[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40727-40734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19758]
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DEPARTMENT OF JUSTICE
28 CFR Part 90
[OJP No. 1019]
RIN 1121-AA35
Grants To Encourage Arrest Policies
AGENCY: Office of Justice Programs, Justice.
ACTION: Final rule.
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SUMMARY: This document announces the final rule for the Grants to
Encourage Arrest Policies authorized by the Violence Against Women Act,
Title IV of the Violent Crime Control and Law Enforcement Act of 1994.
For Fiscal Year 1996, Congress has appropriated $28 million to the
United States Department of Justice, Office of Justice Programs, for
Grants to Encourage Arrest Policies. This regulation is being published
under the general statutory grant of authority to issue rules and
regulations pursuant to the Omnibus Crime Control and Safe Streets Act
of 1968. The purpose of this regulation is to provide a general outline
of the program and its purposes as set forth in the statute.
EFFECTIVE DATE: The final rule is effective August 6, 1996.
FOR FURTHER INFORMATION CONTACT: The Department of Justice Response
Center at 1-800-421-6770 or (202) 307-1480, or Catherine Pierce,
Violence Against Women Grants Office, Office of Justice Programs, at
(202) 307-6026.
SUPPLEMENTARY INFORMATION: The Final Rule implements a discretionary
grant program that does not impose any restrictive regulations on
recipients. Grant recipients will benefit from immediate access to the
funds available through this program, and it would be contrary to the
public interest to delay implementation of the program. Therefore, the
Final Rule is effective upon publication.
Title IV Grants To Encourage Arrest Policies
For Fiscal Year 1996, Congress authorized a federal discretionary
grant program under Title IV of the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 1033-22, 108 Stat. 1796, 1902-55,
as amended, codified at 42 U.S.C. 3796hh et seq. (1994) [hereinafter
the ``Act''], for States, units of local government, and Indian tribal
governments to encourage the treatment of domestic violence as a
serious violation of criminal law. The Act gives the Attorney General
and an authorized designee, in this case the Assistant Attorney General
for the Office of Justice Programs, the authority to make grants to the
above mentioned entities. Omnibus Crime Control and Safe Streets Act of
1968 805, as amended, codified at 42 U.S.C. 3786 [hereinafter the
``Omnibus Act'']. Section 2104 of the Omnibus Act, codified as amended
at 42 U.S.C. 3796hh-3, requires that regulations be issued specifically
to implement these policies and programs.
On May 14, 1996, the Office of Justice Programs published a
proposed rule on the implementation of the Grants to Encourage Arrest
Policies in the Federal Register (Vol. 61, No. 94, pages 24256-24261).
Comments were specifically solicited regarding, but not limited to, the
following issues:
(1) Other priority areas that should be considered for funding in
addition to the statutory award priorities identified in Section 90.66
of Subpart D;
(2) The special needs of Indian tribal governments, underserved
populations and rural communities in implementing this Program;
(3) Effective strategies to ensure that local jurisdictions, States
and tribal governments will accord full faith and credit to all valid
protection orders pursuant to 18 U.S.C. 2265; and
(4) Methods and approaches for conducting research on the
effectiveness of arrest and other legal sanctions for domestic violence
in communities that have adopted a system-wide coordinated response to
the problem.
The Office of Justice Programs received 34 letters commenting on
the proposed regulations: 12 from law enforcement agencies; 4 from
prosecution agencies; 2 from probation agencies; 6 from other Federal,
State and local governmental agencies; 1 from an Indian tribal
government; 9 from non-profit, non-governmental victim service
agencies; 1 from a national organization and 1 from a private citizen.
The Office of Justice Programs gratefully acknowledges the agencies,
organizations, and individuals who took the time to express their
views. Comments are on file at OJP's Violence Against Women Grants
Office.
In preparing the Final Rule, OJP is interpreting the scope of the
Program as broadly as possible while adhering closely to the letter and
spirit of the legislation. Language contained in the final regulations
has been modified to reflect the following changes:
The Statement of the Problem has been revised to: (1)
emphasize that, in
[[Page 40728]]
addition to police departments, probation and parole departments and
other criminal justice agencies can play a vital role in jurisdictions
with mandatory or pro-arrest policies by implementing complementary
practices and strategies to enhance the safety of victims and hold
perpetrators of domestic violence accountable for their criminal
actions; (2) to encourage police departments to develop sanctions for
officers who do not follow or enforce official policies and procedures
mandating or encouraging arrest of domestic violence perpetrators as
well as procedures that respond to the complex problem of police
officers who batter; (3) to encourage victim advocates to explore new
partnerships with community policing units that apply the problem-
solving approach to ending violence and increasing their availability
to victims by establishing an independent or agency-sponsored presence
in prosecution agencies, the courts and probation and parole
departments; (4) to clarify the need for specialized training for
police officers on the identification of the primary aggressor,
effective methods for gathering evidence at the scene of a domestic
violence incident, conducting intensive follow-up investigations that
incorporate lethality assessment methods and developing sensitivity to
the complexity of domestic violence cases; (5) to encourage the use of
lethality assessment tools by police, probation and parole departments
in order to investigate cases of domestic violence and supervise
perpetrators of domestic violence more effectively; (6) to encourage
that specialized training and education programs for all criminal
justice professionals include a component requiring them to work for a
specified number of hours in a shelter for battered women; and (7) to
encourage the development of multi-agency fatality review teams made up
of criminal justice professionals and non-profit, non-governmental
victim service providers.
