[Federal Register Volume 61, Number 94 (Tuesday, May 14, 1996)]
[Proposed Rules]
[Pages 24256-24261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11852]



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DEPARTMENT OF JUSTICE

Office of Justice Programs

28 CFR Part 90

[OJP No. 1019]
RIN 1121-AA35


Grants To Encourage Arrest Policies

AGENCY: U.S. Department of Justice, Office of Justice Programs.

ACTION: Proposed rule.

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SUMMARY: This notice announces a proposed 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.

DATES: All comments must be received by June 13, 1996. The length of 
the comment period has been limited to thirty days in order to provide 
States timely access to the available program funds. It would be 
contrary to the public interest to delay implementation of the program.

ADDRESSES: All comments should be addressed to Kathy Schwartz, Violence 
Against Women Grants Office, Office of Justice Programs, Room 446, 633 
Indiana Avenue, N.W., Washington, D.C. 20531.

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:

Title IV Grants To Encourage Arrest Policies

    For Fiscal Year (FY) 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. 103-22, 108 Stat. 1796, 
1902-55, codified as amended at 42 U.S.C. Sec. 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 Sec. 805, codified as amended at 42 U.S.C. 
Sec. 3768 (1994) [hereinafter the ``Omnibus Act'']. Section 2104 of 
Title IV of the Act, codified as amended at 42 U.S.C. Sec. 3796hh-3, 
requires that regulations be issued specifically to implement these 
policies and programs.

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 departments have created 
special domestic violence units that train personnel; develop 
guidelines and protocols for enforcing laws related to domestic 
violence; create sophisticated tracking and communication systems; 
investigate both misdemeanor and felony domestic assaults; develop 
accountability measures which ensure enforcement of the law by all 
officers in the department; and coordinate with other criminal justice 
agencies and victim service providers. Despite these very significant 
accomplishments, many more police departments require the tools and 
resources necessary to implement similar innovations in their own 
communities.
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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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    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 proarrest 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 
judges impose appropriate sentences; if batterers remain in custody 
after they are arrested; if probation and parole departments devise 
ways to effectively supervise batterers; and 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 honor certain 
protection orders issued by other jurisdictions. Act Sec. 4022(a), 18

[[Page 24257]]

U.S.C. Sec. 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 proarrest 
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 proarrest policies go a step 
further by directing responding officers to arrest 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 victim, the family and the 
community that domestic violence is a serious crime that will not be 
tolerated. Mandatory or proarrest 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 
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 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 and tracking 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. These advanced information systems also could 
provide a description of the alleged perpetrator and places he 
historically has frequented if the offender 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 Role of Prosecutors, Judges, Victim Advocates and Other Criminal 
Justice Professionals

    If arrest policies are to be effective, pre-trial service agents, 
prosecutors, judges, probation officers, and parole officers need to 
respond with effective supervision and prosecution strategies, safety 
plans for victims, and appropriate sentences for offenders. In 
addition, prosecutors, judges and other criminal justice professionals 
need tools and resources to respond to domestic violence as a serious 
crime. For example, in those jurisdictions where mandatory or proarrest 
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 have 
begun to work with victim advocates during both the pending prosecution 
and the sentencing phase of a case. In many jurisdictions, victim 
advocates are critical to domestic violence prosecution. In addition to 
being effective legal advocates, victim advocates assist in safety 
planning with the victim, providing the court with information needed 
to determine risk assessment and proposed conditions of probation or 
parole for the offender.
    Prosecutors, judges, victim advocates and other criminal justice 
professionals need specialized education and training on the phenomenon 
of domestic

[[Page 24258]]

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 the 
sentence to the individual perpetrator (e.g., ordering protective 
conditions for victim safety, incarceration, community service, 
restitution, intensive probation or parole, batterer intervention 
services, drug and alcohol treatment, or all of the above, as 
appropriate). Victim advocates and all criminal justice professionals 
need to work together to explore and develop 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.
     Police officers need specialized training on domestic 
violence, on implementing departmental arrest policies and related 
federal, state and local law.
     Police departments need resources to develop guidelines 
for arrest and investigation of domestic violence, specialized training 
programs, special investigation or detective units, and procedures to 
ensure coordination with other parts of the criminal justice system.
     Police departments need the resources to develop advanced 
communication, information and tracking systems to enable them to 
respond more effectively to domestic violence incidents and prevent 
future incidents that could result in aggravated assault and homicide.
     Jurisdictions need to develop methods and technologies 
that will promote improved communication and coordination between 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.
     Police and prosecutors need the tools and resources to 
investigate domestic violence cases aggressively and thoroughly.
     Specialized education and training programs for 
prosecutors, judges, victim advocates and other criminal justice 
professionals need to be developed or replicated and adapted from 
existing curricula.
     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.
     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 final program guidelines and 
application materials that will be available in early FY 1996.
    Section 2101 of the Violence Against Women Act, codified as amended 
at 42 U.S.C. Sec. 3796hh (1994), enumerates the following six purposes 
for which Grants to Encourage Arrest Policies may be used:
    (1) To implement mandatory arrest or proarrest 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

