Domestic Violence Amid Criminal Justice System Malfunctioning

face of a prisoner

In a highly unusual article, a law professor who practiced as a public defender in the District of Columbia considered domestic violence within the broad context of the functioning of the U.S. criminal justice system. This scholar-participant observed:

Day after day, prosecutors proceeded with cases against the wishes of victims, resulting in the mass incarceration of young black men. Could this have been the result feminist law reformers hoped for when they began their movement of resistance against patriarchy that legitimized domestic violence? … in recent times, victims’ rights reformers and the government have appropriated the domestic violence issue, not to change the patriarchal institutions that support battering, but rather to further a pro-criminalization agenda.^

Many legal scholars consider the U.S. criminal justice system to be malfunctioning. In a highly respected law review, a law professor, a prominent scholar of the criminal justice system, declared in 2006:

the train has run off the rails.… American criminal justice seems to me an outrage that generates more injustice than its opposite. The absence of any clear villain heightens the sense of tragedy without lessening the outrage.^

Another law professor noted:

If the system is doing justice now it is by accident – the accident that particular prosecutors bargain prudently and humanely. There are good reasons to doubt that this happy accident is really taking place.^

The legal literature emphasizes that overcriminalization, excessive prosecutorial discretion, and overly harsh punishment plagues the U.S. criminal justice system. Yet the legal literature seldom considers those problems in relation to law and policy regarding domestic violence. That silence points to broader problems of democratic governance of criminal justice.

Public discourse shows relatively little concern about overcriminalization, excessive prosecutorial discretion, and overly harsh punishment. Injustices in the criminal justice system attract much less public attention than sensational crimes. Proposing new crimes and urging harsh punishment is much more popular than decriminalization and calls for mercy. In historical and international perspectives, the U.S. has been exceptional in punishment: the U.S. had an exceptionally high ratio of men to women in prison in the nineteenth century and currently has an exceptionally high prevalence of imprisonment. Why don’t these exceptional circumstances attract more public concern?

The legal academy has formulated various explanations for the public’s failure to appreciate the malfunctioning of the criminal justice system. One eminent law professor has linked much harsher punishment in the U.S. compared to Europe to contrasting civic cultures. In Europe, nobles were accorded dignity in punishment. That dignity was subsequently generalized democratically. Since a noble class has been much less recognized and institutionalized in the U.S, demand for democratization of noble dignity, according to this eminent authority, doesn’t exist in the U.S. A scholarly study showing major problems with California’s “Three Strikes” penal law attributed lack of public concern about these problems in part to a “large gap between law professors and the legislative process.”^ A contrasting opinion is that leading lawyers have successfully pursued symbolic victories in constitutional law and have thereby suppressed local political possibilities for constraining the extent and harshness of punishment.^ In any case, a gap between law professors and the legislative process in discussing domestic violence doesn’t favor the expertise of law professors.

Consider an important statement from the American Bar Association’s Commission on Domestic Violence. For at least a decade, 1996-2005, this leading organization of the law profession had available on the web a document about domestic violence. Under the heading “Identifying Domestic Violence,” sub-heading “What is Domestic Violence?” was this guidance for law enforcement professionals:

When spouses, intimate partners, or dates use physical violence, threats, emotional abuse, harassment, or stalking to control the behavior of their partners, they are committing domestic violence. Physical violence includes putting your hands on a person against their will. It also includes shoving, pushing, grabbing, pulling, or forcing some one to stay somewhere. Regardless of the relationship between two people, using physical violence against someone is a crime. {emphasis added}^

Describing “putting your hands on a person against their will” as “a crime” trivializes domestic violence. No one deserves to be a victim of physical violence or domestic violence. Domestic violence is a serious public problem. At the same time, a crime-and-punishment approach has limitations in solving problems, particularly problems among intimates sharing children and a home and aspiring to love one another. Moreover, public discussion of domestic violence has been highly prejudicial toward men. The criminal justice system highly disproportionately imprisons men. Reasonable legal consideration of domestic violence should squarely recognize these facts. The law profession largely doesn’t.

General properties of public discourse contribute to a badly functioning criminal justice system. The justice system’s response to domestic violence is oriented toward punishing men and providing services to women. In that deliberative context, legal scholars appear largely unable to discuss much of what legal scholars typically discuss and lament — overcriminalization, lack of procedural protections for civil and human rights, plea-bargaining outside the shadow of well-understood criminal law, enormous gender and racial inequalities, state-perpetrated insults to human dignity, overly harsh punishment, etc. Sociological, criminological, judicial, and mass-media spheres of public discourse show similarly poor performance in discussing domestic violence. Public deliberation about domestic violence is a microcosm of the more general sex problem in public deliberation about criminal justice.

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