Prosecuting Domestic Violence for Mass Incarceration of Men

face of a prisoner

In addition to warrantless and mandatory arrest for domestic violence, many jurisdictions have “no drop” domestic-violence prosecution. No-drop domestic-violence prosecution literally means that prosecutors will pursue every domestic violence charge to the fullest extent possible under law, irrespective of the wishes of the victim. No-drop domestic-violence prosecution contributes to the extraordinarily high U.S. incarceration prevalence.

No-drop policies are implemented under the discretion of local prosecutors. Local prosecutorial discretion in charging crimes and accepting plea bargains essentially governs who is criminally punished for what in the U.S. In a mid-1990s survey of prosecutor’s offices in jurisdictions with populations greater than 250,000, 66% of responding prosecutors’ offices stated that they had no-drop policies. Among responses to the relevant question, 80% of prosecutor’s offices indicate that they would prosecute despite an uncooperative victim.^ As of 2002, almost all counties in Maryland had adopted no-drop domestic-violence prosecution policies.^ At least four U.S. states have encouraged no-drop domestic-violence prosecution policies by statute.^

Many reported victims of domestic violence don’t want the alleged acts against them to be prosecuted. Lying and perjury concerning acts of domestic violence are widely recognized problems for prosecutors. In a tendentious survey of prosecutors in California, Oregon, and Washington, 91% prosecutors indicated that requiring police-designated victims to face their accusers makes them unlikely to cooperate with prosecution.^ Relatively high-quality evidence indicates that, among felony domestic-violence cases that are dismissed, 78% are dismissed because the designated victim wouldn’t cooperate with the prosecution.^ A scholar with experience working as a domestic-violence prosecutor observed:

As a young prosecutor, I expected to confront instances of lying, but I did not expect to hear lies coming from some of the victims. Unfortunately, hearing contradictory and false statements from the mouths of domestic violence victims became generally widespread.^

Domestic-violence authorities have stated that 80% to 90% of domestic violence victims lie under oath about acts of domestic violence.^ ^ ^ Domestic-violence authorities typically rationalizing that perjury in a way that demeans the victims’ rationality or assumes further bad acts by the suspect.

Reasons that don’t require endorsing expanded criminal suspicion of the suspect reasonably explain many victims’ unwillingness to support prosecutions under domestic violence law. Domestic violence law broadly encompasses many acts and situations not ordinarily considered to be criminally serious. Most domestic violence incidents reported to the police involve neither serious injury nor weapons. Persons whom police designate as victims may well recognize their culpability for incidents.^ Prosecution for domestic violence may make a suspect unable and unwilling to provide money and material support, companionship, and sex to the victim. Prosecution for domestic violence can produce state-imposed de facto divorce.^ The coercive control of the state and the services of domestic-violence service providers cannot together plausibly compensate for the net goods that many suspects could and would provide designated victims even after reported incidents of domestic violence.

No-drop domestic-violence prosecution policies, if taken literally, would require convicting nearly every person charged with domestic violence. Only a few percent of criminal cases ever go to trial. Of those few percent taken to trial, roughly 25% of cases return a verdict of not guilty.^ The vast majority of criminal cases are either dropped at some point in case processing or are resolved through plea-bargained convictions. Greatly increasing the number of criminal cases brought to trial is infeasible given justice system staffing and budgetary constraints. If prosecutors cannot drop cases, they must get plea-bargained convictions. Prosecutors have enormous power to secure plea-bargained convictions. Prosecutors with a keen sense for doing justice under no-drop prosecution can secure plea-bargained convictions for violations carrying only a light penalty. Other prosecutors can insist on harsher convictions. Prosecutors interested in securing professional victories in domestic-violence cases and expanding the U.S. prison population gain encouragement through no-drop policies.

