Domestic Violence

There was a great talk today at the ABF (here is a list of all all the talks at ABF – mostly Wednesdays at lunch time and yes, you are invited and yes there is free lunch) by Gabrielle Ferrales.  She was talking about domestic violence prosecution and her research shows that, following legislation which drastically limited the discretion of district attorneys about prosecuting domestic violence, attorneys resist the laws in a variety of ways that allow them to continue to use discretion.  Is this resistance to law?  reassertion of the sine qua non of professionalism (thanks Terry Halliday for that question)? 

Both interesting questions, but this idea of prosecutors assessing the likelihood of recidivism of violent offenders is a little crazy.  They are not psychologists.  Yes, they see lots of cases, but as Ferrales pointed out they don’t really figure out who the “really bad” offenders are until after the woman has been beaten horribly or killed.  So cops have no discretion in a DV call – they must arrest someone (often both).  This was pushed by feminists who made the often correct empirical point, that if someone is not taken away, a murder can often be next. 

So, DAs have no discretion under this law (though they find ways around it and interesting “justice based” rationales for doing it, and judges have no discretion (and so are essentially complicit in violating the law about how DV cases are required to be handled). 

Of course, this is no surprise to scholars of legal studies – the interesting thing (to me) is that there is almost never a tie made back to the legislation which ties the hands of the people who have to do the processing of all of this.  It reminded me of a great talk (also at the ABF) by Jack Heinz and Malcolm Rich about cook county courts regarding drug offenses.  the problem is the legislative posturing and the incentives for them to pass reforms that look like they will guarantee certian outcomes (we will not allow any discretion, the outcome therefore is certain), but anyone with a brain knows that discretion reasserts itself. 

Part of the interesting twist to me is that these are exactly the kinds of reforms anti-DV feminist activists were hoping for, but the system seems to reorganize around the reforms. 

The long and short is that you should all watch out for Gabrielle — this is a great project, but her stuff on Iraqi judges will blow your mind.

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2 Responses to Domestic Violence

  1. jeffaregularworkinglawyer says:

    My law school crim law professor used to say “discretion is hydraulic in the system. Push it down in one place, it pops up somewhere else.” Maybe your crim law professor said it, too. Maybe they all say it, for all I know.

    Cops are the front line of discretion — I lived in Madison when they took that discretion away in DV cases, with a “must arrest” system. But that just gave more discretion to the prosecutors. You may say, that’s a good thing — if there’s an arrest, there won’t be a murder, and that benefit trumps any negative consequence of pushing the cop’s discretion upstream. And if you said that, I’d say you have a pretty good point. But I remember hearing, anecdotally, that an unintended consequence of taking discretion away from the cops is that women call them less frequently. They want their loud, drunk, threatening husband scared, or calmed down, or sleeping on a couch at the neighbors’ house, not taken away to jail — hell, he might lose his job if the cops arrest him, and he can’t go to work tomorrow, and then the whole family is gonna be up the creek. And fewer calls to the cops may mean more serious DV. I’m sure your friend Gabrielle, or someone else, has studied this question empirically — what’s the answer?

  2. laurabethnielsen says:

    well, you make roughly the point I made in the Q&A (I always knew you were smart) except that the thing that bugs me is that all there is are attempts to eliminate discretion, no attempt to place discretion with those best able to make the determination. In this case, a psychologist! With time to properly evaluate the liklihood of more violence.

    And, this just opens the door for another student of mine to promo her work (though she has not yet finished the empirical part) about the effects of being jailed (not convicted, not in prison, but jailed) on neighborhood, employment, marriage, etc. She is ABD as of about 28 hours ago! ***clapping for Mikaela***

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