Sentencing Reforms Should Not Omit Domestic Violence

On March 8, the Iowa House of Representatives passed a bill setting new mandatory minimum sentences in domestic violence cases. Those convicted of domestic violence three times must serve 85 percent of their sentences prior to release, regardless of their conduct while imprisoned. The Iowa Senate voted unanimously to adopt the law on April 6.

Legislators lauded the bill’s benefits for survivors of violence.

Those benefits, however, weren’t as clear to the Iowa Coalition Against Domestic Violence, which opposed the provision. The coalition called the bill a well-intentioned but ultimately ineffective measure to prevent repeat domestic violence.

Social science research supports the coalition’s position. Increasing jail time generally has a minimal effect on recidivism. Researchers have found limited to no relationship between jail time and repeat violence in domestic violence cases.

I’m a lawyer who represents survivors of intimate partner violence. Over the last 20 years, I have written extensively about the failures of the criminal system’s response to domestic violence.

Increasing mandatory minimums in domestic violence cases is yet another misguided policy.

Minimums harm African-American men

Here’s what the new Iowa measure is likely to do: increase the number of African American men imprisoned in the state.

As the Des Moines Register has reported, approximately 35 percent of the inmates serving mandatory minimum sentences in Iowa prisons are African-American.

African-Americans make up only 3.4 percent of the Iowa’s population. Iowa imprisons a larger percentage of its African-American population than most states. Mandatory minimum sentences are driving that trend.

Iowa recognizes the problematic consequences of mandatory minimum sentences. For three years, Iowa’s Public Safety Advisory Board has recommended that legislators move away from mandatory minimums. This year, Iowa legislators approved a bill giving judges greater sentencing discretion in some cases. Yet in the same session, the legislature voted to create new mandatory minimum sentences for domestic violence.

This inconsistency isn’t specific to Iowa. The same thing is happening on the national level.

Last year’s Sentencing Reform and Corrections Act was intended to address the U.S. problem with mass incarceration. The bill decreases mandatory minimum sentences for a number of federal crimes.

Most domestic violence crimes are prosecuted at the state level. The Sentencing Reform and Corrections Bill looked only at the small subset of domestic violence crimes that fall under federal jurisdiction. These are crimes that occur when someone travels from one state to another to commit an act of domestic violence. Forcing or tricking someone into traveling between states and harming that person also falls within the definition.

Sentences for interstate domestic violence already range from five years to life, depending upon the severity of the crime. The act would increase those penalties significantly. As in Iowa, support for the change came from lawmakers, not advocates. In fact, the National Task Force to End Sexual and Domestic Violence Against Women came out against a similar provision in 2013. The task force noted in particular the harmful impact of mandatory minimum sentences on communities of color.

Domestic violence exceptionalism

At a time when most policymakers are moving away from mandatory minimum sentences, why should domestic violence be treated differently?

Like some advocates, I believe it shouldn’t. But the response to domestic violence has been marked by a sense that it is somehow different from other crimes. This notion is known as “domestic violence exceptionalism.”

Exceptionalism has been used to justify a number of criminal policies specific to domestic violence, including mandatory arrest, mandatory prosecution and lax application of the rules of evidence. And exceptionalism seems to be driving the efforts to increase sentences for domestic violence at a time when policymakers generally seem to understand that what the United States needs is less criminalization, not more.

Criminalization has been the primary policy response to domestic violence in the United States for the last 40 years. It is not working. 

Since 1984, the U.S. has committed hundreds of millions of dollars to the law enforcement response to domestic violence. The crime rate in the United States has been falling for some time. Rates of domestic violence have dropped in recent years. But despite the increased funding for and emphasis on policing and prosecuting domestic violence, rates of domestic violence have fallen less than the decline in the overall crime rate.

Ending domestic violence requires that people who use violence change their behavior. Mandatory minimum sentences don’t create that kind of behavior change.

We should instead put resources into policies that might actually make a difference. One example: domestic violence is correlated with male under- and unemployment. Increasing employment opportunities for men who abuse could decrease rates of violence and create economic benefits for underresourced communities.

President Obama’s Council of Economic Advisers recently declared that higher salaries would reduce crime more than increased incarceration. States considering new mandatory minimums for domestic violence would get more for their money by increasing the minimum wage instead.