[[Page 24259]]

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.
     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 that assigns priority to the safety of the victim and 
holds the offender accountable for his violent actions.
     Delivering comprehensive training programs for the police, 
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, prosecutors, and criminal and 
family courts to ensure that all of the system components have access 
to consistent and complete 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)(2), 42 U.S.C. Sec. 3796hh(c)(2) (1994). 
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. 
Sec. 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. 
Sec. 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. Omnibus 
Act Sec. 2101(c)(4), 42 U.S.C. Sec. 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. Sec. 3796hh-1(a)(1) (A)-(B) 
(1994).
    For the purposes of this Program, a jurisdiction need not have pre-
existing policies encouraging or mandating arrest to meet the 
eligibility requirements listed above. However, a State, Indian tribal 
government, or unit of local government must specify the policy that it 
intends to enact by the statutory deadline in its application for 
funding through this Program.

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. 
Sec. 3796hh-1(b) (1)-(2) (1994). 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 creation of special units to 
investigate and monitor spousal and partner abuse cases.

Technical Assistance and Training/Evaluation

    The Office of Justice Programs intends to assist States, Indian 
tribal governments, and units of local government in meeting the 
Program goal of treating domestic violence as a serious violation of 
criminal law. The Office of Justice Programs therefore hopes to 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 National Institute of Justice will 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, including pretrial services agencies, prosecution 
units, the courts, probation and parole. 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. The Office of Justice 
Programs hopes to set aside a small portion of the overall funds 
authorized for the Program for this purpose. Recipients of funds for 
this Program 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). Omnibus Act Sec. 2103, 42 U.S.C.

[[Page 24260]]

Sec. 3796hh-2 (1994). Recipients therefore 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.

Request for Comments

    The Office of Justice Programs seeks to fulfill Congressional 
intent by soliciting, encouraging and incorporating comments on all 
aspects of this program while ensuring that the statutory limitations 
are applied appropriately to all recipients. Comments are welcome on a 
broad range of issues, including but not limited to:
    (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. Sec. 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.

Administrative Requirements

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, Sec. 1(b), Principles of Regulation. This rule 
is not a ``significant regulatory action'' under Executive Order 12866, 
Sec. 3(f), Regulatory Planning and Review, and, accordingly, this rule 
has not been reviewed by the Office of Management and Budget.
    The Assistant Attorney General for the Office of Justice Programs, 
in accordance with the Regulatory Flexibility Act, codified at 5 U.S.C. 
Sec. 605(b), has reviewed this regulation and, by approving it, 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities.

List of Subjects in 28 CFR Part 90

    Grant Programs, Judicial Administration.

    For the reasons set out in the preamble, Title 28, Chapter 1, Part 
90 of the Code of Federal Regulations is proposed to be amended as 
follows:

PART 90--VIOLENCE AGAINST WOMEN

    1. The authority citation for part 90 continues to read as follows:

    Authority: 42 U.S.C. Sec. 3711 et seq (1994).

    2. A new Subpart D, consisting of Secs. 90.60-90.67 is proposed to 
be 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 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.


Sec. 90.62   Purposes.

    The purposes of this program are:
    (a) To implement mandatory arrest or proarrest programs and 
policies in police departments, including mandatory arrest programs and 
policies for protection order violations;
    (b) To develop policies and training programs in police departments 
to improve tracking of cases involving domestic violence;
    (c) To centralize and coordinate police enforcement, prosecution, 
or judicial responsibility for domestic violence cases in groups or 
units of police officers, prosecutors, or judges;
    (d) To coordinate computer tracking systems to ensure communication 
between police, prosecutors, and both criminal and family courts;
    (e) To strengthen legal advocacy service programs for victims of 
domestic violence; and
    (f) To educate judges in criminal and other courts about domestic 
violence and improve judicial handling of such cases.


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.
    (b) If these laws, policies, or practices 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

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Tribal legislature ends, or September 13, 1996, whichever is later. 
Omnibus Act Sec. 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, a State, 
Indian tribal government, or unit of local government must specify the 
policy that it intends to enact by the statutory deadline in its 
application for funding through this Program.


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 Application Kit, 
please contact: The Violence Against Women Grants Office, Office of 
Justice Programs, Room 444, 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 Sec. Sec. 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; 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 2101(c) of the 
Omnibus Act, codified as amended at 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 subpart.
    (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.

    The National Institute of Justice will conduct evaluations and 
studies of programs funded through this Program. The Office of Justice 
Programs hopes to 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). Omnibus Act Sec. 2103, 42 U.S.C. 3796hh-2. 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 in 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, 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 creation of special units to investigate and monitor 
spousal and partner abuse cases.
    (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.
Laurie Robinson,
Assistant Attorney General, Office of Justice Programs.
[FR Doc. 96-11852 Filed 5-13-96; 8:45 am]
BILLING CODE 4410-18-P