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The Forces of Conviction: The Power and Practice of Mandatory Prosecution upon Misdemeanor Domestic Battery Suspects

Published online by Cambridge University Press:  27 December 2018

Keith Guzik
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Abstract

This article provides an ethnographic account of the power and practice of mandatory prosecution upon misdemeanor domestic battery suspects. Integrating law and society studies, domestic violence research, and poststructuralist theories of power, it finds that mandatory prosecution engages suspected batterers in multiple power operations that shape their agency in different ways. While many of these operations are familiar from past law and society research, mandatory prosecution alters their practice. In general, the different tactics that legal authorities deploy in their interactions with domestic battery suspects coalesce in an effort to have them plead guilty. The impact of these tactics on batterers, however, is far from clear. Mandatory prosecution increases the number of persons convicted of domestic violence. But abusers’ violence is repeatedly redefined and displaced, as they are processed through the court setting, thus casting doubt on the criminal court's power to affect their accountability. By detailing the court's various points of encounter with domestic battery suspects, this study offers a much-needed empirical framework for future evaluations of court interventions against domestic batterers.

Type
Articles
Information
Law & Social Inquiry , Volume 32 , Issue 1 , Winter 2007 , pp. 41 - 74
Copyright
Copyright © American Bar Foundation, 2007 

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References

Alschuler, Albert. 1968. The Prosecutor's Role in Plea Bargaining. University of Chicago Law Review 36:50–112.Google Scholar
Alschuler, Albert. 1975. The Defense Attorney's Role in Plea Bargaining. Yale Law Journal 84 (6):1179–1304.Google Scholar
Alschuler, Albert. 1976. The Trial Judge's Role in Plea Bargaining, Part I. Columbia Law Review 76 (7):1059–1154.Google Scholar
Blumberg, Abraham. 1967. The Practice of Law as a Confidence Game. Law & Society Review 1:15–39.Google Scholar
Buzawa, Eve, Hotaling, Gerald, Klein, Andrew, and Byrne, James. 1999. Response to Domestic Violence in a Pro-Active Court Setting, Executive Summary. National Institute of Justice.Google Scholar
Buzawa, Eve, and Buzawa, Carl, eds. 1996. Domestic Violence: The Criminal Justice Response, 2nd ed. Thousand Oaks, CA: Sage.Google Scholar
Buzawa, Eve, and Buzawa, Carl, eds. 1996a. Do Arrests and Restraining Orders Work? Thousand Oaks, CA: Sage. Google Scholar
Cahn, Naomi, and Lerman, Lisa. 1991. Prosecuting Woman Abuse. In Woman Battering: Policy Responses, ed. Steiman, Michael. Cincinnati, OH: Anderson Publishing.Google Scholar
Carlson, Christopher, and Nidey, Frank. 1995. Mandatory Penalties, Victim Cooperation, and the Judicial Processing of Domestic Abuse Assault Cases. Crime and Delinquency 41 (1):132–49.Google Scholar
Casper, Jonathan. 1972. American Criminal Justice: The Defendant's Perspective. Englewood Cliffs, NJ: Prentice-Hall. Google Scholar
Chaudhuri, Molly, and Daly, Kathleen. 1992. Do Restraining Orders Help? Battered Women's Experience with Male Violence and Legal Process. In Domestic Violence: The Changing Criminal Justice Response, ed. Buzawa, Eve and Buzawa, Carl. Westport, CT: Auburn House.Google Scholar
Coker, Donna. 2001. Crime Control and Feminist Law Reform in Domestic Violence Law. Buffalo Criminal Law Review 4:801–60.Google Scholar
Conley, John, and O'Barr, William. 1990. Rules Versus Relationships: The Ethnography of Legal Discourse. Chicago: University of Chicago Press. Google Scholar
Davis, Robert, Smith, Barbara, and Taylor, Bruce. 2003. Increasing the Proportion of Domestic Violence Arrests that Are Prosecuted: A Natural Experiment in Milwaukee. Criminology & Public Policy 2 (2):263–82.Google Scholar
Davis, Robert, Smith, Barbara, and Nickles, Laura. 1998. Prosecuting Domestic Violence Cases with Reluctant Victims: Assessing Two Novel Approaches in Milwaukee. Final Report to the National Institute of Justice.Google Scholar
Dawson, Myrna. 2004. Rethinking the Boundaries of Intimacy at the End of the Century: The Role of Victim-Defendant Relationship in Criminal Justice Decisionmaking Over Time. Law & Society Review 38 (1):105–38.Google Scholar
Dawson, Myrna, and Dinovitzer, Ronit. 2001. Victim Cooperation and the Prosecution of Domestic Violence in a Specialized Court. Justice Quarterly 83:593–622.Google Scholar
