Problem: Even though reforms in the past 40 years mandated police response to domestic violence (DV) crime, and in many states also mandated arrest, never-the-less baseline rates of DV prosecution remain low.
Background: The nature of prosecution is reviewed, noting that nearly all criminal cases are resolved through plea bargaining in state and federal cases. Thus, the nature of plea bargaining is examined from a perspective of negotiable currency. Past research demonstrates that if multiple crimes are described and listed in the first responding police officer’s written report, there is a substantially greater odds that the suspect will be prosecuted and found guilty. Those extra charges can be dropped by prosecutors in exchange for a plea of guilt.
Purpose: This empirical study examines a discretionary best practices crime investigation method that can be operationalized by first responding police officers, in situ, to determine whether its use leads to a significant increase in rates of prosecution and criminal conviction for DV crime. The methodology is the choice to thoroughly investigate each DV crime to uncover concurrent and also past-but-still-chargeable crimes. This optional work is time-consuming because children, neighbors, the 911 caller, and others must be contacted and interviewed.
Method: Randomly selected police reports (n = 366) were found to contain 22 combinations of crime codes listed as violations, for DV and other concurrent crimes. The reports were evaluated on a number of prosecutorial outcomes. Frequency statistics were calculated, and logistic regression was used to confirm key relationships.
Results: Only one third of all submitted reports listed more than one crime. For those investigations that did lead to prosecution, 97% resolved through plea bargaining. Most single charge misdemeanor DV police reports were found to be “dead upon arrival” at the prosecutor’s office, with only 29% resulting in any type of criminal conviction. Conversely, reports that list four crimes have a 100% rate of conviction. Three quarters of all “felony” DV, as labeled by police, either resulted in no criminal prosecution or prosecution as a misdemeanor. This replicates a finding of the California State Attorney General who reported a serious problem with police regularly inflating DV charges. Police routinely failed to list children as victims (4% of investigations), even though they could have been listed about 61% to 86% of the time.
Conclusions: There is substantial room for investigative improvement by police. A number of easily added crime codes are reviewed in the discussion section. The importance of sergeants sending officers back to the scene of the DV crime, while it is still warm and witnesses and additional evidence are still available is discussed. The article concludes with a prediction: As rates of listing more than one crime in police reports increases, there should follow a significant and permanent increase in rates of prosecution and criminal conviction for DV crime.
- social sciences
- government agencies
- public safety
- domestic violence
The criminal justice response to domestic violence (DV) crime, in the United States and also in some other countries, has changed in the past half century. One major advance was the imposition of mandates forcing police to respond to DV incidents and to investigate them as a crime rather than ignoring them as a family matter. Beginning in the 1960s and increasing through the 1970s and 1980s, police began to respond to DV incidents, although too often only informal action was taken1 (Dugan & Nagin, 2003; Zorza & Woods, 1994).
Because too often police responded but took no formal action, another advance in the criminal justice response to DV crime became necessary: mandates to make an arrest. In the 1990s and early 2000s, arrest was legislatively imposed in many states (Hirschel & Buzawa, 2002; Institute for Law & Justice, 2004). This was a specific attempt, by state legislatures, to force police to initiate the potential for prosecution via the arrest and a written report, rather than show up but take no formal action. Prosecutors don’t find out about DV crimes unless police officers write reports documenting their occurrence.
However, despite these advances, rates of prosecution and conviction for DV crime remain low to the present day. Meta-analysis shows that the baseline, non-arrest prosecution rate is about 30% in the United States, though if an arrest is made the rate more than doubles to 67% (Garner & Maxwell, 2009: Table 9). However, across a broad range of crime, even when the facts support an arrest too often, police officers still do not make an arrest (Terrill & Paoline, 2007). Thus, the problem of unprosecuted DV batterers being left in the home after police depart persists. And, as Garner and Maxwell’s meta-analytical evidence demonstrates, the frequency of this problem is substantial. The reason DV is an important topic of concern is because it is a phenomenon that harms human beings.
Generally speaking, if a criminal case is prosecuted, most likely it will resolve through plea bargaining. In fact, 93% to 95% of all criminal cases in local and state courts, and 97% of federal prosecutions resolve through pleas (Bureau of Justice Statistics [BJS], 2008; Sourcebook of Criminal Justice Statistics, 2002, 2004; United States Courts, 20112). Alschuler (1979) has described plea bargaining as “the exchange of official concessions for a defendant’s act of self-conviction” (p. 3). The nature of trading, which is one way to conceptualize plea bargaining, is such that prosecutors have more negotiable currency when multiple charges have been filed, for example, one or more counts of DV, vandalism, child endangerment, and so forth. The reason this is true is because some of the charges can be dismissed in exchange for a guilty plea to one or more others. In addition, sometimes a felony charge can be reduced to a misdemeanor in exchange for a plea of guilt. Accordingly then, there isn’t much negotiable currency when police deliver a crime report to prosecutors that only lists a single misdemeanor DV crime,3 because such a report doesn’t include any negotiable value such as an extra charge that can be dropped or a felony charge that can be reduced.4
An example may help to underline the importance of multiple charges to the mechanics of plea negotiation. Suppose a prosecutor files a charge of misdemeanor DV and a charge of misdemeanor vandalism. These charges might arise from an incident where the suspect pushed the victim, who is the suspect’s romantic partner, down on the bed and then threw the victim’s mobile phone against a wall, breaking it. The prosecutor and defense attorney might work out a plea where the vandalism charge is dropped in exchange for a guilty plea to the DV crime. If the investigating officer had not documented the breaking of the mobile phone, an “expendable” charge would not be available to prosecutors and thus the odds of conviction would be less certain (see Cammack & Garland, 2001; Lafave, Israel, King, & Kerr, 2009; Nelson, 2013a).