Section 90.61 has been modified to include the definition of
``unit of local government'' for purposes of clarifying that eligible
grantees for this Program are States, Indian tribal governments,
cities, counties, townships, towns, boroughs, parishes, villages, or
other general purpose political subdivisions of a State.
Section 90.62 has been modified to clarify that all grants
awarded for the purposes of this Program must demonstrate meaningful
attention to victim safety and offender accountability.
Section 90.62 (b) has been modified to clarify that policies
and training programs that improve the tracking of domestic violence
cases may be developed by all criminal justice agencies, including
police departments in eligible jurisdictions.
Section 90.62 (c) has been modified to clarify that probation
and parole departments also play a vital role in centralizing and
coordinating the response to domestic violence cases.
Section 90.63 (b) has been modified to clarify that judicial
education programs should be developed for all professionals
responsible for judicial handling of domestic violence cases, including
tribal judges.
Section 90.63 (a)(4) has been modified to clarify that
grantees must certify that their laws, policies, or practices do not
require that the abused bear the costs associated with the issuance or
service of a warrant, protection order, or witness subpoena (arising
from an incident that is the subject of arrest or criminal
prosecution).
Section 90.63 (c) has been expanded to clarify that, for the
purposes of this Program, a jurisdiction need not have pre-existing
policies encouraging or mandating arrest to be eligible to receive a
grant. However, a State, Indian tribal government, or unit of local
government must identify the type of policy it intends to develop and
specify the process by which the policy will be developed and enacted
by the statutory deadline. In addition, the section clarifies that the
policy development process must involve a coordinated effort by
criminal justice personnel and non-profit, private, domestic violence
or sexual assault programs, including State coalitions.
Section 90.64 (c) has been expanded to include examples of
the types of agencies or offices that may be responsible for carrying
out the project in an applicant jurisdiction (e.g., police departments,
prosecution agencies, courts and probation or parole departments).
Section 90.66 has been expanded to clarify that priority will
be given to applicants that provide evidence of meaningful attention to
victims' safety and demonstrate a strong commitment to provide victims
with information on the status of their cases from the time a complaint
is filed through sentencing.
Two suggested modifications were not incorporated into the final
regulations.
The jurisdictional issues related to enforcement of felony
crimes raised in the comments submitted by an Indian tribal government
are covered by statutes and Supreme Court cases which are beyond the
scope of the Violence Against Women Act and grants programs.
The suggestion that all applicants consult and coordinate
with the highest court of each State was not incorporated into the
regulations. However, all applicants are strongly encouraged to include
State and local courts as part of a coordinated and integrated response
to domestic violence.
Statement of the Problem
In the past, police departments, and the criminal justice system as
a whole, generally treated domestic violence as a private, family
matter unlike any other violent crime. Many police departments
maintained informal non-arrest policies for domestic violence, focusing
instead on alternative responses such as family crisis intervention and
counseling for domestic abusers.1 In recent years, many
departments have implemented new policies and practices that encourage
or mandate arrest of a perpetrator of domestic violence for probable
cause or for violating a protection order.2 To ensure the
effectiveness of these new policies, some police departments have
created special domestic violence units; train personnel on the
phenomenon of domestic violence; developed guidelines and protocols for
enforcing laws related to domestic violence; created sophisticated
tracking and communication systems; investigated both misdemeanor and
felony domestic assaults; developed accountability measures which
ensure enforcement of the law by all officers in the department; and
developed effective strategies to coordinate with other criminal
justice agencies and victim service providers.
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\1\ Liebman, D.A., and Schwartz, J.A., Police Programs in
Crisis Intervention: A Review, (J.R. Snibbe and H.M. Snibbe eds.
1973). See also Charles C. Thomas, The Urban Policeman in
Transition: A Psychological and Sociological Review (1973).
\2\ Garner, J., Fagan, J., and Maxwell, C., Published Findings
from the Spouse Assault Replication Program: A Critical Review,
Journal of Quantitative Criminology, 11[1], 3-28, 1995.
Fagan, J., The Criminalization of Domestic Violence: Promises
and Limits, Presentation at the 1995 National Institute of Justice
Conference on Criminal Justice Research and Evaluation, January,
1996, available through the National Criminal Justice Reference
Service, 1-800-851-3420.
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Likewise, other criminal justice agencies have implemented
complementary practices and strategies which prioritize the safety of
victims and hold the perpetrators of domestic violence accountable for
their criminal actions. In particular, several probation and parole
departments have instituted methods of supervision designed to enhance
victim safety by vigorously
[[Page 40729]]
enforcing the terms of protection orders, thereby promoting
coordination with the courts. A number of prosecution agencies have
established domestic violence teams that work closely with legal
advocates and advocates affiliated with non-profit, non-governmental
victim service organizations. Together, prosecutors and advocates alike
keep victims informed about the progress of their cases as well as the
status and known whereabouts of the offenders. They also provide
assistance in preparing long-and short-term safety plans for victims
and their children. Additionally, courts are beginning to recognize the
need for continuing education for judges. They also are implementing
improved case processing procedures with designated dockets to better
manage domestic violence cases and expedite scheduling of trials.