De Certeau, Michel. 1984. The Practice of Everyday Life. Berkeley: University of California Press. Google Scholar
Dean, Mitchell. 1994. Critical and Effective Histories: Foucault's Methods and Historical Sociology. London: Routledge. Google Scholar
Dean, Mitchell, and Hindess, Barry, eds. 1998. Governing Australia: Studies in Contemporary Rationalities of Government. Cambridge: Cambridge University Press. Google Scholar
Dobash, Rebecca, and Dobash, Russell. 2000. Evaluating Criminal Justice Interventions for Domestic Violence. Crime and Delinquency 46 (2):252–70.Google Scholar
Dugan, Laura, Nagin, Daniel, and Rosenfeld, Richard. 2003. Exposure Reduction or Retaliation? The Effects of Domestic Violence Resources on Intimate-Partner Homicide. Law & Society Review 13 (3):697–730.Google Scholar
Eisenstein, James, and Jacob, Herbert. 1977. Felony Justice: An Organizational Analysis of Criminal Courts. Boston: Little, Brown, and Company. Google Scholar
Emerson, Robert. 1969. Judging Delinquents: Context and Process in Juvenile Court. Chicago: Aldine Publishing. Google Scholar
Ericsson, Richard, and Baranek, Patricia. 1982. The Ordering of Justice: A Study of Accused Persons as Dependants in the Criminal Process. Toronto: University of Toronto Press. Google Scholar
Feeley, Malcom. 1979. The Process is the Punishment: Handling Cases in a Lower Criminal Court. New York: Russell Sage Foundation. Google Scholar
Felstiner, William. 1998. Justice, Power, and Lawyers. In Justice and Power in Sociolegal Studies, ed. Garth, Bryant and Sarat, Austin. Evanston, IL: Northwestern University Press.Google Scholar
Ferraro, Kathleen, and Boychuk, Tascha. 1992. The Court's Response to Interpersonal Violence: A Comparison of Intimate and Nonintimate Assault. In Domestic Violence: The Changing Criminal Justice Response, ed. Buzawa, Eve and Buzawa, Carl. Westport, CT: Auburn House.Google Scholar
Flemming, Barbara. 2003. Equal Protection for Victims of Domestic Violence. Journal of Interpersonal Violence 18 (6):685–92.Google Scholar
Flemming, Roy. 1986. Client Games: Defense Attorney Perspectives on Their Relations with Criminal Clients. American Bar Foundation Research Journal 2:253–77.Google Scholar
Flemming, Roy. 1990. The Political Styles and Organizational Strategies of American Prosecutors: Examples from Nine Courthouse Communities. Law & Policy 12 (1):25–50.Google Scholar
Fleury, Ruth. 2002. Missing Voices: Patterns of Battered Women's Satisfaction with the Criminal Legal System. Violence Against Women 8 (2):181–205.Google Scholar
Ford, David. 2003. Coercing Victim Participation in Domestic Violence Prosecutions. Journal of Interpersonal Violence 18 (6):669–84.Google Scholar
Ford, David. 1991. Prosecution as a Victim Power Resource: A Note on Empowering Women in Violence Conjugal Relationships. Law & Society Review 25:313–34.Google Scholar
Ford, David, and Regoli, Mary Jean. 1993. The Criminal Prosecution of Wife Assaulters. In Legal Responses to Wife Assault: Current Trends and Evaluation, ed. Hilton, N. Zoe. Newbury Park, CA: Sage.Google Scholar
Foucault, Michel. 1977. Discipline and Punish: The Birth of the Prison. London: Allen Lane. Google Scholar
Foucault, Michel. 1979. The History of Sexuality, vol. 1. London: Allen Lane. Google Scholar
Frohmann, Lisa. 1997. Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decision-Making. Law & Society Review 31 (3):531–55.Google Scholar
Garland, David. 2001. Culture of Control: Crime and Social Order in Contemporary Society. Chicago: University of Chicago Press. Google Scholar
Garfinkel, Harold. 1956. Conditions of Successful Degradation Ceremonies. The American Journal of Sociology. 61 (5):420–24.Google Scholar
Hanna, Cheryl. 1996. No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions. Harvard Law Review 109:1849–1910.Google Scholar
Hartley, Carolyn Copps. 2003. A Therapeutic Jurisprudence Approach to the Trial Process in Domestic Violence Felony Trials. Violence Against Women 9 (4):410–437.Google Scholar
Hazard, John. 1962. Furniture Arrangement as a Symbol of Judicial Roles. Etc.: A Review of General Semantics 19 (2):181–88.Google Scholar
Herrell, Stephen, and Hofford, Meredith. 1990. Family Violence: Improving Court Practice. Reno, NV: Family Violence Project, National Council on Juvenile and Family Court Judges.Google Scholar
Heumann, Milton. 1978. Plea Bargaining. Chicago: University of Chicago Press. Google Scholar
Hosticka, Carl. 1979. We Don't Care What Happened, We Only Care What Is Going to Happen. Social Problems 26:599–610.Google Scholar