The Importance of the Police Report
Crimes described and charges listed in the first responding police officer’s written report are, in a real and practical sense, the origin of much of the prosecutorial currency used during plea negotiation. In fact, in some and perhaps many cases the police report may be the only source of information available to prosecutors when deciding whether to file criminal charges (Hinds, 1993; Levie & Ballard, 1978; Miller, 1993). Thus, in a very real sense, the contents of the first responding police officer’s (FRPO’s) written report may make or break the possibility of criminal prosecution in many cases.5 There is fairly strong evidence to support this belief. For each additional charge listed in the FRPO’s written report, the odds of prosecution increase by 284%, and conviction by 142% (Nelson, 2013a).6 That finding makes sense because greater negotiating currency—in the form of multiple charges recommended in the FRPO’s written report—would reasonably be expected to increase the attractiveness of a case to prosecutors.
Inflation of Alleged Crimes
In 2005, the California State Attorney General (CSAG, 2005) identified a problem with the way that some police officers identify DV crime in written reports, finding they describe DV as a felony more than 50% of the time; yet, if criminal charges are filed 80% of the time, those “felony” charges are filed as a misdemeanor. Although it is possible that the crimes were actually felonies and were therefore improperly classified by prosecutors, there are at least five reasons to discount this alternative explanation.
First, it is to the prosecutor’s advantage to file a felony case whenever the facts support doing so, because even if no other charges are filed, a felony can potentially be reduced to a misdemeanor in exchange for a guilty plea. Filing a misdemeanor case when the facts support a felony would eliminate this negotiating advantage. Practically speaking, why would a prosecutor give away strong negotiating currency? Second, although there is no repercussion for charge inflation by police, the same is not true for prosecutors because their work is regularly scrutinized by judges. If a prosecutor inflates a misdemeanor case by filing it as a felony, the charge should be dismissed at preliminary hearing for lack of sufficient evidence.7
Third, as is commonly seen, prosecutors work hard to cultivate an image of being tough on crime; thus, it would be out of character for them to routinely water down charges. One can imagine the difficulty an incumbent county prosecutor would face when her or his opponent pointed out such a practice to the media, in debates, or in negative advertising. Fourth, it seems unlikely that DV victim advocates would stand by quietly while felony cases were regularly downgraded to misdemeanors. One would expect advocates to protest and work to put an end to any routine downgrading of DV charges by local prosecutors. Finally, and perhaps most convincingly, after investigating the discrepancy between police-identified “felonies” and the filing of those cases as misdemeanors by prosecutors, the California State Attorney General concluded that police were inflating charges, and not prosecutors lessening them. Perhaps in some way, police were trying to create prosecutorial currency through charge inflation. This phenomenon needs further study.
Charge inflation can be problematic for at least two reasons. First, booking arrested misdemeanants on a felony DV charge could potentially inflict on them an improper financial barrier to freedom in the form of more expensive bailment. Second, if the practice of charge inflation is widespread, serious doubt could arise regarding the reliability of rate estimates for DV by scholars and governments if they are based on arrest records. The implications of both possibilities are considered in more detail later in this article.
There is one other possible explanation, that being a felony was committed but police weren’t able to collect sufficient evidence to provide it, and thus prosecutors have no choice but to file the case as a misdemeanor. However, this possibility is seen as doubtful, because the key difference between the misdemeanor and felony sections is the presence or absence of a traumatic condition such as a bruise, laceration, burn, clump of hair pulled out, broken bone, internal injuries, and so on. Traumatic conditions are easily documented through testimony, photographs, medical records, and so forth. If there is sufficient evidence to charge a misdemeanor, there should also be sufficient evidence to charge a felony because the documentation of a traumatic injury should be present.
Summary of Problem
The present work responds to a fundamental problem in criminal justice: unacceptably low rates of prosecution for DV cases. If, for a moment, one assumes that all or nearly all of the individuals accused of DV, by police, are actually guilty, then the scope of the problem is seen as staggering: Even in an era of mandatory response, and mandatory arrest, many DV batterers are still getting away with their crime. Regarding the possibility that all or nearly all individuals accused by police of DV crime are actually guilty, we know that for general crime categories, the incidence of false accusations ranges from 0.5% to 3% (Zalman, 2011; Zalman, Smith, & Kiger, 2008). Therefore, it seems reasonable to assume most or nearly all of those individuals who are accused of DV crime by FRPOs in a written report to prosecutors are actually guilty, and they are getting away with their crime(s).8
The primary purpose of this empirical study is to examine the relationship between types and combinations of DV crimes, as they are described and listed in FRPO reports, and a variety of prosecutorial outcomes with a focus on filing of charges and conviction of crimes. The second purpose is to examine in more detail the structural relationship of plea bargaining through a comparison of crimes described by police, charges filed by prosecutors, and crimes plead guilty to by defendants. The third purpose is to quantify rates of DV plea bargaining in one California jurisdiction as a possible window into rates of practice throughout the state, because to date these data are not in the public record of California. Finally, the fourth purpose is to attempt to replicate the findings of the California State Attorney General with regard to charge inflation by police.