To enhance these very significant accomplishments and encourage the
adoption of similar innovations in additional communities throughout
the country, agencies throughout the criminal justice system require
more tools and resources. Furthermore, for arrest to be an effective
domestic violence intervention, it must be part of a coordinated and
integrated response to the problem on the part of the entire criminal
justice system.\3\ That is, mandatory or pro-arrest policies will be
effective only if police departments implement clear guidelines and
protocols for the arrest of domestic violence perpetrators; if police
and prosecutors alike conduct thorough and careful investigations of
domestic violence cases; if the courts institute improved management
techniques to process domestic violence cases more efficiently; if
judges impose appropriate sentences; if batterers remain in custody
after they are arrested; if probation and parole departments enforce
protection orders and devise improved ways to effectively supervise
batterers; and, most importantly, if victims feel confident that all
professionals in the system are committed to their safety and the
safety of their children.
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\3\ Hart, B.J., Coordinated Community Approaches to Domestic
Violence, presented at the Strategic Planning Workshop on Violence
Against Women sponsored by the National Institute of Justice in
Washington, D.C., March 31, 1995, available through the National
Criminal Justice Reference Service, 1-800-851-3420.
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Policies That Mandate or Encourage Arrest
Laws and policies that encourage or mandate the arrest of a
domestic violence perpetrator based on probable cause are not new.
Currently, at least 27 States and the District of Columbia have adopted
laws that mandate or encourage arrest of a person who assaults a family
member, or of a person who violates a domestic violence protection
order.4 Federal law also requires all states to honor certain
protection orders issued by other jurisdictions. Act Sec. 40221(a), 18
U.S.C. 2265(a). Domestic violence incidents are among the most
difficult and most sensitive calls requesting police assistance. For
this reason, many police departments with mandatory or pro-arrest
policies inform their officers that, when responding to a domestic
violence call, they must anticipate the unexpected, be carefully
impartial and be primarily concerned for the needs and safety of the
victim or victims. Some mandatory or pro-arrest policies go a step
further by directing responding officers to arrest only the primary
aggressor in a domestic violence incident. These policies warn that
dual arrests may trivialize the seriousness of domestic violence and
potentially increase danger to its victims. Most importantly, arrest of
the batterer conveys a message to the batterer, the victim, the family
and the community that domestic violence is a serious crime that will
not be tolerated. Mandatory or pro-arrest policies also offer the
potential benefit of deterring future abuse if the offender is
separated from the victim and held publicly accountable for his 5
actions. Arrest, accompanied by a thorough evidentiary investigation
and an intensive follow-up investigation, demonstrates to the offender
that he has committed a serious crime and communicates to the victim
that she does not have to endure the offender's abuse. Moreover, arrest
of the offender sends a broader public message--that violent behavior,
even between intimates, is criminal.
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\4\ Layden, J., Domestic Violence, Headliners, 1994.
\5\ Men can be the victims of abuse, and women can be
perpetrators. However, the vast majority of victims of domestic
violence are women. In addition, it is much less common for men to
receive injuries as a result of their abuse and less likely for men
to become entrapped in relationships where they cannot leave for
fear of extreme bodily harm to themselves or their children. For
these reasons, victims are referred to as women and perpetrators as
men throughout these proposed regulations. See Stets, J.E. and
Straus, M.A., Gender Differences in Reporting Marital Violence and
its Medical and Psychological Consequences (Physical Violence in
American Families: Risk Factors and Adaptations to Violence in 8,145
Families, Straus, M.A. and Gelles, R.J. eds. 1990).
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Orders of Protection
An order of protection is the legal instrument many victims of
domestic violence initially seek to protect themselves from further
abuse. For protection orders to be effective, the terms of the order
must be strictly and consistently enforced, and abusers violating the
terms of the order must be punished. To ensure a consistent response,
departmental policies specifying the violations for which an abuser is
subject to arrest must be communicated clearly to police officers who
respond to domestic violence calls. Furthermore, there must be
consistent enforcement between same-State jurisdictions (e.g., county
to county or city to city) or between communities under the
jurisdiction of the same tribal government. In addition to intrastate
enforcement, States and tribal governments must also take steps to
ensure the interstate (i.e., State to State) enforcement of protection
orders as required by Section 40221(a) of the Act.
Prior to the enactment of the Violence Against Women Act, a woman
who obtained a protection order in her home state often could not use
that order as the basis for protection if she worked, traveled, or
moved to most other states. Under the Violence Against Women Act, a
victim does not have to wait for abuse to occur in the new state, nor
does she have to meet the new jurisdictional requirements. A woman may
now seek enforcement of the out-of-state order in the new state.
Although there is no universal approach to effective implementation
of the full faith and credit provisions of the Act, State and tribal
law enforcement agencies, courts, prosecutors, non-profit, non-
governmental victim services agencies and private attorneys are
encouraged to collaborate on efforts and strategies for bolstering and
implementing enforcement of out-of-state protective orders. The state
administrative office of the court and state law enforcement agencies,
in consultation with victim advocates, should devise and publicize
widely a state plan for according full faith and credit to protection
orders.
Centralized Communication, Information and Tracking Systems
Regardless of whether there is a particular jurisdictional domestic
violence arrest policy in place, police must have probable cause to
make an arrest. Police often are dispatched, however, without any
information regarding the domestic violence or criminal history of the
people involved in an altercation. The officers frequently do not know
if there is an outstanding order of protection against the offender,
whether the offender has previously been arrested for assaulting the
victim, or if charges are pending against the perpetrator for prior
alleged domestic violence. Knowledge of this information clearly would
help guide the discretion
[[Page 40730]]
of an officer who is trying to determine whether to make an arrest, and
help him or her ensure the safety of the victim and other family
members.
