Mandatory Arrest for Misdemeanor Domestic Violence: Is Alaska's Arrest Statute Constitutional?

• Publication year: 2010

§ 27 Alaska L. Rev. 151. MANDATORY ARREST FOR MISDEMEANOR DOMESTIC VIOLENCE: IS ALASKA'S ARREST STATUTE CONSTITUTIONAL?

Alaska Law Review
Volume 27, No. 2, December 2010
Cited: 27 Alaska L. Rev. 151

MANDATORY ARREST FOR MISDEMEANOR DOMESTIC VIOLENCE: IS ALASKA'S ARREST STATUTE CONSTITUTIONAL?

PAUL A. CLARK ^[*]

Abstract

Alaska defines "domestic violence" in a way that is broader than most of the country. Additionally, it requires arrest for a wide variety of offences classified as domestic violence, including many misdemeanors. This regime violates both the United States and Alaska Constitutions in a number of ways. The statute imposes a penalty prior to a determination of guilt beyond a reasonable doubt, violating due process. It violates equal protection interests by treating individuals who commit similar crimes differently based on whether or not their crimes are classified as "domestic." Finally, it violates Fourth Amendment protections by requiring warrantless arrests absent "exigent circumstances."

INTRODUCTION

In the last two decades, states and the federal government have adopted a number of new approaches to deal with "domestic violence." A number of states, including Alaska, now require warrantless arrest for some misdemeanors, which traditionally required officers to obtain an arrest warrant. ^[1] Proponents of mandatory (warrantless) arrest argue that: (1) it deters individual criminals from assaulting someone again when punishment in the form of arrest is swift and sure; (2) it deters others generally from committing assault because they know that arrest will be the immediate result and this general deterrence also reinforces societal norms against assault; and (3) immediate arrest protects victims from further violence.

Opponents of mandatory arrest argue that: (1) because domestic violence is a crime of passion arrest is unlikely to deter crime; (2) arrest before all the facts are known leads to the arrest of innocent people; (3) mandatory arrest often punishes the alleged victim as well as the suspect since a bread-winner may lose his job after being arrested, or the arrest may cause the suspect to retaliate further against the victim upon release; and (4) fear of these adverse consequences may lead victims to refuse to call police for help out of fear that arrest will be the result.

This Article demonstrates that Alaska's domestic violence statute suffers from a number of different infirmities. Part I sets the stage for the Article by looking at a typical example of domestic violence and by examining the different historical approaches to domestic violence laws. Part II describes how Alaska defines "domestic violence" in an exceptionally broad way compared to other states. This Article then argues that the statute requiring police to arrest domestic violence suspects is subject to at least three constitutional objections. Part III suggests that the statute appears to have been adopted to ensure swift punishment for abusers although punishment of suspects prior to trial is unconstitutional. Part IV contends that subjecting domestic violence suspects to warrantless arrest violates the Equal Protection Clause of the Alaska Constitution in that those suspects are treated differently than are similarly situated individuals who are suspected of otherwise identical, but non-domestic violence. Finally, Part V argues that warrantless arrest probably violates constitutional principles that specifically limit when, where, and how an arrest can be made.

I. Background

A. A Typical Example

The following is from the police report in a misdemeanor assault case from Ketchikan, Alaska (the last names and the address have been omitted):

On 11-21-07 [the day before Thanksgiving], at 2216 hours a report was received from Russell [a neighbor] of a domestic violence situation occurring in the apartment below them. [Russell] stated he could hear screaming and cussing and at one point the girl screamed as if she were in pain. Upon arrival at the residence, Erica was contacted. Her face was puffy, her eyes swollen as if she had been crying and two scratches were observed at the back of her left upper arm. She stated she and Tony had been in an argument but everything was fine now. Tony was in bed. When he got up he was belligerent and demanded AST [Alaska State Troopers] leave his residence. Erica started crying and stated she was afraid [Tony] was going to get angry. She said that all she wanted was for [Tony] to be home for Thanksgiving day. . . . [T]he on call District Attorney was contacted. It was decided [Tony] would be arrested for assault in the fourth degree due to the nature of the original complaint, the condition of both [Erica] and [Tony] and the likelihood of a serious assault occurring if [Tony] was left at home. ^[2]

