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Lawyers Manual - Unified Court System

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The Family Protection and Domestic Violence Intervention Act of 1994 173<br />

222,000, as well as two precincts from New York City. They identified 8,700<br />

suspects from these 13,000 incidents, who were followed for a period of<br />

eighteen months. The primary source of information was domestic incident<br />

reports; however, the study also included a survey of police, prosecutors and<br />

battered women.<br />

Despite the phrase “mandatory arrest,” in fact, not all of the incidents<br />

surveyed led to arrest. In instances where no visible bruising was apparent or<br />

where the suspect had fled the scene suspects were often not arrested. Incidents<br />

where only hitting and kicking took place had a relatively low rate of arrest,<br />

raising questions about the New York State definition of physical injury in<br />

misdemeanor assault cases. For the purposes of this study, these cases were<br />

classified as “quasi-mandatory arrest,” 9 however erroneously that term may be<br />

used. Where there were more visible injuries and aggressive behavior, researchers<br />

termed these incidents as “aggressive mandatory arrest incidents.” 10 Not<br />

surprisingly, the research concluded that police were more likely to arrest the<br />

suspect in “aggressive mandatory arrest incidents.” However, despite the fact<br />

that the suspects in “aggressive mandatory arrest incidents” were more likely to<br />

be arrested, research revealed that the criminal penalties were relatively light.<br />

However, the researchers were surprised to find that aggressive mandatory<br />

arrest incidents that resulted in arrests had a lower rate of recidivism. This was<br />

true even though arrest rates differed in the sites studied. Finding that the initial<br />

arrest rate ranged from 24 to 57%, the rate of recidivism was considerably lower<br />

at 12 to 27%. In the more aggressive initial incidents, the recidivism rate was as<br />

low as 11 to 20%. The report concluded “. . .that mandatory arrest along with the<br />

issuance of an order of protection dramatically affected the rate of recidivism.” 11<br />

These findings were “. . .notable, especially given the relatively mild<br />

punishment [meted out] to those arrested and the infrequent use of probation. The<br />

impact of arrest on recidivism might be even greater if a conviction was routinely<br />

followed by strict supervision and incarceration upon recidivism.” 12 The study<br />

went on to recommend the extension of the mandatory arrest provisions. This was<br />

subsequently enacted by the Legislature, extending mandatory arrest until 2005. 13<br />

It is important to see mandatory arrest not as an isolated phenomenon but as a tool<br />

that triggers the involvement of the criminal justice system. While mandatory<br />

arrest is not without problems, it can also be an important safety measure when<br />

combined with appropriate access to the criminal and family court systems.

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