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Fighting Back

Some of the state's cutting-edge science makes sense. Some of it doesn't

Patricia Ann Burns had been dead less than six years when her killer was paroled from prison.

Today, Clarence Burns, who walked out of a state penitentiary on April 2, 1988, is alive and living in Denver. He is 62 years old and reportedly in ill health. Alvin Lichtenstein, the judge who sparked public outrage in 1983 when he initially sentenced Burns to a work-release program for shooting Patricia Ann Burns five times in the face, is deceased.

Colorado has made great strides since the Burns case rocked the city, the state and the nation. But some of the state's efforts have proven as misguided as they were well-intentioned. What Colorado needed when it began its cycle of reforms in the 1970s was a better way to make criminals pay for their crimes. What it ended up doing was legislating into existence a whole new class of criminals, without making provisions for the repeat offenders who always pose the greatest problem. Colorado needed swift justice; it got state-sanctioned talk therapy.

It's not hard to trace this peculiar progression: The domestic-violence movement in the state was driven from the start by the doctrine that batterers are products of a "patriarchal" society and can be rehabilitated by "unlearning abusive behavior." As time has passed, no hard evidence has surfaced to support this wishful contention. But the system has persisted.

As Steve Jackson reported last week, police and prosecutors do overreach in their efforts to crack down on offenders. Especially at the municipal level, questionable cases are filed, raising questions about pre-trial punishment and the strain placed on criminal-justice agencies. However, as Alan Prendergast reveals in this week's issue, most of the problems occur not on the front end, where the changes prompted by the new get-tough approach are most obvious--and where they appear to do the most good--but on the back end, after offenders are funneled into 36-week treatment programs to ponder the evils of patriarchy and to hone their anger-management skills.

Despite the controversy that continues to surround mandatory arrest, that practice is an important tool in defusing potentially deadly situations. But "dual arrest," where victims get hauled in along with their attackers, remains a serious problem--the extent of which was underscored this year when lawmakers passed House Bill 1272, reminding police that, while they must investigate allegations by both parties, they aren't required to arrest both people. In truth, the dual-arrest provisions in HB 1272 weren't necessary; the previous statute was crystal clear on the subject of victim arrests. But change comes slowly--and police must get better training.

As for the practice of holding suspects without bond until they can go before a judge, it does test the concept of punishment before trial. However, it has also saved lives. If and until the legality of the measure is decided in a Colorado court, it should stand as an automatic consequence for offenders--but only in cases involving actual or threatened physical violence and for repeat offenders. For lesser offenses involving first-time offenders, authorities need to apply it judiciously, if at all. Young children shouldn't be carted off to Social Services because their parents had a shouting match and were forced to spend the night in jail.

Fast Track programs such as Jefferson County's are a step in the right direction, as are innovations like the Colorado Judicial Department's effort to more objectively assess offenders' likelihood of reoffense. Moving cases through the system as rapidly as possible to take advantage of the remorseful "hearts and flowers" phase that so many offenders go through makes sense; so does finding out as much as possible about batterers before they go in front of a judge.

But to do their jobs better, these programs demand better resources. Under the present system, where huge numbers of the state's domestic-violence cases are charged as municipal-ordinance violations, getting an accurate look at an offender's criminal record is often impossible. By law, Colorado's 268 municipalities aren't required to report ordinance violations to the Colorado Bureau of Investigation, which compiles the state's criminal records. That means a batterer arrested in Denver and assigned to the city's Fast Track program can be reasonably confident that the prosecutors and the judge will have no idea he's already been arrested three times in Aurora.

Municipal ordinances should be brought into line with state statutes. Cities should be required to report ordinance violations to the CBI. No longer should batterers go free because somebody doesn't want to do paperwork.