The null hypothesis asserts that rates of plea bargaining in the present study will not be similar to national averages; no significant relationship will be seen between crime charge combinations recommended by police, and rates of prosecution and conviction; all or nearly all felony DV charges as recommended by police will, if filed by prosecutors, be at the felony DV level; and finally, that the California Attorney General’s findings will not be replicated. Alternatively, four testable hypotheses are derived. They are,
The combined rate of guilty and nolo contendere 9 pleas to DV crime will be similar to the 95% to 97% range reported nationally, for all types of crime.
A significant positive relationship will be measured between a variety of charge combinations and increased rates of prosecution and conviction.
If “felony DV,” as identified in police reports, results in criminal charges, more than half will be filed at the misdemeanor level.
Misclassification of misdemeanor DV as a felony, by police, will be seen in at least half of the written reports where felony DV charges are recommended.
This work is organized on principles of a problem-solving criminology (PSC), which is intended to be a solution-oriented response to two criticisms originating from within the discipline of criminology. The first is an observation regarding the lack of impact of some criminological work on the practice and problems of society. As Chancer and McLaughlin (2007) note, “Criminologists have had to confront the embarrassing fact that in a society saturated with ‘crime talk’ they have (the) utmost difficulty in communicating with politicians, policy makers, professionals and the public” (p. 157). The problem of stifled influence is seen as correctable. Thus, a goal of this work is to demonstrate a manner in which a practical problem in criminal justice—in this case, low rates of prosecution—can be partially solved through the application of criminological methods to identify a validated solution.
Curie describes a second problem: “Despite its accumulated theoretical and empirical heft, the discipline of criminology has distressingly little impact on the course of public policy toward crime and criminal justice… significant changes (are needed) in the inner culture of the discipline” (Currie, 2007, pp. 175, 176). It is possible that some of the problem of a policy and practice-shaping inaudibility may be the result of a discipline that sometimes seems to focus a bit more on questions of why more than how to; that is, devoting itself more to theory testing and the pursuit of meaning and perhaps a bit less on efforts to find validated solutions. This is not to demean theory and explanation. It is believed that type of scholarly contribution is complimentary to problem-solving work much in the same way that theoretical and applied physics co-exist. In fact, each of those sub-disciplines provides material for the other’s work.
The means by which problem-solving work presents in a journal article may be somewhat non-traditional. For example, the literature review may not examine theory, instead focusing on a practical problem in criminal justice and the circumstances that surround it. So also, the discussion section may devote itself to a consideration of how validated solutions can be operationalized by police and not the larger social context of the findings. This article demonstrates a problem-solving method. The design is faithful to the principles of empirical science, and the presentation of the results is oriented toward the needs of practitioners. It is hoped that criminologists will recognize the merits of this type of work and conclude that problem-solving criminology should be added as a recognized sub-discipline.
Source of Data
The author was granted concurrent access to the records of a mid-sized California police agency and also the county prosecutor’s office to gather archival data on every case of DV for which a police report was written in the year 2007 (N = 1,810). Both agencies divide DV cases into five categories. For logistical reasons, those categories were used during data collection. A random number generator was used to select 75 investigations from four subcategories. The fifth contained only 89 investigations, so all of them were used. A few investigations had to be discarded for technical reasons. The final sample contained n = 366 investigations.
All data were collected and coded by the author over the course of 2.5 years. Case numbers assigned by the police agency were used to reference the prosecutor database, thus ensuring that police investigations were properly matched to their prosecutorial counterpart. A total of 16 data were collected from each investigation (N = 1,810). An additional 226 data were collected from each randomly sampled investigation. These data included 213 dichotomous and 19 continuous explanatory variables. Also collected were four types of nominal data, five dates in Julian format, and one text box used to store researcher notes. All data are stored in password protected spreadsheets. The spreadsheet containing data from the randomly sampled sub-set has 88,572 cells. A study of this depth was made possible by the fact that both agencies use electronic record keeping. Thus, problems such as having to track down a file in someone’s office, or in a court room, or in a separate storage facility were not encountered. The results are in the process of being reported across several articles.
Data collection was limited to the first responding police officer’s written report. If other police officers assisted at the scene, or if detective follow up was required later, data were not collected from their reports. The reason is because the focus of this study is on the relationship between the work product of the first responding officer and two important prosecutorial outcomes: prosecution and conviction. Conviction was defined by one of three actions: pleading guilty, pleading nolo contendere, or being found guilty at trial of one or more crimes. Because these are dichotomous outcomes (i.e., yes or no), logistic regression was the proper choice for regression. Odds were calculated for two dichotomous outcomes: the likelihood of prosecution and criminal conviction. These calculations were computed by Stata/IC 10.0 for Windows. Percentage change was calculated using,
where β is the log-odds of a given logistic regression. It should be remembered that percentage change is reported in terms of the amount of increase beyond 100%.
At the department under study, it is acceptable for officers to allege a single crime in a written report. No policy exists requiring a thorough investigation beyond that. In a DV crime report, officers must identify the victim and suspect, describe a qualified domestic relationship between them, and explain how each element of one DV crime was fulfilled by the actions of the suspect. The role of supervisors is to ensure that reports include these fundamental components. They also check data sections for completeness, and assess grammar and spelling. After that, reports are checked by clerks to ensure proper formatting, and then they are delivered to the prosecutor’s office.
There are at least two ways to calculate rates of conviction. One divides the number of convictions by the number of cases filed by prosecutors. Political math of this type can be used to substantiate claims of toughness on crime, because the result should be fairly high. In actuality, calculations of this type more accurately describe the ability of prosecutors to “cherry pick” cases with a high probability of conviction; therefore, they probably should not be seen as an actual “toughness on crime” index. The second method is the one used to determine frequencies as they are displayed in Table 1. The total number of investigations serve as denominator, and the equation is a straightforward n / N.
