111 Iowa L. Rev. 213 (2025)
Abstract
Arrest has long been legally defined as a seizure, or temporary restraint on liberty, under the Fourth Amendment. But when the government arrests someone today, it imposes far more than a seizure. The government also marks individuals with arrest records, which enable wide-ranging penalties, such as deportation, civil detention, loss of a professional license, and disruption of custody. One consequence is that this regulatory structure unravels arrest from the key institutional checks that would permit the public or key actors to examine whether the government-imposed consequences stemming from arrest are fair and justified. Proportionality depends on the public at large being able to recognize and mediate the full government-imposed consequences of arrest. But we are rapidly moving toward a regulatory landscape where no one—not a prosecutor, defense attorney, informed voter, and certainly not the arrested individual herself—genuinely has the tools to recognize what the full consequences of an arrest might be, much less mediate them.
This Article argues responding to these penalties requires recognizing arrest as more than just a seizure. Arrest should be understood in light of the relationship between government action and the political and legal process. The more systemic government action is tied to arrest, the greater the need for systemic safeguards. It unpacks one proposal for reform: conceptualizing arrest not just as a seizure, but as a government-imposed marker with attendant penalties.