Suppressing Personal Communication with Restraining Orders

face of a prisoner

Restraining orders are a major but largely unrecognized state-imposed restriction on personal communication. Roughly 90% of restraining orders active in the U.S. are domestic-violence restraining orders. About 1.1 million domestic-violence restraining orders are active on any given day. Roughly 90% of domestic-violence restraining orders include no-contact provisions.^ ^ ^ ^ No-contact domestic-violence restraining orders sever and criminalize all communication between designated intimates, relatives, and cohabitants. They do so for periods ranging from weeks to years. In the U.S. today, restraining orders’ restrictions on communication are plausibly more communicatively significant than the complete suppression of communication between prisoners and the outside world early in the nineteenth-century.

Restraining orders are often imposed in circumstances in which the parties have not clearly decided to end their relationship. Restraining orders are commonly imposed at criminal arraignment on domestic-violence charges. The designated victim may not have called the police and may not want to press charges. Nonetheless, under mandatory arrest policies and no-drop prosecution policies, the criminal case will go forward irrespective of the wishes of the designated victim. The no-contact restraining order will formally sever the relationship between the parties until the case is closed. A common condition for closing even a misdemeanor domestic-violence case is accepting a no-contact restraining order extending for years. Such a restraining order can effectively terminate an intimate relation against the will of the parties. It can amount to a state-imposed, de facto divorce.

Restraining orders arising from civil petitions criminalize efforts to re-establish the relation before the standard duration of the restraining order ends. In response to a civil petition, a final restraining order, if established, is typically established for a standard period of years. That standard period typically has little relation to the facts, desires, and conditions of the parties to a particular case.^ Parties can petition a court for modification or dissolution of a restraining order, but they can’t legally discuss with each other doing so in any place other than a court hearing. A court hearing is poorly suited to an intimate discussion about re-establishing a relationship. More common is for parties to re-establish a relationship in violation of the restraining order. That puts the restrained party at acute risk for criminal conviction. Where neither party desires a restraining order, a recent law-review article has humanely proposed incarcerating the targeted person because such action does not completely sever the parties’ legal right to communicate.^

The case State v. Ross (1996) illustrates how restraining orders can control important personal relationships. In 1995, police responded to a call about a domestic altercation at the home of Mary Burke. When police arrived, Burke ran out and grabbed the police officer. She exclaimed that Billy Ross was trying to kill her and pled for help. Ross was inside the home. There was much physical evidence of domestic violence. Burke subsequently recanted her claim that Ross was the perpetrator and instead blamed another man. Ross was found guilty at trial:

As part of its sentence, the court ordered that Ross have no-contact with Burke for ten years. Unbeknownst to the court, Ross and Burke had married between trial and sentencing. The marriage ceremony violated a no-contact order that had been in place since the filing of the information.

Several months after sentencing, Ross moved to modify the sentence, arguing that the no-contact provision unconstitutionally infringed his right to marry. He asked the court to vacate that portion of the sentence. The court declined to vacate the provision, but agreed to modify it to allow any contact prison officials approved, and to allow contact after Ross’ release

Ross and Burke’s decision to marry may well have been a strategic attempt to create a legal basis for having the restraining order vacated. But the court didn’t vacate the restraining order. The court delegated authority to determine the extent of Ross’ communication with his wife to non-judicial officials. While prison officials under current U.S. law cannot categorically forbid marriage or communication with the outside world, prison officials have broad authority to regulate with whom a prisoner is allowed to communicate. For the period after Ross’s release from prison until the expiration of the ten-year order of no contact with his wife, the court delegate to “treatment agencies” to determine whether and under what rules Ross could communicate with his wife:

Contact will be permitted while on community placement notwithstanding the no contact order, as approved in writing by the treatment agencies, and submitted to the court through the {CCO} {Community Corrections Officer}.

Whether a person is allowed to write a letter to his wife or make a telephone call to his wife across a period of years cannot be reasonably be understood as a question of “treatment” expertise. Restricting such communication is a harsh abridgement of fundamental human rights. In a law-governed democracy, such restrictions should be imposed only by legal authorities acting under law and for compelling, publicly understood reasons. As State v. Ross illustrates, restraining orders can enact a harshly restrictive communications regime with little relation to constitutionally established law.

Appellate courts have upheld very broad restrictions on personal communication. In U.S. v. Brandenburg (2005), defendant Eric Brandenburg had a lengthy criminal history that included “numerous acts of domestic violence.” A district court forbid Brandenburg from “co-habitating with any female” during his one-year period of supervised release from prison. The court also required Brandenburg to report to his parole officer any female with whom he had “social contact.” Domestic-violence laws explicitly recognize that cohabitation is not necessary for domestic violence. The trial court justified its order forbidding Brandenburg from cohabiting with any female for one year with general, practical reason:

The court justified the co-habitation provision as follows, “I’m not going to allow this to happen again while you’re on my watch,” presumably referring to Defendant’s attack on Wilcox {a girlfriend with whom Brandenburg cohabited}.

