All of a sudden, it seems like criminal justice reform is on everyone’s policy agenda. Politicians across the political spectrum in the United States are finally thinking about policies to reverse the decades-long expansion of the criminal system, and the mass incarceration that has resulted.
But legislators have been doubling down on the system when it comes to domestic violence. Concerns about intimate partner violence threatened the campaign for pretrial bail and discovery reform in New York State. Iowa abandoned some mandatory minimum sentences in 2016, but created new ones for intimate partner violence. Various federal reform proposals would have decreased mandatory minimum sentences for many crimes, but increased them for crimes of domestic violence.
The implication is obvious: Crimes of violence, and particularly domestic violence, should be exempt from criminal justice reform — and may even merit harsher treatment than they’re currently subject to.
These efforts are misguided. The effectiveness of the criminal legal response to domestic violence is a sensitive subject. Questioning it is a harder sell politically than reconsidering our responses to drug or property crimes. But intimate partner violence should be included in criminal justice reforms. This is not an argument for treating incidents of domestic violence differently than other crimes; rather, it’s an argument to stop treating them differently.
Assaults and threats of physical violence against intimate partners have been illegal for centuries. The Massachusetts Bay Colony outlawed wife abuse in 1641; by the late 1800s, a number of states had criminalized violence against a spouse. But by the second half of the 20th century, those laws were rarely enforced. Police made few arrests; prosecutors rarely brought charges. To be clear: This was a bad state of affairs.
But in 1984, three things happened. First, Attorney General William French Smith’s task force on family violence declared that intimate partner violence was a criminal justice problem that required a criminal justice solution — the first time that the federal government had taken that position.
Second, a woman from Connecticut named Tracey Thurman won a multimillion dollar judgment against the city of Torrington. Ms. Thurman sued after the police failed on numerous occasions to arrest her husband, despite her reports of violence; he eventually left her partly paralyzed. Jurisdictions around the country took notice, concerned that they too could be held liable for police inaction.
Finally, state and local governments latched on to research published in 1984 by the sociologists Lawrence Sherman and Richard Berk suggesting that arrest deterred intimate partner violence. Cities and states responded by putting in place mandatory arrest laws for such cases (laws that don’t apply in the case of non-domestic violence related assaults); Not surprisingly, arrest rates skyrocketed.
The push for more vigorous law enforcement gained additional momentum with the passage of the Violence Against Women Act in 1994. The act dedicated hundreds of millions of dollars each year to funding courts, prosecutors and police and community-based agencies. As of 2013, about 85 percent of its funding was dedicated to law enforcement efforts.
Prioritizing criminal justice responses to intimate partner violence would make sense if there was reason to believe that it was working. But that’s not what the evidence shows.
It’s true that rates of domestic violence have been dropping in the United States for years. But so has the overall violent crime rate. From 1994 through 2000, those rates fell about the same amount — a 47 percent decline for violent crime generally, a 48 percent decline for intimate partner violence. For the decade following, however, total violent crime decreased much more than rates of intimate partner violence, which stayed essentially the same — even though during this period, the Violence Against Women Act continued to devote hundreds of millions of dollars to criminal justice responses. Domestic violence homicides actually increased 19 percent between 2014 and 2017; and gun-related domestic violence homicides were up 26 percent between 2010 and 2017.
In 1984, Drs. Sherman and Berk warned that their influential study should be replicated before the police followed its suggestions. That warning was prescient: Replication studies have shown that arrests have modest effects on deterrence in some places, no effect in others, and can actually spur violence. One study found that the likelihood of reoffending was entirely attributable to other factors — like a criminal history — rather than arrest. The impact of prosecution is similarly inconclusive: A conviction may have some effect on recidivism, but its deterrence largely disappears without continuous monitoring, such as intensive probation.
What we do know is that relying primarily on arrest and prosecution exacerbates conditions associated with intimate partner violence, which strongly correlates with poverty. Low-income women are more likely to be victims; under- and unemployed men are much more likely to be batterers. Having a conviction makes it much more difficult to find and keep employment — and employed former prisoners earn 40 percent less than people who have never been incarcerated.
Trauma also contributes. Childhood experiences like abuse, neglect or witnessing violence suggest whether a person will bring violence into his or her home. And incarceration is traumatic. We punish people for violence by putting them in places where they are likely to witness or experience violence, and then send them back into their communities and relationships.
Encouraging a larger role for law enforcement also had the unintended consequence of punishing victims. In the aftermath of the Sherman and Berk study, cities and states rushed to adopt mandatory arrest policies. But the largest increases were in arrests of women. In California, for example, arrests of women increased 156 percent; arrests of men increased by 21 percent. Mandatory arrest policies tend to lead to an increase in arrests of women particularly in “situationally ambiguous” cases, where police officers may be unclear about what exactly occurred before their arrival.
Even if victims avoid arrest, prosecutors, in their zeal to win convictions, sometimes confront them with a horrible choice: Testify against your partner or go to jail. Victims can be held for days or weeks until they testify. This can lead to absurd outcomes: In 2015, at the request of the Orleans Parish prosecutors, Renata Singleton was held in jail for five days to compel her testimony. The boyfriend she was called to testify against pleaded guilty, and served no jail time at all.
We have other options. Rather than continuing to rely primarily on the criminal legal system, we could provide economic support to low-income men and women. We could intervene to prevent the childhood traumas that lead to violence in adulthood. We could address the attitudes and beliefs among adolescents that drive intimate partner violence. We could use community accountability and restorative justice programs to meet the needs of victims who will never willingly turn to state systems. We could focus our efforts and resources on stopping violence before it starts, rather than intervening ineffectually after the fact.
Intimate partner violence has many of the same characteristics that have driven criminal justice reform across other areas. Increased reliance on the criminal justice system hasn’t lowered rates of domestic violence, and has worsened conditions that spur on that violence. In some cases, it harms some of the people it was meant to benefit.
But violence, and particularly intimate partner violence, has beenthe third rail of criminal justice reform. Violent crimes feel viscerally different from other forms of crime; the desire for retribution may be stronger. And in the case of intimate partner violence, concern that we will return to the bad old days when the police and prosecutors ignored it prevents policymakers from considering alternatives.
But the criminal justice system isn’t stopping intimate partner violence. And it might even be making it worse.
Leigh Goodmark is a professor of law at the University of Maryland, Baltimore, and the author of “Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence.”
Source: https://www.nytimes.com/2019/07/23/opinion/domestic-violence-criminal-justice-reform-too.html?action=click&module=Opinion&pgtype=Homepage