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.