(a) All government actors, including policing agencies, should take steps to mitigate the harms attendant to unnecessary, inaccurate, or stale warrants.
(b) Legislative bodies and courts should limit the use of arrest warrants as an automatic response to an individual’s failure to appear in court, and they should promote the use of alternative strategies to ensure that individuals appear.
(c) Courts, prosecution agencies, and policing agencies should audit existing warrant databases regularly to ensure the databases are accurate and up to date, to dismiss stale or aged warrants, and to dismiss warrants in cases in which it no longer serves the public interest to compel the appearance of an individual or to prosecute an individual for an underlying offense;
(d) Policing agencies should have rigorous procedures to ensure, before taking an individual into custody on an outstanding warrant, that the warrant is still active and that the individual is in fact the person sought;
(e) Officers should not stop an individual for the purpose of checking for outstanding warrants absent reasonable suspicion that a valid warrant exists.
a. Scope. This Principle deals with a specific form of warrant, sometimes referred to as a “bench warrant” or “arrest warrant,” which orders officers to take a person into custody. See also § 2.03 (expressing a preference for warrants whenever the police conduct searches or seizures). Bench warrants typically are issued after an individual fails to appear in court in response to a summons or for a scheduled court date in the course of a criminal trial. This Principle also applies to “warrants” that are put in place by the police themselves, such as “be on the lookout” or “wanteds” instructions.
b. Animating concerns. Although warrants can be an important tool to compel an individual’s appearance in court and facilitate the administration of justice, there is at present an enormous backlog of outstanding warrants in the United States. Many warrants in existing databases either are extremely old or are for minor offenses, such as the failure to appear in court to resolve an outstanding traffic ticket. Warrant databases also are riddled with errors, including misidentified people, erroneous Social Security numbers, and many typographical mistakes. As a result, hundreds of thousands of people are taken into custody each year for very minor offenses—or without any legitimate basis whatsoever. The costs of these arrests, including both the arrest itself and the many collateral consequences that follow, can be substantial. See § 4.05. And importantly, these costs are not distributed evenly across society. Outstanding warrants and arrests based on the same disproportionately affect people of color and poorer individuals.
c. Reducing the number of outstanding warrants. Although warrants sometimes may be necessary to ensure an individual’s appearance, there are a variety of alternative measures that may be equally effective, and at much lower cost both to individuals and to criminal-justice entities. For example, several studies have established that the need to issue warrants could be eliminated by taking a number of relatively minor actions that can significantly increase compliance with summonses, such as: sending text-message reminders; redesigning summons forms; or notifying defendants that they cannot be arrested for nonpayment unless a court finds the nonpayment was willful. Consistent with § 4.05, jurisdictions also should encourage the use of lesser sanctions, including warnings or civil fines in lieu of criminal summonses, in order to reduce further the number of warrants that ultimately are issued.
Jurisdictions also can take steps to clear the backlog of outstanding warrants in order to reduce unnecessary arrests and ensure that police and prosecutors do not waste time on stale or unnecessary warrants. In recent years, system actors have taken a variety of steps to reduce the volume of outstanding warrants. Courts have held warrant-clearance days, and district attorneys and other system actors have dismissed huge numbers of warrants, particularly very old ones or warrants for minor offenses.
d. Ensuring accuracy of warrants. All system actors in each jurisdiction should have procedures in place to audit their warrant databases for accuracy on a regular basis. Although some mistakes perhaps are unavoidable, for the most part it is simply unacceptable to arrest people because of errors in warrant databases. For the same reason, agencies should have regular protocols in place to ensure a warrant is accurate prior to taking someone into custody, such as verifying a warrant’s validity prior to arrest. Section 6.03 discusses additional ways to improve the accuracy of warrant databases.
e. Stops to check for outstanding warrants. It is a bedrock principle of Fourth Amendment law that an individual may not be stopped in the absence of reasonable suspicion or probable cause to believe that they have or are about to commit a crime. An officer may not stop someone simply to see if they have an outstanding warrant unless the officer has reasonable suspicion to believe that a warrant has in fact been issued and is still valid. The Court’s decision in Utah v. Strieff, 136 S. Ct. 2056 (2016)did nothing to alter this basic requirement. In Strieff, the Court declined to impose an exclusionary remedy for evidence discovered during an unlawful stop, concluding that an outstanding warrant attenuated the taint of that stop. But Strieff speaks solely to the exclusionary remedy. Nothing in Strieff suggests that individuals may be stopped for the purpose of conducting warrant checks absent the requisite cause. And, in fact, reading it that way would put it in tension with United States v. Hensley, 469 U.S. 221 (1985), which requires reasonable suspicion before stopping an individual to check for an outstanding warrant.
