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    Understanding Colorado Mandatory Arrest and So Called “No Drop” Prosecution Policies – The Research

    Colorado Criminal Domestic Violence Law and Tactics: The Fact is That Mandatory Arrest Laws and No Drop and Mandatory Prosecution or No Drop Policies are NOT SUPPORTED by the Research

    Understanding Mandatory Arrest and So Called “No Drop” Prosecution Policies

    What I have learned in 28 years of practicing Colorado Criminal Law – from both sides of the courtroom – is that the reality of domestic violence cases are quite different than the general population perception.

    An act of violence or the professional research perception of a battered victim that produces injured victims with broken noses and blackened eyes …. is quite rare in fact.

    In Colorado – domestic Violence can be the more serious acts of .. Assault – attacking, striking, stalking, threatening, sexually assaulting, battering, to such things as harassing, telephoning, including, or things like annoying telephone calls.

    The violence can include such things as destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party…

    Clearly, in Colorado “Domestic violence” includes but is not limited to “battering behavior.”

    Battering vs “Typical” Family Conflict

    Researchers agree that a “batterer” is a family member or intimate partner who – with premeditation and malice aforethought – repeatedly uses coercion, force or physical assault to manipulate and control the behavior of another family member or intimate partner.

    However, family conflict most often, but not always, occurs between family members or intimate partners without premeditation or malice aforethought and involves the use of threats and/or minor physical assault in a individual or isolated disagreement.

    The “family conflict” is often the result of the real or perceived misbehavior of others, difficult financial matters, jealousy, stress or personality disorders (Wallace, 2002).

    Treatment Programs Ignore the Distinctions in Domestic Violence Cases

    Often the laws and intervention programs that “treat” domestic violence – make little to no distinction between “battering” or “family conflict” despite the fact that the context, circumstances and consequences are almost always dramatically different.

    The National Violence Against Women Survey documents that more than half of all physical assaults by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping and hitting and that 1.3 million women and 834,732 men reported that were physically assaulted by an intimate partner in the 12 months preceding the survey (Tjaden & Thoennes, 2000, p. 10).

    A June 2005 Department of Justice (DOJ) report, “Family Violence Statistics,” documents that family violence accounts for only 11% of all reported and unreported violence and that the majority of family “violence” is simple assault (Durose, et al, 2005). Studies document that the majority of victims report they were not injured in the physical assault (Tjaden & Thoeenes, 2000, p. 41).

    Some of the millions of family members who engage in minor family conflict mayrequire law enforcement intervention. However, a growing number of DOJ studies document that many family’s have discovered that mandatory arrests that ignore the context and circumstances of the incident, can have unintended detrimental effects on families (Eng, 2003).

    In Colorado mandatory arrest and no-drop prosecution policies mandates that law enforcement officers and prosecutors must ignore the context, circumstances and consequences of the incident.

    A False Premise

    In all non-familial assault cases regardless of severity, law enforcement officers are trained to examine the context and circumstances of the individual incident. Officers are trained to listen to and understand the diversity of the needs and preferences of those who had been assaulted before they make a decision to arrest or to use a number of other criminal justice options. This use of officer discretion is at the core of judicious community policing in democratic societies (Sherman, 1992).

    The indifference of law enforcement officers towards domestic violence victims is most often the reason given for the draconic use of mandatory arrest policies that are found almost exclusively in domestic violence laws. However, that premise is primarily based on widely told and believed anecdotal incidents that are not supported by data and less than a hand full of methodology flawed studies of varying rigor or range (Avakame & Fyfe, 2001; Miller, 2004; Sinden & Stephens,1999).

    The vast majority of law enforcement officers understand that arresting some domestic violence offenders is not only the right thing to do, however – ti is true that sometimes arrest is essential for immediate cessation of violence and does provide for temporary victim safety (Buzawa & Buzawa, 2002; Davis, 1998; Sinden & Stephens, 1999).

