MORE IS NOT a rational criminal justice policy. Whenever there is a horrendous crime, we respond, without fail, with more — more and more imprisonment, higher and higher penalties. Think Len Bias, the Celtics prospect, whose untimely death from drugs unleashed onerous drug penalties we now know did not make us safer and, worse, created an imprisonment rate which we can no longer afford. Now, it is Jennifer Martel, whose tragic death, allegedly at the hands of Jared Remy, has led to bipartisan shrieks for more punishment. More punishment surely makes us feel better; better yet, it plays nicely on the evening news or in gubernatorial campaigns. More imprisonment, however, does not mean less crime, especially with domestic violence.
In response to Martel’s killing, the Massachusetts House of Representatives fast-tracked legislation that includes measures that may well lead to more violence. It creates new offenses for first-time restraining order violations, first-time assaults and batteries on a household member, suffocation, and strangulation. It also increases penalties — including prison sentences — for these and other domestic violence offenses. It labels many of these offenses felonies. If passed by the Senate, it will surely lead to more people going to prison, remaining there longer, and being disabled by a felony conviction when they get out.
It may seem intuitive that increasing penalties for domestic violence will reduce domestic violence, but the facts tell a different story. Men incarcerated for domestic violence are 7.5 percent to 10.7 percent more likely to commit domestic violence upon release from prison than men who receive sentences that do not include jail time. And though an ex-convict’s access to a stable home and a stable job are the two strongest predictors of his recidivism, federal and Massachusetts law deny ex-felons access to most public housing and many jobs in both the public and private sectors. (Federal and state statutes also expel them from public schools and exclude them from numerous public welfare programs.) Moreover, even in places where the law does not prohibit felons from living or working, it allows landlords and employers to screen applicants through a criminal background check.
As is usually the case with bills passed in the midst of a moral panic, the new proposal goes far beyond the conditions that gave rise to it. It includes a provision broadening the definition of domestic violence so as to potentially include two roommates arrested after an argument. It also limits defense witnesses at a dangerousness hearing and limits bail, provisions that are potentially unconstitutional.
Jared Remy is not the prototypical case. He grew up in an upper-middle class home, and was not without privilege. While the incidence of domestic violence surely cuts across race and all economic classes, most arrests come from low-income and minority households. The defendants’ housing and employment are often critically important to their partners’ safety. Legislators may believe that domestic violence perpetrators “deserve” imprisonment, even “deserve” to be disqualified from future employment and housing, but their gut response surely shouldn’t trump their desire to support and protect victims.
Of course, we should try to find out what happened in the Remy case. Of course, we should figure out why no one paid attention to the warning signs, restraining orders and supervision. The answer may not be the usual one — blame the judges who released him. Did prosecutor and defendant agree on the recommendation? Did they argue for his release because the most recent incident of violence occurred over eight years after his last charge? Few judges — particularly in domestic violence cases — will go against the joint recommendation presumably from those who know the man best. And if that is the pattern here, it will happen again and again regardless of how onerous the punishments are.
We need to understand what works to deter this horrendous crime, and not give in to our moral panics, legislating by anecdote and soundbite. Many of the proposed provisions in this bill are helpful, such as providing judges with domestic violence training, and giving victims leave from their workplaces for recovery. But pouring limited resources into barbed wire and prison walls means less money for counseling, addiction services, safe houses, even probation staffing that may well give judges better information beyond that of the warring parties. We should — in fact, we must — do more to protect victims of domestic violence. But that means fighting for less homelessness, and less unemployment even among its perpetrators, and not necessarily more and more imprisonment.Nancy Gertner is a former United States District Court judge. She teaches at Harvard Law School. Emily Baker-White is a second-year student at Harvard Law School.