A few other details should be noted. ^[3] Erica told the trooper when he showed up at the door that he could not come in and that she wanted to be left alone. He forced his way inside and examined her for injuries. She had two scratches on her left arm, which Erica said she had received earlier when she retrieved her baby's toy from behind a thorn bush. Tony was arrested in his underwear and taken to jail. Erica tried to go to the jail to bail him out, as the next day was Thanksgiving. She was told he was being held on "no bail" and could not be released until he was brought before a judge the next afternoon. Despite these inconveniences and humiliations, the charges were dropped before trial due to insufficient evidence to proceed.

The above example is typical of alleged domestic disputes. Police often find a highly ambiguous situation with the suspected victim uncooperative. ^[4] Often there is no clear evidence that a crime was in fact committed. How should the state respond?

Now consider what happens when suspects are arrested. They are put in handcuffs, locked in the back of a police car, taken to jail, strip searched then locked in a jail cell for hours waiting to see a judge. Often suspects are locked in a holding cell with suspected criminals who may threaten or physically abuse other prisoners. For most people, a first arrest is a terrifying experience. Even if a person is never convicted of anything, a record of arrest may still be used against a person. Moreover, arrest is humiliating and often carries a number of indirect costs associated with it. ^[5] For some workers, missing even a single day of work can mean the loss of a job. Even when a person is released without bail, suspects are still typically subject to significant restrictions on liberty such as travel restrictions and, in domestic violence cases, often prohibited from returning to their own home. ^[6]

There are times when arrest and incarceration are necessary to stop violence or recover stolen property, for example. But mandatory arrest will unquestionably lead to the arrest of innocent people (even setting aside the principle that every suspect is innocent until proven guilty). A number of studies have concluded that pro-arrest and mandatory arrest laws have led to an increase in innocent people (often the victim of a crime) being arrested. ^[7] This appears to be particularly true with respect to mandatory arrest. ^[8] Mandatory arrests are likely to occur at the early stages of an investigation before all of the facts are known. Arrest requires the officer to have probable cause of a crime having been committed, but probable cause is not a high standard. ^[9] Generally, there is probable cause for arrest when a person says "she slapped me." Some non-trivial percent of people arrested, taken to jail, strip searched and held for hours in a cell, have done absolutely nothing wrong, morally or legally. It may turn out after further investigation that the person arrested is entirely innocent, or even the victim of a crime. Nevertheless, some writers have argued that arrest is justifiable as a form of punishment. ^[10]

B. Legal Responses to Domestic Violence Throughout History

In the early Nineteenth Century it was not a crime for a man to "chastise" his wife, but it was a crime to cause her serious injury. ^[11] "By the 1870s, however, there was no judge or treatise writer in the United States who recognized a husband's prerogative to chastise his wife." ^[12]

Under American constitutional law, the family and the home are accorded special protection. In 1923, the Supreme Court acknowledged the constitutional rights "to marry, establish a home and bring up children." ^[13] Similarly, "[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." ^[14] Spouses generally could not be compelled to testify against each other. ^[15] Parents have a constitutional right, within limits, to spank or discipline children which would be assault in other contexts. ^[16] Thus marriage, family, and the home have been accorded a variety of legal privileges. ^[17]

Prior to the 1980s, arrests for "domestic disputes" were rare. This may have been based partly on theories about the role of government, but was also based on an assessment of the effectiveness of arrest and criminal prosecution. An influential 1984 U.S. Attorney General's Report ("Report") described how this early assessment came to be: "During the sixties, police trainers relied on the literature of psychologists and social scientists who believed that arrest was...