At present, there are nearly seven million outstanding warrants in the United States. Dept. of Justice, Bureau of Justice Statistics, Survey of State Criminal History Information Systems, 2016: A Criminal Justice Information Policy Report tbl. 5a (2018) (“BJS Report”). In some cities, the number of outstanding warrants, relative to the city’s population, can be staggering. Dept. of Justice, Civil Rights Div., Investigation of the Ferguson Police Department 6, 55 (2015) (“Ferguson Report”) (documenting more than 16,000 outstanding arrest warrants in Ferguson, Missouri, a city of 21,000). The vast majority of these warrants are for misdemeanors and low-level offenses, including failures to appear in court; failures to pay certain fines or fees, often for traffic infractions; and violations of the municipal housing code. According to a U.S. Department of Justice count for 2016, there were 3.9 million warrants issued for misdemeanors and 1.07 million warrants issued for “other” conduct, such as traffic issues and ordinance infractions, compared to just 850,000 warrants issued for felonies. BJS Report; see also Wayne A. Logan, Policing Police Access to Criminal Justice Data, 104 Iowa L. Rev. 619, 640 (2019). A review of New York City records in 2017 found that 1.3 million of the 1.6 million outstanding warrants were for “quality of life” offenses, such as disorderly conduct and littering. Beth Fertig, City District Attorneys Purge Almost 645,000 Old Warrants, WNYC (Aug. 9, 2017), https://www.wnyc.org/story/city-district-attorneys-purge-645000-old-warrants/. Some jurisdictions have used a system of “wanteds” as a substitute for arrest warrants. Rather than requiring officers to obtain a probable-cause determination by a detached and neutral magistrate, “wanteds” enable law-enforcement officers to arrest, detain, and question a person without needing to obtain a judicially authorized warrant first. Instead, officers make the probable-cause determination themselves and issue a “wanted” or “stop order” based on that assessment. Ferguson Report 22 (2015). See also Danny Wicentowski, St. Louis County Police No Longer Arresting on Misdemeanors Without Warrants, Riverfront Times (Oct. 31, 2018), https://www.riverfronttimes.com/newsblog/2018/10/31/st-louis-county-police-no-longer-arresting-on-misdemeanors-without-warrants (reporting also that St. Louis had issued around 15,000 wanteds, leading to 2,500 arrests, from 2011–2016, but had limited their use in response to public outcry.).
The extraordinary number of outstanding warrants creates several problems for the fair administration of justice. First, existing warrant databases are remarkably error-prone, with numerous cases of incorrectly spelled names, illogical birth dates, and inverted Social Security numbers. See Wayne Pitts, From the Benches and Trenches Dealing with Outstanding Warrants for Deceased Individuals: A Research Brief, 30 Just Sys. J. 219 (2009). These errors can result in officers arresting the wrong person or wrongfully arresting someone whose warrant was supposed to be quashed. In Los Angeles, for example, hundreds of people were imprisoned wrongfully due to mistakes in warrant databases. Jack Leonard, ID errors put hundreds in County Jail, L.A. Times (Dec. 25, 2011), https://www.latimes.com/archives/la-xpm-2011-dec-25-la-me-wrong-id-20111225-story.html (reporting nearly 1,480 instances of wrongful incarceration over the five-year period from 2006–2011); see also Arizona v. Evans, 514 U.S. 1 (1995) (defendant was arrested on a warrant that had already been quashed, but the clerk of the court had negligently failed to record as such). In New York, one man was arrested so many times based on an erroneously issued warrant that a judge gave him an official document to carry around stating that the warrant had been dismissed. Alan Feuer, Cleared of a Crime but Hounded by a Warrant, N.Y. Times (Mar. 28, 2016), https://www.nytimes.com/2016/03/29/nyregion/cleared-of-a-crime-but-hounded-by-a-warrant.html; see also Douglas Holt, Bogus Warrants Lead to False Arrests, Suits, Chicago Tribune (Sept. 26, 1993), https://www.chicagotribune.com/news/ct-xpm-1993-09-26-9309260290-story.html; Rachel Swan, Alameda County’s new software system blamed for wrongful arrests, S.F. Chron. (Nov. 30, 2016), https://www.sfchronicle.com/bayarea/article/Alameda-County-s-new-software-system-blamed-for-10643452.php.