Beyond providing information about the criminal history of the
perpetrator, responding officers also would benefit greatly from
communication systems that could inform them about the frequency of
past calls to the same location, prior weapons use, the presence of
children at the residence and past need for medical emergency services.
Tracking and other advanced information systems also could provide
responding officers with a description of the alleged perpetrator and
places he historically has frequented if he is not found at the scene.
Just as police officers need more information to respond
effectively, so do prosecutors, judges and other criminal justice
professionals. Access to centralized information on prior incidents or
convictions, prior issuance of protection orders, other matters
involving the same family pending before the court, and the
availability of community resources and services for the victim would
be extremely beneficial to prosecutors seeking convictions, to judges
who must impose a sentence and to probation and parole officials
responsible for providing community supervision. Interstate and
intrastate communication and tracking systems for use by police
officers and criminal justice professionals throughout a state or
region of the country also would contribute to enhancing the safety of
victims.
The Need for a Coordinated, Integrated Approach Involving All Criminal
Justice Professionals
If arrest policies are to be effective, police, pre-trial service
professionals, prosecutors, judges, probation officers, parole officers
and victim advocates need to respond with effective collaborative
strategies that will enhance the safety of victims and result in
appropriate sanctions for offenders. Specifically, prosecutors, judges
and other criminal justice professionals need the training, tools and
resources that will enable them to respond to domestic violence as a
serious crime. For example, in those jurisdictions where mandatory or
pro-arrest policies have been instituted, individual prosecutors may be
overwhelmed with domestic violence cases, resulting in a severe lack of
resources and time needed to prosecute each case effectively. To help
alleviate the backlog of domestic violence cases, many prosecutors work
with victim advocates during both the pending prosecution and the
sentencing phase of a case. These advocates are critical to the
effective prosecution of domestic violence cases. In addition to being
effective legal advocates, they assist in safety planning with the
victim, providing the court with information needed to determine risk
and lethality assessment as well as proposed conditions of probation or
parole for the offender.
Training for all criminal justice professionals should include
informative and experiential continuing education sessions designed to
provide insight into the phenomenon of domestic violence and
information on community resources available to assist the victim and
respond appropriately to the batterer. Prosecutors need to understand
the psychology of domestic violence victims (e.g., why they may be
reluctant to prosecute and the risks to their safety if they decide to
prosecute). Judges need to craft effective protection orders and they
need the information and skills necessary to tailor sentences to
individual perpetrators (e.g., ordering protective conditions for
victim safety, incarceration, community service, restitution, intensive
probation or parole, mandatory participation in batterer intervention
programs and/or drug and alcohol treatment, or all of the above, as
appropriate). Victim advocates need to acquire an enhanced
understanding of how the criminal justice system works. They also need
to learn how they can be more effective in working directly with all
criminal justice professionals, exploring new partnerships with
community policing units that apply the ``problem-solving'' approach to
ending violence; increasing their availability to victims by
establishing a presence (as independent and/or agency-sponsored
advocates) in prosecution agencies, the courts and probation and parole
departments. All professionals in the system need to work together to
explore and develop new, innovative and coordinated approaches to
reduce and prevent domestic violence.
Conclusion
While strong, clear arrest policies are needed to guide the actions
of police officers, the rest of the criminal justice system also must
be directed to respond similarly in ways that will break the cycle of
violence. Without aggressive, system-wide coordination, arrest alone
will not stop domestic violence. Most importantly, as a jurisdiction
assesses its response to domestic violence, prioritizing victim safety
within the policies and practices of the entire criminal justice system
is essential. In conclusion:
Police departments need to develop clear policies and
procedures mandating or encouraging arrest for perpetrators of domestic
violence and for the violation of protection orders, including
protocols, procedures, and firearms policies that respond to the
complex problems with respect to police officers against whom
protection orders have been issued or who have been arrested for
probable cause of domestic violence.
Specialized education and training programs for police,
prosecutors, judges, probation and parole officers, victim advocates
and other criminal justice professionals need to be developed and
implemented or replicated from existing curricula. Components of these
programs might encourage criminal justice professionals to obtain
direct experience with victims by providing opportunities for them to
work in shelters for battered women or in a comparable setting.
Police departments should be encouraged to develop
specialized training on domestic violence which: provides guidance on
the implementation of departmental arrest policies and related federal,
state and local law; instructs officers on how to identify the primary
aggressor in a domestic violence incident; provides information on
improved techniques for gathering evidence at the scene of a domestic
violence incident; explains how to conduct more thorough follow-up
investigations that incorporate lethality assessment methods; and
develops sensitivity to the complexity of domestic violence cases and
the diverse cultural values, language barriers, and experience that
influence the response of the victim.
Police departments need resources to develop guidelines for
the arrest of perpetrators and investigation of domestic violence. They
also need to establish sanctions for officers and officials who do not
follow or enforce official protocols. In addition, they need to
establish special investigation or detective units, and procedures to
ensure coordination with other parts of the criminal justice system.
Police, probation and parole departments need access to
lethality assessment tools (developed collaboratively by victim service
and law enforcement agencies) in order to investigate cases and
supervise perpetrators of domestic violence more effectively.