Through relatively obscure means, jurisdictions with no-drop prosecution policies actually drop a significant number of cases where prosecution would be infeasible. Police have discretion to code an incident as exceptionally cleared because the victim refused to cooperate or prosecution was declined. Police in this way can exercise reason in dropping cases if prosecutors formally cannot under no-drop policies. A study about the year 2000 selected among sites awarded federal funds for implementing no-drop domestic-violence prosecution three “that seemed the most unequivocal in implementing a strong no-drop policy.” These were Klamath Falls, Oregon; Everett, Washington; and Omaha, Nebraska. In addition, the study included San Diego, California: “not only the first place to try no-drop, but widely respected as being the most successful no-drop site.”^ The study found that prosecutors dismissed 3%, 9%, 24%, and 31% of domestic-violence cases in San Diego, Klamath Falls, Everett, and Omaha, respectively.^ Differences in prior screening contribute to differences in the share of cases prosecutors dismiss. For example, in San Diego, police did not refer for prosecution 30% of persons arrested for domestic violence.^ In other jurisdictions, charges are filed automatically upon arrest. About a million arrests for domestic violence occur in the U.S. per year. Local justice systems, operating with finite available resources and upholding at least some respect for doing justice with regard to actual circumstances of domestic violence calls to police, must screen domestic-violence cases at some point in case processing even under “no-drop” policies.

Despite domestic-violence victims’ reasonable reluctance to support domestic-violence prosecutions, domestic-violence cases are as likely to secure a conviction as broadly comparable non-domestic-violence cases. Among felony sexual and aggravated assault cases filed in 15 large U.S. counties in 2002, 61% of the domestic defendants were convicted. Among non-domestic defendants in that sample, 54% were convicted. A review of 135 English-language domestic-violence studies found convictions as a share of prosecutions to be about 50%.^ Given that the victim often does not want the prosecution to succeed^, the relatively high share of convictions for domestic-violence prosecutions indicates the success of policies and initiatives to encourage convicting persons for domestic violence.

The most reasonable explanation for the enactment of no-drop domestic-violence prosecution policies is anti-men gender bias. The domestic violence literature largely supports no-drop prosecution under abstract claims of the public interest in doing justice. That literature also largely ignores sensational anti-men bias in public discussion of domestic violence, gender-profiling men for arrest for domestic violence, and the criminal justice system’s highly disproportionate incarceration of men. Drawing upon stereotypes of women as innocent victims and men as evil aggressors, no-drop prosecution policies gain support from the implicit presumption that men will be prosecuted to protect women.

No-drop prosecution policies for domestic violence are highly significant to the U.S. criminal justice system as a whole. Arrests for domestic violence currently account for about 60% of all arrests of adults for inter-personal violence. The criminal-justice system routinely imposes restraining orders on alleged domestic violence offenders as a condition of release after arrest and before case investigation and evaluation. Prosecutors commonly insist upon a (continued) restraining order as a condition of a plea-bargained conviction.^ ^ ^ Restraining orders greatly limit ordinary liberties of communication and association with the threat of criminal punishment. Moreover, ordinary communication and association that violates a restraining order are relatively easy to prosecute. Recent empirical study of the extraordinary expansion of incarceration in the U.S. since about 1980 has identified an increase in prosecutors’ filing of felony charges per arrest as driving the growth in the imprisoned population.^ Prosecution of domestic violence is a major, highly under-appreciated component of the U.S. criminal justice system’s unprecedented expansion of incarceration.

Prosecution of domestic violence has contributed to mass incarceration with stunning perversity and shameful bias. While crime victims tend to be supportive of criminal punishment, that’s much less true for many domestic violence victims. Domestic-violence professionals, both intellectually and operationally, have driven no-drop domestic-violence prosecution policies. Public discourse has broadly supported sensational, grotesquely false claims about domestic violence against women. The legal profession has not seriously questioned invoking emergency law and action in the mundane processing of domestic-violence cases. No-drop domestic-violence prosecution policies reflect mis-information about domestic violence and highly biased public discussion of doing justice in response to allegations of domestic violence.

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