Regarding the order forbidding Brandenburg from cohabiting with any female for one year, the Court of Appeals decided:

the condition is directly related to the dual goals of Defendant’s rehabilitation and the protection of the public, and the condition involves no greater deprivation of Defendant’s association rights than reasonably necessary to achieve these goals. … Because of this history {Brandenburg’s history of domestic violence}, the district court reasonably believed that Defendant was likely to abuse any female with whom Defendant lived.

The declaration that the Defendant “was likely to abuse any female” supports deprivation of fundamental rights in anticipation of bad action. Surely relative to an ordinary person, Brandenburg was more likely to abuse a cohabiting intimate partner. But “any female” is much broader than a female intimate partner. Prohibited female cohabitants unreasonably encompass a caring, elderly female relative. Moreover, how does the term of one year of not cohabiting with any female reasonably relate to the goal of rehabilitation? Is there any reason to believe that the likelihood of Brandenburg abusing a cohabiting female will change significantly after one year irrespective of the effects of rehabilitation? The Court of Appeals provided none.

The specified duration of one year during which Brandenburg could not lawfully cohabit with any female coincides with his period of supervised release. Supervised release allows a person to demonstrate, under heightened justice system monitoring, an ability to live as a law-abiding citizen. Forbidding Brandenburg to reside with any female doesn’t allow him to demonstrate that he can lawfully live with a female. Brandenburg’s period of supervised release and his period of state-imposed non-cohabitation with any female have little rational connection. Forbidding a defendant from ever again cohabiting with any female seems inhumane. Having a one-year period of non-cohabitation with any female rationalizes the underlying communication restriction only by making it less inhumane.

Courts have not viewed restrictions on personal communication consistently. In U.S. v. Woods (2008), a different appellate court considered an order forbidding a defendant from residing with any person “not ceremonially married to or related to by blood during the term of your supervised release.” The appellate court vacated that condition as overly broad. In the course of that decision, the court approvingly cited U.S. v. Brandenburg (2005). Restraining orders with similar arbitrariness criminalize fundamental human relationships. A criminal defense attorney described one such situation he faced:

in a case of ours in Queens, a client’s girlfriend did not want to proceed against her boyfriend and affirmatively stated that some of the claims she originally made when she was angry were NOT TRUE. She affirmatively said she did NOT want a TOP {Temporary Order of Protection, i.e. an initial restraining order} so that they could be together.

Nevertheless, the Prosecutor refused to dismiss and only would offer a non-criminal offense called harassment to resolve the case. If the client accepted the deal, all he would have had to do to walk out of the courtroom FOREVER was to agree that he “harassed” his girlfriend. If he simply spoke those magic words, the Prosecutor and the Judge were perfectly prepared to permit him to leave the Court FOREVER and to be with his girlfriend as if nothing ever happened.

But our client refused even to admit that he harassed his girlfriend. Since the Prosecutor refused to dismiss the case, the case had to be adjourned. Over our objection, the Judge issued a FULL TOP {restraining order} ordering the defendant to stay away from the complaining witness completely.

Remember that moments before, the Judge was perfectly content to permit our client and the complaining witness to go off together into the sunset. All he had to do was say the word “yes” when asked whether or not he harassed his girlfriend. But because he refused to speak that magic word, the judge insisted that the girlfriend have a full TOP. This was despite the fact that she was in Court specifically requesting that she NOT be given a full TOP.

Therefore, our client risked arrest on a new charge if he had any contact with the complaining witness until the next court date. Somehow, our client stopped being a threat to the complaining witness if he spoke the magic word to the judge (even if he didn’t really mean it). But by not speaking the magic word, our client was such a serious threat to the complaining witness that the judge had to overrule the complaining witness’ own judgment and order him to stay completely away.^

The communicative effects of incarceration are typically submerged in sentences specifying only duration of incarceration. Restraining orders directly impose communicative restrictions. The communicative effects of both these types of state actions have receive little legal and public scrutiny.

Restraining orders may exceed in communicative effect the most communicatively suppressive era of U.S. justice system policy. Drawing upon the work of leading economists, legal scholars, and public figures, the New York State Prison at Auburn early in the nineteenth century pioneered completely suppressing prisoners’ ordinary communication with family and friends. The innovative Auburn model attracted international acclaim and was reproduced in London and in other locations around the world. At its peak in the U.S. about 1840, complete suppression of prisoners’ communication with family and friends existed for 0.4 prisoners per thousand U.S. adults. In the U.S. today, about ten times more persons per thousand adults are subject to no-contact domestic-violence restraining orders. Domestic-violence restraining orders typically severe communication with an intimate partner and associated children. Restraining orders allow a restrained person to maintain communication with non-designated persons. Nonetheless, under a reasonable weighting by relationship importance, restraining orders, narrower but ten times more frequent, have a larger aggregate communicative effect than complete suppression of prisoners’ communication in the U.S. early in the nineteenth century.

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