Prosecutors need to develop effective strategies for working
with the police. They also need the tools and resources to investigate
domestic violence cases aggressively and
[[Page 40731]]
thoroughly in collaboration with the police.
Police departments need the resources to develop advanced
communication, information and tracking systems to enable them to
respond more effectively to domestic violence incidents, to track the
history of perpetrators (including outstanding orders of protection,
previous arrests and pending charges) and to prevent future violence
that could result in aggravated assault and homicide.
Jurisdictions need to develop methods and technologies that
will promote improved communication and coordination among law
enforcement, prosecution, the judiciary and other parts of the criminal
justice and social service systems to improve the entire system's
response to domestic violence. In addition, jurisdictions need to
develop centralized, automated information systems that will track the
domestic violence history of involved parties, including outstanding
orders of protection, previous arrests and pending charges against
perpetrators.
Procedures to expedite requests for protection orders need to
be developed by police departments, prosecution units, and the courts.
Judges need to convey clearly to batterers the gravity of
their offenses by imposing appropriate sentences.
Probation and parole departments need to establish protocols
and procedures for the intensive supervision of batterers.
Victims and their children need access to a full range of
services, including legal advocacy and assistance in planning for their
long- and short-term safety, that ensures they will be kept informed
about the progress of their case.
Multi-agency fatality review teams made up of criminal
justice professionals and non-profit, non-governmental victim service
providers need to be established to determine where and how death may
have occurred in a domestic violence case and to examine what
constructive steps can be taken to prevent future fatal incidents.
Research needs to be conducted to assess the effectiveness of
arrest and other legal sanctions for domestic violence in communities
that have adopted a system-wide, coordinated response to domestic
violence.
The Violence Against Women Act of 1994
The Violence Against Women Act reflects a firm commitment towards
working to change the criminal justice system's response to violence
that occurs when any woman is threatened or assaulted by someone with
whom she has or has had an intimate relationship, with whom she was
previously acquainted, or who is a stranger. By committing significant
Federal resources and attention to restructuring and strengthening the
criminal justice response to women who have been, or potentially could
be, victimized by violence, the safety of all women can be more
effectively ensured.
Fiscal Year 1996 Grants To Encourage Arrest Policies
For FY 1996, Congress has appropriated $28 million to the United
States Department of Justice Office of Justice Programs for Grants to
Encourage Arrest Policies. Additionally, Part U of the Violence Against
Women Act of 1994 authorizes $33 million for FY 1997 and $59 million
for FY 1998. States, Indian tribal governments, and units of local
government are eligible to receive grants subject to the requirements
of the statute and these regulations, as well as assurances and
certifications specified in the application kit.
Section 2101 of the Violence Against Women Act, 42 U.S.C. 3796hh
(1994), enumerates the following six purposes for which Grants to
Encourage Arrest Policies may be used:
(1) To implement mandatory arrest or pro-arrest programs and
policies in police departments, including mandatory arrest programs and
policies for protection order violations;
(2) To develop policies and training programs in police departments
to improve tracking of cases involving domestic violence;
(3) To centralize and coordinate police enforcement, prosecution,
or judicial responsibility for domestic violence cases in groups or
units of police officers, prosecutors, or judges;
(4) To coordinate computer tracking systems to ensure communication
between police, prosecutors, and both criminal and family courts;
(5) To strengthen legal advocacy service programs for victims of
domestic violence; and
(6) To educate judges in criminal and other courts about domestic
violence and improve judicial handling of such cases.
A Coordinated and Integrated Approach to the Problem
By definition, a coordinated and integrated approach suggests a
partnership among law enforcement, prosecution, the courts, victim
advocates and service providers. The goal of this Program is to treat
domestic violence as a serious violation of the criminal law. A
consistent criminal justice system response to domestic violence
requires that professionals in the various components of the system
have a shared vision that prioritizes the safety and well-being of the
victim. The creation and implementation of that vision necessitates
collaboration among police, prosecutors, the courts, and victim service
providers. Thus, the Program requires that jurisdictions incorporate
the experience of nonprofit, nongovernmental domestic violence service
providers into the project planning and implementation process as well
as police, prosecutors, and the courts. Examples of innovative
approaches include:
Creating centralized units of police officers, prosecutors,
judges and probation and parole officers to investigate and handle
domestic violence cases, based on a comprehensive plan developed by
representatives from the criminal justice system and the advocacy
community.
Implementing and testing the effectiveness of domestic
violence arrest policies for violations of protection orders in the
context of a coordinated criminal justice and community response to
domestic violence by forming a multi-disciplinary coordinating council
that assigns priority to the safety of the victim and by holding the
offender accountable for his violent actions.
Delivering comprehensive, experiential training programs for
police officers, prosecutors, probation and parole officers and the
judiciary that address the technical issues associated with policies
that encourage or mandate arrest for domestic violence; address the
phenomenon of domestic violence; stress collaboration and shared
responsibility for ensuring the safety of the victim; seek to change
attitudes that have traditionally prevented professionals in the
criminal justice system from responding to domestic violence as a
serious violation of criminal law; and provide information on improved
methods for tracking domestic violence cases.
Developing information systems, automated registries,
education and training programs and technical assistance efforts that
facilitate enforcement of protection orders within a single
jurisdiction; within a single State; and from State to State.