Limitations to the Study10
There are limits to the applicability of the present work. First, the location of the study was one city in one state. As noted previously, there are undoubtedly methodological differences between the way DV crime is investigated, reported, and prosecuted in the more than 3,000 U.S. counties, spread among the 50 United States. Thus, it is unknown how closely these data will describe any particular prosecution office, but, most likely there will be a general fit with some variance for some particulars.
Second, the sample size was not small but neither was it large. In part that is due to the demanding nature of thoroughly reading and coding police reports and prosecution files on multiple occasions over several years. Thus, as is true for many researchers, use of random sampling was necessary. Generalization of sample findings to the population from which they were drawn is permitted when the sample was randomly selected, is of a sufficient minimum size, and when proper statistical analysis is used. These were all done.
Third, there is the potential for authorial bias. This is true because the author is a former police officer who specialized in DV investigation as a first responder; as such he is fairly described as dedicated to uniform and thorough investigation and prosecution of all DV crime without regard to suspect or victim demographics, or political or idiological positions. Potential authorial bias was probably kept to a minimum because quantitative data doesn’t need to be interpreted before it is classified and recorded. For example, either violation of a restraining order was listed in a given investigative report, or it was not, and so on.
Last, when new findings are described for the first time, they should be subjected to rigorous falsification efforts by others to determine their replicability and also their rates of occurrence under other circumstances in different locations. Until that is done, these data and conclusions should be viewed with appropriate caution.
First responding police officers in the present study alleged 541 crimes in n = 366 written reports, with a total of 22 different combinations of crime codes listed, as displayed in the left column of Table 1. Companion crimes include violation of a restraining order, child endangerment, terror threats, kidnapping, and non-DV crimes such as vandalism, drug possession, public drunkenness, and so on. In 10 of the 22 crime combinations, misdemeanor DV was alleged by FRPOs (n = 196), and the other 12 officers listed the DV crime as a felony (n = 170). As a review of Table 1 demonstrates, a 1:1 relationship does not exist between crime combinations listed in police reports and crime combinations filed by prosecutors. Sometimes prosecutors file more or less charges, in the same or different categories; or as the data demonstrate all too often, file no charges at all.
Table 1 endeavors to make it easy to compare rates of prosecution and conviction across the various categories of crime combinations by situating filing and conviction frequencies, for particular crimes, next to each other. For example, for the crime code combination where the police report listed felony DV and one non-DV crime, we see that 88% of these investigations led to a criminal case being filed, with 12% being rejected. Recalling the denominator is all crimes, not filed crimes, we see that overall 29% of the police investigations that listed “felony” DV plus an additional non-DV crime resulted in a misdemeanor DV charge, and 17% with a conviction for misdemeanor DV. Forty-two percent resulted in felony DV charges, and 42% resulted in a felony DV conviction. From these data, it is possible to calculate the conviction percentage for prosecuted cases. Using these examples, we see that 59% of the misdemeanor DV cases (.17 / .29) and 100% of the felony DV cases (.42 / .42) resulted in a conviction.
Continuing across the row, we see that 4% of the investigations resulted in charges of violating a domestic violence restraining order (DVRO), with 0% convictions. We also see that 8% of the investigations led to a charge of child endangerment, with another 0% conviction rate. Fifty percent of the investigations led to a non-DV charge, and 33% to conviction; thus, the conviction rate is about two thirds. Continuing to the right side of the table, we see that 67% of the investigations resulted in a plea or finding of guilt. Because 50% of the investigations led to a plea of guilt, and 17% to a plea of nolo contendere, we can tell that none of these cases went to trial and all of them were resolved through plea bargaining.
To summarize the life course of this particular combination of crimes, as alleged by police, we see that two types of crimes were not listed by police, but were picked up on by prosecutors and filed: child endangerment and violation of a DV restraining order. We see that 88% of the investigations resulted in a criminal case being filed, with 67% of the investigations resulting in a conviction of some type. Of the “felony” DV alleged by police, 41% was filed as a misdemeanor (.29/(.29+.42)). All criminal cases were resolved through plea bargaining. Child endangerment, DVRO, and some non-DV charges were dropped in exchange for these pleas.
Because of the data density of Table 1, a second interpretive example may be helpful. We see that about two thirds of misdemeanor (124 / 196 = 63%) and felony (105 / 170 = 62%) investigation reports only list a single crime code, and that their case filing frequencies are less than all multi-crime reports. For example, only 47% of police reports that list a single misdemeanor DV crime are filed, whereas if any additional charge is included the case filing rate for misdemeanors almost doubles, becoming an average of 88%.11
There is a bit more nuance to felony DV-only reports. Although 74% lead to the filing of charges, compared with an average of 89% for investigations that list more than one crime,12 what is interesting to note is the frequency with which prosecutors deviate from the recommended charge. Only 19% of these investigations result in the filing of a felony DV charge; whereas, 45% are charged as misdemeanors. Furthermore, a number of non-listed charges are used: Six percent (6%) result in terror threat charges, 5% result in child endangerment charges, and 19% result in non-DV charges.
Plea Bargains Resolve Nearly All DV Cases
Across all crime code combinations, nearly all convictions were gotten through negotiation and not trial. Overall, 97% resolved in this manner, with 55% pleading guilty and 42% pleading nolo contendere. Thus, the rate of plea bargained case resolution in the present study is nearly identical to that of the national average; as a result, the first alternative hypothesis is accepted.
