Mandatory Arrest Policies Research Paper

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Domestic violence has traditionally been viewed as a private family matter. As such, the law has generally been more concerned with the protection of family privacy and the sanctity of the home, as opposed to the exposure of violence within this revered setting. Moreover, according to traditional and common law, husbands once enjoyed the privilege of chastisement, which not only allowed but encouraged the use of physical punishment to correct errant wives. In times past, assuming a husband’s behavior was within the bounds of moderate chastisement, it was privileged and therefore not subject to legal sanction.

Outline

I. Introduction

II. Incentives for Change: The Evolution of Mandatory Arrest

III. Mandatory Arrest

IV. Types of Mandatory Arrest

V. The Role of the Victim in Mandatory Arrest

VI. Mandatory Arrest: The Debate Continues

Introduction

Sir William Blackstone is credited with the often-cited ‘‘rule of thumb’’ which allowed husbands to discipline their wives with a stick no larger than the diameter of their thumb. Ostensibly, this guideline was developed to ensure that punishment was moderate. Gradually, however, the law abrogated the rule of thumb and the privilege of chastisement. By the end of the nineteenth century, American appellate courts began to denounce the common law approach and refuse to recognize a spousal exemption in cases of assault and battery. During this same time, states began to amend divorce statutes to include cruelty as a ground for divorce.

However, while the black letter law appeared to be more responsive through such progressive changes, the criminal justice system did little to intervene in cases involving domestic violence. Thus, the mere elimination of common law defenses and privileges did little to improve the lives of battered women and children. Rather, the age-old notion that a man’s home was his castle continued to dominate the official response to this issue. However, in response to the tireless efforts of advocates, states gradually began to appreciate the need for proactive policies designed to effectively assist victims of domestic violence. While different states have experimented with a variety of alternatives, policymakers continue to struggle with issues related to adequate and sufficient intervention in cases involving domestic violence. For many years, the most common law enforcement response to cases involving domestic violence was mediation. Mediation policies require the law enforcement officer to attempt to resolve the dispute between the parties. Essentially, officers were to serve as peacekeepers who, upon their arrival on the scene, assessed the situation and attempted to mediate the ‘‘dispute.’’ With mediation, however, officers are discouraged from making an arrest except in the most extreme cases. Rather, they are encouraged to utilize informal mediation techniques to calm the parties down and offer constructive suggestions and referrals to social services, including counseling. The primary goal of the law enforcement officer following a mediation policy is to avoid further escalation of violence and to attempt to resolve the conflict between the parties. While mediation was the most common response in domestic violence cases for many years, it was rarely sufficient to resolve the underlying issues which fuel domestic violence. Thus, the use of mediation has been widely criticized on a number of grounds. First, mediation offers little to alter the dynamics of the relationship between the batterer and victim and in many cases affirms the position of the batterer through the lack of any meaningful intervention. Others suggest that mediation contributes to common rationalizations of battering rather than forcing batterers to take responsibility for their actions. Further, critics claim that mediation responds to domestic violence as a family dispute among equal participants rather than treating the incident as a crime.

Incentives for Change: The Evolution of Mandatory Arrest

In 1977, Oregon was the first state to enact a mandatory arrest provision in cases of domestic violence. At first Oregon required an arrest in cases where abuse occurred unless the victim objected. However, in 1979, Oregon omitted the clause that allowed victims to object to an arrest and acted on behalf of the victim. Jolin (1983) found that Oregon’s mandatory arrest legislation had both direct and indirect deterrent effects on domestic violence offenders. Thus, the uses of arrest as well as the threat of arrest were viewed as two very powerful tools that helped reduce the occurrence of domestic violence.

However, most states continued to rely on informal responses to domestic violence, including counseling and/or mediation by officers. In many cases the results of this relaxed and informal approach to domestic violence were deadly for women and children. Unfortunately, the official response to domestic violence continued to reflect the view that it was a family problem and not a crime. Despite long-standing approaches to domestic violence, the early 1980s would bring sweeping changes to the manner in which law enforcement responded to domestic violence.

