognize that it is
not an optimal system overall, one that accounts for the interests of
society at large.
This Article seeks to expand discussions of overcriminalization
beyond the role of the state. It seeks to identify and account for the
interests of stakeholders in maintaining the reach of the low-level
criminal justice system. Stakeholders are not just interest groups like
victims’ rights organizations that seek laws that are “tough on crime.”
They also include those who value access to criminal records for a
variety of reasons.
The influence of key stakeholders has important implications for
reform. For one, it calls into question the extent to which low-level
arrests and convictions fulfill an appropriate public purpose. Key
institutions such as police, prosecutors, privatized probation
companies, background check providers, and others extract value from

13. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (describing education as “perhaps the
most important function of state and local governments” and stating that, “it is doubtful that any
child may reasonably be expected to succeed in life if he is denied the opportunity of an education.
Such an opportunity, where the state has undertaken to provide it, is a right which must be made
available to all on equal terms.”).
14. Cory Turner et al., Why America’s Schools Have a Money Problem, NPR (Apr. 18, 2016,
5:00
AM),
http://www.npr.org/2016/04/18/474256366/why-americas-schools-have-a-moneyproblem [https://perma.cc/KC4M-QXJF] (discussing how differences in local funding means that
the state invests far more per student in wealthier districts, and offering an example of a district
that invests $9794 per student, while a wealthier district an hour away invests $28,639 per student).
15. Funding disparities have been criticized for undercutting the state’s interest in promoting
equality of opportunity. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 70 (1973)
(Marshall, J. dissenting).
Id.
16. For a discussion of the local politics of access to schools, see Nikole Hannah-Jones,
Choosing a School for My Daughter in a Segregated City, N.Y. TIMES (June 9, 2016)
https://www.nytimes.com/2016/06/12/magazine/choosing-a-school-for-my-daughter-in-asegregated-city.html [https://perma.cc/QQ4U-XKXL] (“In a city where white children are only
15 percent of the more than one million public-school students, half of them are clustered in just
11 percent of the schools, which not coincidentally include many of the city’s top performers.”).
See also Erika K. Wilson, Toward a Theory of Equitable Federated Regionalism in Public
Education, 61 UCLA L. REV. 1416, 1446 (2014) (discussing local governments in high property
tax areas as stakeholders).

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the process of creating and using criminal records. This creates the risk
that the criminal justice process is being imposed not for the benefit of
the public, but for the benefit of particular institutions.17 This dynamic
also affects the methods used by scholars to evaluate the need for
reform. In particular, it calls into question the efficacy of cost-benefit
analysis, which has in recent years spurred reform by showing how the
costs of mass incarceration do not produce corresponding societal
benefits. Yet this type of cost-benefit analysis may not work in the
context of low-level arrests and collateral consequences. That is
because disaggregated institutions stand to derive significant benefits
from criminal justice decisions, regardless of their overarching costs.
Responding to overcriminalization thus may require key institutions to
change their practices, including by removing access to criminal record
information that many find valuable.
This Article proceeds as follows: Part I argues for a more
expansive understanding of overcriminalization. In particular, it argues
for focusing on low-level offenses, where the initial criminal
punishment may not appear excessive, and for taking into account
actors other than police, prosecutors, and judges. Part II identifies how
key institutions use criminal justice decisions instrumentally. They use
the criminal justice system to generate revenue, keep down costs, or
achieve other organizational objectives. It argues that these decisions
reflect a certain organizational logic, although the sum of these
decisions does not make for rational policy overall. Part III examines
the implications of these dynamics for misdemeanor reform. It argues
for the importance of identifying stakeholders in the current system.
Stakeholders include those with a vested financial interest in the
criminal justice system, such as privatized probation companies and the
background check industry, as well as others who gain significant value
from widespread access to records. It also questions whether costbenefit analysis—which has been an important force in spurring reform
targeted at mass incarceration—is of similar use in the context of lowlevel offenses. Lastly, it preliminarily considers potential avenues for
realigning the interests of stakeholders with those of the state.

17. By “institution,” this Article refers to formal organizations, whose purpose and structure
are defined by an external set of rules. For a similar approach, see SHARON DOLOVICH &
ALEXANDRA NATAPOFF, NEW CRIMINAL JUSTICE THINKING 3–4 (2017) (arguing that the “full
range of relevant law” governing criminal justice decisions includes not only the formal criminal
punishment, but also “the laws establishing the terms of the penalties as actually served, along
with the civil remedies, collateral consequences and disabilities, and all the laws of all the
institutions—civil as well as criminal—that make up the socio-criminal complex”).

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I. THE ROLE OF THE STATE
The dominant overcriminalization framework focuses on the
state’s role in creating excessive criminal punishment. It has been
enormously influential in illuminating the financial, psychological, and
other burdens of mass incarceration, as well as its disparate impact on
the poor and people of color. This Part briefly introduces the
framework. It argues that while the overcriminalization account has a
great deal of explanatory power, it is also incomplete. The
overcriminalization account is state focused, particularly felony
focused. This focus risks obscuring how harm unfolds from low-level
arrests, where the initial formal penalty is typically minimal. Harm
arises over time, including through the use of criminal records. In
addition, the overcriminalization framework tends to take a bird’s eye
view of the criminal justice system; it focuses on the aggregate costs
and benefits of the system as a whole. This approach is effective in
demonstrating how the costs of the system outweigh its benefits.
However, it risks obscuring the powerful incentives that lead discrete
actors to create, disseminate, and rely on criminal records. As Part II
discusses, these incentives are key to understanding why the system
remains in place.
A. The Overcriminalization Framework
It’s a familiar story by now. The U.S. criminal justice system is a
colossus, its reach unprecedented by both global and historical
measures.18 The United States houses approximately one-fifth of the
world’s prisoners.19 Yet incarceration represents just a fraction of the
criminal justice system. About 1 percent of the U.S. adult population—
2.3 million Americans—lives in prisons or jails. Almost twice as
many—four million people—are on probation.20 Approximately one
18. See LAUREN E. GLAZE & ERINN J. HERBERMAN, BUREAU OF JUSTICE STATISTICS,
DEP’T OF JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 2012, at 1 (2013),
http://www.bjs.gov/content/pub/pdf/cpus12.pdf [https://perma.cc/THA8-HAKJ] (reporting that
approximately one out of every thirty-five adults in the United States, or approximately 3 percent
of the adult population, is under some form of correctional supervision—probation, parole, or
incarceration); Adam Liptak, Inmate Count in U.S. Dwarfs Other Nations’, N.Y. TIMES (Apr. 23,
2008), http://www.nytimes.com/2008/04/23/us/23prison.html [https://perma.cc/DY8Q-VUN4].
19. ROY WALMSELY, INST. FOR CRIMINAL JUSTICE POLICY, WORLD PRISON POPULATION
LIST 5 (11th ed., 2016), http://prisonstudies.org/sites/default/files/resources/downloads/world_
prison_population_list_11th_edition.pdf [https://perma.cc/T4WN-UCZ7]. See generally Sharon
Dolovich, Foreward: Incarceration American-Style, 3 HARV. L. & POL’Y REV. 237, 254 & n. 114
(2009) (discussing American prison conditions).
20. LAUREN E. GLAZE & ERINN J. HERBERMAN, BUREAU OF JUSTICE STATISTICS, DEP’T

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out of every thirty-five adults live under some form of corrective
supervision—incarceration, probation, or parole.21 An estimated one
out of every three people will be arrested by the time they reach the
age of twenty-three.22 For African Americans, the number is closer to
one in two.23
In the past fifty years, overcriminalization has become the
dominant conceptual framework for understanding this dynamic. First
coined by Professor Sanford Kadish in 1962, the concept of
overcriminalization focuses on using criminal sanctions—the “heavy
artillery of society”—to reach conduct that could be better regulated
by other means.24 While there is no single definition of
overcriminalization, common hallmarks include overbroad criminal
laws, grossly disproportionate punishment, and excessive delegation of
discretion to law enforcement officers.25 This, in turn, leads to arbitrary
OF JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 2013, at 2 (2014),
https://www.bjs.gov/content/pub/pdf/cpus13.pdf [https://perma.cc/8KUW-N3F9].
21. See GLAZE & HERBERMAN, supra note 18, at 1.
22. Robert Brame, Michael G. Turner, Raymond Paternoster & Shawn D. Bushway,
Cumulative Prevalence of Arrest from Ages 8 to 23 in a National Sample, 129 PEDIATRICS 21, 25
(2012).
23. Robert Brame, Michael G. Turner, Raymond Paternoster & Shawn D.
Bushway, Demographic Patterns of Cumulative Arrest Prevalence by Ages 18 and 23, 60 CRIME &
DELINQ. 471, 478 (2014).
24. Kadish, Legal Norm, supra note 8, at 909; Paul J. Larkin, Jr., Public Choice Theory and
Overcriminalization, 36 HARV. J.L. & PUB. POL’Y 715, 721 (2013); Luna, supra note 8, at 785 (“As
far as I can tell, Sanford Kadish coined the term ‘overcriminalization’ in a 1962 article in the
Harvard Law Review, where he noted the phenomenon of ‘criminal statutes which seem
deliberately to overcriminalize, in the sense of encompassing conduct not the target of legislative
concern.’”); see also Francis A. Allen, The Morality of Means: Three Problems in Criminal
Sanctions, 42 U. PITT. L. REV. 737, 738 (1981) (describing criminal law as the “heavy artillery of
society”); Fernando Molina, A Comparison Between Continental European and Anglo-American
Approaches to Overcriminalization and Some Remarks on How to Deal with It, 14 NEW CRIM. L.
REV. 123, 125 (2011) (defining overcriminalization as “too much criminal law”); Josh Shepherd,
The Government vs. YOU, DAILY SIGNAL (June 14, 2013), http://dailysignal.com//2013/06/14/
morning-bell-the-government-vs-you/?_ga=1.173785766.444958766.1482949459 [https://perma.cc
/DC2H-WBS8] (describing overcriminalization and activism to counteract it).
25. Professor Sara Sun Beale defines overcriminalization as characterized by: “(1) excessive
unchecked discretion in enforcement authorities, (2) inevitable disparity among similarly situated
persons, (3) potential for abuse by enforcement authorities, (4) potential to undermine other
significant values and evade significant procedural protections, and (5) misdirection of scarce
resources (opportunity costs).” Sara Sun Beale, The Many Faces of Overcriminalization: From
Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747, 749 (2005). Similarly,
Erik Luna defines overcriminalization as characterized by the following characteristics: “(1)
untenable offenses; (2) superfluous statutes; (3) doctrines that overextend culpability; (4) crimes
without jurisdictional authority; (5) grossly disproportionate punishments; and (6) excessive or
pre-textual enforcement of petty violations.” Erik Luna, The Overcriminalization Phenomenon,
54 AM. U. L. REV. 703, 717 (2005).

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outcomes, such as arrest decisions that reflect variation in officer
discretion rather than variation in the underlying conduct.26 This
dynamic also undermines the moral force of the criminal justice system
and its deterrent effect.27
Overcriminalization also creates other harm. Mass incarceration
causes employers to lose out on potential workers. Families break up.
It exposes prisoners to the threat of sexual and physical abuse.28 And
the cycle perpetuates itself. Prisoners are unlikely to gain valuable
skills while in prison, and employers are unlikely to hire those with
criminal records or with employment gaps.29 This, in turn, can lead to
recidivism.30
Critics warn that the financial outlay necessary to support mass
incarceration is enormous. As President Barack Obama recently put it:
“If one includes the cost of jail and prison at the state and local level,
the total U.S. budget for incarceration rises to a staggering $81 billion,
enough to fund transformative initiatives like universal preschool for
every three- and four-year old in America . . . .”31
26. Luna, supra note 25, at 723–24.
27. See generally TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990) (empirical study
demonstrating that the public obeys the law largely because of its perceived moral legitimacy, not
due to a fear of getting caught and punished); John C. Coffee, Jr., Paradigms Lost: The Blurring
of the Criminal and Civil Law Models—And What Can Be Done About It, 101 YALE L.J. 1875,
1877 (1992) (arguing that “the criminal law should not be overused” for fairness considerations
because “overuse will impair the criminal law’s nondeterrent functions”); Kenneth Mann,
Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 YALE L.J. 1795,
1802 (1992) (advocating for limiting criminal law to clearly egregious cases where civil damages
would be ineffective).
28. ALLEN J. BECK & CANDACE JOHNSON, DEP’T OF JUSTICE, SEXUAL VICTIMIZATION
REPORTED BY FORMER STATE PRISONERS, 2008, at 8 (2012), http://msnbcmedia.msn.com/
i/MSNBC/Sections/NEWS/z_Personal/Huus/svrfsp08%5B1%5D.pdf
[https://perma.cc/9MS7X85U] (finding that 10 percent of inmates experienced sexual abuse in prison); Jennifer M.
Chacón, Producing Liminal Legality, 92 DENV. L. REV. 709, 745–46 (2015) (discussing the
potential for physical, emotional, and sexual abuse in prison).
29. LAW ENF’T LEADERS TO REDUCE CRIME & INCARCERATION, FIGHTING CRIME &
STRENGTHENING CRIMINAL JUSTICE: AGENDA FOR THE NEW ADMINISTRATION 11 (2017).
30. Id. at 5 (“Bloated prison populations harm more than they protect. . . . The country
spends $274 billion per year on its criminal justice systems, without ensuring the required public
safety gains.”). See generally Loretta E. Lynch, U.S. Att’y Gen., Addressing National Reentry
Week Event in Philadelphia (Apr. 25, 2016) (discussing how collateral consequences for former
prisoners, such as the inability to work or obtain housing, can promote recidivism).
31. Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 HARV.
L. REV. 811, 818 (2017) (citations omitted); see also Jessica M. Eaglin, Improving Economic
Sanctions in the States, 99 MINN. L. REV. 1837, 1843 (2015) (“State and federal correctional costs
now exceed $80 billion per year. After adding judicial, legal, and police costs, this amount climbs
to $260 billion annually.” (footnotes omitted)); Peter Wagner & Bernadette Rabuy, Following
the Money of Mass Incarceration, PRISON POL’Y INITIATIVE (Jan. 25, 2017),

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Despite these costs, the barriers to reform are daunting. There are
many reasons why overbroad criminal laws proliferate. Politics
provides one common explanation. Lawmakers face pressure to
demonstrate that they are “tough on crime.” Another explanation
focuses on lawmakers’ incentives to use the rhetoric of crime control
to generate support for public policy choices that are actually
motivated by the desire to manage the poor and people of color.32
Lawmakers and prosecutors have reason to prefer broad criminal laws
because they allow prosecutors and police to exercise significant
discretion over their caseloads.33 Another explanation is dysfunction in
the lawmaking process. Lawmakers tend to write overinclusive laws
without sufficient regard to the laws already in place. A criminal law
may appear reasonable when viewed in isolation, but “may turn out to
be utterly unreasonable when it is considered against the background
of laws already on the books.”34
B. The Missing Picture
The overcriminalization critique has a great deal of power. It
highlights the gap between the state’s rationales for punishment and its
actual use of criminal sanctions. Yet in today’s world—where criminal
records are seamlessly transmitted and the impact of a criminal record
can last for decades—it is also incomplete. The overcriminalization
account tends to focus on the state’s role in imposing too much
punishment, specifically its role in imposing lengthy felony sentences.
This risks obscuring the impact of low-level arrests and of collateral
consequences triggered by those arrests.
Low-level offenses matter because of their volume, and because
they tend to trigger harm in a different manner than felonies. In terms

https://www.prisonpolicy.org/reports/money.html [https://perma.cc/9LTN-MDF6] (breaking
down the cost of various portions of the criminal justice system).
32. See generally ALEXANDER, supra note 4, at 58 (arguing that the government’s
preoccupation with crime and drug offenses created a pathway for governance through penal
sanctions against minority communities); JONATHAN SIMON, GOVERNING THROUGH CRIME:
HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A
CULTURE OF FEAR (2007) (arguing that crime control has become a “strategic” issue, with the
rhetoric of crime control used to justify policies that are in fact motivated by reasons unrelated to
crime control).
33. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 510
(2001) (describing “the story of American criminal law” as “a story of tacit cooperation between
prosecutors and legislators, each of whom benefits from more and broader crimes”).
34. Larkin, supra note 24, at 722.