Multiple Charges Increase Prosecution and Conviction
Rates of conviction are seen to range from 29% to 100%. As might be expected, the types of investigation least likely to result in conviction are those that have no apparent negotiating currency, that is, single misdemeanor DV reports. The conviction rate for those cases is 29%. Conversely, the rate of conviction when four crimes are alleged is 100% (n = 4), and for police reports that list three crimes, the conviction rate ranges from 67% (n = 18 misdemeanor DV investigations) to 100% (n = 12 felony), Figure 1 illustrates these relationships.
Three quarters of the time, officers only listed a single DV crime. Yet, as inspection of the table and figure suggests, and logistic regression confirms, there is a substantial and significant increase in criminal case filing when a police officer lists more than one crime in her or his investigative report (χ2 = 40.92, p < .000, Pseudo R2 = .092, β = 1.293, z = 5.10, p < .000, Pct Increase = 264%).13 This is true for misdemeanor and felony DV cases. In addition, there is a substantial increase in the odds of conviction as well (χ2 = 36.51, p < .000, Pseudo R2 = .072, β = .873, z = 5.38, p < .000, Pct Increase = 139%).14 Therefore, because prosecution and conviction rates are seen to be significantly correlated to listing multiple crimes, across a wide range of charge combinations, the second alternative hypothesis is accepted.
Over-Estimation of Felony Charges Is Routine Procedure
Police in the present study were observed to perform in the manner predicted by the California State Attorney General’s report. Of the n = 170 felony DV charges recommended by police, n = 116 resulted in a DV charge being filed. Of those, 66% were filed as a misdemeanor (77 / 116) and 34% were filed as a felony (39 / 116). If the rejected cases are factored back in, only 23% (39 / 170) of the “felony” DV reports written by police actually resulted in DV cases filed at the felony level. Thus, over-estimation of DV crime charges, as described by the California State Attorney General, is replicated in these data; therefore, the third alternative hypothesis is accepted.
The coefficient of inflation is somewhere between 1.97 (77 / 39) and 4.36 (170 / 39) depending on whether only filed cases are compared, or if all investigations are included. The former calculation is seen to be a political type of math; so, the latter is favored as a more accurate measure of charge inflation by police. These data tell us that it is routine practice for first responding police officers at the agency under study to identify DV crime as a felony when the facts of the case, as reviewed by prosecutors only justify a misdemeanor DV charge or no DV charge at all. The largeness of the coefficient is seen as sufficient justification for acceptance of the fourth alternative hypothesis.
Listing a single misdemeanor DV charge is the “kiss of death” for jurisprudential justice if one defines it as arrest, prosecution, conviction, punishment, rehabilitation, and control of the guilty to provide victim(s) with some amount of protection, recompense, satisfaction, and closure. The proof is weighty: Seventy one percent (71%) of single charge misdemeanor DV reports are either not filed, or, if filed, do not result in a criminal conviction. Assuming that there is some truth to Zalman’s estimate that no more than 3% of all police accusations are false or mistaken, then nearly all of the individuals accused of a single misdemeanor DV crime by police probably committed the crime of which they are accused. Thus, for them, a single misdemeanor report is a gift–if it results in no criminal charges. For them it is a “get out of jail free” card.
Evaluating this phenomenon from the perspective of negotiable currency, one realizes that FRPOs who do not thoroughly investigate for concurrent or past-but-still-chargeable crime give prosecutors little negotiating power. Thus, it is not surprising that so few single-charge misdemeanor DV crime reports actually result in prosecution and conviction. The low rate of DV prosecution is felt to be largely avoidable because with additional effort, FRPOs should often be able to identify one or more concurrent or past-but-chargeable-crimes that can be added to their report. Several examples are provided below to illustrate the point.
Charges That Can Be Added to Most Investigations
There are at least three types of criminal charges that can be added to reports in many cases. First, DV tends to be an ongoing problem rather than single-event crime (Felson, Ackerman, & Gallagher, 2005; Straus, 2008; Tjaden & Thoennes, 2000; Whitaker, Haileyesus, Swahn, & Saltzman, 2007); thus, for many DV investigations, there is a strong likelihood of past DV crime. If it occurred in the prior 12 months, it should be chargeable.15 To learn about the fist fight last week, or the slap a month before, or even a brutal attack 11 months ago, an officer needs to ask more than here and now, current crime questions. The officer should ask about the past DV as well, going back a full year. Should the officer take the time to do so (s)he may uncover many additional charges that can be added to her or his written report.
Second, child endangerment charges can probably be added to most investigation reports.16 Circumstantial evidence suggests children are present in most domestically violent homes. We know that rate of DV among 18- to 28-year-olds is about 24%, per year, as revealed by data from the National Longitudinal Study of Adolescent Health (N = 11,370, Whitaker et al., 2007). And, we know that is about the same age when young people start becoming parents. Children are present in about 61% of the homes where adults are aged 20 to 24 years, increasing to 86% by the time adults are aged 35 to 39 years (United States Census Bureau, 2003). What we don’t know for sure is whether the frequency of children in domestically violent homes is lower or higher than the national average; however, it seems reasonable to assume that the rate is fairly close to the national level. Thus, we must ask, Why did police in the present study only recommend child endangerment charges in 4% of the cases they investigated? Not only were children likely to have been present, but when one factors in the likelihood that DV is ongoing, even if some or all of the children didn’t witness the current DV incident, they have probably witnessed past ones. Thus, it seems, children could be listed as victims in many and perhaps most DV reports.
