Custodial Arrest and the Proportionality Principle: Constitutional, State-Law, and Comparative Perspectives

Richard Frase, University of Minnesota Law School

ABSTRACT
In Atwater v. City of Lago Vista (argued Dec. 4, 2000), the Supreme Clourt will decide whether the Fourth Amendment places any limitations on police discretion to make custodial arrests (instead of issuing a citation or summons) for minor offenses. Ms. Atwater was handcuffed and taken to jail even though she was charged with a fine-only seat-belt violation, and there was no need for custody (e.g., to preserve evidence, prevent flight, or avoid imminent harm). A ruling in her favor will greatly strengthen the Fourth Amendment "proportionality principle" - intrusive police measures require a showing of substantial case-specific need and, in very minor cases, are prohibited. If the Court declines to impose Fourth Amendment limits, then the issue must be addressed under state laws, some of which (along with almost all model codes and rules) already limit or preclude custodial arrests for minor crimes. A number of European nations recognize similar limitations, and the concept of proportionality - in procedural and substantial law - is found in both domestic and international norms. This paper discusses evolving constitutional principles, state laws, model standards, and international norms, and also explores the important connections between the use of custody in the pre-conviction and sentencing stages.

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Updated 05/20/2006