In 1984, the now-famous Minneapolis Experiment was conducted. This research project was a joint effort between the Police Foundation and the Minneapolis Police Department (Sherman and Berk 1984). The study was designed to determine the most effective response to domestic violence calls for service. Three alternatives were available to officers. These included the following: arrest with one night in jail; perpetrator required to leave the scene or be arrested; informal dispute resolution or on-the-scene counseling. Prior to their arrival on the scene, officers did not know which alternative they would utilize. Rather, upon arrival the officer utilized the option that was indicated on pre-prepared forms. The study included only those calls for service which involved misdemeanor battery. The final sample included 314 calls. Following their response, officers completed a report detailing their response. In addition, researchers monitored the cases to determine the nature and extent of future violent behavior by the perpetrators. Victims were interviewed after the initial offense and thereafter for a period of twenty-four weeks.

The results of the research were enlightening. Official police reports and victim interviews revealed that in those cases where the arrest option was utilized, a lower incidence of repeat violence by the perpetrators occurred. In addressing claims that the incarceration, as opposed to arrest, accounted for the deterrent effect, the authors concluded that the limited period of incarceration was unlikely to have resulted in deterrence. As a result of the Minneapolis Experiment, policymakers and advocates urged lawmakers to enact mandatory arrest statutes. However, while the Minneapolis Experiment led to the widespread use of mandatory arrest, the authors of the study indicated a clear preference for presumptive or pro-arrest, as opposed to mandatory arrest, statutes. While arrest had a significant impact on the deterrence of future violence, the authors suggested that law enforcement officers retain the discretion to determine whether an arrest should be made.

That same year, a report issued by the Attorney General of the United States endorsed arrest as the preferred response to calls for service in domestic violence cases. The Attorney General’s Task Force on Family Violence was created in response to the increased awareness regarding the prevalence of domestic violence. Following a review, the Task Force recommended that the criminal justice system’s response to domestic violence reflect coordination and cooperation among law enforcement, the judiciary, social services, and therapeutic service providers. However, most important for purposes of this discussion were the recommendations regarding the role of law enforcement in domestic violence cases. The Task Force specifically advised that law enforcement agencies have a written protocol for domestic violence calls for service; respond to calls for service without delay; make forms and applications for orders of protection available for victims; monitor and maintain a system of tracking all existing orders of protection; document and report all violations of pre-trial release conditions; and utilize arrest as the preferred response in domestic violence cases.

While the recommendations of the Minneapolis Experiment and the Attorney General’s Task Force clearly suggested necessary changes in the official response to domestic violence, a federal jury in Thurman v. City of Torrington, 595 F. Supp. 1521 (1984), had the opportunity to review and pronounce judgment upon the response of a police department to a case plagued by domestic violence. In the Thurman case, a federal court awarded Tracy Thurman $2.9 million in damages from the City of Torrington, Connecticut. The jury determined that the Torrington police department failed to adequately protect Mrs. Thurman from domestic violence despite her repeated pleas for assistance. Law enforcement had consistently relied on informal mediation to ‘‘resolve the dispute’’ between the parties. However, the violence continued to escalate and culminated in a brutal attack on Mrs. Thurman and the couple’s son. As a result of the attack, Mrs. Thurman was permanently disabled and disfigured. The case condemned the response of law enforcement and specifically called attention to the fact that the matter would have been handled differently if Mrs. Thurman and her child had been attacked by a stranger. The jury deemed the failure to protect Mrs. Thurman as a violation of the Fourteenth Amendment due process and equal protection clauses. The Thurman case sent a clear message regarding the civil liability which may be incurred for inaction in cases involving domestic violence. Thus, limitation of potential liability was an important incentive for the states to adopt new policies in cases involving domestic violence.

Ten years later, President Bill Clinton signed into law a major federal crime bill which included the Violence Against Women Act (VAWA). This act specifically provided millions of grant dollars to those states which adopted pro-arrest or mandatory arrest legislation. In light of these significant events, mandatory arrest has become an increasingly popular alternative in the mission to deter domestic violence.