    Allegations by domestic violence advocates and many researchers suggest that law enforcement officers are reluctant to arrest men and male officers are indifferent to the plight of female victims. However, the architect of the Minneapolis Domestic Violence Experiment, Lawrence Sherman, (1992) documents that law enforcement officers do not make arrests in the majority of violent crimes, regardless of gender, in which the evidence can justify an arrest (Hendricks, McKean & Hendricks, 2003). While advocates proffer that there is data that documents law enforcement officers refuse to arrest domestic violence perpetrators, this criminal justice data, more often than not, does not include the context, circumstances and victim preference of these individual incidents. It would be presumptuous to believe that all victims, regardless of gender, should expect or want law enforcement officers to make arrests each and every time they have the authority to do so.

    In approximately half the states arrest is now mandated regardless of how minor the assault, often ignoring the desire and needs of family’s and despite the fact that the incident may have been a single isolated act of minor family conflict that is not commonly associated with battering behavior (Eng, 2003; Huntley, & Kilzer, 2005; Soler, 2007).

     

    In Colorado arrest is mandatory.

    A recent DOJ study documents that in states where officers have preferred [there is an allowance for discretion] arrest polices the odds of arrest in intimate partner incidents rose by 177% compared to states, where there are mandatory [no choice] policies, and arrest rose by 97%. (Hirschel, et. al., 2007).

     

    It has become obvious to those of us that have practiced in this are for two or more decades, the mandatory arrest laws have led to ” a guilty until proven innocent” mentality.

    This places unconscious representations of guilt in the minds of those in law enforcement before they arrive at the scene of the incident. This type if policy can be found no where else in the criminal justice system. And there is little doubt that law enforcement training that always uses “he” for the abuser and “she” for the victim will produce an implicit bias against males when officers attempt to determine who should be arrested (Davis, 1998; Gladwell, 2005); Groopman, 2007; Project Implict, 2007).

    The majority of domestic violence incidents, as both criminal justice data and general surveys document, are for:

    (1) minor or misdemeanor crimes without injury and where the officers do not have the power of arrest,

    (2) victims family’s do not want an arrest to take place

    and

    (3) many incidents provide little to no evidence of who hit who first.

    Initiation of an assaultive event is important and initiation remains a central “probable cause” factor that must be considered concerning responsibility of guilt in the criminal justice system.

    The U.S. Department of Justice (DOJ) sponsored study, “Police Intervention and the Repeat of Domestic Assault,” documents that sometimes police intervention is necessary, however, the effect of arrest is too small to have policy significance (Buzawa & Buzawa, 2002; Felson, Ackerman, & Gallagher, 2005; Maxwell, Garner & Fagan, 2001, ).

    A recent National Institute of Justice sponsored study concludes that rigid mandatory interventions ignore the diversity of the victims needs and that often lack varied programs best suited for the many multifaceted and complex problems presented by offenders can actually cause more harm than good (Hotaling & Buzawa, 2003).

    Despite that evidence, many Colorado district attorneys have mandatory “no drop” prosecution policies that have yet to be tested and evaluated (Gwinn, 2005).

    The Lack of Research Behind No Drop and Mandatory Arrest Approaches

    One of the most extensive reports to date concerning the “no-drop” prosecution policies concludes that research to date does not know if the no-drop policies increase or decrease victim safety and that no-drop prosecution actually dis-empowers victims once the enter the criminal justice system (Davis, Smith & Davies, 2001).

    A growing number of studies, including some sponsored by the National Institute of Justice, warn that public policy makers need to know that their policies and practices will not harm or endanger women (Davis, Weisburd & Hamilton, 2007; Davis, Smith & Davies, 2001; Dugan, Nugin & Rosenfeld, 2001; Eng, 2003; Finn, 2004; Hotaling & Buzawa, 2003; Huntley & Kilzer, 2005; Iyengar, 2007; Kruttschnitt, McLaughlin & Petrie, 2004; Sherman, 1992; Maxwell, Garner & Fagan, 2001; Wells & DeLeon-Granados, 2002). Unfortunately, that advice seems to have been ignored in Colorado.