Unfortunately, however, it's precisely when offenders are convicted that the system begins to break down. The quality of treatment programs and local methods for measuring the risk posed by offenders both fluctuate wildly. Probation officers are swamped with impossibly high caseloads; in some cases, because probation departments don't give batterers direct referrals to treatment, offenders can "program-shop" among the state's smorgasbord of treatment options. Batterers who avoid or drop out of treatment can often duck consequences for weeks or months--sometimes years. As demonstrated by Christine Brennan's experience, offenders can defy the system with few immediate repercussions. The experience in Colorado's Sixth Judicial District, where only 12 percent of the offenders referred to treatment in 1995 had completed treatment a year later, hints at the scope of the problem.

So what's the solution? It's not to put people in jail without bond for kicking the family pet and then order them to watch The Prince of Tides. Instead, the state should drop the one-size-fits-all approach to treatment. "Currently all domestic violence offenders in Colorado receive the same treatment, regardless of evaluation recommendations, risk levels or prior domestic violence offenses," notes the Colorado Coalition Against Domestic Violence in a recent report funded by the U.S. Department of Justice. That's got to change--and the state needs to implement more aggressive oversight of the byzantine treatment network, in part to ensure that offenders actually go to class.

Equally important is rethinking the core philosophy that drives Colorado's treatment efforts. The state now has 168 licensed treatment providers, with names ranging from Women Seeking Empowerment to Violence Is Not Acceptable. But as the National Institute of Justice notes in a report published this past February, there is no evidence to suggest that one approach to "batterer intervention" works best--or, for that matter, that any of them really work at all.

As the NIJ study points out, most professionals in the field now acknowledge that batterer treatment programs function primarily as a kind of "super-probation." In other words, whether or not they have any practical effect, they at least allow somebody to monitor an offender's activities--and, since most women continue to remain in relationships with their batterers, to safeguard the victim.

But Colorado needs to make up its mind: Is it serious about "treating" batterers, or is it just going through the motions?

All the state's code words say Colorado has a therapeutic model. But in practice, it's really an extension of social control and punishment. The state must either take the idea of treatment seriously and begin enforcing attendance and weeding out the more dubious therapies or, if the real goal is to monitor an offender's actions and whereabouts, it should establish some form of incarceration option, perhaps a halfway-house system, for the worst offenders. Instead of dissipating limited resources in attempts to extend the net as widely as possible, more attention and manpower should be devoted to identifying and punishing truly dangerous, chronic batterers.

It is outrageous that, at present, no provisions exist to give sentence enhancements or alternative sentencing to repeat or high-risk offenders. There must be a jail option for these individuals, and the state must end the practice of putting first-time offenders into 36-week classes with hardened ex-cons who may actually encourage their abusive behavior. "Feather ceremonies" are fine, but treatment programs can create a false sense of security. Keeping closer tabs on these hardcore criminals, perhaps with special probation officers who've been given reduced caseloads, and establishing consequences for those who fail to complete the programs, are essential. Rather than pointing fingers at each other, probation officers and treatment providers need to work together to get probation revocations for resistant offenders. And judges need to listen.

The legislature had a chance to address some of these issues this session, but lawmakers dropped the ball. During the next legislative session, however, lawmakers can improve the consistency of treatment by assigning a single state agency to oversee the certification of treatment providers. Using 22 local oversight boards just hasn't worked; some of the boards don't even meet, and at least five report receiving threats of lawsuits from providers. Coordinating oversight within one agency--most likely the Department of Regulatory Agencies--would help impose some order on what can now be a chaotic regimen. Yes, it would create a bureaucracy. But getting rid of 22 local boards is getting rid of 22 bureaucracies.

There are promising signs that Colorado remains at the forefront on domestic violence. The NIJ study, for example, describes Denver's AMEND program as a "pioneer that continues to modify its models in keeping with the most recent trends in batterer intervention." Perhaps more than any other state, Colorado has the money, the experience, and the institutional memory to enact meaningful change.

So celebrate Colorado's status as a leader in domestic-violence research. But know that a system that applies a set of handcuffs on the front end and a slap on the wrist on the back end simply won't work. Patricia Ann Burns deserves better. So do all the others.

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