Mandatory Arrest

Mandatory arrest or nondiscretionary statutes require law enforcement officers to arrest suspected batterers if there is probable cause that domestic violence has occurred. Moreover, most mandatory arrest statutes are coupled with a warrantless arrest provision which allows law enforcement officers to make a warrantless misdemeanor arrest in cases where the officer has probable cause to believe that violence occurred but did not personally observe the battery. Probable cause is a constitutional requirement and is specifically set forth in the Fourth Amendment, which states that ‘‘no warrant shall issue except upon probable cause.’’ Moreover, the United States Supreme Court has specifically held that ‘‘probable cause to arrest exists when the facts and circumstances known to the officer are sufficient to warrant a reasonably prudent person in believing that the suspect has committed or is committing a crime’’ (Gerstein v. Pugh, 420 U.S. 103 [1975]; Beck v. Ohio, 379 U.S. 89 [1964]). Thus, in order to satisfy the constitutional prerequisite, an officer must believe that a crime has been committed and that the individual (to be arrested) is responsible for that crime. Determining whether probable cause exists can be a challenge in certain cases. However, it is generally suggested that acceptable sources from which to assess and conclude that probable cause exists include the following: the collective knowledge doctrine, knowledge about the suspect, behavior of the participants, reliable hearsay, and the observations by the officers (Gosselin 2000).

Mandatory arrest policies are unique in that they remove discretion from the victim as well as the officer. Victims no longer must decide whether they will press charges. Rather, these statutes mandate that the officer make an arrest of one or both of the parties involved. Thus, the presence of probable cause triggers a mandatory arrest provision and eliminates the discretion of the officer. The lack of officer discretion is an important distinction between mandatory and pro-arrest policies. Pro-arrest policies provide officers with significantly more discretion and allow an arrest to be made when the officer deems it necessary. Police agencies that adopt this approach typically encourage arrests through policy but ultimately leave the decision to the officers who will be responding to the calls for service. Such an approach assumes that the officer responding to the call for service will be in the best position to determine whether arrest is the appropriate response.

Types of Mandatory Arrest

There are typically two types of mandatory arrest policies adopted by law enforcement agencies. The first type requires the arrest of the primary aggressor. In certain cases, this determination is easily made based upon the extent of injuries sustained by the victim. However, in other cases it is extremely difficult to determine which party is the primary aggressor. These cases tend to occur where both parties have or lack injuries. However, because of the heightened scrutiny in cases involving domestic violence, the pressure upon law enforcement to make an arrest is significant. Unfortunately, in rare instances the victim may actually be arrested.

Dual arrest policies are also present. Dual arrest requires that officers arrest both parties and let the judge determine which is the victim. Again, such policies significantly diminish the amount of officer discretion in these cases. In cases where both parties have serious injuries and a primary aggressor cannot be determined, this may be a satisfactory response, but it is not an ideal approach in all cases. Again, the danger is that a victim will be arrested and treated as a criminal rather than offered assistance traditionally provided to victims. Moreover, victim advocates argue that even in cases where both parties have sustained significant injuries, certain injuries could be sustained when an individual attempts to defend herself from an attack. Advocates therefore argue that dual arrest policies send the wrong message to victims of domestic violence and may cause more harm than good. Victims of domestic violence who are subjected to dual arrest policies may be less trusting of law enforcement officers and may avoid seeking help in future situations.

In order to ameliorate the harshness of mandatory arrest, some jurisdictions utilize crisis intervention teams. These teams allow law enforcement to enforce the mandatory arrest policies and provide needed assistance to the victim at the same time. Crisis intervention teams typically consist of police officers and social workers who work together to eliminate future abuse. The police officers will arrest the offender and focus on building a strong case against him. The social workers focus on building a relationship with the victim and making her aware of services that are available to her. These services include referrals to shelters, counseling, legal aid, and advocacy. The use of crisis intervention teams is still relatively new and has received both positive and negative responses from victims, law enforcement, and policymakers. While many believed that the coordinated approach was helpful, studies do not indicate a deterrent impact. However, the use of crisis intervention teams did result in increased reporting and trust in law enforcement (Adler 1999).