    More troubling is that in Colorado public policy makers seem unaware or unconcerned that many DOJ sponsored studies have already documented the dangers, up to and including homicides, of such mandatory polices (Davies, Weisburt & Hamilton, 2007; Dugan, Nugin, Rosenfeld, 2001; Iyengar, 2007;).

    The DOJ report, “Forgoing Criminal Justice Assistance: The Non-Reporting of New Incidents of Abuse in a Court Sample of Domestic Violence Victims,” found that for some family’s, mandatory intervention and one-solution-fits-all (Fagan, 1996) criminal justice policies can be more harmful than helpful (Hotaling & Buzawa, 2003).

    This study is just one of a growing number of studies that document the many unintended negative effects created by Colorado mandatory arrest policies. Another DOJ study, “The Effects of Arrest on Intimate Partner Violence: New Evidence From the Spouse Assault Replication Program,” a far more extensive research study than the single Minnesota Domestic Violence Experiment, and it documents that officers and victims should have a voice and choice concerning arrest.

    This study documents that the majority of offenders discontinue their aggressive behavior without an arrest (Maxwell, Garner, & Fagan, 2001). The vast majority of advocates agree that a women’s right to choose is a newly found fundamental empowerment tool.

    The Hypocrisy of So Called Women’s Rights Advocates

    It is difficult to understand how or why the same domestic violence advocates who support mandatory arrest and prosecution polices, ignore the fact that these policies deny women their right of choice and victim empowerment.

    The Maxwell, Garner & Fagan study also notes that requiring arrest for every incident of “domestic violence” may reduce the resources of communities when they respond to chronic violent offenders and victims most at risk. Maxwell, Garner & Gagan believe that research needs to assess the benefits and costs of mandatory arrest before implementing mandatory arrest policies.

    Outcomes in California – A Case Study

    A significant DOJ sponsored study recently made available on the California Attorney General’s website documents that there is no statistically significant relationship between criminal justice response and victimization (Wells & DeLeon-Granados, 2005). The study also documents that an ever increasing number of women are being ensnared in a criminal justice system that is supposed to protect them and that women are being arrested, convicted, and incarcerated in numbers far higher than they were before the passage of a mandatory arrest law that was designed to provide for their safety (Wells & DeLeon-Granados, 2002, p. 21-22.) Again, that same study documents the conviction rate for females arrested is far higher than for males arrested.

    This Wells & DeLeon study suggests, because of the high conviction rates for female offenders that the officers are following the letter of the law when arresting females. The much lower conviction rate for males arrested suggests that rather than following proper criminal justice “probable cause” concerning who initiated or is most responsible for beginning the abuse, officers are following California “dominant aggressor” arrest policy.

    California law section 13701(b) mandates that officers “shall” ignore who initiates the assault and that it is more “significant” for officers to determine who appears to be most in “fear” of the abuse continuing. There seems little doubt that officers, regardless of gender, because of contemporary culture and U.S. Department of Justice sponsored “dominant aggressor training,” are being conditioned to view, before they respond to a call, that male’s as more “dominant” in all relationships than females.

    This “dominant aggressor policy” stands against traditional law enforcement training that finds when two people engage in assaultive behavior the person who initiates the first assault be held most responsible for the assaultive behavior, on its head.

    Mandatory arrest is seen by some critics as a dangerous and simple answer provided by public policy makers who believe that they must do something about domestic violence (Davis, 1998); Finn, 2004).

    The problem is that public policy makers have placed their policies ahead of the research. And worse still, many relevant 21st century research findings have yet to make their way into the hands and hearts of public policy makers despite the fact that many of them are available online (Clear & Frost, 2001).

    Arrest is a reactive and not a proactive intervention and arrest is not a panacea for domestic violence. However, given the proper context and circumstances of an incident and listening to the preference those being abused, arrest can be a useful and necessary response by law enforcement (Hendricks, McKean, & Hendricks, 2003).



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    ___________________________
    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
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