Restraining Orders Effective for Criminalization & Incarceration

face of a prisoner

Domestic-violence restraining orders are a powerful tool for criminalization and incarceration. Domestic-violence restraining orders issue with virtually no legal due-process protections and can arise from simple, perfunctorily reviewed civil petitions. Restraining orders typically forbid a subject person from engaging in ordinary communication and association with designated persons. Designated persons often include the subject person’s children and intimate partner sharing a home with the subject person. Almost all U.S. states have made violation of a domestic-violence restraining order a separate crime. Particularly in an era of pervasively tracked electronic communications, convincing evidence of a restraining order violation is relatively easy to obtain. Domestic-violence restraining orders thus provide a broad, fast railroad to move from a civil petition or a complicated domestic-violence criminal case to a straight-forward criminal conviction for violating a restraining order.^ ^ ^

Domestic-violence restraining orders effectively criminalize mundane activities such as phone contact with the designated person, meeting with him, or communicating with him in any way. Restraining orders commonly impose such restrictions through a “no contact” provision. This “no contact” provision can effectively evict a person from her home and from the lives of her children and her intimate partner. The extraordinary effects of a “no contact” provision create interpretive difficulties in the mundane practice of ordinary life. One of the few humane studies of domestic-violence restraining orders observed:

Most of the interviewees {parties to domestic-violence restraining orders} had repeatedly called the police or the prosecutor to tell them about various awkward encounters with the other, and had negotiated the status of these events. Is a postcard from the other party’s child a violation of the CPO {Contact Prohibition Order}? A phone call to the protected person’s parents with questions about their daughter’s health? A report to the social welfare office claiming that their common children are being neglected by their mother? Passing by in a car for no obvious reason except spying on visitors at the protected person’s home? Walking around in the same shopping-mall?^

Restraining orders effectively criminalize actions that are not otherwise criminal. Those actions might not cause harm to the designated person. The designated person might invite, welcome, and participate in contract with the restrained person. None of these factors is relevant to the restrained person’s crime of violating a restraining order.

Violations of domestic-violence restraining orders are specifically criminalized. Statutory laws in forty-four U.S. states and the District of Columbia define violation of a restraining order as a separate criminal offense. In all but one state, violation of a restraining order (including a restraining order arising from a civil process) can be punished as criminal contempt. In seven states, a single violation of a restraining order can be charged under statutory law as a felony.^ Maine and Connecticut mandate under law that the first violation of a restraining order be charged as a felony.^ A study reflecting the dominant scholarly orientation to restraining orders declared:

we consider states very progressive if they deem first-time violations {of domestic-violence restraining orders} felonies, somewhat progressive if they deem subsequent violations felonies, and not progressive if all violations are deemed misdemeanors.^

A recent, unsigned note in the Harvard Law Review argued that no due process problem exists for private initiation of criminal contempt for violation of a restraining order issued through a simple, expedited civil petition.^ Through an efficient, streamlined process benefiting from extraordinary support in public discourse, restraining orders transform mundane, harmless personal communication and association into criminal acts.

Domestic-violence restraining orders are a numerically significant system of special control of persons’ liberties. About 1.2 million adults in the U.S. are subject to domestic-violence restraining orders on any given day. That amounts to 50% of the number of persons held in jails or prisons, and 23% of the number of persons on probation or parole. In the context of greatly expanding justice-system special control, probation and parole have attracted little public attention relative to incarceration.^ Restraining orders have attracted even less attention. Restraining orders have increased greatly in importance over the past three decades relative to probation, parole, and incarceration.^ Domestic-violence restraining orders have led the expansion of justice-system special control of persons’ lives.

Domestic-violence restraining orders are associated with incarceration. In the U.S. in 2002, 19% of inmates in local jails had been subject to a restraining order at some time in their lives. At the time of their admittance to jail, 5% of jail inmates were under a restraining order. The share of adults subject to a restraining order in the overall U.S. population is about a tenth of that later figure. Restraining orders and incarceration correlate in a general sense: both indicate lives torn out of ordinary relations. Both create the challenge of re-integration into normal society so as to avoid further justice-system special control.

Domestic-violence restraining orders commonly lead to incarceration. In the U.S. in 2002, 30% of inmates who were under a restraining order at admittance to jail were arrested for a restraining order violation or were charged with a restraining order violation. A higher share of inmates whose current primary (controlling) offense was a non-violent offense were admitted to jail under a restraining order violation: 31% of inmates with a primary non-violent offense, compared to 28% of inmates with a primary violent offense. Like most arrests for domestic violence, most violations of restraining orders almost surely do not involve serious acts of violence as otherwise understood in the criminal-justice system.^ Restraining order violations incarcerate persons who would not otherwise be incarcerated for their acts under normal criminal law.