Critics of mandatory arrest statutes also argue that mandatory arrests result in a denial of due process rights. This argument suggests that an abuser could be arrested without the victim’s substantiation or accusation. The critics assert that the arresting officer’s probable cause may be subjectively biased. However, proponents of mandatory arrest policies insist that probable cause is one of the highest standards officers must meet, and this is not a subjective law enforcement tool (Adler 1999).

The Role of the Victim in Mandatory Arrest

For a variety of reasons, not the least of which is fear of reprisal, many victims refuse to ‘‘press charges’’ against their abuser. Domestic violence is not usually an isolated incident but rather a continuous cycle of violence. Consideration of the dynamics of a relationship marked by violence is instructive when attempting to understand the inability or unwillingness of a battering victim to press charges. One of the leading authorities in the area of domestic violence, Lenore Walker, developed the cycle of violence theory to explain the dynamics of a battering relationship.

Consideration of the legal process within the context of the cycle of violence is helpful to understanding the actions of battering victims. Three phases constitute the cycle of violence. The phases vary in terms of their length and frequency. However, despite their variance, these phases are remarkably apparent in most battering relationships.

The first phase, called the tension-building phase, is characterized by a gradual increase in the frustration level of the abuser. Minor incidents of battering tend to occur during this phase. In the hopes of minimizing the frustration and anger of the abuser, the victim attempts to placate the individual during this period of time. However, the victim’s efforts are usually in vain and the tension-building phase transforms into the acute-battering phase. This second phase is characterized by significant battering of the victim. In the aftermath, however, the abuser attempts to reconcile with the victim by offering apologies, gifts, and what the victim wants most of all: a promise to change. Finally, there is the calm and loving respite phase or, more commonly, the ‘‘honeymoon’’ phase. Despite the battering that has occurred, the victim finds herself with a calm and loving partner who promises to change and showers her with love, attention, and affection. However, while this serves to reassure the victim that the abuser loves her and will change, this phase is temporary, and gradually the cycle begins again.

The victim is caught in a cyclical wave of emotions and battering which culminates with a loving partner promising the world. In many cases, the couple has entered the calm and loving respite phase by the time the victim is required to file charges against the perpetrator. This presents the battering victim with two alternatives: to press charges against the perpetrator and face an unfamiliar legal system, the loss of a partner, and financial loss or detriment, or alternatively to accept that the abuser will change this time. Battering victims often choose the latter due to the economic reality of separation, concern for their children, and their emotional attachment to the batterer. Physical abuse is often coupled with psychological abuse and leaves the victim feeling powerless and unable to leave the batterer. The batterer has usually separated the victim from any possible support system by alienating her from family and friends. The lack of any support system further fuels the victim’s sense of dependency on the abuser. In circumstances involving children, the batterer often uses their welfare as leverage and is successful in pleading for forgiveness for the sake of the children.

Mandatory arrest statutes and no-drop prosecution laws remove the discretion from the battering victim. The responsibility to arrest and prosecute the batterer therefore lies solely with law enforcement. Removal of discretion or responsibility from the victim is intended to diminish the burden upon her. These statutes reflect an understanding of the nature of domestic violence and the dynamics of violent relationships. Moreover, such statutes illustrate an appreciation of the traits which often characterize victims of domestic violence. These include low self-esteem, guilt, self-blame, and learned helplessness.

In 1996, the Vacaville, California, police department developed a program called the Family Investigative Response Services Team (FIRST) to better handle domestic violence calls for service. This team comprised investigators, social workers, family support workers, representatives from the district attorney’s office, and probation officers and was developed to obtain convictions through victimless prosecutions. The goal of the investigators was to obtain enough evidence without victim testimony to prosecute cases of abuse successfully. The use of photographs, dispatch tapes, medical reports, and witness statements helped relieve the pressure on the victim having to testify in the courtroom. For those women who wanted to reconcile the relationship, the victimless prosecution procedures made this an easier transition (White et al. 2005).

