Pragmatic Punitiveness: The Institutionalization of Criminal Domestic Violence Protection Orders
| Author | Veronica L. Horowitz,Ryan Larson,Allison Nobles,Victoria Piehowski,Joshua Page |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| DOI | http://doi.org/10.1177/09646639211061848 |
| Subject Matter | Articles |
Pragmatic Punitiveness:
The Institutionalization of
Criminal Domestic
Violence Protection Orders
Veronica L. Horowitz
University at Buffalo, Buffalo, NY, USA
Ryan Larson, Allison Nobles,
Victoria Piehowski and Joshua Page
University of Minnesota Twin Cities, Minneapolis,
MN, USA
Abstract
This paper analyzes the implementation of a domestic violence law in Minnesota that, in
2006, made the violation of a Domestic Abuse No-Contact Order a felony-level offense.
Since this legal change, the rate of conviction for Domestic Abuse No-Contact Order
felonies skyrocketed with stark racial disparities among Black and Native American resi-
dents, relative to Whites. Analysis of case files reveals that Domestic Abuse No-Contact
Order convictions result from a range of behaviors, from seemingly mutual contact
between the defendant and protected party to serious physical violence. We argue
that the Domestic Abuse No-Contact Order law facilitates pragmatic punitiveness for
legal actors. It is easier for prosecutors to demonstrate contact occurred than to
prove domestic assault. Yet, the penalty for a Domestic Abuse No-Contact Order is
as severe as the penalties for other domestic abuse-related crimes in Minnesota.
Thus, the Domestic Abuse No-Contact Order law enables prosecutors to respond
forcefully to domestic violence while avoiding additional burdens on their time and
resources.
Corresponding author:
Veronica L. Horowitz, University at Buffalo, SUNY, 430 Park Hall, Buffalo, NY 14260-414, USA.
Email: vhorowit@buffalo.edu
Article
Social & Legal Studies
2022, Vol. 31(5) 679–703
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639211061848
journals.sagepub.com/home/sls
Keywords
Domestic Abuse No-Contact Orders, criminal protection orders, carceral feminism,
state paternalism, mandatory policies, pragmatic punitiveness
Introduction
Criminal justice in the United States became increasingly punitive from the 1970s to the
2000s. This development included substantial changes to sentencing practices, resulting
in mandatory minimums, truth in sentencing, and the elimination of parole (Garland,
2001). States and the federal government increased penalties across the board—for
drug, property, and violent crimes, and for first time and repeat offenses alike. During
this period, domestic violence policy and practice also became more retributive.
Prosecutors played a pivotal role in this agenda, benefiting and gaining power from
many of these changes (Pfaff, 2017; Simon, 2007; Zimring, 2020).
At the height of the tough-on-crime era (1980s–1990s), new policies toward domestic
violence proliferated. While scholars have studied mandatory arrest, pro-arrest, and
no-drop policies (i.e. Dixon, 2008; Nichols, 2014), the implementation of criminal
domestic violence protection orders (which forbid contact between alleged perpetrators
and alleged victims, resulting in criminal convictions when violated) represents a rela-
tively new and underexplored topic. Like similar punitive domestic violence policies,
these laws constrain legal actors’discretion, escalate punishment, and restrict victims’
participation in the process. This paper analyzes findings from the first empirical study
of this domestic violence policy
1
.
Specifically, we analyze a statutory amendment that Minnesota implemented in 2006,
which created a felony conviction for violating Domestic Assault No-Contact Orders
(DANCO). This legal change led to a surge in felony convictions, imposed disproportion-
ately on persons of color. Recognizing the key role of the prosecutor in procuring these
convictions, we examine several questions about this new felony law. Are rises in
DANCO felonies due to prosecutors seeing more physically violent cases? Or do prose-
cutors use their discretion to severely punish a wider range of conduct under the label of
domestic abuse? Based on an exploratory analysis of 100 DANCO cases in Ramsey
County, Minnesota, we find that DANCO felonies result from myriad incidents: some
violent and nonconsensual, and many seemingly nonviolent and consensual. We con-
clude that this law has become a tool of pragmatic punitiveness that prosecutors use to
demonstrate a commitment to punitive justice, and to efficiently and quickly secure
convictions.
Background: Trends and Explanation of the DANCO Felony
DANCO mandate no contact or communication between the “protectee”and the defend-
ant, much like civil protection orders. But unlike civil protection orders where protectees
initiate civil order proceedings, the criminal court imposes DANCOs, which take effect
immediately. Two types of DANCOs can be ordered: pretrial DANCOs issued following
an indictment and remaining in effect until case resolution and probationary DANCOs,
680 Social & Legal Studies 31(5)
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