Since 1980, the prevalence of incarceration in the U.S. has risen to an extraordinary level. U.S. mass incarceration is widely recognized to be a major public problem. While domestic violence policies have scarcely been discussed in that context, a harshly punitive regime of domestic violence emergency law developed in conjunction with mass incarceration. State actions under domestic violence emergency law now account for a majority of justice system actions addressing interpersonal violence. Domestic violence polices are central to the development of mass incarceration in the U.S. from about 1980.
The extraordinary growth in U.S. incarceration hasn’t been well-understood. Recent scholarly work has argued strongly that more aggressive criminalization of illegal drugs (“war on drugs”) doesn’t explain the steep rise in incarceration.^ Increases in sentence lengths also don’t seem to be a major factor.^ ^ At least since 1994, the increase in the prison population (here in the narrow sense excluding jail inmates) seems to have been driven by prosecutors more frequently filing felony charges.^ But what determines prosecutors’ decisions to file felony charges?
A good explanation for the extraordinary growth in U.S. incarceration should encompass persons held in jails. Jail inmates account for about one-third of adults held within U.S. justice-system incarceration facilities on any given day. The flow of persons in and out of jails is much higher than the flow of persons in and out of prisons. Jails are the gateway between incarceration and ordinary liberty. Jail inmates who have committed acts considered to be more serious crimes and who have had repeated spells of incarceration are more likely to become prison inmates. Prisoners begin their experience of incarceration as jail inmates. Systemic interactions throughout the justice system affect the prison population and overall incarceration prevalence.
Beginning about 1976, U.S. states rapidly enacted laws specifying civil processes for issuing domestic violence restraining orders. Civil petitioning for a domestic violence restraining order has developed into filing a pre-printed form that is perfunctorily judged ex parte. Restraining orders have also become a common condition for bail and for a plea bargain following a criminal charge of domestic violence. Restraining orders have also become readily available through petitions for relief from broadly defined harassment among parties not necessarily having a domestic relation. A restraining order can evict a person from her home and deprive her of custody of her children. While domestic violence has always been a crime and judges have always had legal power to issue broad-ranging restraining orders, domestic violence restraining orders and ramifying similar orders have made extraordinary judicial powers ordinary. About 1.2 million initial domestic violence restraining orders are issued per year. Violations of a restraining order can be nothing more than the otherwise ordinary act of making a non-harassing telephone call. Most states have made violating a restraining order a criminal offense. Restraining orders are highly effective instruments for criminalization and incarceration.
A population-weighted index of restraining order law shows sharp growth in domestic violence restraining order laws since the mid-1970s. The restraining-order law index for a state is simply a sum of five equal-value indicators for the existence of specific state laws concerning:
- domestic-violence restraining orders
- restraining orders for non-cohabitants
- warrantless arrest for violating restraining order
- violating restraining order criminalized
- mandatory arrest for violating restraining order
The sum of the indicators is normalized to one. Hence a state with an index of 0% has none of the laws, a state with an index 60% has three of the types of laws, and a state with an index of 100% has all five types of laws. The national index is a 1990-state-population weighted average of the state indices. The national index rises rapidly from 1976 to reach 62% in 1988. That means that most persons in the U.S. in 1988 were subject to more than three categories of domestic-violence restraining order laws. In 1997 the index reached 86%. The rise in extraordinary restraining order law broadly parallels the extraordinary rise in incarceration.
Indices of police and prosecutors’ more aggressive criminalization of domestic violence show rapid growth in the mid-1980s. The police index comprises indicators of written directives to police officers in two categories:
- mandatory arrest for domestic-violence offenses
- mandatory arrest for violations of restraining orders
The prosecution index comprises indicators in two categories:
- policy requiring no-drop prosecution of domestic violence
- prosecutor has a special domestic-violence unit that engages in legal advocacy for battered women
Legal advocacy is defined by the National Coalition Against Domestic Violence as legal assistance provided to battered women, such as assistance in obtaining restraining orders, accompaniment to court, legal clinics, advocacy, etc.^
The lag in the police and prosecution indices relative to the restraining-order law index suggests that state law increasing the criminalization of domestic violence took time to be institutionalized in local police and prosecution agencies. However, by 1996, all three indices had converged about 80%. Any reasonable measure of domestic violence criminalization will show a large increase from 1980 to 2000. Additional legislation addressing domestic violence has been continually enacted in subsequent years.
Mandatory arrest laws for domestic violence and mandatory arrest for even trivial restraining order violations are part of a broader pattern of bringing more persons into the criminal justice system. An insightful analysis of the collapse of criminal justice in the U.S. highlighted the declining significance of police:
For the better part of a century in the Northeast and Midwest, the ratio of police officers to prison inmates stood, roughly, at two to one. In the South and West, it was closer to one to one. Today, nationwide, that ratio stands at less than one to two.
More than any other statistic, that one captures what is most wrong with American criminal justice. ^
Mandatory arrest laws dis-empower police. They transform police from persons who can solve criminal justice problems at an early stage to bureaucrats who follow procedures to funnel persons into the criminal justice bureaucracy. Arrests for domestic violence have driven the rise in arrests for violence since 1980. Contrary to mythic history, domestic violence has always been a public concern. More aggressive, less discretionary treatment of the long-recognized crime of domestic violence is central to what has gone wrong with American criminal justice.
Expansive criminalization of domestic violence may help to explain some reduction in the highly disproportionate representation of men in prisons and jails relative to women. In 1970, about twenty men were incarcerated in U.S. prisons and jails for every woman incarcerated. By 2010, the U.S. incarceration sex ratio had fallen to about ten. Expansive criminalization of domestic violence has criminalized a wide range of low-level violent activity. Even with aggressive gender-profiling of men for arrest for domestic violence, police confronting obvious ground-level reality arrest a significant number of women for domestic violence. In the U.S., about a million arrests for domestic violence occur per year. About three men are arrested for domestic violence for every woman arrested for domestic violence. Increasing arrests for domestic violence have reduced the ratio of men to women arrested for assault. Arrests for assault systemically increase incarceration risk through creation of a criminal record, heightened justice system supervision, e.g. probation, disruption of family and work ties, and new social ties and values formed with other jail inmates. Expansive criminalization of domestic violence has reduced the sex disparity in persons swept into the criminal justice system. Over time, broader criminalization under domestic violence policies has reduced the high ratio of men incarcerated per woman incarcerated.
Sensational claims about crimes hidden within the home have real effects on the number and sex of persons locked away in prisons and jails. In the U.S., expanded state fiscal capacity and a relatively high general level of crime in the 1970s plausibly helped to enable and push the extraordinary rise in incarceration beginning about 1980.^ ^ The larger fall in the incarceration sex ratio in England and Wales compared to the U.S. from 1970 to 2010 indicates that factors other than domestic violence policies significantly affect the incarceration sex ratio. The relationship between victimization and criminalization and the extent of the bias toward criminalizing men depends on a wide range of policies. Crime, much more so than gender, is socially constructed.
More aggressive criminalization of more broadly defined domestic violence is central to the extraordinary growth in incarceration in the U.S. since about 1980. Domestic violence policies have contributed significantly to increasing the number of persons living in violent places: prisons and jails. Unwillingness to recognize that reality reflects the same problem of deliberative democracy that allowed sensational, false claims about domestic violence against women to become prevalent throughout public discourse. Understanding changes in domestic violence policies is crucial for understanding the rise of mass incarceration.