Violations of domestic-violence restraining orders send an estimated quarter-million persons to jail per year in the U.S. A large share of persons subject to restraining orders violate, at least formally, those restraining orders.^ Restraining-order violations are the leading category of subsequent criminal charges against persons involved in a civil petition for a domestic-violence restraining order.^ Data for Pittsburgh in 2000 indicates that 22% of final, civil domestic-violence restraining orders led to contempt charges. Among the subjects of those contempt charges, 43% were jailed for contempt.^ Roughly 500,000 final domestic-violence restraining orders, both civil and criminal, issue in the U.S. per year. The Pittsburgh enforcement parameters, applied nationally, suggest roughly 50,000 persons are incarcerated per year for violating final restraining orders. About 1.2 million initial restraining orders, both civil and criminal, issue per year. Perhaps because of the shocking effects of initial restraining orders, violations of initial orders are more probable than violations of final orders.^ Assuming a violation share of 33% and an incarceration share of 50%, total incarcerations for violating domestic-violence restraining orders amount to about a quarter million. Restraining order violations, like domestic-violence offenses more generally, contribute significantly to jail populations.

Domestic-violence restraining orders criminalize persons in ways that destroy common understanding of crime and justice. A simple, civil petition processed perfunctorily on an ex parte basis can evict a person from her home and forbid her from having any communication with her children and her intimate partner. In New York State, the restraining order that imposes those extraordinary restraints on a person has printed at its top, in bold, capitalized letters:


These are not merely words. In 1993 in New York State, an ex-husband was committed to jail for multiple violations of a restraining order that his ex-wife secured. While in jail, the ex-husband was subject to a restraining order forbidding him to communicate with his ex-wife. In violation of that order, he sent her three letters from jail. The New York Family Court sentenced him to three additional, consecutive six-month terms of incarceration for sending those three letters from jail.^ The highest court in New York State, affirming a formal aspect of this judgment, quoted a respected legal teaching:

{n}othing short of obvious compulsion will lead us to a reading of the statute whereby the pains and penalty of crimes are shorn of all terrors more poignant than a form of words ^

That quote is from an opinion of famous New York State Chief Judge Benjamin Cardozo in a decision concerning the relation between a sentence for robbery and a sentence for first-degree manslaughter. Without a sense for the irony, the court applied that quote to a 1.5-year sentence of incarceration for a mundane form of words, sent from jail, without any evidence of actual harm, or intent to do harm.

In another restraining-order case that passed appellate review, a woman was charged with violating a restraining order that forbid her from communicating with her sister and a minor child. The basis for the charge of violating the restraining order was one non-harassing telephone call the woman made to her sister. The Illinois Appeals Court declared:

The Illinois Domestic Violence Act would fail in its purpose of protecting family harmony and creating an emotional atmosphere “conducive to healthy childhood development” if it cannot protect an abused person, particularly a minor, from receiving even a single or occasional telephone call from his or her abuser. If a protective order forbids telephone contact, then the defendant cannot use the telephone to contact the protected party.^

That’s a simple interpretation of black-letter law. It shows no appreciation for restraining-order law in practice and the legal misconstruction of domestic violence. Law can command respect only when it has a generally accepted basis for respect. Crimes that domestic-violence restraining orders create undermine respect for law.

Largely treated as an emergency regime, domestic-violence restraining orders have been inadequately conceptualized legally. As a result of mandatory arrest and no-drop prosecution policies, no-contact restraining orders can issue against the wishes of both parties and legally end their intimate relationship.^ To alleviate perceived constitutional infirmities of that result, a law-review article proposed incarceration rather than a restraining order when the designated victim insists on having continued contact with the alleged offender.^ That proposal mainly has the intellectual merit of highlighting that restraining orders can be less humane than incarceration. Another law-review article proposed that restraining orders allow personal communicative contact but forbid further domestic violence.^ Of course, further domestic violence is already forbidden under criminal law. A restraining order forbidding further abuse lowers the cost of criminalization through creating the broad crimes of restraining-order violations for the subject person. The issuing of restraining orders supports an obscure, oppressive special regime of criminal control.

Restraining orders should be understood within the over-all circumstances of justice-system functioning. The U.S. has an exceptionally high prevalence of incarceration. Incarcerated persons are highly disproportionately men. Public discourse supports harsh criminal punishment and sensationalizes women as victims of men’s violence. Within poorly functioning public discourse about domestic violence, critical analysis of domestic-violence restraining orders has been primarily concerned about whether restraining orders (“protective orders”) effectively serve women’s needs.^ Some legal scholars have questioned the proliferation of restraining orders to harassment restraining orders and restraining orders against parents. Restraining orders, which are overwhelmingly domestic-violence restraining orders, present much more general problems. Domestic-violence restraining orders eviscerate due-process constraints in administration of justice and eliminate the direct fiscal costs of extensive criminalization and incarceration. They make a mockery of equal justice for men and women under law.

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