Criminal Justice: Police Discretion on Cases of Domestic Violence - Literature review Example

Running Head: Criminal Justice & Domestic Violence Criminal Justice: Police Discretion on Cases of Domestic Violence By: October 22, 2009 Abstract Domestic violence, as defined by the United States Department of Justice through its Office on Violence Against Women, is a pattern of abusive behavior existing in an intimate relationship between two partners wherein one dominates the other. This is a grave issue that is present in many households and families worldwide, one that knows no bounds – child or adult, man or woman, straight or gay, anyone can experience it. Such violence at the hands of a person we know very well and love dearly – in other words, someone we would least expect it from – could understandably scar us for life. It is for this reason that officers are reminded to treat such cases with caution, and as a result have been given discretion as to what to do in certain situations. Hence, this paper’s objective is to discuss such discretions available to law enforcement, including but not limited to their pros and cons, and express a stand on the matter. Police Discretion: Definition / Explanation In the article Police Discretion (2004), a difference between ministration and administration is defined. The former involves following rules down to the letter – no ifs, ands or buts. On the other hand, administration entails discretion in assessing individual situations and making judgments accordingly. It goes on to state that there are some situations which the law may not account for, it is up to the officer to decide how to deal with the situation at hand. And even when the law is clear, deviating (from the letter, but not the spirit) from it is sometimes more preferable. As no two situations, crimes or cases are exactly alike, the approach and steps taken can and must vary between them. The article clearly stresses the need for good discretion and judgment. All too often, it says, there are criminals who deserve arrest yet go free. Conversely, law enforcement can sometimes go too far in handling situations, resulting in senseless death and tragedy – Ruby Ridge and Waco being among the most infamous cases. Such scenarios might actually have been predicted or feared in the 1950s, back when discretion was tabooed as a concept. However, though there are indeed instances where discretion goes mad, the benefits far outweigh the risks. Philosophers state that discretion is what happens when the law runs out – that is, law enforcement improvises. Discretion can manifest in five ways – first, discretion-as-judgment, which calls on police officers to treat the law as something flexible rather than rigid. The second is discretion-as-choice, which is simply to decide and act for oneself – something all humans are capable of. Discretion-as-discernment, meanwhile, bases decisions on one’s wisdom and moral values. The fourth, discretion-as-liberty, emphasizes human freedom and inalienable rights. Finally, discretion-as-license involves bending rules as one sees fit – and being held accountable for it. Based on the above, it can be said that discretion is not to be confused with doing what one pleases – it is bound by norms. Discretion in Cases of Domestic Violence According to Daniel Schofield (1991), domestic violence, due to its delicate and/or sensitive nature, presents responding officers with problems in dealing with it. Among other things, it is up to them to decide whether an arrest is justified and is the best solution to that particular case. In case it is not, the officer is then charged to diffuse the situation and preserve the affected family unit. On the other hand, there are those who require that an arrest be made, in the process limiting officer discretion. Three years later, as reported by James Dao (1994), the aftermath of O.J. Simpson’s murder of his ex-wife led Albany to propose a bill mandating arrest in such cases. According to then-Senator Steven Saland, the full force of the law was needed to prevent future violence. Other areas, though, allow officers more discretion where domestic violence is concerned. For instance, according to Lisa Madigan, Illinois Attorney General (2008), the Illinois Domestic Violence Act states that an officer need not make an arrest if he determines no crime has been made. At the same time, though, it encourages an officer to look beyond what he witnessed to the evidence left behind – such as torn clothing and bruises. Also, victims are entitled to request that an arrest be made. Nancy Egan (1997) discusses three major police policies regarding the approach to domestic violence. The meditative policy has officers acting as on-scene peacemakers or counselors, and making referrals