Linking automated information and tracking systems to enhance
communication among police departments, prosecution agencies, and
criminal and family courts to ensure that all of the system components
have access to consistent and complete
[[Page 40732]]
information about an individual's domestic violence history.
Establishing and expanding advocacy services for domestic
violence victims from the time an abuse report is filed through the
post-sentencing of the offender, including any time during which the
offender is subject to probation or parole supervision.
Eligibility Requirements
To be eligible to receive grants under this Program, States, Indian
tribal governments, and units of local government must certify that
their laws or official policies (1) encourage or mandate arrest of
domestic violence offenders based on probable cause that an offense has
been committed and (2) encourage or mandate arrest of domestic violence
offenders who violate the terms of a valid outstanding protection
order. Omnibus Act Sec. 2101(c), 42 U.S.C. 3796hh(c) (1994). A
jurisdiction need not have pre-existing policies encouraging or
mandating arrest to meet this eligibility requirement. However, in its
application for funding through this Program, a State, Indian tribal
government, or unit of local government must identify the type of
policy that it intends to develop, and specify the process by which the
policy will be developed and enacted by the statutory deadline. The
policy development process must involve a coordinated effort by
criminal justice personnel and non-profit, private, domestic violence
or sexual assault programs, including State coalitions.
Eligible applicants also must demonstrate that their laws,
policies, or practices and their training programs discourage dual
arrests of an offender and victim. Omnibus Act Sec. 2101(c)(2), 42
U.S.C. 3796hh(c)(2) (1994).
In addition, States, Indian tribal governments, and units of local
governments seeking grant funds through this Program must certify that
their laws, policies, or practices prohibit the issuance of mutual
restraining orders of protection, except in cases in which both spouses
file a claim and the court makes detailed findings of fact indicating
that both spouses acted primarily as aggressors and that neither spouse
acted primarily in self-defense. Omnibus Act Sec. 2101(c)(3), 42 U.S.C.
3796hh(c)(3) (1994).
Eligible applicants also must certify that their laws, policies, or
practices do not require, in connection with the prosecution of any
misdemeanor or felony domestic violence offense, that the victim bear
the costs associated with the filing of criminal charges or the service
of such charges on an abuser, or costs associated with the issuance or
service of a warrant, protection order, or witness subpoena (arising
from the incident that is the subject of arrest or criminal
prosecution). Omnibus Act Sec. 2101(c)(4), 42 U.S.C. 3796hh(c)(4)
(1994).
If the laws, policies, or practices required by Section 2101(c) of
the Violence Against Women Act are not currently in place, States,
Indian tribal governments, and local units of government must provide
assurances that they will be in compliance with these requirements by
the date on which the next session of the State or Indian Tribal
legislature ends, or September 13, 1996, whichever is later. Omnibus
Act Sec. 2102(a)(1) (A)-(B), 42 U.S.C. 3796hh-1(a)(1) (A)-(B) (1994).
Award Priority
The Office of Justice Programs is required by the Violence Against
Women Act to give priority to applicants that (1) do not currently
provide for centralized handling of cases involving domestic violence
by police, prosecutors, and courts; and (2) demonstrate a commitment to
strong enforcement of laws, and prosecution of cases, involving
domestic violence. Omnibus Act Sec. 2102(b) (1)-(2), 42 U.S.C. 3796hh-
1(b) (1)-(2) (1994). Commitment may be demonstrated in a number of ways
including: strict enforcement of arrest policies; clear communication
from top officials and managers throughout the criminal justice system
that domestic violence prevention is a priority; innovative approaches
to supervision of police officers, prosecutors, probation officers and
other criminal justice professionals who handle domestic violence
matters; acknowledgment of police officers who consistently enforce
domestic violence arrest policies and sanctions for those who do not;
implementation of procedures that respond to the complex problem of
police officers who batter; education and training for all criminal
justice professionals on enforcement of domestic violence arrest
policies and the phenomenon of domestic violence; and creation of
special units within criminal justice agencies which collaborate to
investigate and monitor spousal and partner abuse cases.
Technical Assistance and Training/Evaluation
The Office of Justice Programs will set aside a small portion of
the funds provided through this Program to provide specialized training
and technical assistance to help grant recipients develop and implement
effective arrest policies in the context of an integrated and
coordinated criminal justice and community response to domestic
violence.
In addition, the Office of Justice Programs will set aside a small
portion of the overall funds authorized for this Program to enable the
National Institute of Justice (NIJ) to conduct evaluations and studies
of projects funded through this Program. Past research on the
effectiveness of arrest policies for domestic violence has focused
primarily on the police response and has not measured the response of
victim service agencies and other parts of the criminal justice system,
such as pretrial services agencies, prosecution units, the courts, and
probation and parole departments. Additional research is needed to
assess the effectiveness of arrest and other legal sanctions for
domestic violence in communities that have adopted a system-wide,
coordinated response to domestic violence. Recipients of funds for this
Program must agree to cooperate with NIJ-sponsored research and
evaluation studies of their projects. Grant recipients also are
required to report to the Attorney General on the effectiveness of
their project(s). Omnibus Act Sec. 2103, 42 U.S.C. 3796hh-2 (1994).
Recipients therefore are strongly encouraged to develop a local
evaluation strategy to assess the impact and effectiveness of their
programs. Applicants therefore should consider entering into
partnerships with research organizations that are submitting
simultaneous grant applications to the National Institute of Justice
for this purpose.
