Decriminalizing Domestic Violence. Leigh Goodmark
with law enforcement, committing the antiviolence movement more firmly to the criminal legal response. By 2003 many in the antiviolence movement agreed with George W. Bush when he stated that “government has got a duty to treat domestic violence as a serious crime, as part of our duty. If you treat something as a serious crime, then there must be serious consequences, otherwise it’s not very serious. . . . Our prosecutors are doing their job. They’re finding the abusers, and they’re throwing the book at them. And that’s important.”4
THE BENEFITS OF CRIMINALIZATION
Criminalizing intimate partner violence does offer benefits to some people subjected to abuse. Intervention by the criminal legal system can give people distance from abuse. Police intervention can interrupt a violent incident and remove the offender from the scene.5 Courts can issue criminal stay-away orders to prevent unwanted contact between people subjected to abuse and their partners both before and after prosecution. Successful prosecution can ensure that those who use violence enter batterer intervention programs as a condition of their sentences, which may lead to changes in behavior. Prosecution can send the message that people are serious about ending the abuse; even the threat of prosecution can give people subjected to abuse some leverage with their partners. The criminal legal system can provide resources, including victim-witness advocates and crime victim compensation funds, to people subjected to abuse. Incarceration and other forms of monitoring can provide a respite that affords people subjected to abuse peace of mind and the ability to implement short- and long-term safety plans.
Ensuring accountability for illegal behavior is another goal of criminal interventions. Accountability—the belief that those who abuse should be held responsible for their behavior by experiencing negative consequences through punishment, preferably via the criminal legal system—is one of the central tenets of the antiviolence movement. Arrest, prosecution, conviction, and incarceration are all employed to that end. Using the criminal legal system to address intimate partner violence can also underscore the state’s condemnation of intimate partner violence, a stance that both vindicates the experiences of the individual subjected to abuse and may help to change community attitudes about the acceptability of intimate partner violence.
Finally, criminalization can satisfy the desire for retribution among those who define justice through punishment. Retribution requires that a wrongdoer receive a punishment befitting the crime; wrongs are righted through the offender’s suffering. Punishment expresses society’s condemnation of the act being punished and reinforces societal norms repudiating such behavior. Retributive justice delivered through the state also prevents individuals from seeking revenge. If an offender is arrested, convicted, and given some punishment that the person subjected to abuse deems proportionate to the harm suffered, that person’s justice needs may be met. Because the state has a monopoly on legal punishment in the United States, only the criminal legal system has the potential to meet the justice goals of those who define justice retributively.
CRITIQUES OF CRIMINALIZATION
But in the past several years the idea of regulating behavior through criminalization has been seriously questioned, both generally and in the specific context of intimate partner violence. Criminalization has been called a “remarkable” failure, “perhaps the greatest in American history.”6 Overcriminalization has driven disproportionately high incarceration rates in the United States, particularly for marginalized groups. Excessive criminalization renders criminal penalties meaningless. And criminalization cannot solve America’s social problems.
Hyperincarceration is a relatively new phenomenon in America. Spurred by “tough on crime” rhetoric, legislators have significantly increased both the number of crimes and the duration of sentences over the past forty years. Between 1970 and 2010 the state and federal prison population grew from 196,000 to 1.4 million people. Between 2010 and 2016 that number increased to 2.3 million incarcerated Americans, and more than 8 million living under some form of state control (for example, in jail or prison, on probation or parole, or serving community sanctions). The United States incarcerates 730 of every 100,000 people, the highest rate in the world. One in three African American men, one in seven Latino men, and one in seventeen white men spend time in prison during their lifetimes. Lesbian, gay, bisexual, transgender, and gender-nonconforming people are also jailed at disproportionate rates.
Hyperincarceration is problematic not just because of the sheer number of people it affects, but also because of the problematic consequences of incarceration. The impact of hyperincarceration ripples out into families and communities, as political scientist Marie Gottschalk explains: “The carceral state directly shapes, and in some cases deforms, the lives of tens of millions of people who have never served a day in jail or prison or been arrested. An estimated eight million minors—or one in ten children—have had an incarcerated parent. . . . Millions of people reside in neighborhoods and communities that have been depopulated and upended as so many of their young men and women have been sent away to prison during what should be the prime of their lives.”7
The excessive use of criminalization to address social problems has decreased the expressive and actual effectiveness of criminal punishment while at the same time shielding policymakers from having to confront the underlying issues driving criminality. Criminalization can make lawmakers feel as though they have done something to address a problem, but legislators do not, by and large, analyze the effectiveness of those actions in any meaningful way. Criminalization is a “one-way ratchet”—lawmakers are unlikely to revisit or rescind criminal laws that have already been enacted, regardless of their impact or lack thereof. As a result the United States is “criminalizing, recriminalizing, and overcriminalizing all forms of conduct, much of it innocuous, to the point of erasing the line between tolerable and intolerable behavior.”8 When everything is criminal, it is hard to know what is truly wrong, or how to prevent offending.
Finally, criminalization is an ineffective response to the intractable social problems faced by the United States. In recent years the political system has failed to allocate resources to pressing social problems like poverty, homelessness, and mental illness. The neoliberal turn in American public policy, and the resulting dismantling of the welfare state, left many communities struggling and underresourced. Rather than provide low-income communities with social services, the U.S. government has increasingly poured resources into the criminal legal system, using that system to address the consequences of unresolved social problems. As activist Angela Davis has observed, incarceration is like magic, making societal problems seem to disappear.9 But criminal law is poorly suited to solve these types of problems, rooted as they are in both individual social circumstances and larger systemic contexts.
Critiques of the Criminalization of Intimate Partner Violence
At the first Incite! Women of Color Against Violence conference in 2000, Davis linked the general critique of criminalization with the specific critique of the criminalization of intimate partner violence. She stated, “The major strategy relied on by the women’s anti-violence movement of criminalizing violence against women will not put an end to violence against women—just as imprisonment has not put an end to ‘crime’ in general.”10
Social work professor Mimi Kim has described the attempts of antiviolence advocates to harness the power of the criminal system as “the carceral creep”—“a dance of contentious politics initially engaged, provocatively and boldly, by feminist social movement actors with clear intentions to dominate law enforcement, oft times by subversive means.”11 Some of those feminists understood that engaging the criminal system posed real dangers, particularly for communities of color, and were concerned that focusing on the criminal legal system would divert attention from other needs. Those concerns were outweighed, however, by the belief that advocates could control law enforcement’s actions and use the criminal system to their own ends. But, Kim explains, those hopes were naïve: “As law enforcement targets engage in this dance, first as recalcitrant partners and eventually as more active participants, they begin to find confidence and legible roles in their position as law enforcement in this new dance of contention. . . . Social movement actors and institutions in civil society, once the lead in this dance of contention, eventually become the subordinate partner in a dance now directed and dominated by the goals, political