to social agencies when necessary. A presumptive policy highly recommends arrest as the solution to such cases, but still leaves room for officer discretion. Meanwhile, mandatory policies absolutely require that an arrest be made if certain conditions exist, such as those named by the Utah State University (USU) Police and implemented by Utah law: 1) a real threat of continuing violence, 2) infliction of serious bodily harm, and 3) the use of a deadly weapon (2009). Such a policy may also be appropriately called a nondiscretionary policy, and, as noted above, is upheld by a number of jurisdictions and states including Albany, New York and Vermont (Gallagher, 1999). More recently, new laws have been implemented that strip officers of their discretion when handling domestic violence cases (Hall, 2008). One of these, implemented in Australia, holds that officers are to arrest any and all offenders they find, and to press charges against the perpetrator/s. According to Tony Kelly, Minister for Police, victims had been averse to filing charges for fear of further violence. But with the new law, he says, the role of the victims in pressing charges was lessened and hopefully, they would then feel safer. The question here is, is arrest really the answer? In the short term, maybe; if, say, one happens to have an abusive father, his arrest and subsequent detention will provide some (albeit temporary) peace. In Illinois, for instance, even after release, a 72-hour period exists wherein the father is not allowed any contact with his family lest he be rearrested – the same applies if the victim is somehow arrested, rather than the abuser. Discretion: Pros and Cons That domestic violence is a delicate matter cannot be contested. And as such, it is necessary to handle such cases with utmost care. While most if not all agree with this, different approaches to the problem have been observed. Some support the act of giving officers discretion, while others argue that arrests are necessary in such matters. Both sides have their respective points, but, on the whole, which is better: a discretionary, or a mandatory policy? One of the strengths of allowing discretion is that it allows officers to give their own input on the matter at hand. As discussed above, no law has or will exist which covers every possible contingency. In particular, domestic violence is a case in which arrest hardly helps at all – like for instance, if the abuser already has nothing to lose. If anything, sometimes arrest makes things worse, as is usually the case in cities populated mostly by whites and Hispanics. In such cases, a more proactive solution must be offered. When police are allowed to use discretion, they can even come up with alternatives such as counseling, rehabilitation and the like. Rather than attacking the crime, they instead attack the circumstances that give rise to that crime in the first place, which is very wise. On the flip side, sometimes the police are able to make well-deserved arrests as a result. As stated above, cases exist where the victims decline to press charges for fear of escalating violence, or perhaps a lingering affection for the abuser – after all, said abuser is someone close to them. Another reason could be that the victim may feel ashamed and embarrassed that he or she is a victim, and may refuse to make a report and/or file charges. And from a more practical standpoint, they may depend on the abuser for financial support (Simpson, 2003), which in their mind may justify the abuse they endure. Whatever the case, it is clear that in the situations described above, the victim may not be in the right state of mind to decide for themselves to press charges. That being the case, the officer has the right – the discretion – to file charges on the victim’s behalf. While the victims may object at first, they will benefit in the long run, having been freed from recurring acts of abuse. And in this way, discretion proves itself to be a very formidable tool. By the same token, though, officers are still human and are prone to error. An officer may opt not to arrest a criminal even if he deserves it. Victims have been known to file lawsuits against the police department for not making arrests and, consequently, not being able to adequately protect them. In fact, there are times when complaints of domestic violence are not properly acted upon, if not dismissed altogether. Case in point: two years ago, in Oviedo, Florida, Andrew Allred murdered his ex-girlfriend, Tiffany Barwick along with Michael Ruschak, a mutual friend – this, in spite of the former’s pleas for police intervention. As stated on Ocala.com (2008), it was in fact this incident which resulted in the Barwick-Ruschak Act (named after the two victims), which treats abusive