[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