Domestic violence and mandatory arrests
Part 1 of a series
You've likely heard the phrase, "Can't see the forest for the trees."
According to About.com, it means: Overly concerned with detail; not understanding the whole situation — used when expressing that a person is focusing too much on specific problems and is missing the point.
I would like to bring the readers attention to two very significant domestic violence reports, Layers of Meaning: Domestic Violence and Law Enforcement Attitudes in Arizona (LoM) and System Alert - Arizona’s Criminal Justice Response to Domestic Violence (SA). They are both from the Morrison Institute, a unit in the School of Public Affairs at Arizona State University.
I believe everyone involved with the issue of domestic violence and its intersection with the criminal justice system should read these two reports. First and foremost, I give kudos to the Morrison Institute for placing their studies online. It is not my purpose to be critical of these reports. My comments are intended to be educationally provocative and to stimulate serious discussion about a very important issue.
I begin with "Understanding 'Mandatory Arrest,'" (p.5 SA). I proffer that it is “mandatory arrest” that has created many of the problems that these two reports document..
Mandatory arrest is not utilized anywhere else in the criminal justice system because mandatory arrest supplants officer discretion - officer discretion is the ability of officers to use logic and common sense. And, for those seeking assistance from the criminal justice system (CJS), mandatory arrest subordinates their rights and needs to that of the CJS.
Advocates claim, with validity, that the criminal justice system has historically ignored the context, circumstances and multifaceted desires and needs of victims. Ironically, most advocates seem unwilling or unable to understand that mandatory arrest mandates that officers must ignore the context, circumstances and multifaceted desires and needs of victims.
It appears that the author’s of SA have concluded that, concerning mandatory arrest, law enforcement officers in Arizona are guided only or primarily by Arizona domestic violence law ARS 13-3601 and not by law enforcement policy, procedure or National Institute of Justice (NIJ) sponsored grants and training to encourage arrest.
Arizona, like many other states, has a “mandatory arrest” policy. The key change from the past is that, under certain circumstances, police officers responding to the scene of an alleged DV incident are required to make an arrest even if they did not witness the offense, their own judgment at the scene directs otherwise, and the victim does not desire it (SA, p5).
It also appears that the authors of SA conclude that the Arizona “mandatory arrest” law is not actually “mandated” for all domestic violence incidents and that the officers are only required to arrest under very specific and certain circumstances i.e.:
However, in case of “infliction of physical injury or involving the discharge, use of threatening exhibition of a deadly weapon or dangerous instrument,” an Arizona peace officer with probable cause must make an arrest. But even this provision contains a significant caveat: An officer may forego arrest if he or she “has reasonable grounds to believe that the circumstances at the time are such that the victim will be protected from further injury” (SA, p5.)
Specifically, under the "infliction of physical injury" section it is difficult to comprehend any circumstance, other than arrest, that would cause an officer, to understand how the “victims will be protected from further injury” other than arresting the offender.
The authors of SA also seem not to be aware of the fact that the Grants to Encourage Arrest Policies from the NIJ has spent millions of dollars and many hours of training law enforcement to have in place “de facto” mandatory arrest laws. The Eloy, Arizona, Arrest Policies Project: A Process Evaluation documents the training and presence in Arizona of these “de facto mandatory arrest” polices and procedures.
On page 9 of the above report, the Eloy policy proclaims, “The department policy and philosophy is pro-arrest, in order to break the cycle of violence and to deter future abuse.”
Administrators and officers also understand the while the state statute frees them from Arizona civil liability, it does not free the officers, the department or other public officials from being sued through federal law suits.
Thus the majority of law enforcement officers are not guided by Arizona statute law ARS 13-3601. The officers are guided by NIJ training and departmental policies and procedures concerning mandatory arrests policies in Arizona that actually cover 21, as noted by the SA report, potential incidences of domestic violence including:
- Threatening or intimidating
- Simple or aggravated assault
- Custodial interference
- Criminal trespass
- Criminal damage
- Disorderly conduct
An advocate's view
In the SA the director of the Phoenix Family Advocacy Center writes:
Even as they [advocates] assist, support and encourage victims to remain engaged in the legal process, victim advocates know that most often the criminal justice system does not respond to victims as individuals, that prosecution guidelines do not ensure that batterers will be held accountable, that the quality of batter intervention programs is inconsistent, and that many victims will drop out of the confusing, timely process.
I agree with the advocate. However, I believe that many of the problems she notes have been created by the dragnet approach of simplistic cookie-cutter mandatory or pro-arrest policies. These polices have also created confusion as they treat “family conflict” the same as “battering behavior."
The justification for mandatory arrest is that while mandatory arrest is a draconian process, mandatory arrest is necessary to save lives. The belief is based on the premise that if “one life is saved” mandatory arrest policies are worth the effort.
A growing number of NIJ sponsored studies (http://www.ncjrs.gov/pdffiles1/jr000250f.pdf) documents perhaps live are lost as a result of these policies. A recent Harvard University research paper, Does the certainty of arrest reduce domestic violence? Evidence from mandatory and recommended arrest laws, (http://www.nber.org/papers/w13186) found that intimate partner homicides increased by 60 percent in states with mandatory arrest laws.
Future columns will continue to use the two Morrison Institute reports to further explore if we have we lost the forest for the trees concerning just what the proper role of police intervention in domestic violence should be.
Author's Note: If readers take a look at my past Police1 columns, they'll discover that I offer a citation (frequently hyperlinked) for any opinion. I respect the adage, “Everyone has the right to their own opinion, but not their own facts.”
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