Introduction – Should I Stay or Should I Go?
Recent research has established a critically important, but sad, irony involving a suspect’s decision to leave or stay at the scene of a domestic violence case and wait for the arrival of the police.
A comprehensive study entitled: The Impact of Offenders Leaving the Scene on the Police Decision to Arrest in Cases of Intimate Partner Violence (the study) concluded that alleged domestic violence offenders who flee the scene of the crime are five times less likely to be arrested for domestic violence.
The study examined four diverse states and reviewed data from no less than 25 police jurisdictions – large and small – including states that have enacted mandatory arrest domestic violence laws identical to those in Colorado. The study also included data from pro-arrest and presumptive arrest states.
This point needs to be made very clear – COLORADO WAS NOT one of the states examined in the study.
The study was well controlled for variables such as the number of incidents, offenders, victims, and jurisdictional characteristics. This was the first study of its kind as there has been very little research that has tried to answer the question: ‘if a suspect leaves the scene of a domestic violence incident is he or she more or less likely to be arrested for the crime of domestic violence?’
Put differently, what is the impact on the prosecution of a case of domestic violence if the suspect leaves the scene before the police arrive?
The primary criteria for the states chosen in the study focused on the domestic violence laws enacted in that state. Specifically, did that state’s domestic violence laws mandate arrest upon a finding of probable cause to arrest, or did the state laws leave the arrest decision to the discretion of the responding officers in the decision to arrest?
Serious Questions Raised by the Study
It is clear in law enforcement circles that identifying and locating a suspect in a domestic violence case is not difficult even if the suspect has left the scene. Determining the residence or workplace of a suspected domestic violence offender – because the identity of the suspect is usually almost always known to the police with minimal investigation – is usually as easy as checking local databases or simply questioning the victims and witnesses present at the original scene.
If the result of this study is that a suspect is 5 hundred percent less likely to be arrested and prosecuted for an alleged act of domestic violence, that result begs the question – what then influences the decision by law enforcement NOT to track down and arrest the alleged perpetrator?
My view, after almost 40 years on both sides of criminal cases, is that the police strongly resent having their “street sense” – professional discretion removed by mandatory arrest laws. When the police are compelled by blunt mandatory arrest laws to make arrests, the officer’s normal professional discretion that is the result of their time on the job, their instincts, and their judgment has been legislatively removed, the reaction may be to drop the case after leaving the scene … even if they have the much-vaunted “probable cause.”
The Authors of the Study Explain Mandatory – Pro or Presumptive Arrest Policy
Below, the authors of the study explain the difference between “mandatory,” “pro-arrest ” – or “presumptive” arrest domestic violence states:
The two types of “pro-arrest” policies are mandatory policies and preferred (or presumptive) arrest policies.
This categorical distinction is highly significant as this theoretical difference may impact actual police behavior in intended and unintended ways.
A mandatory policy directs action and, in theory, limits discretion, whereas a presumptive arrest policy simply serves to guide, albeit strongly, officers’ use of discretion in the direction of making an arrest.
In a presumptive arrest jurisdiction, whereas the policy often will explain the advantages of making an arrest, the actual decision of whether to “arrest,” “separate,” or merely “warn” parties is made by the officer on the scene.
Mandatory arrest policies have been primarily based on the belief that mere policy pronouncements in favor of the police arresting offenders might be insufficient to change street-level justice.
The key becomes the elimination of, or at least strong limits on, officer discretion. Some proponents, especially in the early years of police reforms, felt police needed to be “coerced” into doing the right thing—making arrests of obviously guilty batterers.
The Dynamics of the Domestic Violence Case Scene
In a mandatory arrest state, such as Colorado, if the police find there is probable cause to believe “an act of domestic violence” has occurred, they are legally required to make an arrest.
If the person accused of the act of domestic violence is still present at the scene, he or she is almost always given an opportunity to try to rebut a police officer’s belief that the threshold of evidence for an arrest, “probable cause,” has been met. The suspect may try to explain his behavior by asserting, for example, they acted only in self-defense.
If the suspect has left the scene – no such defense based information can be conveyed by the suspect to the police. The logical conclusion would be, in that event, that the police would then either track that person down or if that fails, seek an arrest warrant that would be then be lodged on the state’s arrest warrant registration database.
This kind of follow-up – is not happening, according to the study. Why?
Suspected Domestic Violence Offenders Leave the Scene Approximately 50 Percent of the Time
The research demonstrates that approximately 50% of domestic violence abusers leave the scene before the police arrive. The numbers are staggering. But the evidence is clear. While this statistic is not a widely known fact, it is still a very real truth in the lives of those involved, the police, and the witnesses, alleged perpetrators, and alleged victims of domestic violence.
But what does this mean on a day to day basis?
The study found that first-time offenders or those with an otherwise limited criminal history, are much less likely to leave the scene. They remain and they are arrested. The question must be asked – why should these individuals, those who remain on the scene, be punished more harshly by mandatory arrest laws than those who are savvy enough to “take off.”
The more dangerous suspects, such as those suspected of or have prior convictions for domestic violence, are most likely to leave the scene. First offenders, naive to the dangers of mandatory arrest laws such as Colorado’s, remain at the scene to tell the police “their side of the story” and, therefore, are most likely to be arrested under the very low threshold of evidence – “probable cause.”
The study concluded that the presence or absence of the alleged suspect was the most significant factor in determining whether an arrest was made. It was not the gender of the suspect, the number of witnesses present, who reported the incident, the seriousness of the injuries, whether the parties were living together, the presence or absence of minors at the scene, or the use of alcohol or drugs. Leaving the scene had the most impact on whether an arrest was made in the case.
The authors of the study posit that the reason for the failure to follow through on the arrest is unknown:
At present, it is unknown whether the failure to follow through when the offender has left the scene reflects individual officer judgments about the response to such cases or is simply the result of failure to promulgate appropriate departmental procedures and protocols.
The authors speculate that “some officers may assume that once an offender is no longer in the presence of a victim, she is safe.”
The Wrong Conclusion
My conclusion from this study is somewhat different than the authors of the study.
I submit that the decision not to pursue the offender is a kind of “answer” by law enforcement to mandatory arrest laws. These laws are not applied in any other sphere of police discretion. There are no mandatory arrest laws for more serious cases involving every other crime found in the Colorado criminal code. In every other area of the investigation of crime, the police are trusted to make the right call.
In the area of domestic violence, the police are compelled to make arrests even in the most minor of cases where mediation or a“cooling off” period of separation of the parties is the correct move. Instead, someone is arrested because the law is mandatory. The impact of the damage of this policy is inestimable. Colorado juries are astounded at the cases brought to trial and will many times acquit as a message to the system that is so broken.
I submit that the discretion to make an arrest or refuse to make an arrest should be restored to law enforcement in mandatory arrest states such as Colorado for this very reason.
The police clearly have a dangerous and difficult job. Similarly, Colorado’s judges who must decide what sentence to impose in the criminal courts of Colorado have had their discretion legislatively removed as a result of the enactment of mandatory sentencing laws.
Both the police and our judges serve the people of Colorado and must be trusted to use their experience, training, education, and judgment, to make the correct findings in the areas of their specialized fields. Colorado’s mandatory arrest and mandatory sentencing laws remove that discretion which quite often results in much harsher treatment of many of those caught up in our criminal justice system.
In terms of domestic violence cases, it is often the innocent or the naive who are unnecessarily punished, when those, as the study suggests, crafty enough to flee the scene and escape accountability, are not.
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Never stop fighting – never stop believing in yourself and your right to due process of law.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at firstname.lastname@example.org – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 35 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.