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of volume, minor offenses dominate the practices of state courts.35 As
Professor Alexandra Natapoff discusses, misdemeanors outnumber
felonies by a ratio of about five to one.36 Approximately 80 percent of
state caseloads consist of minor offenses.37 Offenses like suspended
license cases, disorderly conduct, minor drug possession, and minor
assault commonly trigger jail time, but they do not typically trigger a
hefty formal sanction.38 Instead, the top concern for many defendants
is whether a conviction will trigger deportation or pose a barrier to
obtaining work, renting a home in public housing, or seeking a student
loan.39
35. Professor William Stuntz described criminal law as “not one field but two. The first
consists of a few core crimes . . . murder, manslaughter, rape, [etc.] . . . . The second consists of
everything else. Criminal law courses, criminal law literature, and popular conversation about
crime focus heavily on the first. The second dominates criminal codes.” Stuntz, supra note 33, at
514.
36. Alexandra Natapoff, Misdemeanor Decriminalization, 68 VAND. L. REV. 1055, 1063
(2015) [hereinafter Natapoff, Misdemeanor Decriminalization]; Alexandra Natapoff,
Misdemeanors, 85 S. CAL. L. REV. 1313, 1320–22 (2012) [hereinafter Natapoff, Misdemeanors]
(summarizing research indicating that “the world of misdemeanors looks to be about four or five
times the size of the world of felonies.”).
37. R. LAFOUNTAIN, R. SCHAUFFLER, S. STRICKLAND & K. HOLT, NAT’L CTR. FOR STATE
COURTS, EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2010 STATE COURT
CASELOADS 24
(2012),
http://www.courtstatistics.org//media/Microsites/Files/CSP/DATA
%20PDF/CSP_DEC.ashx [http://perma.cc/HQ5P-XLCX] (showing that misdemeanors
significantly outnumber felonies in the criminal caseloads of seventeen selected states); R.
LAFOUNTAIN, R. SCHAUFFLER, S. STRICKLAND, C. BROMAGE, S. GIBSON & A. MASON, NAT’L
CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2008
STATE COURT CASELOADS 47 (2010), http://www.courtstatistics.org/Other-Pages//media/
Microsites/Files/CSP/EWSC-2008-Online.ashx [http://perma.cc/4PWV-5BNS] (showing that
misdemeanor cases constitute an “overwhelming majority of criminal caseloads”); Victor Eugene
Flango, Trends in State Courts: Judicial Roles for Modern Courts, NAT’L CTR. FOR STATE CTS.,
http://www.ncsc.org/sitecore/content/microsites/future-trends-2013/home/Monthly-TrendsArticles/Judicial-Roles-for-Modern-Courts.aspx [http://perma.cc/4ZQN-SU4S] (“Approximately
[80] percent of criminal cases are misdemeanors.”).
38. Natapoff, Misdemeanors, supra note 36, at 1321 (describing jail as a “crucial feature of
the misdemeanor landscape”).
39. See, e.g., JAMES JACOBS, THE ETERNAL CRIMINAL RECORD 3 (2015) (“For many,
perhaps the majority of, defendants the most serious consequence of an arrest is the resulting
criminal record.”); Eisha Jain, Arrests As Regulation, 67 STAN. L. REV. 809, 815 (2015); Gabriel
J. Chin, Race, the War on Drugs, and the Collateral Consequences of Criminal Conviction, J.
GENDER RACE & JUST., Fall 2002, at 253, 253–54 (explaining why collateral consequences may
matter more for a low-level drug arrest than the formal sentence); Robert M.A. Johnson, A
Prosecutor’s Expanded Responsibilities Under Padilla, 31 ST. LOUIS U. PUB. L. REV. 129, 132
(2011) (offering examples of the inability to find employment, housing, deportation, and
revocation of a driver’s license as civil consequences that “are often far greater than any
consequence imposed by a judge at sentencing.”); Natapoff, Misdemeanor Decriminalization,
supra note 36, at 1089 (discussing how contact with the criminal justice system can be “devastating
to an offender’s employment and financial future”); Jenny Roberts, Why Misdemeanors Matter:

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These penalties are relatively new. They are distinct from the
inevitable harms that have always accompanied the process of arrest.
Any contact with the criminal justice system can trigger
embarrassment, stress, anxiety, or damage to reputation.40 As former
Labor Secretary Ray Donovan famously asked after his high-publicity
trial and acquittal, “Which office do I go to get my reputation back?”41
To some extent, this type of intangible harm will inevitably arise from
even the most justified prosecutions.
Today, however, contact with the criminal justice system triggers
systemic, formalized, and enduring harm in a way that was not possible
prior to the “big data” revolution.42 Criminal records create harm
starting from the moment of arrest.43 Arrest data are widely
transmitted, and arrests alone can trigger stiff penalties regardless of
whether charges are ultimately dismissed.44
Traditional criminal law theory is poorly situated to understand
how criminal records and collateral consequences affect the experience
of punishment. Criminal law theory focuses on a limited set of state
actors: lawmakers who write criminal laws, police who make arrests,

Defining Effective Advocacy in the Lower Criminal Courts, 45 U.C. DAVIS L. REV. 277, 297–300
(2011) (describing how minor misdemeanors can lead to “major consequences” including
deportation, the ability to “find and keep” work, and to access or remain in public housing).
40. For a discussion of dignitary harm, see Rachel A. Harmon, Why Arrest?, 115 MICH. L.
REV. 307, 326–27 (2016) (Police are permitted to require “every arrestee entering a jail to be
required to strip, open his mouth, lift his tongue, hold out his arms, turn around, and lift his
genitals to enable officers to search for scars, tattoos, and contraband, regardless of the risk he
may pose.”) (citing Florence v. Bd. of Chosen Freeholders, 566 U.S. 316, 333–38 (2012)).
41. Selwyn Raab, Donovan Cleared of Fraud Charges by Jury in Bronx, N.Y. TIMES (May
26, 1987), http://www.nytimes.com/1987/05/26/nyregion/donovan-cleared-of-fraud-charges-byjury-in-bronx.html [https://perma.cc/7DHR-JQVH]. Further, psychological harm is not limited to
the accused. See Darryl K. Brown, Third-Party Interests in Criminal Law, 80 TEX. L. REV. 1383,
1383 (2002) (noting “[t]raditional criminal law theories . . . make [no] place for the collateral
consequences visited upon others when an offender is punished,” and arguing that they should).
42. See Andrew Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 163 U.
PA. L. REV. 327, 354 (2015) (discussing how electronic data “reveals information about individuals
that simply was not knowable in previous generations”); Daniel J. Solove, Digital Dossiers and
the Dissipation of Fourth Amendment Privacy, 75 S. CAL. L. REV. 1083, 1089 (2002) (discussing
law enforcement’s ability to obtain sensitive data from third parties).
43. Criminal history records are defined as “identifiable descriptions and notations of
arrests, detentions, indictments, or other formal criminal charges, and any disposition arising
therefrom, including acquittal, sentencing, correctional supervision, or release.” 42 U.S.C.
§ 14616(I)(4)(A) (2012).
44. Jain, supra note 39, at 826–44 (discussing civil penalties triggered by arrest alone); see
also CRIMINAL JUSTICE POLICY PROGRAM, HARVARD LAW SCHOOL, MOVING BEYOND
MONEY: A PRIMER ON BAIL REFORM (2016), http://cjpp.law.harvard.edu/assets/FINAL-Primeron-Bail-Reform.pdf [https://perma.cc/XJE8-48TV] (discussing the impact of bail on arrestees).

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prosecutors who bring charges and plea bargain, and judges and
juries.45 That is because no one lands in prison without first being
prosecuted and sentenced. By contrast, harm from low-level offenses
arises at many different points in time and from an array of different
actors.
The state plays an important role in triggering formal punishment,
as well as in triggering nonpenal harm that is deeply enmeshed with
criminal punishment.46 In some cases, the state mandates that
convictions trigger certain noncriminal penalties. This occurs, for
instance, when a legal rule mandates deportation or removal from
public housing following a conviction.47 In other cases, legal rules
incentivize private actors or civil regulatory bodies to take enforcement
action, such as through mandatory background checks for certain
occupations or licenses.48 And in other cases, private actors choose to
impose civil penalties absent any overt state regulation, though their
reliance on criminal records is made possible because of access to state
databases.49 The formal criminal penalty is just one aspect of how the
criminal justice system regulates arrested individuals.
For defendants, the consequences of a criminal record can last
long after any criminal sentence is complete.50 Consider the following
examples, collected primarily from a 2014 report that examined the
impact of collateral consequences on a number of different
communities: A twenty-five-year-old conviction for possessing twentyfive dollars of cocaine cost Chicago resident Darrell Langdon a job as

45. Cf. DOLOVICH & NATAPOFF, supra note 17, at 3 (arguing for expanding the focus of
criminal law scholarship to include “civil remedies, collateral consequences and disabilities,”
rather than focusing solely on the formal criminal justice process).
46. The Supreme Court has recognized this dynamic in the context of deportation. In Padilla
v. Kentucky, 559 U.S. 356 (2010), the Court ruled that deportation is so “enmeshed” with the
criminal justice system that defense attorneys have a Sixth Amendment obligation to warn
defendants if a plea agreement may trigger mandatory deportation. Id. at 365.
47. The criminal conviction at issue in Padilla mandated deportation. Id. at 366.
48. See 24 C.F.R. § 966.4(l)(5)(i)(B) (2017) (requiring public housing leases to contain
language that prohibits drug-related activity on or off the premises); James Jacobs & Tamara
Crepet, The Expanding Scope, Use, and Availability of Criminal Records, 11 N.Y.U. J. LEGIS. &
PUB. POL’Y 177, 209 (2008) (offering examples of the Patriot Act and other federal laws that
require background checks).
49. Wayne Logan describes this type of discretionary penalty—one that is not formally
imposed by the state but that falls within “the gamut of negative social, economic, medical, and
psychological consequences of conviction”—as an informal “collateral consequence.” Wayne
Logan, Informal Collateral Consequences, 88 WASH. L. REV. 1103, 1104 (2013).
50. See JACOBS, supra note 39, at 195–207 (2015) (discussing injuries resulting from public
access to arrest information, even absent convictions).

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a school boiler-room engineer.51 A fifteen-year-old nonviolent drug
conviction barred Florida mother Jessica Chappione from
volunteering at her children’s school.52 Low-level arrests can also
trigger steep penalties even without conviction. Bronx resident
Michailon Rue, for instance, was never convicted of a crime, but he lost
his $17-an-hour job as a maintenance worker because of the repeated
court dates for his criminal case.53
These cases illustrate how the creation of a criminal record—both
through the process of arrest and conviction—can hold a significance
that is distinct from the act of punishment. The complaint is not that
the state made an incorrect decision to punish, nor that the formal
punishment itself was excessive or inappropriate. Rather, contact with
the criminal justice system triggered penalties that the defendant
experienced as a grossly disproportionate and unjustified form of
punishment.
In sum, the overcriminalization framework, with its focus on
overbroad laws and excessive criminal penalties, risks obscuring
important aspects of low-level criminal cases. It also takes a narrow
view of the relevant players—police, prosecutors, and others who
administer punishment. This approach overlooks the many different
institutions that impose harm through low-level offenses and their
collateral consequences. As the next Part discusses, the incentives of
these institutions are key to understanding why the system remains in
place.
II. INSTITUTIONAL INCENTIVES AND THE MARK OF A CRIMINAL
RECORD
In the context of misdemeanors, overcriminalization is not just the
product of overbroad laws or excessive penalties. It is also the product
of discrete choices to treat criminal records as valuable commodities.
This Part identifies the incentives and institutional design features that

51. NAT’L ASSOC. OF CRIMINAL DEF. LAWYERS, COLLATERAL DAMAGE: AMERICA’S
FAILURE TO FORGIVE OR FORGET IN THE WAR ON CRIME 19 (2014), http://www.nacdl.org/
restoration/roadmapreport [https://perma.cc/4AGW-PZEJ] (collecting testimony from over 150
witnesses in six cities regarding the impact of collateral consequences). Langdon was eventually
able to get his job back, with the assistance of “a dedicated attorney, a sympathetic judge, and
media attention.” Id. at 22.
52. Id.
53. William Glaberson, In Misdemeanor Cases, Long Waits for Elusive Trials, N.Y.
TIMES (Apr.
30,
2013),
http://www.nytimes.com/2013/05/01/nyregion/justice-denied-formisdemeanor-cases-trials-are-elusive.html [https://perma.cc/668Q-Z6FZ].