dating relationships in the same manner as cases of domestic violence. Not to mention, it often happens that officers are limited to what they witness with their own eyes; some think that they need to actually see the abuse taking place. This may prove to be problematic when all an officer sees is the victim venting out his rage on the now-subdued abuser, who of course is powerless to retaliate (GMDVP, 1998). This could confuse the officer, who may then end up arresting the victim instead of the abuser. Worse, he could just as easily underestimate the situation and leave the two to “handle” it on their own. Clearly, discretion and compulsion both have their strengths and weaknesses. While compulsion takes a safer route, having a clear punishment for each particular crime, the use of discretion allows an officer to analyze and assess each case carefully. And, from there, he can then come up with a solution that is best suited to that particular case – risky, but ultimately more rewarding. Recommendations Based on what has been said, this researcher proposes a combination of the two practices – laws must still be made regarding domestic violence cases, but at the same time, officers must still be allowed to exercise discretion. The reason such laws exist is to serve as a guideline for handling such crimes. Domestic violence being as sensitive an issue as it is, law enforcers must be very careful in their approach to each individual case. In this regard, domestic abuse can be likened to defusing or dismantling a bomb: cut the wrong wire, or make the wrong approach, and the whole thing will blow up right in everyone’s faces. On the other hand, though, precisely because laws are meant to serve as guidelines, we should follow them insofar as they adequately apply to the situation at hand. Christ stated in the Bible that laws were made for man – not the other way around. If the standard operating procedure may not apply in a particular situation, one can and should come up with another way to deal with it. In some cases, such an alternative solution can be even more helpful than the standard. For instance, if one jails an abusive, alcoholic father, he will most likely just continue in his abuse the moment he goes free. But if, instead, efforts are made to get him off his alcohol addiction and dependence, it would be more beneficial to everyone involved. If there is another way, besides arrest, to end a cycle of domestic abuse in a certain household, by all means it should be taken. Between forcing an abuser to stop and convincing him to willingly stop, the latter is always more effective (if more difficult). Besides, prisons are cramped and expensive to maintain as it is; one less prisoner means less expense on the part of the government. References Gay men’s domestic violence project (1998) Intimate abuse: working with the police, Retrieved October 23, 2009, from http://www.gmdvp.org/domestic_vio/serv_pro/intimate/police4.htm Madigan, L. (2008) Illinois domestic violence act: information for victims Retrieved October 23, 2009, from http://www.ag.state.il.us/women/victims.html Ocala.com (2008, November) Allred sentenced to die for double-murder Retrieved October 23, 2009, from http://www.ocala.com/article/20081120/ARTICLES/811190283/0/WEATHER Dao, J. (1994) Albany set to require arrest in domestic violence cases, The New York Times, Retrieved October 23, 2009, from http://www.nytimes.com/1994/06/22/nyregion/albany-set-to-require-arrest-in-domestic-violence-cases.html?pagewanted=2 Sally, S. (2003, September) Fair treatment or preferred outcome? The impact of police behavior on victim reports of domestic violence incidents Retrieved October 23, 2009, from http://www.allbusiness.com/legal/3586368-1.html Domestic violence & rape (date unknown) Retrieved October 23, 2009, from http://www.usu.edu/dps/police/domestic/ Police responsibilities to victims of domestic violence (date unknown) Retrieved October 23, 2009, from http://www.life-span.org/index.php?option=com_content&view=article&id=120&Itemid=118&82c9a8325df196ac95a435af0a331821=20ec89a315e65f13d55be40146e024c3 Egan, N. (1997) The police response to domestic violence, Retrieved October 23, 2009, from http://www.lib.jjay.cuny.edu/research/spouse.html Schofield, D. (1991, January) Domestic violence: When do police have a constitutional duty to protect?, Retrieved October 23, 2009, from http://www.textfiles.com/law/domestiv.law Gallagher, M. (1999, November) The unintended consequences of gender equality, Retrieved October 23, 2009, from http://www.uexpress.com/maggiegallagher/?uc_full_date=19991129 United States Department of Justice – Office on Violence Against Women (2009) About domestic violence, Retrieved October 23, 2009, from http://www.ovw.usdoj.gov/domviolence.htm Read More