Regulatory Flexibility Act
The Assistant Attorney General, Office of Justice Programs, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this Final Rule and, by approving it, certifies that the Final
Rule will not have a significant economic impact on a substantial
number of small entities.
Executive Order 12866
This Final Rule has been drafted and reviewed in accordance with
Executive Order 12866, Sec. 1(b), Principles of Regulation. The Office
of Justice Programs has determined that this Final Rule is not a
``significant regulatory action'' under Executive Order 12866,
Sec. 3(f), Regulatory Planning and Review, and accordingly this Interim
Rule has not been reviewed by the Office of Management and Budget.
List of Subjects in 28 CFR Part 90
Crime, Grant programs, Reporting and recordkeeping requirements.
[[Page 40733]]
For the reasons set out in the preamble, Title 28, Chapter 1, Part
90 of the Code of Federal Regulations is amended as follows:
PART 90--VIOLENCE AGAINST WOMEN
1. The authority continues to read as follows:
Authority: 42 U.S.C. 3711 et. seq.
2. A new Subpart D, consisting of Secs. 90.60--90.67 is added to
read as follows:
Subpart D--Arrest Policies in Domestic Violence Cases
Sec.
90.60 Scope.
90.61 Definitions.
90.62 Purposes.
90.63 Eligibility.
90.64 Application content.
90.65 Evaluation.
90.66 Review of applications.
90.67 Grantee reporting.
Sec. 90.60 Scope.
This subpart sets forth the statutory framework of the Violence
Against Women Act's sections seeking to encourage States, Indian tribal
governments, and units of local government to treat domestic violence
as a serious violation of criminal law.
Sec. 90.61 Definitions.
For purposes of this subpart, the following definitions apply.
(a) Domestic violence includes felony or misdemeanor crimes of
violence committed by a current or former spouse of the victim, a
person with whom the victim shares a child in common, a person who is
cohabiting with or has cohabited with the victim as a spouse, a person
similarly situated to a spouse of the victim under the domestic or
family violence laws of the jurisdiction receiving grant monies, or by
any other adult person against a victim who is protected from that
person's acts under the domestic or family violence laws of the
eligible State, Indian tribal government, or unit of local government
that receives a grant under this subchapter.
(b) Protection order includes any injunction issued for the purpose
of preventing violent or threatening acts of domestic violence,
including temporary and final orders issued by civil or criminal courts
(other than support or child custody orders or provisions) whether
obtained by filing an independent action or as a pendente lite order in
another proceeding.
(c) Unit of local government means any city, county, township,
town, borough, parish, village, or other general-purpose political
subdivision of a State; an Indian tribe which performs law enforcement
functions as determined by the Secretary of the Interior; or, for the
purpose of assistance eligibility, any agency of the District of
Columbia government or the United States Government performing law
enforcement functions in and for the District of Columbia, and the
Trust Territory of the Pacific Islands.
Sec. 90.62 Purposes.
(a) The purposes of this program are:
(1) To implement mandatory arrest or pro-arrest programs and
policies in police departments, including mandatory arrest programs or
pro-arrest programs and policies for protection order violations;
(2) To develop policies and training programs in police departments
and other criminal justice agencies to improve tracking of cases
involving domestic violence;
(3) To centralize and coordinate police enforcement, prosecution,
probation, parole or judicial responsibility for domestic violence
cases in groups or units of police officers, prosecutors, probation and
parole officers or judges;
(4) To coordinate computer tracking systems to ensure communication
between police, prosecutors, and both criminal and family courts;
(5) To strengthen legal advocacy service programs for victims of
domestic violence; and
(6) To educate judges, and others responsible for judicial handling
of domestic violence cases, in criminal, tribal, and other courts about
domestic violence and improve judicial handling of such cases.
(b) Grants awarded for these purposes must demonstrate meaningful
attention to victim safety and offender accountability.
Sec. 90.63 Eligibility.
(a) Eligible grantees are States, Indian tribal governments, or
units of local government that:
(1) Certify that their laws or official policies--
(i) Encourage or mandate the arrest of domestic violence offenders
based on probable cause that an offense has been committed; and
(ii) Encourage or mandate the arrest of domestic violence offenders
who violate the terms of a valid and outstanding protection order;
(2) Demonstrate that their laws, policies, or practices and their
training programs discourage dual arrests of offender and victim;
(3) Certify that their laws, policies, or practices prohibit
issuance of mutual restraining orders of protection except in cases
where both spouses file a claim and the court makes detailed findings
of fact indicating that both spouses acted primarily as aggressors and
that neither spouse acted primarily in self-defense; and
(4) Certify that their laws, policies, or practices do not require,
in connection with the prosecution of any misdemeanor or felony
domestic violence offense, that the abused bear the costs associated
with filing criminal charges or the service of such charges on an
abuser, or that the abused bear the costs associated with the issuance
or service of a warrant, protection order, or witness subpoena (arising
from the incident that is the subject of arrest or criminal
prosecution).
(b) If these laws, policies, or practices are not currently in
place, States, Indian tribal governments, and units of local government
must provide assurances that they will be in compliance with the
requirements of this section by the date on which the next session of
the State or Indian Tribal legislature ends, or September 13, 1996,
whichever is later. Omnibus Act 2102(a)(1) 42 U.S.C. 3796hh-1(a)(1).