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facilitate overcriminalization in this context. First, the criminal justice
bureaucracy is just one of many that process criminal records. Thus,
even when the key players within any given criminal justice system—
police, prosecutors, and judges—reach dispositions that reflect
appropriate penal aims, other legal institutions have the ability to
magnify the impact of a criminal record. Criminal justice actors have
little ability to control the full impact of a record, including when it cuts
against their sentencing objectives.
Second, both criminal law enforcement institutions and others
have incentives to use criminal records for reasons that are distinct
from the state’s interest in punishment. Criminal records are at times
created and used to promote public safety or to serve retributive ends.
But other considerations, particularly financial incentives, skew
decisions at every stage of the process. Money can skew decisions to
make arrests, affect who ends up with an arrest record, and play a
critical role in decisions relating to bail and the imposition of
probation. Once criminal records are created, financial incentives drive
how those records are used. The process is furthered by the
privatization of key aspects of criminal justice industry, as well as by
the privatized background check industry. It is also driven by
institutions that rely on records to lower costs, generate revenue, and
monitor risk. This dynamic undermines the public purposes of
punishment. It creates the risk of harm being imposed not for the
benefit of the community at large, but rather for the benefit of
particular institutions—law enforcement agencies, private actors,
privatized commercial background check providers, and others who
extract value from the use of criminal records.
This Part first explains how interactions between criminal and
noncriminal legal institutions prevent prosecutors and judges from
controlling the full impact of a criminal record. The bulk of this Part
then discusses the organizational incentives, with a focus on financial
incentives, that magnify the impact of low-level arrests and convictions.
Lastly, it explains how these at times conflicting uses of the criminal
justice system are not subject to meaningful regulatory oversight.
A. Institutional Structure
Discussions of the institutional structure of criminal law
commonly focus on the division of power between various actors

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tasked with formal law enforcement power.54 Within any given law
enforcement bureaucracy, actors work together to achieve their
agency’s goals: police, prosecutors, judges, and others work together to
create dispositions that reflect the agency’s priorities. The process is
flawed, by many measures, but there is a process.55
By contrast, there is no single process that governs the use and
impact of criminal records. The relevant institutions include criminal
justice agencies as well as those with no formal law enforcement power
at all. Decisions made by actors outside the formal criminal justice
process thus have the potential to undercut the sentencing goals of
judges and prosecutors.
Easy access to criminal records allows institutions outside the
formal criminal justice system to have a profound impact on criminal
record-holders. The United States is a global outlier in making criminal
record history widely available.56 In the relatively recent past, a person
who wanted to check a criminal record needed to seek out a paper file
from the courthouse. But today, criminal records are easily and cheaply
transmitted electronically, allowing widespread access.57 Virtually all
employers conduct background checks on some or all employees,58
including in ways that are overbroad.59 Immigration enforcement
54. See, e.g., Richard A. Bierschbach & Stephanos Bibas, Rationing Criminal Justice, 116
MICH. L. REV. 187, 195–202 (2017) (describing fragmentation of decisionmaking authority
between federal and state law enforcement officials, as well as between enforcement officials
within any given agency). See generally Rachel E. Barkow, Federalism and Criminal Law: What
the Feds Can Learn from the States, 109 MICH. L. REV. 519 (2011) (discussing the allocation of
power between local, state, and federal prosecutors).
55. See, e.g., MALCOLM M. FEELEY THE PROCESS IS THE PUNISHMENT: HANDLING CASES
IN A LOWER CRIMINAL COURT 154–66 (1992) (describing the process that goes into evaluating
the “worth” of a misdemeanor in the observed New Haven court).
56. See JACOBS, supra note 39, at 159 (comparing U.S. and European practice regarding
criminal records); Alessandro Corda, More Justice and Less Harm: Reinventing Access to
Criminal History Records, 60 HOW. L.J. 1, 34 (2016) (discussing post-1970s trends that made
criminal histories “a distinctive facet of American penal policy”).
57. This dynamic applies to the “Big Data” phenomenon generally; it is not unique to
criminal records. Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the
Constitution, 86 MINN. L. REV. 1137, 1139 (2002) (discussing how the Internet revolution made
public records much more accessible).
58. U.S. EQUAL EMP’T OPPORTUNITY COMM’N, 915.002: ENFORCEMENT GUIDANCE ON
THE CONSIDERATION OF ARREST AND CONVICTION RECORDS IN EMPLOYMENT DECISIONS
UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, at 6 (2012) [hereinafter EEOC
Enforcement Guidance] (noting that over 90 percent of employers conduct background checks
on at least some employees).
59. In 2010, for instance, a class action alleged that the U.S. Census Bureau disqualified all
applicants with any previous arrest history—regardless of the offense or when it occurred—unless
the applicant could provide “official” records of the disposition within thirty days. Second

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officials check the immigration status of every person arrested for any
crime in order to select some noncitizens for removal.60 Landlords and
public housing authorities also restrict eligibility based on criminal
records.61 The criminal justice bureaucracy is just one of many distinct
bureaucratic processes that determine the impact of a criminal record.
This dynamic has feedback effects on the criminal justice process.
First, it means that prosecutors, defendants, judges, and defense
attorneys have incomplete information about the full impact of a
particular sentence. Some defendants find out about serious
noncriminal penalties only after accepting a plea. Joseph Abraham, for
instance, a sixty-seven-year-old schoolteacher, pled to misdemeanor
charges that imposed probation, but he learned only after the fact that
the plea also triggered mandatory pension loss—an additional penalty
of $1500 a month for the rest of his life.62 Abraham’s situation is not
unique. Minor misdemeanor pleas can also trigger serious
consequences such as sex offender registration or occupational license
restrictions.63 With the important exception of mandatory deportation,
Amended Class Action Complaint at 1, Houser v. Blank, No. 1:10–cv–3105 (FM) (S.D.N.Y. Sept.
21, 2012). This practice barred 700,000 applicants from work and had a predictable disparate
impact on African American and Latino applicants. Id. at 2; see also Memorandum of Law in
Support of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement,
Houser v. Blank, No. 1:10–cv–03105 (FM) (S.D.N.Y. Sept. 21, 2012) (discussing factual
background and the terms of the settlement). In 2008, BMW adopted a policy that required
existing workers at a South Carolina plant to undergo background checks, and it automatically
eliminated those with a range of criminal records, regardless of the date of the offense or the
strength of the applicant’s subsequent work history at BMW. Press Release, U.S. Equal Emp’t
Opportunity Comm’n, BMW to Pay $1.6 Million & Offer Jobs to Settle Fed. Race Discrimination
Lawsuit (Sept. 8, 2015) [hereinafter EEOC Press Release], https://www.eeoc.gov/eeoc/newsroom/
release/9-8-15.cfm [https://perma.cc/NA8S-ZYZU]. Approximately 80 percent of the workers
eliminated by this policy were black. Id.
60. Christopher Lasch et al., Understanding Sanctuary Cities, 58 B.C. L. REV. (forthcoming
2018) (manuscript at 23–26), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3045527
[https://perma.cc/LL8R-EGGP] (discussing Secure Communities); see Secure Communities, U.S.
IMMIGR. & CUSTOMS ENFORCEMENT, https://www.ice.gov/secure-communities [https://perma.cc/
KES4-JB5Y] (explaining that the Secure Communities program checks the fingerprints of
arrested individuals against the fingerprints in the Department of Homeland Security database).
61. Complaint at 2, Fortune Soc’y v. Sandcastle Towers Hous. Dev. Fund Corp., No. 1:14–
cv–6410 (E.D.N.Y. Oct. 30, 2014) (challenging under the Fair Housing Act policy barring tenants
with criminal records); see also United States of America’s Statement of Interest, Fortune Soc’y
v. Sandcastle Towers Hous. Dev. Fund Corp., No. 1:14–cv–6410 (E.D.N.Y. filed Oct. 18, 2016).
62. Pennsylvania v. Abraham, 62 A.3d 343, 344 (Pa. 2012); Brief of Appellant, Abraham, 62
A.3d 343; see also Margaret Colgate Love, Collateral Consequences After Padilla v. Kentucky:
From Punishment to Regulation, 31 ST. LOUIS U. PUB. L. REV. 87, 92–96 (2011) (discussing the
lower court decisions in the Abraham case).
63. Roberts, supra note 7, at 683 (discussing how certain misdemeanor charges can trigger
sex offender registration); see also MICHELLE NATIVIDAD RODRIGUEZ & BETH AVERY,

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defense attorneys are not required to warn defendants about
noncriminal penalties triggered by guilty pleas.64 This creates the
possibility that defendants will be in the dark about important
collateral consequences when making the decision to plead guilty.
Second, even when fully informed, judges, prosecutors, and others
have limited control over how criminal records are used. They lack the
ability to regulate effectively the impact of a criminal record. A 2016
decision by Judge John Gleeson is illustrative.65 Fifty-seven-year-old
“Jane Doe” was convicted in October 2002 of a one-time act of
insurance fraud.66 Doe participated in a staged car accident and falsely
claimed to be injured.67 She served a fifteen-month sentence and paid
restitution.68 But thirteen years after she completed her sentence, she
found that her criminal record prevented her from working as a nurse.69
Over twelve different employers or agencies rejected her application
because of her record.70
In Doe’s case, the formal criminal punishment was of a fixed
length, but the employment penalty was not. When reviewing her
sentence, Judge Gleeson commented that he had “no intention to
sentence her to the unending hardship she has endured in the job
market.”71 He attempted to ameliorate the employment penalty by
creating what he described as the first “federal certificate of
rehabilitation.”72 His stated hope was that the certificate would
demonstrate to employers that he had closely reviewed her case and
determined she posed no risk of recidivism.73
Doe’s case illustrates how the use of a criminal record can

UNLICENSED & UNTAPPED: REMOVING BARRIERS TO STATE OCCUPATIONAL LICENSES FOR
PEOPLE WITH RECORDS 6 (2016), http://www.nelp.org/content/uploads/Unlicensed-UntappedRemoving-Barriers-State-Occupational-Licenses.pdf [https://perma.cc/4LTS-AXHU] (noting
that one-quarter of American workers require occupational licenses and explaining how
misdemeanor convictions can pose a barrier).
64. Padilla v. Kentucky, 559 U.S. 356, 374 (2010) (holding that defense attorneys must advise
defendants if a plea will trigger mandatory deportation).
65. See Doe v. United States, 168 F. Supp. 3d 427 (E.D.N.Y. 2016).
66. Id. at 433–44.
67. Id.
68. Id. at 434.
69. See id. at 434–39.
70. See id. In some instances, she obtained a nursing job only to be fired after the employer
conducted a mandatory background check. Id. at 428.
71. Id. at 429.
72. See id.
73. Id. at 441–42.

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undercut the state’s rationales for punishment, such as retribution or
deterrence. Assuming deterrence works,74 criminal punishment ought
to be proportionate to the offense. One view of criminal sanctions is
that they are meant to be more of a deterrent than civil sanctions.
According to this view, “criminal law works as a ‘backup’ . . . [when]
civil sanctions are likely to prove ineffective.”75 This view assumes that
defendants need to have a way of predicting penalties to be deterred.
This assumption, however, does not hold when defendants face hidden
civil penalties.76 This dynamic also works against retributive rationales
for punishment. If the criminal penalty alone is meant to punish the
defendant, then the combined impact of civil and criminal penalties
risks going well beyond what would be retributively justified. As Judge
Gleeson put it:
I sentenced Doe to incarceration and supervision to punish her for
committing a federal offense, to deter her from breaking the law
again—and to help her achieve the latter goal. It seems that the
sentence had its intended effect; aside from the conviction in this case,
Doe’s record is clean.77

The sentencing goals—retribution and deterrence—had been met;
from his perspective, the employment penalty was “piling on.”
Employers, however, had reason to view the health fraud
conviction as a good proxy for her fitness to work as a nurse. This was
particularly true in Doe’s case, since her conviction also triggered
professional discipline and a temporary suspension of her nursing
license.78 These two red flags—the conviction plus the professional
discipline based on the conviction—effectively rendered her
unemployable as a nurse. Employers may not have intended their
decision not to hire Doe to function as punishment, but from Doe’s
74. There is a large literature calling into question whether deterrence works at all. See, e.g.,
Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 413, 416 (1999) (offering
reasons why deterrence arguments “draw incessant fire from academic theorists”).
75. Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil
Procedural Divide, 85 GEO. L.J. 775, 786 (1997); see also Jules L. Coleman, Crimes, Kickers, and
Transaction Structures, in CRIMINAL JUSTICE: NOMOS XXVII 313, 318 (J. Roland Pennock &
John W. Chapman eds., 1985) (“In this view, the criminal law is parasitic upon tort law: crimes
are defined in terms primarily of torts. Criminal sanctions are ‘kickers’ imposed in addition to tort
liability to foster compliance.”).
76. Prescott, supra note 7, at 1046–47 (explaining that, in principle, offenders need to have a
way to predict the consequences of committing a crime in order to be deterred).
77. Doe, 168 F. Supp. 3d at 441.
78. The professional discipline was based only on the conviction, not on any misconduct
during the scope of her employment. Id. at 434–35.

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perspective and the perspective of the sentencing judge, it did.
In the criminal justice system, sentencing judges wield significant
power. They can decide whether a defendant will end up in prison.
They can determine the amount of restitution she will have to pay. But
in the absence of an effective mechanism for expunging criminal
records, judges exercise no similar control over how other actors treat
criminal records. In Doe’s case, employers could choose to rely on the
certificate of rehabilitation, but it carries no legal weight.
Enmeshed civil and criminal penalties also matter because they
undermine the efficacy of existing institutional checks on law
enforcement decisions. Criminal procedure is meant to guard against
overreach by law enforcement. But it plays no role in regulating how
private actors or civil legal institutions rely on arrests or convictions. In
addition, civil penalties create the possibility for enforcement actions
designed to skirt the requirements of criminal procedure. For instance,
police who prioritize deportation may work with immigration
enforcement officials and prioritize arrests that they suspect will result
in deportation, regardless of whether criminal charges are pursued.79
Or prosecutors may work with immigration enforcement officials to
avoid Miranda requirements.80 The availability of the civil sanction can
magnify criminal law enforcement power.
Thus, for all the time, expense, and resources law enforcement
institutions invest in processing cases and determining dispositions,
they determine only one aspect of the reach of the criminal penalty.
The criminal justice system generates criminal records, but other
institutions play a key role in determining the impact of those records.
The next Section turns to why it is that so many actors find criminal
records to be valuable.
B. Institutional Incentives
In theory, criminal law is meant to fulfill a public purpose; it is not
meant to be a “free market where private parties vie for goods and

79. Hiroshi Motomura, The Discretion That Matters: Federal Immigration Enforcement,
State and Local Arrests, and the Civil-Criminal Line, 58 UCLA L. REV. 1819, 1845 (2011) (arguing
that in the case of immigration enforcement, “[f]rom the arresting officer’s point of view, [an]
arrest remains meaningful in that the effort and resources devoted to the arrest lead to a tangible
result, even if that result is civil removal rather than a criminal conviction”).
80. Ingrid V. Eagly, Prosecuting Immigration, 104 NW. U. L. REV. 1281, 1308–13 (2010)
(discussing how criminal law enforcement officials and immigration enforcement officials may
coordinate and share information in ways that “disrupt Miranda’s practical application”).

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services with their own dollars.”81 In practice, however, many actors—
police, prosecutors, local court officials, bail companies, private
probation companies, criminal database providers, and myriad
others—pursue arrests, and they create and disseminate criminal
records not for public reasons, but for private ones. They create and
use criminal records to achieve their own goals more quickly and
cheaply.
This process is facilitated by the mark of a criminal record,
meaning the creation of official records about a person’s arrest and
conviction history. The marking process introduces a label, “record
holder,” or “ex-con,” that categorizes groups based on selective
information about their prior encounters with law enforcement. This
process is distinct from the experience of arrest and imprisonment
itself.82 By connecting individuals to records, the marking process
allows institutions to easily classify record-holders for their own
purposes. In addition to the actual tangible act of creating criminal
records, the marking process also serves a signaling function. It permits
institutions to regulate groups in ways that serve their own objectives.
The marking process serves multiple, and at times conflicting,
ends. It fulfills a public purpose when it communicates a public
pronouncement of moral condemnation or when it permits risk
assessment. It serves a nonpublic purpose when it offers key
institutions the opportunity to capture revenue or serve their own
organizational incentives. Criminal records, in effect, become
commodities. Once created, they offer a way to reduce costs, obtain
competitive advantages, reduce potential tort liability, and efficiently
allocate scarce resources. These are significant benefits, but they do not
serve society at large. They may come at the expense of other
important interests, such as proportionality in punishment and
procedural fairness. The balance of this Section explores these
dynamics by discussing how the marking process serves discrete
organizational objectives both within and outside of the criminal justice
system.
1. Marking and Criminal Justice Decisions. In the criminal justice
system, the marking process begins with an arrest record, which creates

81. Larkin, supra note 24, at 722.
82. Dolovich, supra note 19, at 237 (discussing the experience of imprisonment as
objectifying).