Third, other crimes can be uncovered as well, with more detailed questioning. Perhaps a car was scratched, or a window broken, and then the vehicle was concealed in a closed garage prior to the arrival of police; or maybe there is a still-visible bruise, under clothing, from an incident a week ago, one that can’t be seen but might be revealed on specific and detailed questioning; or perhaps one or both partners have sent each other threatening text messages or email. It is also possible that one or both partners may have photographs of past injuries, perhaps stored in their mobile phone, or maybe one or both partners are habitually drunk in front of the children,17 and so on.
Thus, in summary, it is believed that adding additional crime descriptions to FRPO reports can be accomplished much more often. The likelihood that DV is ongoing, witnessed by children, and accompanied by vandalism, threats, and so forth makes it difficult to believe that so many single misdemeanor DV crime reports represent adequate effort by FRPO’s. These probabilities suggest that officers should be looking for children, identifying them, interviewing them, and listing them as victims. They suggest that FRPOs should be door knocking to ask neighbors about violence they have witnessed or heard. Officers should be asking to see email and text messages, and asking about broken items in the home. That noted, studies have documented that police officers are sometimes resistant to change (Lumb & Breazeale, 2002; Maguire, 2007; Willis, Mastrofski, & Weisburd, 2007; Wood, Fleming, & Marks, 2008).
In a companion article to the present one (Nelson, 2013b), this author compared routine lesser effort (RLE) officers against routine greater effort (RGE) officers on rates of criminal case filing, and conviction for domestic violence crime. RLE and RGE officers were sorted according to their routine use or non-use of the six optional actions that together comprise the best practices method for the investigation of domestic violence crime (Nelson, 2013a). RLE officers had their cases rejected 270% more often, and were criticized by prosecutors as producing ambiguous investiations with insufficient evidence (Nelson, 2013b). Because some police officer will habitually conduct a minimal DV crime investigation, and no more, the role of patrol sergeants is seen as essential in order to insure that every DV crime is thoroughly investigated.
Key to Success: Patrol Sergeants
Sergeants monitor police officers in real time. They can go to the scene of the DV crime and evaluate the potential of the investigation. They can read the report the officer submits upon completion of her/his investigation. And, importantly, sergeants can send an FRPO back to the scene of a crime, while it is still fresh, with instructions to re-open the investigation and be more thorough. Sergeants can and should be asking questions such as the following: Do these individuals have children? Did you interview the children? Why aren’t the children listed as witnesses, and victims, and their statements included in this report? Did you knock on the doors of neighbors? What did neighbors tell you about this and past events? Did you ask whether anything was broken, during the fight? Did you ask about terror threats? Did you ask to see email and texts? Did you ask about stalking? Did you search for weapons to seize? What about past history of violence? What did they say? and, so on.
Because police sergeants are in the unique position of being able to evaluate the thoroughness of a FRPO’s report in real time, while the crime is still warm and the officer is still on her or his work shift and while children and witnesses are still relatively accessible, they are seen as uniquely capable of operationalizing mandates for investigative thoroughness. However, it would be a mistake to believe that sergeants will readily welcome and enforce such a mandate, in part because they may not support it. As Skogan (2008) notes, many attempted policy changes have failed because sergeants and other mid-level managers did not support them.
It may be that an informed consumer approach may help officers and sergeants to buy into mandates for investigative thoroughness. This might be accomplished by informing officers and sergeants about the substantial increase in case filing and criminal conviction that accompanies multiple charge written reports. One should not assume that officers and sergeants are aware of this relationship, or that they are given feedback by prosecutors regarding the quality of their investigations. In fact, the National District Attorneys Association (NDAA, 2009) has drawn attention to the problem of police officers not receiving feedback from prosecutors, and thus, not really knowing how well they are investigating. That is why the NDAA has called for an increase in such channels of communication. At the police agency studied in the present work, no such program exists.
Other Findings of Importance
Two additional findings of importance are considered. First is the effect inflated charges have on bailment for arrested suspects who committed misdemeanor DV but were booked under a felony DV crime code. A non-random check of six counties in California showed that bail for felony DV can be as much as five times higher compared with its misdemeanor counterpart. Because the ability to bail out of jail can affect employment, the ability to care for children or dependent or disabled adult family members, the ability to meet financial obligations, and so on, mislabeling misdemeanor DV as a felony by arresting officers may result in harm to jobs, family finances, care and protection of dependents, and so on. The practical, moral, and constitutional issues raised by this possibility deserve further attention by scholars.
Another issue that presents itself is the effect of charge inflation on official statistics, particularly when they are used to estimate rates of felony DV in the general population. We know that 78% to 80% of all DV crime that comes to the attention of the police is of the less-severe misdemeanor variety (BJS, 2000, 2003; Straus, 2008).18 Thus, it is not surprising that most “felony” DV reported by police in the present study is actually of the misdemeanor variety, as recognized by prosecutors reviewing the evidence. As noted in the introduction section, there are at least five reasons to believe that police are inflating charges, something the California State Attorney General (2005) has confirmed. Taken together, these facts suggest that rate estimates of serious DV in the general population based on police statistics may be mistakenly inflated, thus representing potentially substantial Type I error. If this possibility is confirmed by additional research it may suggest that our understanding about the nature of DV is possibly mistaken, that the large majority of DV is of the minor, non-injury type.