Mandatory Arrest: The Debate Continues

Mandatory arrest policies were adopted to deter future domestic violence. However, the widespread enactment of mandatory arrest statutes did not quell the debate regarding the deterrent effect of arrest in domestic violence cases. The Minneapolis Experiment was followed by a series of studies which attempted to replicate the findings regarding the deterrent effect of arrest in domestic violence cases. These studies were conducted in California (Berk and Newton 1985), Miami–Dade County (Pate and Hamilton 1992), Milwaukee (Sherman et al. 1992), Colorado Springs (Berk et al. 1992), Charlotte (Hirschel and Hutchinson 1992), and Omaha (Dunford 1992). The studies in Miami, Milwaukee, and Colorado Springs supported findings regarding the deterrent effect of arrest. However, those conducted in Charlotte and Omaha did not indicate that arrest was a sufficient deterrent to future domestic violence. In fact, three of the replicated studies indicated an increase in domestic violence following an arrest. Some researchers have pinpointed the lack of consistency among the judicial system as a contributing factor to recidivism in domestic violence cases. Those who do not face prosecution or who have their cases dismissed by the courts will be more likely to recidivate than those who are consistently punished for their abuse. Therefore, studies confirm that mandatory arrest policies are most effective when utilized in conjunction with a significant and consistent judicial response.

Moreover, research indicates that the deterrent effect of arrest is dependent upon the type of batterer involved in the case. A report by Edward W. Gondolf and Ellen R. Fisher identifies four types of batterers. These include the sociopath, the antisocial batterer, the chronic batterer, and the sporadic batterer. Gondolf and Fisher (1988) found that police were more likely to arrest the antisocial batterer. Although these arrests were justified, it was determined that arrest would have a more significant deterrent effect on sporadic and chronic batterers. The antisocial batterer was least deterred by an arrest.

There has been some evidence to suggest that those individuals who choose to conform to the norms and goals established by society are more likely to be deterred from future battering if they are arrested. Those offenders who were employed and/or married were less likely to repeat their abuse after an arrest. This had the opposite impact on those offenders who did not have a stake in conformity, i.e., were unmarried or unemployed; they did not respond well to the arrest. In fact, they were more likely to recidivate once arrested. The results of this study were troubling because a law enforcement agency cannot implement a policy of arresting only those batterers who are employed and/or married. Along the same lines, law enforcement officials cannot choose to avoid making arrests completely, nor can they arrest every offender when evidence indicates that it would result in future abuse.

Thus, the debate regarding the appropriate response to domestic violence continues. Consequently, states continue to utilize additional alternatives to augment their response to cases involving domestic violence. For example, it is common for states with mandatory arrest provisions to include no-drop prosecution statutes. No-drop statutes will not allow a victim of domestic violence to unilaterally dismiss charges against the perpetrator. Rather, depending on the jurisdiction, the judge, prosecutor, or law enforcement officer must approve dismissal of the case. Like mandatory arrest, no-drop statutes reflect an appreciation of the dynamics of domestic violence. Given the cyclical nature of violent relationships, victims are often immersed in the ‘‘honeymoon’’ phase during the pre-trial period. At this time, the victim is plagued by pleas for forgiveness, promises to change, and suggestions that the victim is tearing the family apart by pursuing the prosecution. Victims are often unable to withstand the pressure and attempt to dismiss the case. In states with no-drop statutes, victims are unable to do so. The underlying purpose of no-drop statutes is to insulate the victim from the pressure to drop the charges.

In addition to mandatory arrest and no-drop prosecution policies, many states require that perpetrators remain in jail for twenty-four to forty-eight hours before bond may be set. This period functions as a cooling-off period for the perpetrator and allows the victim time to make temporary arrangements for housing and other necessities. Moreover, many states mandate judges to issue a temporary restraining order or order of protection in all domestic violence cases. Thus, once charges are filed, a temporary restraining order is imposed. Violation of the restraining order is grounds for immediate arrest.

While research continues to support the use of arrest as a powerful tool in the deterrence of future acts of domestic violence, it is, by itself, insufficient. The judicial system must continue to demand accountability from batterers. Thus, the successful deterrence of domestic violence requires a coordinated effort among law enforcement, the judicial system, service providers, and the public.