(c) For the purposes of this Program, a jurisdiction need not have
pre-existing policies encouraging or mandating arrest to meet the
eligibility requirements listed in this section. However, in its
application for funding through this Program, a State, Indian tribal
government, or unit of local government must identify the type of
policy that it intends to develop, and specify the process by which the
policy will be developed and enacted. The policy development process
must involve a coordinated effort by criminal justice personnel and
non-profit, private, domestic violence or sexual assault programs,
including State coalitions.
Sec. 90.64 Application content.
(a) Format. Applications from States, Indian tribal governments and
units of local government must be submitted on Standard Form 424,
Application for Federal Assistance, at a time designated by the Office
of Justice Programs. The Violence Against Women Grants Office of the
Office of Justice Programs will develop and disseminate to States,
Indian tribal governments, local governments and other interested
parties a complete Application Kit which will include a Standard Form
424, a list of assurances to which applicants must agree, and
additional guidance on how to prepare and submit an application for
grants under this subpart. To receive a complete
[[Page 40734]]
Application Kit, please contact: The Violence Against Women Grants
Office, Office of Justice Programs, Room 442, 633 Indiana Avenue, N.W.,
Washington, D.C. 20531. Telephone: (202) 307-6026.
(b) Programs. Applications must set forth programs and projects
that meet the purposes and criteria of the Grants to Encourage Arrest
program set out in Secs. 90.62 and 90.63 of this part.
(c) Requirements. Applicants in their applications shall, at a
minimum:
(1) Describe plans to further the purposes stated in Sec. 90.62 of
this part;
(2) Identify the agency or office or groups of agencies or offices
responsible for carrying out the program. Examples of these agencies or
offices include police departments, prosecution agencies, courts and
probation or parole departments; and
(3) Include documentation from nonprofit, private sexual assault
and domestic violence programs demonstrating their participation in
developing the application, and explain how these groups will be
involved in the development and implementation of the project.
(d) Certifications. (1) As required by Section 2102(a) of the
Omnibus Act, 42 U.S.C. 3796hh-1(a), each State, Indian tribal
government or unit of local government must certify in its application
that it has met the eligibility requirements set out in Sec. 90.63 of
this part.
(2) Each State, Indian tribal government or unit of local
government must certify that all the information contained in the
application is correct. All submissions will be treated as a material
representation of fact upon which reliance will be placed, and any
false or incomplete representation may result in suspension or
termination of funding, recovery of funds provided, and civil and/or
criminal sanctions.
Sec. 90.65 Evaluation.
(a) The National Institute of Justice will conduct evaluations and
studies of programs funded through this Program. The Office of Justice
Programs will set aside a small portion of the overall funds authorized
for the Program for this purpose. Recipients of funds must agree to
cooperate with such federally-sponsored research and evaluation studies
of their projects. In addition, grant recipients are required to report
to the Attorney General on the effectiveness of their project(s).
Section 2103, codified at 42 U.S.C. 3796hh-2.
(b) Recipients of program funds are strongly encouraged to develop
a local evaluation strategy to assess the impact and effectiveness of
their programs. Applicants should consider entering into partnerships
with research organizations that are submitting simultaneous grant
applications to the National Institute of Justice for this purpose.
Sec. 90.66 Review of applications.
(a) Review criteria. (1) The provisions of Part U of the Omnibus
Act and of the regulations is this subpart provide the basis for review
and approval or disapproval of applications and amendments in whole or
in part. Priority will be given to applicants that
(i) Do not currently provide for centralized handling of cases
involving domestic violence by police, probation and parole officers,
prosecutors, and courts; and
(ii) Demonstrate a commitment to strong enforcement of laws, and
prosecution of cases, involving domestic violence. Omnibus Act
Sec. 2102(b)(1)-(2), 42 U.S.C. 3796hh-1(b)(1)-(2) (1994).
(2) Commitment may be demonstrated in a number of ways including:
Clear communication from top departmental management that domestic
violence prevention is a priority; strict enforcement of arrest
policies; innovative approaches to officer supervision in domestic
violence matters; acknowledgment of officers who consistently enforce
domestic violence arrest policies and sanctions for those who do not;
education and training for all officers and supervisors on enforcement
of domestic violence arrest policies and the phenomenon of domestic
violence; and the creation of special units to investigate and monitor
spousal and partner abuse cases.
(3) Priority also will be given to applicants who provide evidence
of meaningful attention to victims' safety and those who demonstrate a
strong commitment to provide victims with information on the status of
their cases from the time the complaint is filed through sentencing.
(b) Intergovernmental review. This program is covered by Executive
Order 12372 (Intergovernmental Review of Federal Programs) and
implementing regulations at 28 CFR part 30. A copy of the application
submitted to the Office of Justice Programs should also be submitted at
the same time to the State's Single Point of Contact, if there is a
Single Point of Contact.
Sec. 90.67 Grantee reporting.
Each grantee receiving funds under this subpart shall submit a
report to the Attorney General evaluating the effectiveness of projects
developed with funds provided under this subpart and containing such
additional material as the Assistant Attorney General of the Office of
Justice Programs may prescribe.
Dated: July 30, 1996.
Laurie Robinson,
Assistant Attorney General, Office of Justice Programs.
[FR Doc. 96-19758 Filed 8-5-96; 8:45 am]
BILLING CODE 4410-18-P