How well these findings can be generalized is subject to debate. It is possible that rates and prosecutorial patterns measured by this study do not closely describe those in other jurisdictions and states. However, there are at least four reasons to think they might. First, rates of plea bargaining in the present study almost exactly mirror the national rate, suggesting that other trends seen in these data may also describe other rates of national phenomenon. Second, the data of this study replicated the charge inflation phenomenon described by the California State Attorney General, suggesting that they may be a fairly close proxy measure for the criminal justice response to DV throughout the state of California and perhaps beyond. Third, there is a large amount of similarity built into the crimial justice system throughout the United States, because the fundamental structure is established in the U.S. Constitution, and major practices have been interpreted by the U.S. Supreme Court. Thus, in many ways, criminal jurisprudence is fairly similar across the many U.S. jurisdictions, and so the findings of these data may be fairly representative. Finally, violence between intimates has been shown to be a universal problem, with similar rates measured across many states, nations, cultures, and religions (Straus, 2008). Thus, the experience of DV in California should not be that different compared with other states and nations. For these reasons, the illumination of the strong positive relationship between listing multiple crimes in the FRPO’s report and the odds of prosecution and conviction is seen as a relationship that should be replicated around the world, in places with justice systems similar to that of the United States.
Analysis of Problem Solving Methodology
This article demonstrates a manner in which problem-solving criminology can be operationalized. The problem of low rates of DV prosecution and conviction was responded to with an empirical study that validated a means by which first responding police officers can substantially increase these rates. Specific field methodology was presented including the suggestion to interview children, neighbors, and 911 callers about the current crime and past crimes as well. From these interviews, officers may uncover additional chargeable crime as well as evidence of the victimization of children exposed to current or past DV. Furthermore, officers are encouraged to examine for broken items and other damage that may justify vandalism or similar charges. Finally, officers are encouraged to ask to see email, text messages, and other forms of communication because they may be evidence of criminal threats, stalking, and so on.
The importance of sergeants was noted, because they can ensure investigative sufficiency by the FRPOs they supervise. Also reviewed was the need for prosecutors to establish a communication system whereby first responding police officers are given feedback on the investigations they submit. These are all practical steps that police and prosecutors can operationalize in policy and practice.
This problem-solving criminological effort is a response to the call by Chancer and McLauglin (2007) and Currie (2007) to produce a new form of criminology that affects leaders and problems in society. It is hoped that criminologists will be receptive to the method exhibited in the present work, and more-so, consider implementing their own problem-solving work. There are many problems in the practice of criminal justice that could benefit from the problem-solving empirical help of criminologists. It is also hoped that criminologists will consider establishing problem-solving criminology as a recognized sub-discipline.
It is important to distinguish between two types of work that could be included in the sub-discipline. The first is problem-oriented policing as pioneered by Goldstein (1979) and expanded by Eck and Spelman (1987). That method is used by local police officers to focus on underlying problems that can lead to crime in their jurisdiction. Thus, the focus of problem-oriented policing is micro and local; whereas, problem-solving criminology is macro in focus, paying attention to problems-in-common across policing at the level of states and nations.
Operationalization of These Findings
Police administrators, legislatures, prosecutors, and advocates can put these findings to work immediately, because no additional skills or training should be needed for police officers to make use of these findings. Officers already know how to interview children, neighbors, 911 callers, and so forth. What is needed is the unction to act, the drive to greater investigative thoroughness. Perhaps by informing officers and sergeants about the large payoff, prosecution and conviction-wise that attends multiple charge reports, they will be more willing to be more investigatively thorough. Quite possibly, legislative mandates for monitored and quantitatively verified thoroughness may be needed, in the same way that mandates for police to respond to DV crime and to make an arrest were necessary. With baseline rates of DV prosecution hovering at 30%, nation-wide there seems to be quite a bit of room for improvement. It is predicted that a significant and permanent increase in rates of prosecution and conviction for DV crime will occur in proportion to the increase in production of DV crime reports that recommend two or more criminal charges.
Caution is indicated. Even though adding at least one additional crime to the police report substantially increases rates of prosecution and conviction, this is not the only optional investigative action that first responding police officers should operationalize in situ. Investigating sufficiently to identify other concurrent crimes, or past-but-still-chargeable crimes, is only one of the six components that together comprise the best practice model for the investigation of DV crime. For further details see Nelson (2013a).
Declaration of Conflicting Interests The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding The author(s) received no financial support for the research and/or authorship of this article.
↵1. Informal action can include separating the parties for the night, perhaps by offering to drive one to a relative’s home, or warning them they may be arrested if the police have to return, and so on.
↵2. This is calculated from data found in Table D-4, using N=91,938 total cases, and n=89,635 pleas of guilt.
↵3. Misdemeanor crimes are less serious and receive lower levels of punishment compared with felony crime.
↵4. Other lesser factors can also be negotiated, such as whether or not the defendant will have to take an anger management class, submit to drug or alcohol testing, how much the fine will be, length of time in jail, and so on.
↵5. Other factors may have some bearing as well. Cammack and Garland have identified a dozen possibilities including tempering legislative over-criminalization, cooperativity of the victim, estimated cost of the prosecution versus anticipated benefits, and even political considerations (2001, pp. 2-6). The National District Attorneys Association has identified 17 such factors including admissibility of evidence, availability of adequate civil remedies, the suitability of diversion and rehabilitation alternatives, whether prosecution will impair the investigation of more serious offenses, causing undue hardship on the defendant, the mental state of the accused, and the failure of police officers to perform their necessary duties while investigating (2009, pp. 50-51).
