In a rare show of bipartisanship, a group of Senators has proposed cutting mandatory minimum sentences for a variety of nonviolent federal crimes. The Sentencing Reform and Corrections Act is a response to concerns from both progressives and conservatives about the costs, human and economic, of mass incarceration and reflects a growing consensus that the prison population in the United States must decrease. But in at least one area the Senators will create new mandatory minimum sentences: for crimes of interstate domestic violence.
Interstate domestic violence became a federal crime in 1994, with the passage of the Violence Against Women Act (VAWA). To commit interstate domestic violence, a perpetrator must travel across state lines with the intent to injure, harass, or intimidate an intimate partner and commit a crime of violence causing bodily injury. Sentences for interstate domestic violence range from five years to life, depending upon the level of damage inflicted. VAWA imposes similar penalties for traveling across state lines with the intent to violate a protective order.
The criminalization of interstate domestic violence reflected a belief that was widely held in 1994 and that many continue to hold today: that the most appropriate response to domestic violence is prosecution and incarceration. Reacting to the historical failure of police and prosecutors to treat domestic violence as a crime, advocates fought for state and federal laws that would hold perpetrators criminally accountable for their actions. Those efforts were largely successful. Today, the criminal justice system is the best funded and most developed policy response to domestic violence in the United States. Adding mandatory minimum sentences for crimes of interstate domestic violence will further shore up that response.
But the reliance on the carceral system to address domestic violence is problematic in two ways. Although hundreds of millions of federal dollars have been poured into courts and law enforcement (both police and prosecutors) since VAWA’s inception, it is not clear what the impact of increased criminal justice interventions has been. While rates of domestic violence fell significantly between 1993 and 2000, that decline was consistent with the overall decrease in the United States’ crime rate. From 2000 to 2010, rates of domestic violence fell less than the decrease in the overall crime rate, notwithstanding the robust criminal justice response to domestic violence.
As a lawyer for people subjected to abuse for the last 20 years, I have observed the legal system’s response to domestic violence at work and have grave concerns about its impact. My recent book, “A Troubled Marriage: Domestic Violence and the Legal System,” questions the effectiveness of the legal system’s response to domestic violence. And in researching that book, talking to criminologists and sociologists around the country, I found nothing to suggest that criminalization has decreased or deterred domestic violence in any appreciable way.
One might argue that the lack of evidence supporting the effectiveness of current criminal justice interventions justifies increasing sentences for domestic violence; harsher penalties might create a greater deterrent. But there is no evidence to support this contention, either, and good reason to fear the impact of increased incarceration on families and communities. Convictions for domestic violence (and other crimes) make it more difficult to secure employment. Studies show that men who are under- and unemployed are more likely to commit domestic violence. Domestic violence is also more prevalent in low income communities—the communities that many of those convicted of domestic violence will return to after incarceration, communities that will become more economically disadvantaged as out of work perpetrators of domestic violence further strain their resources.
Increasing penalties for domestic violence is also problematic because it situates the movement to end intimate partner violence in opposition to other social justice movements, particularly the movement to ensure fairness within the criminal justice system for communities of color. People of color are disproportionately represented in the prison population. Any increase in sentences for domestic violence is likely to have a greater impact on communities of color.
The movement to end domestic violence has been on the wrong side of these efforts before. When Maryland v. King, a case involving the state’s right to collect DNA from anyone in police custody, regardless of whether they had been convicted of a crime, came before the Supreme Court, a coalition of civil rights groups urged the Court to reject the practice, arguing that such acts disproportionately targeted minorities. Domestic violence groups, however, aligned themselves with law enforcement, arguing that the practice would facilitate rape prosecutions. Nowhere did the advocates’ briefs acknowledge concerns about the impact on communities of color.
In 2014, proposed amendments to the Prison Rape Elimination Act (PREA) would have gutted its enforcement provisions, freeing states from the responsibility to make meaningful efforts to prevent sexual assault in prisons and jails. Domestic violence advocates were silent as Senator John Corwyn explained that the reason for the changes was to protect victims of domestic violence. States would lose domestic violence funding as a penalty for failing to comply with PREA. The solution, therefore, was to eliminate financial penalties intended to ensure that states fully implemented PREA. Prison rape is horrific in and of itself, but is also part of the cycle of gender violence in low income communities and communities of color. Men and women who are victimized in prison return to their communities traumatized. That trauma affects their interpersonal relationships and can spur domestic violence. Nonetheless, domestic violence advocates neither questioned the justification for nor protested the amendments.
For the last three years, Congress has considered the Smarter Sentencing Act, which, like the current Senate proposal, would have reduced mandatory minimum sentences. An amendment proposed in 2014 would have added new mandatory minimum sentences for domestic violence. The National Task Force to End Sexual and Domestic Violence Against Women opposed that amendment in 2014. It should do so again, and other state and national domestic violence organizations should join in. The Senate’s plan offers the domestic violence community another opportunity to show its solidarity with communities of color and to question whether the criminal justice response should be the centerpiece of U.S policy on domestic violence.
The movement to end gender violence should make it clear that beefing up the criminal justice response will not end America’s epidemic of intimate partner violence and will disproportionately and gravely harm communities of color. Incarceration protects victims only so long as the perpetrator is actually imprisoned, and may have significant negative repercussions upon release. We need to focus on prevention, on understanding why people are abusive, and on helping them to change their behavior. We can use the civil justice system—the protective order system—to provide protection for victims of violence without incurring the costs, economic, emotional and otherwise, of incarceration. America needs a strong and effective response to intimate partner violence, but that response need not come through expansion of the criminal justice system.