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a tangible notation of contact with the criminal justice system.83 Some
marks are temporary, such as charges that are subsequently dismissed
and expunged. Others are more enduring, in the form of a criminal
conviction.
The marking process can serve an important public safety
function. Criminal records provide a way to conduct risk assessment
and evaluate the propensity for future criminal activity.84 Some police
departments prioritize low-level arrests because they subscribe to a
“broken windows” theory of policing or because they view low-level
arrests as a way to collect data on groups of individuals over time.85
The marking process also serves nonpublic interests. It permits a
host of actors to use the negative “credential” of a criminal record in
ways that serve their own organizational interests.86 One way this
occurs is through law enforcement appropriation of criminal records as
a means of generating revenue.
Profit-driven police tactics received national attention after the
U.S. Department of Justice issued its 2015 report on policing practices
in Ferguson, Missouri.87 The report depicted a criminal justice system
permeated by both racial bias and financial considerations.88 High-level
83. Issa Kohler-Hausmann, Misdemeanor Justice: Control Without Conviction, 119 AM. J.
SOC. 351, 353 (2013) (noting the marking process “involves the generation, maintenance, and
regular use of official records about a person’s criminal justice contacts for critical decisions” by
law enforcement, such as about what type of disposition to offer).
84. In the early 1990s, Professors Malcolm Feeley and Jonathan Simon described the “new
penology” as turning away from “responsibility, fault, moral sensibility, diagnosis, or intervention
and treatment of the individual offender” and instead being preoccupied with “techniques to
identify, classify, and manage groupings sorted by dangerousness.” Malcom M. Feeley &
Jonathon Simon, The New Penology: Notes on the Emerging Strategy of Corrections and Its
Implications, 30 CRIMINOLOGY 449, 452 (1992).
85. See Ferguson, supra note 42, at 395 (discussing how collecting data on individuals
perceived to be high risk can help police use resources efficiently and address crime proactively).
For a related argument in the context of prosecutorial behavior, see Issa Kohler-Hausmann,
Managerial Justice and Mass Misdemeanors, 66 STAN. L. REV. 611, 644–49 (2014) (prosecutors
use repeated contacts with the criminal justice system as a way to “manage” defendants over
time).
86. See DEVAH PAGER, MARKED: RACE, CRIME, AND FINDING WORK IN AN ERA OF MASS
INCARCERATION 4–5 (2007).
87. DEP’T OF JUSTICE, INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT 2 (2015)
[hereinafter DOJ Report on Ferguson]; Editorial Op-Ed, The Problem Is Bigger Than Ferguson,
N.Y. TIMES (Mar. 12, 2015) (describing how municipalities target poor and minority communities
for low-level offenses to drive revenue).
88. DOJ Report on Ferguson, supra note 87, at 2. Police officers brought charges against
African Americans for purported offenses such as “Manner of Walking,” failing to wear a seatbelt
in a parked car, and even for “Making a False Declaration” for giving the short form of name—
for example “Mike” instead of “Michael.” Id. at 3, 62. The report also included additional

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police officials repeatedly instructed officers to focus on revenue
generation and to make up for budget shortfalls through ticketwriting.89
While Ferguson has become perhaps the best-known example, it
is hardly unique in relying on low-level arrests to generate revenue.90
One criticism of order-maintenance or data-driven policing is that it
incentivizes high-volume arrests as a way to demonstrate officer
productivity. Departments that fail to meet the prior year’s quota can
run the risk of budget cuts. John Eterno, a former NYPD police
captain, offered this criticism: “[O]fficers are challenged to match or
exceed what they did the previous year, month and week. Words like
‘productivity’ are code for quotas. Supervisors must exceed last year’s
‘productivity.’”91 Departments send cues to officers that the highvolume low-level arrests will be rewarded, which in turn, drive officers
to engage in precisely those types of arrests. In some cases, as in
Ferguson, pressure to collect fines, meet quotas, or seize assets leads to
unlawful behavior.92
Once arrest records are created, financial incentives affect case
processing and disposition. The vast majority of states impose “user
fees” for services commonly understood to be part of criminal justice
expenditures, such as for use of a public defender, for “room and
board” for jail and prison, and for the arrested individual’s probation
and parole supervision.93 Criminal courts seek revenue from arrested
evidence of racial bias, such as the disproportionate use of force against African Americans and
emails containing racial epithets. Id. at 5.
89. Id. at 2 (“City Finance Director wrote to Chief Jackson that ‘unless ticket writing ramps
up significantly before the end of the year, it will be hard to significantly raise collections next
year. . . . Given that we are looking at a substantial sales tax shortfall, it’s not an insignificant
issue.’”).
90. See LAWYERS’ COMM. FOR CIVIL RIGHTS, NOT JUST A FERGUSON PROBLEM–HOW
TRAFFIC COURTS DRIVE INEQUALITY IN CALIFORNIA 9–10 (2015); Beth A. Colgan, Reviving the
Excessive Fines Clause, 102 CALIF. L. REV. 277, 350 (2014).
91. John A. Eterno, Opinion, Policing by the Numbers, N.Y. TIMES (June 17, 2012)
http://www.nytimes.com/2012/06/18/opinion/the-nypds-obsession-with-numbers.html
[https://
perma.cc/V4JD-YKYJ].
92. ALEXANDER, supra note 4, at 80 (noting that one officer testified in a California police
misconduct case that the pressure to meet quotas led officers in his unit to behave “more or less
like a wolf pack” and take “anything and everything we saw on the street corner”).
93. Wayne A. Logan & Ronald F. Wright, Mercenary Criminal Justice, 2014 U. ILL. L. REV.
1175, 1185–96 (2014) (surveying legal financial obligations); Leah A. Plunkett, Captive Markets,
65 HASTINGS L.J. 57, 59 (2013) (“Just as guests in a hotel must pay . . . for their travel to and from
the hotel and to participate in activities during their stay, inmates are increasingly saddled with
many, even most, of the costs related to the process of convicting, detaining, and releasing
them.”); Joseph Shapiro, As Court Fees Rise, the Poor are Paying the Price, N.P.R. (May 19, 2014),

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individuals through booking fees at the time of arrest, bail
administrative fees, dismissal fees, public defender application fees,
court fees, disability and translation fees, jail and administrative fees,
and postconviction fees.94 In Florida, courts charge fees of at least $50
for misdemeanors and $100 for felonies.95 North Carolina charges $200
for failing to appear in court, $25 for late payment of a court fine, and
$20 for setting up an installment payment plan.96 Illinois permits judges
to assess a 15 percent penalty on late payments, plus a 30 percent
collection fee.97 A number of states also charge for using legal services.
Two-thirds of states, for instance, permit judges to charge defendants
for at least a portion of the cost of their own public defender.98
From the perspective of the defendant, the fees function as an
extension of the criminal justice penalty. In an egregious example, a
Pennsylvania defendant ended up owing $2,464—over three times the
amount of her original fine—in hidden fees.99 The locality charged over
twenty-six separate fees, broken down into itemized expenses such as
“Automation Fee,” “Sheriff Costs,” “Postage Fee,” “Police
Transport,” “Drug Fee,” “Plea [Bargain Fee],” and “Police Drug Fee,”
among others.100 While this case is an outlier, even far smaller dollar
amounts can be insurmountable for the poor.101
The fees create incentives for localities to run the criminal justice
system like a business, one that creates value through imposing costs,
tracking payments, and imposing additional sanctions for failure to
pay. The risk is that arrest decisions are based on the institution’s own

http://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor
[https://
perma.cc/HQ6G-7CA3] (stating that forty-three states and the District of Columbia permit
defendants to be billed for a public defender, forty-one states permit inmates to be “charged room
and board for jail and prison stays,” and in at least forty-four states, “offenders can get billed for
their own probation and parole supervision”); see also Irene Oritseweyinmi Joe, Rethinking
Misdemeanor Neglect, 64 UCLA L. REV. 738, 746–50 (2017) (discussing how distribution schemes
for public defenders do not effectively allocate resources to the indigent).
94. Laura I. Appleman, Nickel and Dimed into Incarceration: Cash-Register Justice in the
Criminal System, 57 B.C. L. REV. 1483, 1492–1503 (2016).
95. ALICIA BANNON, REBEKAH DILLER & MITALI NAGRECHA, BRENNAN CTR. FOR
JUSTICE, CRIMINAL JUSTICE DEBT: A BARRIER TO REENTRY 7 (2010).
96. Id.
97. Id.
98. ALEXES HARRIS, A POUND OF FLESH: MONETARY SANCTIONS AS PUNISHMENT FOR
THE POOR 42 (2016).
99. BANNON ET AL., supra note 95, at 1, 9.
100. Id. at 9.
101. Colgan, supra note 90, at 293 (discussing tradeoffs poor debtors make in paying the
criminal justice debt or paying for necessities).

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organizational interest in generating revenue, rather than public
considerations about safety. This is particularly true when the fees
directly fund the criminal justice system. In Arizona, the majority of
criminal court surcharges go to a “criminal justice enhancement
fund.”102 In Allegan County, Michigan, the fees go toward “the salaries
of court employees, for heat, telephones, copy machines and even to
underwrite the cost of the county employees’ fitness gym.”103 An
Allegan County court administrator put it this way: “The only reason
that the court is . . . doing business at that point in time is because that
defendant has come in and is a user of those services. [The defendants]
don’t necessarily see themselves as customer[s] because, obviously,
they’re not choosing to be there. But in reality they are.”104
These funding incentives can operate to set a dollar amount on
avoiding the mark of a criminal conviction. A recent federal lawsuit
challenging practices in Woodridge, Illinois, is illustrative. The
plaintiff, who was arrested on misdemeanor shoplifting charges, was
required to pay a $30 fee simply for the arrest and booking procedure.
He then had to pay an additional $785 for a year-long period of court
supervision. All charges were dismissed at the end of the year, but he
did not receive any of his money back.105 Paying the fee is a necessary
condition of engaging in court supervision and avoiding the mark of a
criminal conviction.
Financial incentives can lead to the overuse of probation, which
currently affects twice as many people as incarceration.106 Some
probation services are completely privatized. A recent report
estimated that in Georgia alone, probation companies earned at least
$40 million in revenue from fees charged to probationers.107 A single

102. HARRIS, supra note 98, at 42.
103. Shapiro, supra note 93.
104. Christina Hoag, Jailing Debtors: Should People Be Jailed for Unpaid Fines?, 26 CQ
RESEARCHER 745, 747–48 (2016), http://library.cqpress.com/cqresearcher/getpdf.php?id=
cqresrre2016091600 [https://perma.cc/T7WW-SAG2] (discussing the case of Frederick
Cunningham, who was ordered to pay $1000 in “court costs” for forging a prescription).
105. Markadonatos v. Vill. of Woodridge, 760 F.3d 545, 545–46 (7th Cir. 2014) (en banc)
(plurality opinion) (per curiam).
106. Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism,
104 GEO. L.J. 291, 292 (2016) (citing approximately four million people are on probation as
opposed to 2.2 million incarcerated); Noah D. Zatz, A New Peonage?: Pay, Work, or Go to Jail in
Contemporary Child Support Enforcement and Beyond, 39 SEATTLE U. L. REV. 927, 930 (2016).
107. HUMAN RIGHTS WATCH, PROFITING FROM PROBATION: AMERICA’S “OFFENDERFUNDED” PROBATION INDUSTRY 4 (2014), https://www.hrw.org/sites/default/files/reports/
us0214_ForUpload_0.pdf [https://perma.cc/N29L-WLRX].

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company earned an estimated $1 million from a single court in Dekalb
County, Georgia.108 Probation companies typically enter “flat fee”
contracts with the locality, meaning that the probationer must pay a
flat fee for supervision, separate and apart from any fines owed as part
of the punishment.109 The typical fee in Georgia is $35 per month.110 In
Montana, the fees can be as high as $100 per month.111
Private probation companies are motivated by their bottom line,
just like any other business. They have incentives to treat those on
probation as debtors. They have incentives to impose late fees for
missed payments as a matter of course, rather than asking whether the
fees serve the public interest. One judge, in evaluating these practices,
described probation as a “judicially sanctioned extortion racket.”112
Similar incentives lead to the overuse of money bail. The bail bond
industry collects an estimated $1.4 billion a year in revenue annually.113
For-profit bail agents charge a nonrefundable fee of approximately 10
percent of the bond amount, and at times, charge a higher percentage
for low bail amounts.114 For the arrested individual, the fees are a sunk
cost that must be paid regardless of whether the charges are
dismissed.115 For bail bondsman, however, the fees are simply income.
Federal funding incentives also play a role in shaping the types of
records police officers generate. As a general matter, localities have
significant discretion to define and pursue their own law enforcement
objectives. Yet federal funding incentives lead police to prioritize
108. Id.at 17.
109. Id.at 23–24.
110. Id. at 24.
111. Id.
112. Terry Carter, Privatized Probation Becomes a Spiral of Added Fees and Jail Time,
A.B.A. J. (Oct. 2014), http://www.abajournal.com/magazine/article/probationers_prison_
privatized_supervision_becomes_a_spiral_of_added_fees_j
[https://perma.cc/WF7L-RNLV]
(quoting Shelby County Circuit Court Judge Hub Harrington).
113. Gary Fields & John R. Emshwiller, As Arrest Records Rise, Americans Find
Consequences Can Last a Lifetime, WALL STREET J. (Aug. 18, 2014),
https://www.wsj.com/articles/as-arrest-records-rise-americans-find-consequences-can-last-alifetime-1408415402 [https://perma.cc/9ETT-8FCZ]; Wagner & Rabuy, supra note 31
114. O’Donnell v. Harris City, No. CV H-16-1414, 2017 WL 1735456, at *6 n.4 (S.D. Tex. Apr.
28, 2017) (“[C]ommercial sureties in Harris County [housing the third largest jail in the United
States] typically charge a nonrefundable premium of 10 percent of the total value of the bond, but
for low money bail amounts, such as those at the lower end of the misdemeanor bail schedule,
bondsmen charge a premium higher than 10 percent.”).
115. Fields & Emshwiller, supra note 113 (discussing the case of Jose Hernandez, who was
mistakenly arrested on sexual assault charges). The prosecutor eventually conceded that the
police got the “wrong Jose Hernandez” and dropped the charges. In the meantime, Hernandez’s
wife paid a bail bondsman a nonrefundable fee of $22,500 to get him out of jail. Id.

