PoliceOne Analysis: The "arrest default position" for domestics


“In sum, the labeling of all acts of physical aggression as violence can have unintended social implications.”
— K. Daniel O’Leary

In its report, Safety & Justice for All: Examining the Relationship between the Women's Anti-Violence Movement and the Criminal Legal System, the Ms Foundation for Women questions the equity and safety of past and contemporary law enforcement domestic violence policies and practices. The Ms Foundation, similar to most interveners and many researchers, blame law enforcement for its undeniable historic and unjust domestic violence policies.

Do Not Arrest
It is true that some 40 years ago law enforcement did not make arrests for most misdemeanor domestic violence incidents. However, what is equally true is that studies sponsored by the U.S. Department of Justice (DOJ) recommended to law enforcement that it should have in place special domestic violence units that would “separate and mediate” the quarrelsome or assaultive couple. The DOJ-sponsored reports and experts recommended that law enforcement not arrest.

Despite the fact that law enforcement did not develop these “separate and mediate policies,” most interveners and many researchers consistently blame law enforcement for its historically poor domestic violence arrests record. Most often these retrospective studies exclude the context and circumstances of individual incidents and ignore the fact that the majority of domestic violence interventions were minor or there was no "probable cause" for arrest. And these retrospective studies often ignore the fact that in many cases law enforcement did not have the authority to arrest.

To this very day there is not a single empirical evidence-based study which documents that contemporarily, law enforcement institutionally ignores or minimizes injurious or serious domestic violence assault. Complaints otherwise are anecdotal and disingenuous.

Do Arrest
Some 40 years later, the DOJ, with a June 2009 National Institute of Justice Special Report, Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges suggests that “arrest” be the default position for all domestic violence incidents. Most researchers and interveners also recommend that law enforcement have in place special units that arrest for all domestic violence incidents regardless of severity.

For many years now, DOJ sponsored reports have encouraged pro-arrest, preferred arrest, mandatory arrest and now default arrest policies. Regardless of the label there is no question that the majority of studies sponsored by the DOJ are recommending arrest policies “as the default position” for law enforcement.

Perhaps as a pretense that the DOJ reports are not actual “recommendations” the DOJ always includes a disclaimer of blame on the pages of their “sponsored” reports noting that these reports “do not reflect the official position or policies of the U.S. Department of Justice.”
However, law enforcement administrators are acutely aware that if they do not adopt policies that “encourage arrest” they will not receive any funding from the multi-billion dollar Violence Against Women Act, they will face the wrath of domestic violence interveners in their community and become the targets of domestic violence litigators.

While there should be little doubt that the DOJ “default arrest position” is intended to help families, it may actually play a role in fulfilling the worst fears of the MFSJ report about the “mass incarceration of poor men and men of color (p. 12).” The Berkeley, California arrest policies seem to be creating a domestic violence gulag for people at the lower socioeconomic educational strata of society.

Another factor that many contemporary researchers often seem unwilling or unable to accept the fact that data from this Berkley, California DOJ sponsored report, and many others, suggests that “arrest as default position” policies actually endanger some victims.

Data from the Berkeley Police Domestic Violence Prevention Unit
The University of California (UC) Berkeley is generally recognized as one of the best and most prestigious public universities in America. The Berkeley, California census reports that Whites account for 59.2 percent, Asians 16.4 percent, African-Americans 13.6 percent and Hispanics 9.7 percent of the population of Berkeley, California.

The report, Creating a Structured Decision-Making Model for Police Intervention in Intimate Partner Violence is the result of a collaborative effort between domestic violence interveners, the Berkeley Police Department, and researcher Madeline Wordes.

On page 12 of the MFSJ report, the author questions what the implications of the DOJ default arrest policy will be for poor men and men of color. The data from Berkeley is quite clear about the ramifications of the default arrest position. The data from Berkeley, when carefully read and clearly understood, demonstrates that the DOJ and the African-American community need to become concerned about DOJ sponsored “default arrest” policies.

On page 23, the Berkeley report documents that while African-Americans account for only 13.6 percent [a little more than 1 in 10] of the population they account for 68 percent of suspects [almost 7 of 10] in domestic violence police reports. Whites account for 59.2 percent of the population and only 11 percent of [about 1 of 10] domestic violence police reports.

What is equally stunning is that the data in the Berkeley report regarding the differential of these arrests has been ignored by the DOJ and overlooked by many researchers. These numbers represent real differentials that can not be ignored. We need to understand what these differentials represent. Do these differentials represent racial bias, cultural differences, class inequity, or perhaps a combination of all three?

Regardless of the specific context, circumstances, or characteristics of these arrests, they may confirm the worst fears about the “mass incarceration of poor men and men of color” expressed in the MFSJ report (p. 12). The DOJ needs to sponsor a study that justifies or explains to the African-American community, and in fact all Americans, the reasons for these dramatic “Berkeley differentials.”

This Berkeley “arrest as a default position policy” takes place in one of the more, “wealthy,” and “educated” communities in America. The DOJ also needs to examine just what this “default arrest position” has created in communities that are not as “wealthy, or educated?” A 2004 National Institute of Justice report, When Violence Hits Home: How Economics and Neighborhood Play a Role, documents; “Because a higher percentage of African-Americans live in disadvantaged neighborhoods and face economic distress, they experience higher rates of intimate violence compared with whites (p. ii).

Safety and Preventative Concerns
The Berkeley report, as do an increasing number of others, raises questions of the efficacy of making arrests for all domestic violence incidents. In Berkeley the highest repeat abuse rates are found for incidents where arrests are made despite the lack of evidence [problem cause] that an assault had actually taken place (p. 26).

In Berkeley approximately one in five (21 percent) arrests are being made where there is no observable criminal behavior, no injury and there are implications that the arrest exacerbated the conflict and did little to resolve the underlying problems (p. 26).

This data demonstrates that officers made arrests in these incidents that lack traditional “probable cause” due to a department presumptive arrest policy that encourages arrest for all domestic violence incidents, including some incidents that may not have any physical contact (p. 10).”

The report also suggests that arrest does not deter people who are “heavily involved in the criminal justice system (p. 26). The report documents that, “Suspects having a prior conviction for domestic violence also shows a slightly higher recidivism rate than average (p. 33).”

The Berkeley study is a most interesting and informative DOJ-sponsored report. The Berkeley study supports the belief that arrest is a far too simple a solution to what is a very complex and multifaceted problem. It is time to question why so many negative outcomes of an “arrest default position” continue to fall silent on the ears of so many interveners, researchers, and the DOJ.

For a more complete overview of domestic violence and its intersection with the criminal justice system, click here.

About the author

Richard L. Davis completed studies in criminal justice management at LaSalle University. He has a graduate degree in criminal justice from Anna Maria College, and another in liberal arts with a concentration in history from Harvard University.

Contact Richard Davis.

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