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If We Want to End Mass Incarceration, We Need to Stop Unconstitutional Mandatory Arrest Policies

Coalition to End Domestic Violence

April 21, 2021

The United States has the highest incarceration rate of any country in the world. Higher than Russia, South Africa, or anywhere else.

Mass incarceration hurts all of us: The persons who are arrested for minor or trivial offenses. The family members who lose, usually, a brother, a husband, or a father. The taxpayers who pay $50,000 per prisoner per year. And more.[1]

An arrest triggers the workings of the entire criminal legal system: Investigations, prosecutions, incarceration, and more.

Part of the cause of mass incarceration can be traced back to provisions in the Violence Against Women Act. The original law required VAWA grantees:

“To implement mandatory arrest or pro-arrest programs and policies in police departments, including mandatory arrest programs and policies for protection order violations.”

This provision obviously violates the Fourth Amendment, which requires “probable cause” before police can make any “seizures.”

Nonetheless, police departments across the nation instituted mandatory arrest policies. These policies have given rise to two serious problems:

1. Women now commit the majority of domestic violence incidents each year, according to the CDC.[2] But most arrestees are male,[3] reflecting a troubling sex bias.
2. Mandatory arrest has been shown to cause an increase in subsequent homicides. A Harvard University study concluded, “Intimate partner homicides increased by about 60% in states with mandatory arrest laws…Mandatory arrest laws are responsible for an additional 0.8 murders per 100,000 people.”[4]

Mandatory arrest policies have had a devastating effect on Black communities. The Ms. Foundation for Women decries how the “Criminalization of social problems has led to mass incarceration of men, especially young men of color, decimating marginalized communities.”

Given these compelling facts, one would have expected the House VAWA bill, H.R. 1620, to have addressed these concerns. But it didn’t. In fact, H.R. 1620 actually states we need to “encourage arrests of offenders,” ignoring the fact that a police officer often is unable to determine which party is the true “offender” (Sec. 102).

So if a woman slaps her boyfriend, and he shoves her back, who in their right mind believes both of them should be arrested?

The Coalition to End Domestic Violence calls on Senators to assure the upcoming VAWA bills take proactive steps to remove the harmful mandatory arrest policies that are still on the books across the nation. That will be good start to end our nation’s epidemic of mass incarceration.

Links:

[1] https://www.brennancenter.org/our-work/research-reports/conviction-imprisonment-and-lost-earnings-how-involvement-criminal?ms=gad_prisons%20in%20america_465051828443_8626214133_111612472200&gclid=EAIaIQobChMIzoiouOiP8AIVYsqzCh0jjwR6EAAYASAAEgL0f_D_BwE

[2] https://www.cdc.gov/violenceprevention/pdf/2015data-brief508.pdf Tables 9 and 11.

[3] https://www.bjs.gov/content/pub/pdf/prdv0615.pdf

[4]https://www.nber.org/system/files/working_papers/w13186/w13186.pdf