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certain types of arrests. A federal funding program established in 1988,
the Edward Byrne Memorial Justice Assistance Grant Program, is the
“leading source of federal funding” for a range of local law
enforcement programs, including drug enforcement.116 In exchange for
grants, localities submit quarterly assessments that demonstrate
productivity. Funding is tied to drug-related arrests, regardless of the
type of drug. Marijuana arrests, which made up half of all drug arrests
in 2013, provide one important source of revenue.117 Given the
prevalence of marijuana use, low-level marijuana arrests are the easiest
to make in high volume. Police departments thus have financial
incentives to prioritize marijuana arrests, even if marijuana use itself is
not a high crime priority, because these arrests offer a way to
demonstrate officer productivity.118
Similarly, federal funding incentives have the potential to affect
how localities police immigration enforcement. In July 2017, the
Department of Justice announced that “sanctuary” jurisdictions would
lose their funding if they did not “change their policies and partner with
federal law enforcement.”119 The stated goal was to threaten federal
funding withdrawal as a means to alter local policing practices.120
In both the context of drug enforcement and immigration
enforcement, the threat of receiving or losing federal funding can affect
what types of law enforcement actions are taken. It can affect the types
of marks created by the criminal justice system in the first place.
In addition to affecting who receives the mark of an arrest record,
financial incentives also play an important role in the plea bargaining
process. Well over 90 percent of criminal convictions result from guilty
pleas rather than trials.121 As Professor Darryl Brown observes, the
116. AM. CIVIL LIBERTIES UNION, THE WAR ON MARIJUANA IN BLACK & WHITE 73 (June
2013), https://www.aclu.org/files/assets/aclu-thewaronmarijuana-rel2.pdf [https://perma.cc/L67KDUBG].
117. Id. at 101–02.
118. Id. at 11.
119. Press Release, U.S. Dep’t. of Justice, Attorney General Sessions Announces
Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant
Programs, (July 25, 2017) https://www.justice.gov/opa/pr/attorney-general-sessions-announcesimmigration-compliance-requirements-edward-byrne-memorial
[https://perma.cc/7TKZXYEA]; Lasch et al., supra note 60 (manuscript at 11).
120. Some localities responded by filing suit and arguing that the threatened funding cuts
would undermine their ability to determine how to fulfill their law enforcement priorities. Lasch
et. al., supra note 60 (manuscript at 11–12).
121. Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012); Missouri v. Frye, 132 S. Ct. 1399, 1407
(2012); Jenny Roberts, Effective Plea Bargaining Counsel, 122 YALE L.J. 2650, 2663 (2013)
(describing Frye as making the “important statement that . . . ‘the negotiation of a plea bargain,

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rules and rationales for plea agreements reflect an “overt, enthusiastic
embrace—remarkably uniform across U.S. jurisdictions—of the
market as the metaphor and framework for the law of negotiated guilty
pleas.”122
In theory, “parties forecast the expected sentence after trial,
discount it by the probability of acquittal, and offer some proportional
discount.”123 The “price” of a plea should reflect factors such as the
defendant’s culpability and the likelihood of acquittal at trial. But plea
bargains also reflect other interests. Prosecutors and defense attorneys
value pleas because they keep down costs and allow them to handle
more volume.124 Factors such as workloads, the local office’s priorities,
and agency costs can all lead prosecutors to pursue plea bargains that
they might not pursue if the only factor at play was the predicted
outcome at trial.125
In the context of misdemeanor processing, prosecutors also have
incentives to view trial delays as desirable. In an empirical study of New
York misdemeanor courts, Professor Issa Kohler-Hausmann explores
this dynamic and argues that one function of misdemeanor processing
is to “construct a record of criminal justice encounters” and thus
“determine over time who is low risk and who is high risk, and thus in
need of closer monitoring and perhaps formal sanctioning in the
future.”126
Put differently, lost time—the time a criminal case is pending
before it proceeds to trial or reaches a disposition—is not merely an
externality of the criminal justice process. It can be purposeful. In New
York misdemeanor courts, it provides a way for prosecutors to monitor
risk. By keeping criminal cases pending, prosecutors gain the
opportunity to monitor defendants over time and to gather information
about their behavior. If the defendant is not rearrested while the case
is pending, the prosecutor is more likely to drop minor charges. If,
however, the defendant is arrested again while the case is open, that
additional arrest provides more information for the prosecutor
rather than the unfolding of a trial, is almost always the critical point for a defendant” (quoting
Frye, 132 S. Ct. at 1407)).
122. DARRYL K. BROWN, FREE MARKET CRIMINAL JUSTICE: HOW DEMOCRACY AND
LAISSEZ FAIRE UNDERMINE THE RULE OF LAW 91 (2015).
123. Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463,
2464 (2004).
124. Stuntz, supra note 33, at 535.
125. Bibas, supra note 123, at 2464.
126. Kohler-Hausmann, supra note 85, at 624.

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regarding the defendant’s purported risk. Prosecutors thus use lengthy
delays as part of a strategy to “manage” defendants, rather than to
adjudicate charges at trial.127 They deliberately lengthen how long the
mark of an arrest is present, because they view it as a valuable way to
determine whether or not to seek the more enduring mark of a criminal
conviction.
Some prosecutors also obtain financial benefits through case
processing. Some localities hire private lawyers to work as public
prosecutors. In Ferguson, Missouri, for instance, the local prosecutors
were “private lawyers who charged the city by the hour and faced no
cap on how much they could bill.”128 This creates an obvious risk:
prosecutors whose paychecks rise directly with the number of cases
they file have incentives to file more cases to inflate their pay,
regardless of the public’s interest.129
Prosecutors in some localities also profit from diversion.
Diversion is intended to offer a way for defendants charged with minor
offenses, such as writing bad checks, to avoid a criminal conviction.130
In practice, however, some programs are also a source of revenue. An
investigation into diversion practices in Houston County, Alabama,
found that the diversion practices generated one million dollars for the
local prosecutor’s office over the course of five years.131
In another program, California prosecutors essentially rented
their letterhead to third-party debt collectors, who threatened criminal
charges against consumers who bounce checks at retailers such as
Walmart and Target.132 The letters bore a district attorney’s seal and
signature but had never been reviewed by a prosecutor, nor had there
ever been an independent determination that the recipient intended to
defraud.133 The monetary amounts of the bad checks were typically

127. Id.
128. JOHN PFAFF, LOCKED IN 128 (2017).
129. Cf. Stuntz, supra note 33, at 535 (observing that prosecutors paid by the hour “would find
it in their interest to trump up charges in order to inflate their pay”).
130. Shaila Dewan & Andrew W. Lehren, After a Crime, the Price of a Second Chance, N.Y.
TIMES (Dec. 12, 2016), https://www.nytimes.com/2016/12/12/us/crime-criminal-justice-reformdiversion.html?mcubz=3 [https://perma.cc/2Y6E-7L6X]
131. Shaila Dewan & Andrew W. Lehren, Alabama Prosecutor Sets the Penalties and Fills the
Coffers, N.Y. TIMES (Dec. 13, 2016), https://www.nytimes.com/2016/12/13/us/alabamaprosecutor-valeska-criminal-justice-reform.html [https://perma.cc/3FSW-H4XN].
132. Jessica Silver-Greenberg, In Prosecutors, Debt Collectors Find a Partner, N.Y. TIMES
(Sept. 15, 2012), http://www.nytimes.com/2012/09/16/business/in-prosecutors-debt-collectorsfind-a-partner.html?_r=2&hp [https://perma.cc/3RQU-2DTT].
133. Id.

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insignificant—less than $100.134 Private debt collectors drafted the
letters, collected the fines, and shared a portion of the proceeds with
the District Attorney’s office.135
In sum, the mark of a criminal record is closely related to
organizational objectives, particularly financial incentives. These
incentives can skew arrest decisions away from those that would take
place if local law enforcement agencies focused only on public safety
concerns. Institutional incentives also affect case processing.
Defendants who can pay fines or afford diversion are likely to receive
a temporary mark; after the completion of the program and payment
of the fees, the case will be dismissed. Those who cannot afford to pay
are likely to receive a more enduring mark, in the form of a criminal
conviction.
2. Marking Outside the Criminal Justice System. Outside of the law
enforcement context, criminal records continue to serve a dual role.
The mark of a criminal record can be used for public safety reasons. It
can prevent those who pose a safety risk from obtaining firearms or
working in professions where they are likely to pose a danger. The
marking process, however, also fulfills a credentialing function
unrelated to public safety, such as when it is used as a proxy for
characteristics an employer might value, such as reliability or good
judgment. It offers a way to generate revenue for the background
check industry. It also provides a way to promote regulatory
compliance, minimize legal liability, and allocate scarce resources.
Every state maintains a criminal record repository that contains
identifying information about arrests.136 States either provide or sell
these records to private background check companies, who in turn
profit from the ubiquitous use of background checks.137 The upshot of
all this is that one out of every three Americans appear in the criminal
justice database.138 As the Wall Street Journal recently put it, “America
134. Id.
135. Del Campo v. Kennedy, 517 F.3d 1070, 1072 (9th Cir. 2008); Silver-Greenberg, supra
note 132 (discussing how prosecutors in charge of diversion programs benefit financially from
those programs).
136. JACOBS, supra note 39, at 37.
137. Brian M. Murray, A New Era for Expungement Law Reform? Recent Developments at
the State and Federal Levels, 10 HARV. L. & POL’Y REV. 361, 364 (2016) (discussing the sale of
criminal record information).
138. Fields & Emshwiller, supra note 113; Michelle Natividad Rodriguez & Maurice
Emsellem, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks
for Employment, NAT’L EMP. L. PROJECT 1 (2011), http://www.nelp.org/content/uploads/

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has a rap sheet.”139
The background check industry plays a key role in disseminating
records. Like any business, background check providers profit from
reliance on their services.140 The National Association of Professional
Background Screeners, the trade association for commercial
background screeners, offers a number of reasons for why employers
and housing providers benefit from background checks. Background
checks offer a way to ensure “compliance with housing, licensing, and
employment laws and regulations.”141 They help employers and
housing providers make informed decisions and mitigate risk. The
trade association also emphasizes how background checks can promote
business interests: “[W]e live in an electronic world where . . . negative
publicity and headlines spread quickly. The first question posed by
media in any workplace violence situation is whether there was a
background check — the ‘wrong’ answer can [be] devastat[ing].”142
Some background check providers also financially benefit by
charging fees to remove outdated or erroneous records. For instance,
John and Jessica Keir paid over $2000 to various background check
providers in ultimately futile efforts to remove their mug shot and
criminal records after they were acquitted of “keying” a car.143
Employers and housing providers are two of the main industries
that conduct background checks.144 Virtually all employers—92
percent—report conducting background checks on some or all

2015/03/65_Million_Need_Not_Apply.pdf [https://perma.cc/P229-BHXA] (noting that more than
25 percent of the U.S. adult population has a criminal record).
139. Fields & Emshwiller, supra note 113.
140. The profits are significant. Aaron Elstein, Background Check Industry Under Scrutiny as
Profits Soar, CRAIN’S (June 23, 2013), http://www.crainsnewyork.com/article/20130623/
FINANCE/306239972/background-check-industry-under-scrutiny-as-profits-soar
[https://perma.cc/QLQ6-Y7EH] (“[One company’s] revenue has rocketed to nearly $250 million
from just $7.5 million in 2001, for a compounded annual growth rate of 34 [percent]—1 percentage
point more than Apple’s over the same period.”); see also JACOBS, supra note 39, at 71 (stating
that trade association for commercial background check providers reported annual revenue at $4
billion).
141. About Screening, NAT’L ASS’N PROF. BACKGROUND SCREENERS (2016),
https://www.napbs.com/resources/about-screening/ [https://perma.cc/ N9GH-QBBV].
142. Id.
143. Fields & Emshwiller, supra note 113.
144. The trade association for professional background screeners specifies that it was
established to serve the interests of “companies offering employment and tenant background
screening services.” Who We Are, NAT’L ASS’N PROF. BACKGROUND SCREENERS (2016),
https://pubs.napbs.com/pub.cfm?id=0B0F2865-01D2-205F-7ECE-9B60FCACD74F
[https://
perma.cc/57Z4-PVVD].

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employees.145 These employers report using background checks to
combat theft, fraud, and preventing workplace violence, as well as to
comply with state and federal law, and the desire to avoid liability for
employee negligence.146
As employers recognize, a complex web of federal, state, and local
laws and regulations mandates that agencies and private actors check
criminal records and deny certain opportunities to criminal recordholders. Employers are also responsible for torts committed by their
employees within the scope of employment.147 In addition, under
negligent retention and hiring laws, employers may be responsible for
employee misconduct if they failed to foresee that the employee posed
a risk.148 Criminal records offer a way to identify employee propensity
for misconduct. Background checks can help employers learn if a
potential worker poses a safety risk, and they can help employers
comply with regulations that prohibit record-holders from working in
certain industries.149
Public housing administrators have similar incentives. By
conducting background checks at the time a housing application is
submitted and by engaging in ongoing screening of arrest activity, they
gain a way to comply with federal regulations and to screen for
dangerous tenants.150

145. EEOC Enforcement Guidance, supra note 58, at 6; see also SOC’Y FOR HUMAN RES.
MGMT., BACKGROUND CHECKING – THE USE OF CRIMINAL BACKGROUND CHECKS IN HIRING
DECISIONS 2 (2012), https://www.shrm.org/hr-today/trends-and-forecasting/research-and-surveys
/pages/criminalbackgroundcheck.aspx [https://perma.cc/A6NH-3RK3] (reporting close to 70
percent of surveyed employers conduct background checks on all job applicants).
146. EEOC Enforcement Guidance, supra note 58, at 6; see also SOC’Y FOR HUMAN RES.
MGMT., supra note 145, at 6 (noting that surveyed employers reported the primary reasons for
conducting background checks include negligent hiring liability, ensuring safe work environment,
preventing theft, compliance with applicable state law, and evaluating the overall trustworthiness
of the applicant).
147. Di Cosala v. Kay, 450 A.2d 508, 515 (N.J. 1982) (discussing respondeat superior liability
for torts that occur within the scope of employment); Benjamin Levin, Criminal Employment
Law, CARDOZO L. REV. (forthcoming) (manuscript at 15–16), https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=2944840 [https://perma.cc/V4EA-AP2P] (collecting cases discussing the
doctrine of respondeat superior in the context of background checks).
148. RESTATEMENT (SECOND) OF TORTS § 317 cmt. c (AM. LAW INST. 1965) (noting that in
some cases an employer may risk liability if he continues to employ those “who, to [the
employer’s] knowledge, are in the habit of misconducting themselves in a manner dangerous to
others”).
149. Debbie A. Mukamal & Paul N. Samuels, Statutory Limitations on Civil Rights of People
with Criminal Records, 30 FORDHAM U RB . L.J. 1501, 1503–05 (2003) (outlining several such
regulations).
150. 42 U.S.C. § 13661(c) (2012) (indicating that admission may be denied to those who have