↵6. That study demonstrated that five other optional actions by the FRPO also increase rates of prosecution: locate additional witnesses (68%), obtain photographs (60%), obtain an emergency protective order (87%), and locate and arrest the suspect(s) (94%). Of these, some but not all were also seen to increase rates of conviction for DV crime: obtain an emergency protective order (102%) and make an arrest (78%). The sixth action is to submit the completed written report the same day, with survival analysis showing a reduction in the likelihood of prosecution dropping 25% in just a few days, and by 50% in less than a month. A similar pattern was seen for likelihood of conviction. See Nelson (2013a) for further details and discussion of these empirical findings.
↵7. A preliminary hearing is like a miniature trial, but not for the purpose of determining whether the defendant is guilty. Rather, the purpose of a preliminary hearing is for the judge to decide whether there is sufficient evidence to believe that the crime(s) that are alleged in the criminal complaint against the defendant were likely to have been committed, and if so whether there is a probable cause to believe that the defendant committed them. If the judge decides to hold the defendant accountable to law, then the prosecution can move forward toward trial—if it is not resolved by a plea bargain beforehand. During a preliminary hearing, prosecutors must outline their case and describe or produce their evidence. Witnesses may be called to testify under oath, such as the investigating police officer or the victim. If felony DV is alleged, the prosecutor must also prove that the victim was injured by the suspect. This can be accomplished through additional witness testimony, photographs of the injuries, and so on. If the prosecutor fails to provide sufficient proof that the crimes were committed by the defendant, the judge has no choice but to dismiss the charges.
↵8. It is important to understand that police, on investigation, do not always find that a domestic violence crime has occurred. Possibly, the party making a phone report to police misinterpreted the noise they were hearing from next door and so on. For example, maybe a noisy argument occurred—that is not a crime. Or perhaps a piece of furniture was damaged by a staining spill, and the shouting and cursing heard by neighbors were expressions of disbelief or loss. In addition, both parents may be working together, yelling at a rebellious teenager who just beat up a younger sibling or a violent movie may be playing on a television set whose volume is turned up too high. The author, a former police officer, has responded to hundreds of domestic violence calls. On occasion, alternative explanations such as these are found to be the factual cause of a reported disturbance.
↵9. Nolo contendere means that the defendant does not contest the charges against him or her and accepts a finding of guilt (LaFave, Israel, & King, 2004). Pleading nolo contendere is a strategic move intended to prevent the creation of a record in which the defendant admits guilt in open court, because such an admission might later be used against him or her in a lawsuit or other civil litigation.
↵10. Many papers place their limitation statement at the end; however, that is seen as counter-productive because the final thoughts on reading a paper are not drawn to the findings and recommendations but rather shortcomings. Strategically, it is felt that the better location for a statement of limitations is at the end of the methodology section, where in the case of the present article, they mostly apply.
↵11. This can be calculated from the data in the table:
((.83 × 30) + (.90 × 20) + (.92 × 13) + (.50 × 2) + (1.00 × 2) + (1.00 × 2) + (1.00 × 1) + (1.00 × 1) + (1.00 × 1)) / 72
↵12. This can be calculated from the data as well:
((.88 × 24) + (.85 × 13) + (.89 × 9) + (1.00 × 4) + (1.00 × 3) + (1.00 × 3) + (1.00 × 3) + (.67 × 3) + (1.00 + 1) + (1.00 × 1) + (1.00 × 1)) / 65
↵13. It should be noted that the original article reported the percentage increase due to multiple charges is 284% (Nelson, 2013a), whereas in the present article, it is reported as 264%. There is a simple explanation for the difference. In the original article, the five non-temporal elements of the best practices method were logistically regressed together in a model; (the sixth variable measures time from crime to presentation of the police report to prosecutors, with hazard analysis being used for testing). In the present article, the antecedent was regressed alone. The difference in results is felt to be evidence of the operation of a small amount of collinearity between the antecedents when regressed together.
↵15. The statute of limitations (SOL) for misdemeanor DV is at least 12 months in all 50 U.S. states. Conveniently, the Rape Abuse and Incest National Network (RAINN) database contains SOLs for all 50 states. As a review of those data shows, in some states, the SOL for misdemeanor DV is longer than 1 year, as are the SOLs for felony DV. The RAINN database can be accessed at http://www.rainn.org.
↵16. In California, merely being present is sufficient to charge child endangerment (California Penal Code 273a(b)). If the child was placed in danger of great bodily injury, or death, such as parents fighting while one is driving a car, which could result in a fatal or serious vehicle collision, under these circumstances, felony child endangerment is the appropriate charge (CPC 273a(a)).
↵17. In California, this would be charged under CPC 273g.
↵18. The rate of misdemeanor DV, the legally less serious form of it, appears to range from about 78% ((676,440/(676,440 + 187,970)); BJS, 2000, Table 1) to 80% ((471,860/(471,860 + 117,480)); BJS, 2003, Table 1). This is calculated by dividing the count of simple assault by the sum of simple and aggravated assault.
- © The Author(s) 2014
This article is distributed under the terms of the Creative Commons Attribution 3.0 License (http://www.creativecommons.org/licenses/by/3.0/) which permits any use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access page (http://www.uk.sagepub.com/aboutus/openaccess.htm).
Eric L. Nelson is a former counterintelligence agent and also a former police officer. As a police officer he specialized in domestic violence investigation as a first responder, handling as many as three DV crimes per shift. He has five university degrees including three at the masters level. Eric will receive a PhD from the University of California, Davis, in 2014.