Second, whether erroneous or not, arrests on outstanding warrants impose extremely serious costs on individuals—costs that may not be justified by the public-safety goals that warrants are supposed to promote. As documented elsewhere, arrests deny people their liberty, subject them to a host of indignities including strip searches, and can cause individuals to incur many fees and even lose their jobs. See Principle 4.05 (Arrests) (offering extensive citations regarding the costs of arrests). The criminal-justice system also incurs costs in terms of officer and judicial time. See, e.g., Audit of the Snohomish County Criminal Warrant Process 31 (2007) (describing approximately 32 minutes of redundant data entry per warrant, as well as seven different points during the warrant process in which data must be entered by hand).
Third, the existence of outstanding warrants may encourage law-enforcement officers to conduct illegal stops, without suspicion, for the sole purpose of checking for warrants. Dept. of Justice, Civil Rights Div., Investigation of the Newark Police Department 9 (2014) (“Newark Report”) (describing a pattern of warrant checks for people stopped solely for “milling,” “loitering”, or “being in high-crime areas” without any indication of criminal activity or suspicion); Ferguson Report 17 (2015) (“Many of the unlawful stops we found appear to have been driven, in part, by an officer’s desire to check whether the subject had a municipal arrest warrant pending.”). Officers may see this as a way to boost their arrest productivity or to garner leave to conduct a warrantless search incident to arrest. This is particularly true after the U.S. Supreme Court’s ruling in Utah v. Strieff, which permitted evidence seized pursuant to an unlawful stop to be admitted at trial on the theory that an outstanding arrest warrant for the defendant attenuates the chain of illegality. 136 S. Ct. 2056 (2016).
Fourth, the problems associated with the high number of outstanding warrants disproportionately affect low-income and minority communities. This is because arrest warrants “are not distributed evenly across the population.” Strieff, 136 S. Ct. at 2073 n.1 (2016) (Kagan, J., dissenting). Both outstanding warrants and police stops are more common in neighborhoods that already experience increased police presence, meaning it is these populations that are most likely to bear the brunt of problems stemming from the vast number of outstanding warrants. Id. at 2073, n.1 (2016) (Kagan, J., dissenting) (noting that warrants “are concentrated in cities, towns, and neighborhoods were stops are most likely to occur.” See also Id. at 2070 (Sotomayor, J., dissenting) (“[I]t is no secret that people of color are disproportionate victims of this type of scrutiny.”). Similarly, errors in warrant databases also disproportionately affect low-income, minority communities, since it is these members who “often suffer comparative disadvantages in detecting and challenging inaccurate records.” Wayne A. Logan & Andrew Guthrie Ferguson, Policing Criminal Justice Data, 101 Minn. L. Rev. 540, 569 (2016).