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The interests in complying with regulations, avoiding liability, or
promoting safety, however, do not fully explain how employers and
housing providers actually use criminal records. For one, employers
and housing providers routinely impose bans that are broader than
required (or even permitted) by law. For instance, some housing
providers bar applicants whose only criminal histories are low-level
arrests that did not result in conviction.151 Some also evict entire
households after one member’s arrest,152 and they engage in
disqualifications based simply on the existence of a criminal record,
rather than conducting an individualized assessment of risk.153
Overbroad bans create the risk of violating antidiscrimination laws.
Criminal records are not race neutral. African American and Hispanic
men are arrested at rates significantly higher than whites.154 Blanket

“engaged in any drug-related or violent criminal activity or other criminal activity which would
adversely affect the health, safety, or right to peaceful enjoyment of the premises by other
residents”).
151. U.S. DEP’T OF HOUS. & URBAN DEV., OFFICE OF GENERAL COUNSEL, GUIDANCE ON
APPLICATION OF FAIR HOUSING ACT STANDARDS TO THE USE OF CRIMINAL RECORDS BY
PROVIDERS OF HOUSING AND REAL ESTATE-RELATED TRANSACTIONS 1–2 (2016) [hereinafter
HUD Office of General Counsel Guidance], https://www.hud.gov/sites/documents/
HUD_OGCGUIDAPPFHASTANDCR.PDF [https://perma.cc/7YSN-XVCD] (noting that
formerly incarcerated individuals encounter significant barriers to housing, and that in some
cases, individuals are barred merely because of prior arrests that did not result in conviction); see
also Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race
and Dignity, 85 N.Y.U. L. REV. 457, 491 (2010) (citing examples of statutes, ordinances, and
policies which penalize citizens arrested but not convicted); See generally AUSTIN/TRAVIS
COUNTY REENTRY ROUNDTABLE, LOCKED OUT: CRIMINAL HISTORY BARRIERS TO
AFFORDABLE RENTAL HOUSING IN AUSTIN & TRAVIS COUNTY, TEXAS (2016),
http://www.reentryroundtable.net/wp-content/uploads/2013/10/Criminal-Background-WhitePaper.final_.pdf [https://perma.cc/EFN4-D5DM]; MARIE CLAIRE TRAN LEUNG, WHEN
DISCRETION
MEANS
DENIAL,
FEDERALLY
SUBSIDIZED
HOUSING
(2015),
http://povertylaw.org/files/docs/WDMD-final.pdf [https://perma.cc/9XDG-EUZ5].
152. Dep’t. of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 130 (2002) (upholding a “onestrike” eviction policy, which permits eviction of entire households from public housing based on
the off-premises, nonviolent drug arrest of a single member).
153. Both the U.S. Department of Housing and Urban Development (HUD) and the EEOC
have warned against the overbroad use of criminal records, including arrests not resulting in
convictions. See HUD Office of General Counsel Guidance, supra note 151, at 2, 5–6; EEOC
Enforcement Guidance, supra note 58, at 8–20 (discussing disparate impact liability for overbroad
bans); see also Lahny R. Silva, Criminal Histories in Public Housing, 2015 WIS. L. REV. 375, 387
(2015) (discussing lack of individualized assessment of criminal record history in the public
housing context).
154. Brame, supra note 23, at 478; EEOC Enforcement Guidance, supra note 58, at 3 (citing
statistics that “1 in 17 White men are expected to serve time in prison during their lifetime; by
contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men”
(citations omitted)).

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bans run the risk of having a disparate impact on a protected class.155
For easily replaced workers, employers might view a “no hire”
strategy as the best approach to criminal records, given the perceived
complexity of the regulatory landscape surrounding criminal
background checks. Employers might perceive an overbroad ban as
more time efficient than meeting with prospective employees,
reviewing their records, and determining if they actually pose a risk.156
In an influential sociological study, Professor Devah Pager found that
employers spent very little time engaging in an individualized
assessment of entry-level workers. Rather, the presence of a nonviolent
drug conviction itself significantly reduced access to jobs such as wait
staff, service workers, warehouse workers, delivery drivers, or kitchen
staff.157 The presence of the record itself reduced callbacks for whites
by 50 percent—meaning that half the time, “employers were unwilling
to consider equally qualified applicants simply on the basis of their
criminal background.”158 For African Americans, a criminal record
presented an even more severe disadvantage. Only one out of three
black applicants with a criminal record received a callback.159
Overwhelmingly, employers chose to eliminate applicants on the
presence of the criminal record alone, rather than taking the time to
call references or inquire further into the nature of the conviction.160

155. Id. at 8–20.
156. This dynamic is not limited to the criminal justice context—it is the product of
technological changes that permit an ever-broader array of actors to obtain information about
individuals and to use them to make other decisions. See, e.g., Danielle Keats Citron & Frank
Pasquale, The Scored Society: Due Process for Automated Predictions, 89 WASH. L. REV. 1, 3–4
(2014) (discussing algorithms that score individuals by various metrics and use them to evaluate
decisions such as hiring a job candidate to the likelihood of prison recidivism); Ferguson, supra
note 42, at 333 (“Just as law enforcement agencies now collect and electronically analyze more
personal data, so do private, third-party organizations.”); Margaret Hu, Big Data Blacklisting, 67
FLA. L. REV. 1735, 1735 (2015) (“Database screening and digital watchlisting systems are
increasingly used to determine who can work, vote, fly, etc.”); Anil Kalhan, Immigration
Surveillance, 74 MD. L. REV. 1, 6 (2014) (discussing how immigration control has become an
“information-centered and technology-driven enterprise . . . [that subjects] both noncitizens and
U.S. citizens . . . to collection and analysis of extensive quantities of personal information for
immigration control and other purposes”).
157. See PAGER, supra note 86, at 68.
158. Id. Pager used matched pairs of white and black college students as “testers,” who were
given identical resumes. Id. at 67.
159. Id. at 69.
160. Id. at 68. Pager did find some exceptions to the overall trend that criminal records served
as disqualifiers. For instance, in one case, an employer discouraged a white tester with no criminal
record from applying for a cleaning job because it involved “a great deal of dirty work,” but then
offered a tester with a criminal record the job “on the spot.” Id.

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Some companies also require long-time employees to submit to
background checks, and they fire those who do not have clean criminal
records.161 This approach is overbroad; it is not reasonably related to a
business necessity.162 This is particularly true for long-time employees
with a demonstrated work history. The decision reflects an
administrative judgment that it is cheaper to hire others than to make
an individualized determination about risk. It may also reflect a
seemingly race-neutral reason for what is in fact employment
discrimination based on race.
Employers and housing providers may also rely on criminal
records because they want to identify groups that deserve scarce
resources. Public housing provides one example. There is a serious
shortage of public housing. Approximately 4.6 million federally
subsidized housing units are available for 45 million people living at or
below the federal poverty line.163 Background checks serve as a fast,
inexpensive way to choose applicants and deselect others. The
Department of Housing and Urban Development’s (HUD) “One
Strike and You’re Out” policy uses criminal background histories as a
way to select recipients of scarce resources. It states that the policy
offers a reasonable way to “allocate scarce resources to those who play
by the rules” as well as to promote community safety.164 The criminal
record is used as a proxy for undesirability.165 Landlords use criminal
records to establish which applications ought to be prioritized, as well
as to make risk assessments.
161. EEOC Press Release, supra note 59 (discussing a consent decree with BMW after an
EEOC finding that such a policy disproportionately harmed African American workers).
162. EEOC Enforcement Guidance, supra note 58, at 1–2.
163. Silva, supra note 153, at 379; see also CARMEN DENAVAS-WALT & BERNADETTE D.
PROCTOR, U.S. DEP’T OF COMMERCE, U.S. CENSUS BUREAU, INCOME AND POVERTY IN THE
UNITED STATES: 2013, at 12 (2014), https://www.census.gov/content/dam/Census/library/
publications/2014/demo/p60-249.pdf [https://perma.cc/2VFL-PE4V] (showing 45 million people
at or below poverty line); Who Lives in Federally Assisted Housing?: Characteristics of
Households Assisted by HUD Programs, HOUS. SPOTLIGHT, Nov. 2012, at 1, http://nlihc.org/
sites/default/files/HousingSpotlight2-2.pdf [https://perma.cc/DLX6-EDPS] (4.6 million federally
subsidized housing units).
164. U.S. HOUS. & URBAN DEV., “ONE STRIKE AND YOU’RE OUT” POLICY IN PUBLIC
HOUSING 3 (1996), reprinted in OFFICE OF PUB. & INDIAN HOUS., NOTICE PIH 96-16 (HA), “ONE
STRIKE AND YOU’RE OUT” SCREENING AND EVICTION GUIDELINES FOR PUBLIC HOUSING
AUTHORITIES (HAS) (1996).
165. Douglas Martin, Innocent People Lose Homes: Law’s Strange Twist, N.Y. TIMES (Mar.
11, 1992), http://www.nytimes.com/1992/03/11/nyregion/about-new-york-innocent-people-losehomes-law-s-strange-twist.html [https://perma.cc/B4TW-JA2R] (“‘People who commit crimes
have no right to public housing,’ [former HUD official] Ms. [Laura] Blackburne said before her
resignation. ‘Why should I keep some creep in there who doesn’t care about decent living?’”).

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In sum, the mark of a criminal record is widely valued, not only
for public purposes—deterring crime—but also for other ends. It
serves a credentialing function, and it permits a host of industries to
make hiring decisions in a way they perceive as cost-effective.
C. Regulatory Oversight
Even though low-level criminal records are widely created and
disseminated, key aspects of the process are not subject to meaningful
oversight. The problem is not only that “sloppy” misdemeanor courts
do not provide meaningful access to defense counsel or comport with
the requirements of criminal procedure.166 It is also that agencies
making misdemeanor-justice decisions pursue their own interests, but
no one considers how those decisions affect society at large.
First, there is of course no single agency tasked with mediating the
impact of low-level arrest decisions. Harm from criminal justice
decisions stems from a variety of different sources, but no one
examines how those harms aggregate and whether the combined
impact of civil and criminal consequences serves societal interests. Part
of the problem is information deficits. It is hard to predict at the time
of an arrest how that arrest may spiral in in unanticipated ways.
Defendants who agree to probation or diversion programs may be
overoptimistic about their ability to comply with the requisite
conditions, including payments. Once a payment plan is in place,
defendants may be unable to modify it if they find the payments
unmanageable.
Second, criminal law enforcement agencies at times lack
incentives to gather data and examine the efficacy of policies geared
toward collecting criminal justice debt. Law enforcement agencies have
incentives to demonstrate productivity, but they lack similar incentives
to collect data that considers the full social cost of certain law
enforcement tactics.167 A 2010 study examining the low-level criminal
justice process in fifteen different states found that not one state system

166. Natapoff, Misdemeanor Decriminalization, supra note 36, at 1063–64 (“[The] massive,
influential [misdemeanor justice] apparatus does not obey the standard rules of criminal law and
procedure. Unlike its felony counterpart, the misdemeanor arena is severely underregulated,
informal, and sloppy.”).
167. Darryl K. Brown, Cost-Benefit Analysis in Criminal Law, 92 CALIF. L. REV. 323, 361
(2004) (arguing that criminal law enforcement officials have incentives to avoid knowledge
“about the social costs of enforcement” because “[a]s long as those costs remain hidden, the net
benefits of enforcement, for which enforcement officials get political credit, appear more
substantial”).

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had any organized way of measuring the efficacy of criminal justice
fines.168 This lack of oversight extended to tracking the costs of criminal
debt collection.169 This means that even as these agencies pursued
policies based on perceived financial incentives, they lacked crucial
information about the financial efficacy of those policies.170
Ineffective oversight of criminal record data itself contributes to
the problem. The FBI adds between 10,000 and 12,000 new names to
its criminal record database every day.171 There are approximately 80
million individuals in the database altogether.172 Despite being easy to
access, these records consist of notoriously bad data.173 Criminal
records repositories are rife with inaccuracies and mistaken identity
information, as well as old, expunged, and dismissed arrest records.
Nearly 50 percent of the records in the FBI database are incomplete.174
Correcting mistaken criminal records can be extremely difficult.
The most disturbing instances of this phenomenon arise for those who
have been “jailed by mistake.”175 In Los Angeles, more than 1480
people were arrested due to inaccurate records over a five-year
period.176 In St. Louis, residents who had been mistakenly arrested due
to common names collectively spent more than 2000 days in jail from

168. BANNON ET AL., supra note 95, at 10–11.
169. Id. at 10.
170. Id. at 10–13.
171. Fields & Emshwiller, supra note 113.
172. Id.
173. Jenny Roberts, Expunging America’s Rap Sheet in the Information Age, 2015 WIS. L.
REV. 321, 344.
174. MAURICE EMSELLEM & MADELINE NEIGHLY, WANTED: ACCURATE FBI
BACKGROUND CHECKS FOR EMPLOYMENT 3 (2013), http://www.nelp.org/publication/wantedaccurate-fbi-background-checks-for-employment/ [https://perma.cc/8EAQ-EWZ7] (reporting
that fifty percent of criminal records in the FBI database are incomplete); see also Adam Liptak,
Expunged Criminal Records Live to Tell Tales, N.Y. TIMES (Oct. 17, 2006), http://www.nytimes.
com/2006/10/17/us/17expunge.html [http://perma.cc/7MNT-DYFW] (explaining that such
incomplete records persist in commercial electronic databases).
175. Robert Patrick & Jennifer S. Mann, Jailed by Mistake, ST. LOUIS POST-DISPATCH (Oct.
26, 2013), http://www.stltoday.com/news/multimedia/special/st-louis-wrongful-arrests-mount-asfingerprint-mismatches-are-ignored/html_b153a232-208f-5d0b-86a1-ba3256f7a941.html [http://
perma.cc/2GRQ-XCEN].
176. Robert Faturechi & Jack Leonard, ID Errors Put Hundreds in County Jail, L.A. TIMES
(Dec.
25,
2011),
http://articles.latimes.com/2011/dec/25/local/la-me-wrong-id-20111225
[http://perma.cc/MY73-RBVY]; see also Dan Frosch, Mistaken Identity Cases at Heart of Denver
Lawsuit over Wrongful Arrests, N.Y. TIMES (Feb. 16, 2012), http://www.nytimes.com/2012/02/16/
us/lawsuit-in-denver-over-hundreds-of-mistaken-arrests.html
[http://perma.cc/W8ZP-432C]
(reporting systemic cases of mistaken arrest warrant information, based on common names or
misspellings).

