Mandatory Arrest/Pro-Arrest Statutes

The Crowing Role of Arrest

Since the early 1980s, there has been an increased policy preference toward the use of arrest when responding to domestic violence, coupled with a growing desire to limit police discretion in domestic violence incidents. The new pro-arrest consensus emerged when the traditional policy of nonintervention lost credibility and when earlier reform efforts such as crisis intervention lost adherents. Further, there was growing political pressure by women's groups, a surge of lawsuits brought against police departments for negligence and failure to provide equal protection to female victims in domestic violence situations, and the research findings of the Minneapolis Domestic Violence Experiment.

It had long been known that arresting certain domestic violence offenders was both proper and essential. Arrest provided the only method by which police could ensure separation of the couple and prevent subsequent violence, at least until the offender was released. Although the impact of arrest on domestic violence offenders was uncertain, at a minimum it was believed essential to the creation of a formal societal boundary defining acceptable behavior.

As a result, there has been an almost unprecedented wave of statutory changes since the 1970s, culminating in legislation in all 50 states, an effect that has irrevocably altered this position. These laws seek to expand police powers and govern practice when responding to domestic violence calls and enforcing suspected violations of restraining orders. State statutes provide the outside parameters within which the police must operate in their particular state.

State statutes vary considerably in their requirements. However, they all expressly purport to make profound structural changes in how government agencies respond to domestic violence. They enhance police powers, grant new criminal sanctions to prosecutors and the judiciary, increase the availability and enforcement of civil restraining orders, educate the public about the problem and the effects of violence in the family, and provide state and federal funding through the Violence Against Women Act for police, prosecutors, courts, and victim services.

In the calendar year of 2000, there were statutory provisions in 22 states and the District of Columbia for mandatory arrest, 6 states for preferred arrest, and 22 states for discretionary arrest in cases of domestic violence. Thirty-three states mandate arrest when there is probable cause to believe there has been a violation of a restraining order.

Arrest requirements in states with mandatory arrest statutes vary based on the circumstances, including elapsed time and seriousness of injury, as well as the relationships encompassed. Although some states have mandatory arrest provisions that apply to all crimes of domestic violence, others limit their provisions to felonies or limit their provisions to offenses committed within a specified timeframe.

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