All institutional players in the criminal justice system—legislatures, courts, prosecutors, and policing agencies—have a role to play in mitigating the ill effects of the bloated warrant system. This is evident in a number of approaches currently being taken in jurisdictions across the United States. Some approaches center on reducing the number of warrants issued for minor offenses. For example, lawmakers in New York and Philadelphia designated certain minor offenses as civil infractions that carry only a fine and are off-limits for arrest, such as violations of open-container laws or instances of littering. See Doug Caruso et al., ‘Wasted’ time on warrants backlog in Massachusetts, Wicked Local (Jan. 22, 2019), https://marblehead.wickedlocal.com/news/20190122/wasted-time-on-warrants-backlog-in-massachusetts. Others focus on reducing the number of warrants issued for failures to appear in court by improving defendants’ attendance at court hearings. For example, local and state agenciescan redesign their summons forms to prioritize information about the time, date, and location of hearings, as well as send text-message reminders to defendants ahead of hearings to ensure they appear. See University of Chicago Crime Lab, Using Behavioral Science to Improve Criminal Justice Outcomes: Preventing Failures to Appear in Court (2018); Brian H. Bornstein et al, Dept. of Justice, Reducing Courts’ Failure to Appear Rate: A Procedural Justice Approach (2011) (“Bornstein Report”). Legislators can amend judicial rules of practice and procedures to give courts alternative ways to compel appearances before issuing a bench warrant, such as administrative restrictions on state services that are not essential to daily living. See Ohio Governor’s Warrant Task Force Report 15-17 (2019). Administrators also can help reduce warrant backlogs by setting rules of practice and procedure requiring the dismissal of warrants for low-level offenses after a clear failure to prosecute. See Id. at 7. And courts as well as police officers can adopt procedures to notify defendants that they cannot be arrested or jailed for failure to pay a fine unless a court determines the nonpayment is willful. Such notification would improve defendants’ response to summons and attendance at hearings, thereby reducing the need for judges to issue warrants for failures to appear. See Daniel Bernal, Note, Taking the Court to the People: Real-World Solutions for Nonappearance, 59 Ariz. L. Rev. 547, 549 n.4 (2017) (citing evidence about the “role that fear plays in appearing in court”) (citing Bornstein Report).
Still other solutions focus on clearing the backlog altogether. Police chiefs and prosecutors can work together to ask courts to purge old citations and low-level warrants, as officials in Los Angeles and New York have done. See Mark Puente & Richard Winton, L.A. vows to void 2 million court citations and warrants. Homeless people will benefit most. L.A. Times (Oct. 2, 2019), https://www.latimes.com/california/story/2019-10-02/homeless-housing-erase-citation-fine-fees (voiding warrants over 10 years old and for offenses including drinking in public and blocking a sidewalk); Beth Fertig, City District Attorney Purge Almost 645,000 Old Warrants, WNYC (Aug. 9, 2017), https://www.wnyc.org/story/city-district-attorneys-purge-645000-old-warrants (vacating warrants that were at least 10 years old). Judges also can clear the backlog themselves. Some have held day-long warrant-clearing events in which members of the community meet with officials to determine alternative ways to pay outstanding fines and fees or to have their existing warrants canceled. See Shelley Szambelan, Presiding Judge, Spokane County Municipal Court, How Clearing Outstanding Warrants Can Change Lives and Reduce Jail Populations, Safety and Justice Challenge (July 6, 2016), http://www.safetyandjusticechallenge.org/2016/07/clearing-outstanding-warrants-can-change-lives-reduce-jail-populations/.
Finally, relevant actors can take a variety of steps to reduce the existence and effects of errors in warrant databases. For example, jurisdictions can consider utilizing employees to monitor warrant databases and verify the validity of a warrant each time someone is stopped. See, e.g., Ryan Broussard, Amnesty day set, 24/7 warrant verification services proposed to reduce outstanding warrants, Baton Rouge Business Report (Nov. 9, 2015), https://www.businessreport.com/article/amnesty-day-set-247-warrant-verification-services-proposed-reduce-outstanding-warrants. Agencies can also modernize their warrant-database systems. See Administrative Office of Courts, Report to the Judicial Council (2014). Agencies also can require officers to confirm the existence of a warrant before taking an individual into custody.
In any event, officers never should conduct a stop for the purpose of seeking to learn whether an individual has outstanding warrants absent reasonable suspicion to believe there is in fact an outstanding warrant. See United States v. Hensley, 469 U.S. 221 (1985) (permitting officers to investigate “wanted” status so long as there is reasonable suspicion). Although the Court in Strieff failed to impose an exclusionary remedy for the unlawful stop at issue, neither Strieff nor any other case actually permits officers to stop individuals without a requisite level of cause to believe the person is engaged in criminal conduct (or other lawful justification) simply to explore whether that individual has warrants outstanding. See Strieff, 136 S. Ct. at 2064 (implicitly condemning “suspicionless fishing expedition[s]” and acknowledging that any “dragnet searches” stemming from the prevalence of outstanding arrest warrants would be “wanton conduct” exposing police to civil liability and may affect the constitutional analysis that the Court conducted in Strieff itself.). As the result of two extensive investigations, the Department of Justice’s Civil Rights Division concluded that stopping people without cause in order to run warrant checks was unconstitutional. Newark Report at 17; Ferguson Report at 9.