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2005 to 2013, or an average of about three weeks each.177 One man
alone was imprisoned for 211 days.178 Similar dynamics occur with civil
penalties, with people being wrongfully denied access to public
housing, to employment, or being held in immigration custody on the
basis of an inaccurate or incomplete record.179 Despite these welldocumented problems with criminal record data, there is no agency
tasked with systemically checking criminal records and ensuring
accuracy.
By contrast, law enforcement agencies publish considerable data
about how many criminal records they produce. Policymakers can state
with certainty how many people are incarcerated at any given time.
They can track how many people are convicted of particular offenses.
They can compare sentence lengths. But there is no similar way of
tracking the consequences of criminal records. There is no database
that shows how many people with minor records have been denied
access to work as a result of those records. Lack of effective oversight
of criminal records necessarily means that, to some extent, the scope of
the problem remains hidden, and it remains more difficult to address.
III. IMPLICATIONS FOR MISDEMEANOR REFORM
For the low-level offenses that constitute the bulk of state court
workloads, the overcriminalization problem is not confined to
overbroad laws and to policies that are excessively punitive by design.
Rather, it is also the product of flawed institutional incentives. In the
aggregate, criminal justice penalties can cause enormous and
unjustified harm. But when viewed at the micro-level, as a series of
discrete choices, they also create powerful benefits for key institutions.
This dynamic affects criminal justice reform in several ways. First,
it means that criminal justice reform will require identifying and
responding to the incentives of key institutions with an interest in
maintaining the system as it is. Identifying stakeholders is necessary to
determining whether criminal justice decisions are actually fulfilling
their intended public purpose, or whether they are instead merely

177. Patrick & Mann, supra note 175.
178. Id.
179. Id.; Silva, supra note 153, at 386, 389 (describing inaccuracies in criminal record data that
affect access to public housing); Eyder Peralta, You Say You’re an American, But What if You
Had to Prove It or Be Deported?, NPR (Dec. 22, 2016, 12:29 PM), https://www.npr.org/sections/
thetwo-way/2016/12/22/504031635/you-say-you-re-an-american-but-what-if-you-had-to-prove-itor-be-deported [https://perma.cc/EJE9-XQVM].

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serving the organizational interests of discrete actors. Second, it also
affects the methods by which scholars demonstrate the need for
criminal justice reform. One important method of triggering reform is
cost-benefit analysis, which has been influential in demonstrating that
punishment should not be imposed when its societal costs outweigh its
societal benefits. This type of aggregate cost-benefit analysis, however,
may be of limited use in the context of misdemeanors and collateral
consequences. Stakeholders have incentives to use criminal records in
ways that serve their own interests, regardless of the cost to society as
a whole. This Part considers these dynamics, and it then preliminarily
evaluates possibilities for either reducing the influence of stakeholders
or realigning their incentives with those of the state.
A. Identifying Stakeholders
Stakeholders—those with a vested interest in the current system—
play an important role in maintaining the misdemeanor system. Even
as low-level arrests and convictions create significant harm for the
poor,180 they benefit others who reap economic rewards from being
able to rely on criminal records. These actors, in effect, become
stakeholders in maintaining the system as it is.
Stakeholders need not be motivated by punitive intentions. While
some stakeholders appropriate criminal records as a race-neutral
means of effecting decisions that are actually motivated by racial and
socioeconomic bias,181 others do so because their primary aim is to
pursue their own objectives. They are unaware of or indifferent to the
systemic costs, or they choose to privilege their own organizational
incentives above other concerns.
Some stakeholders are easy to identify, such as privatized
probation companies or the private bail bond industry. They have a
direct financial stake in criminal justice decisions, one that is visibly at
180. See generally LOÏC WACQUANT, PUNISHING THE POOR: THE NEOLIBERAL
GOVERNMENT OF SOCIAL INSECURITY (George Steinmetz & Julia Adams eds., 2009) (arguing
that the criminal justice system takes a punitive approach to managing the poor).
181. BACK ON THE ROAD CALIFORNIA, STOPPED, FINED, ARRESTED: RACIAL BIAS IN
POLICING AND TRAFFIC COURTS IN CALIFORNIA 1 (2016), http://www.ebclc.org/wp-content/
uploads/2016/04/Stopped_Fined_Arrested_BOTRCA.pdf
[https://perma.cc/H6ET-GTPB]
(documenting racial disparities in police stops for “failure to pay” offenses in a number of cities).
For instance, in San Francisco, where the population is 5.8 percent black, 48.7 percent of arrests
are for a “failure to appear/pay.” Id.; see also Jeffrey Fagan & Garth Davies, Street Stops and
Broken Windows: Terry, Race, and Disorder in New York City, 28 FORDHAM URB. L.J. 457, 477–
78 (2000) (showing that racial minorities in poor urban areas were disproportionately the subject
of police stops).

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odds with the public purpose of punishment. Other stakeholders are
more difficult to identify. They benefit in less tangible ways. They
participate in or support the current system because they perceive it as
promoting their interests.
The problem is partially distributive and partially perceptual. As
a distributive matter, the current system creates enormous value for a
range of institutions, but its benefits are not distributed in an equitable
way. The misdemeanor process regulates poverty, not just crime. The
vast majority of those arrested are poor. Two-thirds of those in jail
earned less than $12,000 in the year before their arrest.182 More than
half of state prisoners in 1997 earned less than $1,000 in the month
before their arrest.183 Seventy-five percent of state prisoners lack a high
school degree.184 Racial minorities are much more likely to remain in
jail because they cannot afford bail.185 For the poor, the impact of a
low-level offense can be devastating. Outcomes can appear arbitrary
and procedurally unfair.
Policies that disproportionately affect the poor, however, may not
appear unreasonable or punitive in the abstract. Unlike prison time,
where judges and lawmakers can compare sentence lengths to the
severity of the crime and determine if the outcome is grossly
disproportionate, collateral consequences and low-level penalties are
much harder to assess.186 The same penalty does not affect everyone
equally. This dynamic is particularly true with fines. A system of
escalating fines is a rational way to deter socially undesirable behavior
for those who can afford to pay. Those who pay fines up front avoid
hidden or escalating late fees. They are also less likely to end up with a
182. NAT’L CONSUMER LAW CTR., CONFRONTING CRIMINAL JUSTICE DEBT: A GUIDE FOR
LITIGATION 5 (2016), http://www.nclc.org/images/pdf/criminal-justice/confronting-criminaljustice-debt-2.pdf [https://perma.cc/9QZL-39Q3].
183. Butler, supra note 12, at 2181 (citing statistic showing that “35 [percent] of state inmates
were unemployed in the month before their arrest, compared to the national unemployment rate
of 4.9%”).
184. CAROLINE WOLF HARLOW, BUREAU OF JUSTICE STATISTICS, EDUCATION AND
CORRECTIONAL POPULATIONS 3 (2003), https://www.campaignforyouthjustice.org/collateral
consequences/images/resources/Educational_and_Correctional_Populations.pdf
[https://
perma.cc/W5J2-YQ5A].
185. JUSTICE POLICY INST., BAIL FAIL: WHY THE U.S. SHOULD END THE PRACTICE OF
USING MONEY FOR BAIL 2–4 (2012), http://www.justicepolicy.org/uploads/justicepolicy/
documents/bailfail.pdf [https://perma.cc/X9HS-67A6].
186. See, e.g., Ewing v. California, 538 U.S. 11, 28 (2003) (evaluating the “gravity of the
offense compared to the harshness of the penalty” for purposes of determining whether a criminal
penalty is grossly disproportionate). Gross disproportionality is a difficult standard to meet, given
that it encompasses only “extreme sentences.” Id. at 21.

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criminal record because they can participate in diversion programs or
because, in some cases, prosecutors drop charges for first-time
arrestees or those who have a work history. If they do end up with a
criminal record, they may be less likely to experience immediate harm
to their ability to work or to their housing prospects. Poor people are
also far more likely to make tradeoffs with other opportunities when
paying criminal justice debt. An indigent defendant who faces fines and
fees might have to choose between paying for food and public
transportation, or paying the debt. By contrast, those with the means
to pay do not make similar tradeoffs.187
Fines are not the only aspect of low-level penalties that
disproportionately affect the poor. Collateral consequences triggered
by low-level arrests can likewise have distributive effects. A single drug
arrest can result in the eviction of an entire family from public housing,
but it will have no impact on the family of a homeowner.188 A minor
arrest may put a low-skilled worker out of a job, but not a skilled
worker who is hard to replace.
These distributive dynamics, in turn, affect perceptions about
whether low-level arrests and their collateral consequences are
desirable or whether they are grossly disproportionate.189 Those who
do not experience cascading consequences may not perceive the system
as costly. Instead, they may view the low-level criminal justice system
as meeting objectives they value—saving money, raising revenue,
monitoring for risk, making hiring decisions efficiently, and allocating
scarce resources, among others. From their perspective, the marginal
benefits of having this system may well outweigh the costs.
B. Cost-Benefit Analysis
The influence of stakeholders affects the procedures used by
scholars to evaluate the need for criminal justice reform. In particular,
it affects the methodology of cost-benefit analysis, which has in recent
years played a major role in criminal justice reform. Cost-benefit
analysis “refer[s] to a regulatory impact assessment procedure that
187. JESSICA FEIERMAN ET AL., JUVENILE JUSTICE CTR.,DEBTORS’ PRISON FOR KIDS?: THE
HIGH COST OF FINES AND FEES IN THE JUVENILE JUSTICE SYSTEM 6 (2016),
https://debtorsprison.jlc.org/documents/JLC-Debtors-Prison.pdf
[https://perma.cc/6MXERV4Z].
188. Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 130 (2002).
189. See Russell K. Robinson, Perceptual Segregation, 108 COLUM. L. REV. 1093, 1106, 111826 (2008) (discussing how “informational and incentive” disparities create racialized bases of
knowledge and lead blacks and whites to perceive the same experience differently).

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calls for officials to identify the full range of effects of government
policy, so that they have information about consequences before
making decisions.”190 In recent years, cost-benefit analysis has been
particularly influential in highlighting the costs of mass incarceration.191
For instance, in response to budget constraints and the high cost of
prison, a number of states have explored ways to save costs by reducing
the prison population.192 In the context of mass incarceration, the costs
are easy to see: family breakup, the price of prisons, loss of an
otherwise accessible workforce, among others. Cost-benefit analysis in
the criminal justice system evaluates the full range of costs of criminal
punishment and assesses whether punishment produces corresponding
benefits to society. But this approach to cost-benefit analysis may not
work in spurring reform of enmeshed low-level offenses and collateral
consequences. That is because the interests of key actors differ from
the state’s interests in the abstract. In addition, not all actors view costs
or benefits in the same way.
One way to implement cost-benefit analysis is to focus on
tradeoffs between choosing criminal sanctions versus civil sanctions in
regulating behavior. Professor Darryl Brown explores this dynamic in
assessing the tradeoffs between incarceration and other means of
regulation. He argues that, too often, lawmakers fail to recognize the
full costs of the criminal justice system, including the impact of
incarceration on families or the labor market.193 A growing body of
criminal law scholarship applies cost-benefit analysis to various
contexts including bail,194 pretrial detention,195 and postconviction
incarceration,196 and seeks to account for the full range of social harm
triggered by criminal justice decisions.
190. Brown, supra note 167, at 348; Brown, supra note 41, at 1383 (arguing that criminal law
theory should recognize the harm that is imposed on third parties when an offender is punished).
191. See Rachel A. Harmon, Federal Programs and the Real Costs of Policing, 90 N.Y.U. L.
REV. 870, 892–901 (2015) (summarizing developments in applying cost-benefit analysis to the
criminal law); see also Mary D. Fan, Beyond Budget-Cut Criminal Justice: The Future of Penal
Law, 90 N.C. L. REV. 581, 596 (2012) (describing how awareness of “[t]he fiscal and human
consequences” of criminal law have led to reforms designed to reduce mass incarceration).
192. Jessica M. Eaglin, Against Neorehabilitation, 66 SMU L. REV. 189, 191–92, nn.4–5 & 8
(2013) (citing examples).
193. Brown, supra note 167, at 348; Brown, supra note 41, at 1383 (arguing that criminal law
theory should recognize the harm that is imposed on third parties when an offender is punished).
194. See Crystal S. Yang, Toward an Optimal Bail System, 92 N.Y.U. L. REV. 1399 (2017).
195. See Shima Baradaran Baughman, Costs of Pretrial Detention, 97 B. U. L. REV. 1 (2017).
196. See David S. Abrams, The Imprisoner’s Dilemma: A Cost-Benefit Approach to
Incarceration, 98 IOWA L. REV. 905 (2013) (examining incarceration policy changes under the
cost-benefit analysis framework).

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This literature has been highly influential in identifying the costs
of criminal justice enforcement. Some costs are borne by defendants
and their families.197 Other costs are systemic, such as legitimacy costs.
Policing scholars note that communities may be less likely to obey laws
in general if they perceive policing decisions as illegitimate.198 Policing
decisions that disproportionately affect African American
communities can lead to legal estrangement and undermine social
inclusion.199 Criminal justice decisions also reduce access to
opportunity. Monetary sanctions and low-level arrests impose social
and economic burdens and can also play a role in promoting residential
segregation.200
Cost-benefit analysis offers one valuable way to analyze whether
the benefits of criminalization are worth their cost. However, this
method of analysis may be of limited use in addressing the problems
related to misdemeanors and collateral consequences. First, it is not
clear that reducing the costs of law enforcement expenditures will
necessarily reduce the size of the criminal justice system. Low-level
arrests and fine-only offenses are already perceived as valuable, lowcost alternatives to prison time.201 Precisely because low-level offenses
require fewer law enforcement resources as compared to felonies, the
state is able to process a higher volume of them.202 Thus, lowering the
costs of law enforcement can contribute to what Professor Alexandra

197. In an empirical study on designing an optimal bail system, Professor Crystal Yang takes
such an approach by looking expansively at the costs of pretrial detention. Professor Yang’s
taxonomy of costs includes harm to the defendant, such as loss of freedom, the collateral
consequences of detention such as lost productivity and disruption of the labor force, harm to
families and communities of the incarcerated individual, as well as the administrative costs of
detention. Yang, supra note 194.
198. Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 CRIME
& JUST. 283, 294–95 (2003) (“[M]inority group members are less willing to accept the decisions of
legal authorities and less satisfied with those authorities with whom they deal.” (citations
omitted)).
199. Bell, supra note 6, at 2066–67.
200. See generally Jeffrey Fagan & Elliott Ash, New Policing, New Segregation: From
Ferguson to New York, 106 GEO. L.J. ONLINE (2017) (discussing the effect of policing on
residential segregation).
201. U.S. DEP’T OF JUSTICE, SMART ON CRIME: REFORMING THE CRIMINAL JUSTICE
SYSTEM FOR THE 21ST CENTURY 4 (2013), https://www.justice.gov/sites/default/files/ag/legacy/
2013/08/12/smart-on-crime.pdf [https://perma.cc/928J-V579] (discussing the need to lower costs
by finding alternatives to incarceration).
202. Darryl K. Brown, The Perverse Effects of Efficiency in Criminal Process, 100 VA. L. REV.
183, 185–86 (2014) (discussing how cheaper procedures, such as substituting plea bargains for
trials, lowers procedural costs but expands the volume of cases beyond the point considered
optimal).