Klein, Andrew. 1996. Re-Abuse in a Population of Court-Restrained Male Batterers: Why Restraining Orders Don't Work. In Domestic Violence: The Criminal Justice Response, 2nd ed, ed. Buzawa, Eve and Buzawa, Carl. Thousand Oaks, CA: Sage.Google Scholar
Kupchik, Aaron. 2004. Youthfulness, Responsibility and Punishment: Admonishing Adolescents in Criminal Court. Punishment & Society 6 (2):149–73.Google Scholar
Levine, James. 1975. The Impact of “Gideon”: The Performance of Public and Private Criminal Defense Lawyers. Polity 8:215–40.Google Scholar
Littrell, W. Boyd. 1979. Bureaucratic Justice: Police, Prosecutors, and Plea Bargaining. Beverly Hills, CA: Sage Publications. Google Scholar
Lynch, David. 1999. Perceived Judicial Hostility to Criminal Trials: Effects on Public Defenders in General and on Their Relationships with Clients and Prosecutors in Particular. Criminal Justice and Behavior 26 (2):217–34.Google Scholar
Mather, Lynn. 1979. Plea Bargaining or Trial?: The Process of Criminal-Case Disposition. Lexington, MA: D.C. Heath and Company.Google Scholar
Mather, Lynn, and Yngvesson, Barbara. 198081. Language, Audience, and the Transformation of Disputes. Law & Society Review 15:775–821.Google Scholar
Matoesian, Gregory. 1993. Reproducing Rape: Domination Through Talk in the Courtroom. Chicago: University of Chicago Press. Google Scholar
Maynard, Douglas. 1984. The Structure of Discourse in Misdemeanor Plea Bargaining. Law & Society Review 18 (1):75–104.Google Scholar
Maynard, Douglas. 1988. Narratives and Narrative Structure in Plea Bargaining. Law & Society Review 22 (3):449–81.Google Scholar
Merry, Sally Engle. 1995. Resistance and the Cultural Power of Law. Law & Society Review 29:11–26.Google Scholar
Merry, Sally Engle. 2001. Spatial Governmentality and the New Urban Social Order: Controlling Gender Violence Through Law. American Anthropologist 103 (1):16–29.Google Scholar
Merry, Sally Engle. 2002. Governmentality and Gender Violence in Hawai'i in Historical Perspective. Social and Legal Studies 11 (1):81–111.Google Scholar
Mileski, Maureen. 1974. Courtroom Encounters: An Observation Study of a Lower Criminal Court. In Rough Justice: Perspectives on Lower Criminal Courts, ed. Robertson, John. Boston: Little, Brown, and Company.Google Scholar
Mills, Linda. 2003. Insult to Injury: Rethinking Our Responses to Intimate Abuse. Princeton, NJ: Princeton University Press. Google Scholar
Mirchandani, Rekha. 2005. What's So Special about Specialized Courts? The State and Social Change in Salt Lake City's Domestic Violence Court. Law & Society Review 39 (2):379–418.Google Scholar
Nardulli, Peter. 1986. “Insider” Justice: Defense Attorneys and the Handling of Felony Cases. The Journal of Criminal Law and Criminology 77 (2):379–417.Google Scholar
Nolan, James. 2001. Reinventing Justice: The American Drug Court Movement. Princeton, NJ: Princeton University Press. Google Scholar
Packer, Herbert. 1968. The Limits of the Criminal Sanction. Stanford, CA: Stanford University Press. Google Scholar
Peterson, Richard, and Dixon, Jo. 2005. Court Oversight and Conviction under Mandatory and Nonmandatory Filing Policies. Criminology & Public Policy 4 (3):35–558.Google Scholar
Ptacek, James. 1999. Battered Women in the Courtroom: The Power of Judicial Responses. Boston: Northeastern University Press. Google Scholar
Rose, Nikolas. 1999. Powers of Freedom: Reframing Political Thought. New York: Cambridge University Press. Google Scholar
Rose, Nikolas. 1996. Inventing Our Selves: Psychology, Power, and Personhood. New York: Cambridge University Press. Google Scholar
Sarat, Austin, and Felstiner, William. 1995. Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process. New York: Oxford University Press. Google Scholar
Sarat, Austin, and Kearns, Thomas, eds. 1995. Identities, Politics, and Rights. Ann Arbor: University of Michigan Press. Google Scholar
Skolnick, Jerome. 1974. Social Control in the Adversary System. In Rough Justice: Perspectives on Lower Criminal Courts, ed. Robertson, John. Boston: Little, Brown, and Company.Google Scholar
Steinman, Michael, ed. 1991. Woman Battering: Policy Responses. Cincinnati, OH: Anderson Publishing. Google Scholar
Stover, Robert, and Eckart, Dennis. 19745. A Systematic Comparison of Public Defenders and Private Attorneys. American Journal of Criminal Law 3 (3):265–300.Google Scholar
Valverde, Marianne. 1998. Diseases of the Will: Alcohol and the Dilemmas of Freedom. Cambridge: Cambridge University Press. Google Scholar