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Natapoff describes as “net-widening”—it can expand the reach of the
criminal justice system well beyond the point that would be considered
optimal.203
Second, in implementing cost-benefit analysis, the perspective
that matters is not that of the “state” in the aggregate. Rather, it is the
perspective of the front-line actors responsible for making key
decisions. The institutions responsible for making cost-benefit
assessments have incentives to prioritize their own immediate
perceived costs and benefits but not to look to the interests of society
at large.204 Police officers who are financially incentivized to prioritize
low-level arrests, for instance, may fail to examine how policing
practices harm communities and diminish police legitimacy over
time.205 Cost-benefit analysis, in other words, only works if the
institutions responsible for making critical law enforcement
decisions—including decisions to arrest as well as to rely on criminal
records—have incentives to care about the interests of society at large,
rather than their own organizational incentives. Public institutions,
such as the police, should have such incentives. Private actors, such as
privatized probation companies, the bail industry, background check
providers, and employers and landlords, by contrast, have clear
incentives to privilege their own organizational interests.
Another problem is that there may not be a single optimal way of
sanctioning.206 The state’s interest in punishment is not the same as the
interests of the institutions that exercise decisionmaking authority over
the processes of punishment. In some cases, institutions may not agree
over whether certain secondary effects of contact with the criminal
justice system are “costs” versus “benefits.”
Immigration scholars have been keenly attuned to these dynamics.
In contrast to the criminal law’s focus on aggregate assessments of costs
and benefits, a rich immigration-enforcement literature analyzes the
significance of variation in the goals of various actors—federal, state,
local, public and private actors.207 An important body of scholarship

203. Natapoff, Misdemeanor Decriminalization, supra note 36, at 1059 (arguing that
misdemeanor decriminalization leads to net-widening).
204. Indeed, as Darryl Brown argues, they may have incentives to actively avoid considering
the social costs of punishment. Brown, supra note 167, at 361.
205. Rachel A. Harmon, The Problem of Policing, 110 MICH. L. REV. 761, 777 (2012);
Harmon, supra note 191, at 873.
206. Steiker, supra note 75, at 780 (discussing the rise of “economic analysis of law, which
strives for a single model of optimal sanctioning that transcends old categories”).
207. For selected contributions to this literature, see Ingrid Eagly, Immigrant Protective

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discusses how immigration-enforcement actors view enforcement
choices in strategic ways, through the lens of their own incentives and
commitments.
For instance, private employers who check immigration
paperwork do not share the same goals as federal immigration
authorities. Some employers have economic incentives to hire
undocumented workers, whom they can underpay, and to use the
threat of enforcement to deter those same workers from seeking to
enforce fair labor standards.208 Some localities do not share the same
goals as federal immigration officials; they have incentives to
encourage immigrant workers to migrate and fulfill labor shortages,
regardless of whether those same immigrants are targets of federal
enforcement efforts.209 In the “crimmigration” context, both
immigration enforcement officials and criminal law enforcement
officials have incentives to use either the immigration-enforcement or
criminal law enforcement system instrumentally.210 Criminal law
enforcement actors have incentives to appropriate deportation as a
crime-control tool when it eases prosecution, rather than based on
considerations of whether deportation is actually appropriate.211
Similarly, in the low-level arrest context, institutions also
appropriate criminal justice decisions for their own purposes. From the
perspective of the state’s sentencing goals, long delays in misdemeanor
courts are an unintended social harm that is ancillary to the criminal
justice process. It is a negative externality of the criminal justice
Policies in Criminal Justice, 95 TEX. L. REV. 245, 254—74 (2016); Jason A. Cade, Enforcing
Immigration Equity, 84 FORDHAM L. REV. 661, 683–98 (2015); Ingrid V. Eagly, Criminal Justice
for Noncitizens: An Analysis of Variation in Local Enforcement, 88 N.Y.U. L. Rev. 1126, 1146–56
(2013); Motomura, supra note 79 at 1858; Huyen Pham, The Inherent Flaws in the Inherent
Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the
Constitution, 31 FLA. ST. U. L. REV. 965, 977–78 (2004); Cristina M. Rodriguez, The Significance
of the Local in Immigration Regulation, 106 MICH. L. REV. 567, 574–75 (2008) (discussing the
federal immigration enforcement “exclusivity lie”); Michael J. Wishnie, State and Local Police
Enforcement of Immigration Laws, 6 U. PA. J. CONST. L. 1084, 1090–93 (2004).
208. See generally Stephen Lee, Private Immigration Screening in the Workplace, 61 STAN. L.
REV. 1103 (2009) (detailing how employers retaliate against unauthorized employees who
attempt to assert their employment rights); Stephen Lee, Workplace Enforcement Workarounds,
21 WM. & MARY BILL RTS. J. 549, 552 (2012) (discussing how devolving immigration enforcement
discretion to employers can come at the expense of protecting workers).
209. Rodriguez, supra note 207, at 577.
210. David Alan Sklansky, Crime, Immigration, and Ad Hoc Instrumentalism, 15 NEW CRIM.
L. REV. 157, 202 (2012) (describing “ad hoc instrumentalism” in the crimmigration context).
211. Id. (“Law enforcement agents, prosecutors, and immigration officials are encouraged to
see criminal law and immigration law simply as different kinds of tools, and to use whichever tool
works best against a particular offender or suspect.”).

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process, one that imposes significant harm on defendants. But delays
can also be appropriated by prosecutors as a desirable, informal form
of punishment. Long delays also provide prosecutors with the leverage
needed to induce defendants to take quick pleas, and they can function
as a way to monitor defendants over time.212 Similar dynamics unfold
with collateral consequences. Some prosecutors purposely substitute
low-level charges that carry steep collateral consequences for more
serious criminal charges. This allows prosecutors to save time and
money because they do not have to gather additional evidence that
might be required to prove a more serious case.213
Likewise, although job loss after a criminal sentence is complete
is commonly seen as a secondary or unintended aspect of punishment,
some employers value criminal record checks precisely because they
provide a way to eliminate applicants. Employers have powerful
incentives to conduct background checks and to rely on them as proxies
for worker fitness. Harm that arises outside of the formal criminal
sentence is thus not merely an externality of criminal justice decisions.
It can be appropriated by key institutions to serve their own purposes.
As long as key decisionmakers view the current system as beneficial to
their own organizational interests, they have incentives to maintain the
system as it is, regardless of its societal cost.
C. Realigning Incentives
Recognizing the disconnect between the state’s sentencing goals
and the interests of stakeholders leads to two potential, and frequently
overlapping, avenues for reform. The first avenue seeks to reduce the
influence of various institutions on criminal justice decisions. The
second seeks to realign the incentives of key stakeholders with the
sentencing interests of the state. This Article’s goal is not to advocate
for either type of reform over the other, but rather to illustrate how
existing reform proposals might fit within either avenue and to
highlight how they might work.
There are a number of ways to reduce the ability of different
212. Kohler-Hausmann, supra note 85, at 646–47 (discussing open arrests as functioning to
“manage” defendants over time); Kohler-Hausmann, supra note 83, at 374.
213. Eagly, supra note 80, at 1306–19 (discussing relaxed procedural norms in immigration
enforcement as compared to criminal enforcement, which in turn create incentives for criminal
law prosecutors to use the immigration system instrumentally); Jain, supra note 7, at 1221–25
(discussing the collateral enforcement model); Paul T. Crane, Charging on the Margin, 57 WM. &
MARY L. REV. 775, 795–822 (2016) (describing the practice of “strategic undercharging”);
Sklansky, supra note 210, at 202.

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institutions to appropriate criminal records for their own purposes.
One is to reduce the influence of financial incentives in criminal justice
practices altogether. In Ferguson, for instance, the consent decree
aimed to do this by requiring that the municipality publicly post all fees,
conduct ability-to-pay determinations, and prohibit the use of
municipal arrests as a means to collecting civil court debt.214 Other
reforms in this vein including removing private actors from influencing
criminal justice decisions, such as by removing or restricting the
influence of the bail bond industry or the privatized probation industry.
More far-reaching approaches to limiting the number of
stakeholders include changing the reach of the criminal law, either by
substantive law reform or by changing front-end policing practices.
Police and lawmakers who evaluate the full range of harms that arise
from low-level arrest decisions may choose not to arrest, or they may
pursue nonpenal alternatives that avoid generating a criminal record.215
New York County prosecutors took this approach by recently
indicating that they would routinely decline to pursue low-level
turnstile jumping charges, which had previously been one of the top
misdemeanor charges in Manhattan County.216 The stated goal was to
obtain “more fair outcomes without sacrificing public safety.”217 The
approach works by reducing the number of criminal records created in
the first place.
Another approach is to reduce access to criminal records. A
number of jurisdictions have taken this approach in recent years
through reforms such as ban-the-box, expungement, or sealing laws,
including laws that restrict access to nonconviction records.218 The
mechanisms vary, but as a general matter, they function by either
removing criminal record information from state databases or by
preventing access to criminal records under certain circumstances.
While reducing access to criminal records is promising, this
214. Consent Decree at 83–85, United States v. Ferguson, No. 4:16-cv-000180-CDP (E.D. Mo.
Mar. 17, 2016), https://www.justice.gov/opa/file/833431/download [https://perma.cc/UEV8H4BG].
215. For an exploration of this approach, see Harmon, supra note 40.
216. James C. McKinley, Jr., For Manhattan Fare Beaters, One-Way Ticket to Court May Be
Over, N.Y. TIMES (June 30, 2017), https://www.nytimes.com/2017/06/30/nyregion/subway-farebeating-new-york.html?_r=0 [https://perma.cc/268U-T6SV].
217. Id. (quoting Manhattan District Attorney Cyrus R. Vance Jr.)
218. COLLATERAL CONSEQUENCES RES. CTR., FOUR YEARS OF SECOND CHANCE
REFORMS, 2013-2016: RESTORATION OF RIGHTS & RELIEF FROM COLLATERAL
CONSEQUENCES 2–3 (2017), http://ccresourcecenter.org/wp-content/uploads/2017/02/4-YEARSOF-SECOND-CHANCE-REFORMS-CCRC.pdf [https://perma.cc/AZ4W-4N7T].

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approach faces practical obstacles to implementation. One challenge is
underenforcement; employers who perceive records as valuable
continue to rely on criminal history in ways that are overbroad. Some
employers ask about criminal records even when prohibited from
doing so, or they use internet searches to access records that have been
expunged but remain accessible.219 Without implicit bias training, some
research shows that hiring personnel prohibited from asking about
criminal history may engage in racial discrimination, because they use
race as a proxy for criminal history.220 Thus, implementing meaningful
restrictions on the use of criminal background checks will likely require
the state to do more than simply expunge existing criminal records.
The second route seeks to align the incentives of existing
stakeholders with those of the state. Some reform initiatives take this
approach by seeking to persuade companies that it is in their business
interest to hire record holders. They highlight research that record
holders make more committed or motivated employees because they
are aware that they have fewer employment options.221 The goal is for
employers to agree voluntarily not to inquire about criminal history in
the initial application form and thereby narrow the impact of a criminal
record on employment.
The realignment approach also encompasses tort reform and
reductions in state-mandated collateral consequences. If employers do
not perceive background checks as helpful in complying with licensing
and other regulations, they may stop routinely conducting background
screening. Similarly, tort reform may reduce reliance on background
checks. If background checks do not insulate against negligent hiring
liability, employers may find the process of conducting background
219. Adam M. Gershowitz, The Intake Prosecutor: Prosecutorial Screening Before The Police
Make Warrantless Arrests 19–20 (William & Mary Law School Research Paper No. 09-362, 2017),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3037172&download=yes [https://perma.cc/
94TK-JUM7] (collecting evidence to show that “the internet remembers” arrest history regardless
of whether they are dismissed or expunged).
220. Amanda Agan & Sonja Starr, Ban the Box, Criminal Records, and Statistical
Discrimination: A Field Experiment 4 (Univ. of Mich. Law & Econ., Research Paper No. 16-012,
2016), https://papers.ssrn.com/so13/papers.cfm?abstract_id=2795795 [https://perma.cc/X P634ZK7] (finding that ban the box increases racial discrimination in callbacks).
221. AM. CIVIL LIBERTIES UNION, BACK TO BUSINESS: HOW HIRING FORMERLY
INCARCERATED JOB SEEKERS BENEFITS YOUR COMPANY 8–9 (2017), https://www.aclu.org/
sites/default/files/field_document/060917-trone-reportweb_0.pdf [https://perma.cc/D645-DJRV]
(“At Total Wine & More, human resources managers found that annual turnover was on average
12.2 percent lower for employees with criminal records. Electronic Recyclers International (ERI)
saw a similar outcome: by adopting a program to recruit employees with criminal histories it
reduced turnover from 25 percent to . . . 11 percent.” (footnotes omitted)).

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checks less valuable overall.222
Other methods of realignment include raising the cost of
conducting background checks. One way to do this is to raise the price
of accessing criminal records. Another is to penalize the overbroad use
of criminal records, such as through rigorous enforcement of
antidiscrimination laws in cases where criminal record screening
creates a disparate impact. The realignment approach may also include
promoting information about the legal risks of using criminal records
in overbroad ways. The background check industry has an incentive to
emphasize negligence liability, but there is no equivalent private
industry with a stake in emphasizing the potential for violating
antidiscrimination laws. Employers thus may overestimate the risk of
negligent retention and hiring liability and underestimate the risk of
violating antidiscrimination laws. Raising awareness of the monetary
costs of violating antidiscrimination law—as well as actually increasing
the likelihood that those who violate antidiscrimination law will face
sanctions—could curb uses of criminal records that do not align with
the state’s interest in punishment.223
These reforms have the potential to reduce the impact of a
criminal record. They also, however, require stakeholders to give up
information that they perceive as valuable or to incur the costs
associated with changing their existing practices. Unlike reductions in
mass incarceration, which have been conceptualized as a way to save
costs for the state while also avoiding unnecessarily punitive policies,
meaningful reform in the misdemeanor context will require that key
institutions change practices that they view as being in their immediate
interest.
CONCLUSION
The criminal justice system is often viewed largely as the product
of overly punitive laws and excessive punishment. This perspective is
powerful, particularly in the context of excessive prison sentences. It
does not, however, fully account for the practices of low-level criminal

222. Id. at 13–14 (collecting examples of negligent hiring reform in a number of states that is
designed to facilitate hiring criminal record-holders).
223. The penalties for antidiscrimination violations can be significant. The U.S. Census
Bureau recently settled an antidiscrimination lawsuit based on its overbroad criminal records
policy for $15 million in damages. Tanzina Vega, Census Settles Hiring Lawsuit Over Criminal
Records, CNN MONEY (Apr. 19, 2016, 6:16 PM), http://money.cnn.com/2016/04/19/news/
economy/census-bureau-hiring-lawsuit-settlement/index.html [https://perma.cc/8WW2-KT39].

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courts and for ubiquitous collateral consequences. This Article
suggests that the problem is not only “too much” state action and
overcriminalization; it is also institutional incentives that do not align
with the public goals of promoting safety and seeking proportionate
sentences. Addressing this dynamic requires first recognizing that key
decisionmakers have goals that deviate from the state’s sentencing
goals; they do not all share an interest in promoting retribution or
deterrence for society at large. Meaningful reform requires not only
acknowledging the impact that the current system has on the poor and
people of color, but also recognizing that the current system advances
the perceived organizational ends of key actors. The cost-benefit
calculus for key actors does not align with the cost-benefit analysis of
the state as a whole. Reform thus will require stakeholders who benefit
from the current system to relinquish those perceived benefits for the
interests of a more equitable system as a whole.