Horwitz on Domestic Violence Holds

Daniel A. Horwitz has posted Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution (Tennessee Journal of Law & Policy, Spring 2015, Forthcoming) on SSRN. Here is the abstract:

Tennessee law currently provides that individuals who have been arrested for certain domestic violence offenses “shall not be released within twelve (12) hours of arrest if the magistrate or other official duly authorized to release the offender finds that the offender is a threat to the alleged victim.” However, Tennessee law also provides for an exception to this “12-hour hold” requirement that permits judges to release domestic violence arrestees before twelve hours have elapsed “if the official determines that sufficient time has or will have elapsed for the victim to be protected.” 

Following an especially high-profile incident of domestic violence that occurred in Nashville in June 2014, the Tennessee General Assembly is poised to amend Tennessee law to divest judges of all discretion to lift 12-hour domestic violence holds under any circumstances. The immediate effect of the proposed amendments would be to require all domestic violence arrestees to remain in jail for a minimum of twelve hours following their arrests, with no exceptions permitted for any reason. 

This Article suggests that the proposed amendments to Tenn. Code Ann. § 40-11-150 could result in several unintended policy consequences that harm — rather than help — victims of domestic violence. It further notes that such amendments could be susceptible to constitutional challenge for violating: (1) the Tennessee Constitution’s separation of powers doctrine; (2) the right to bail under the Tennessee Constitution; (3) the federal and state constitutional right to be free from unreasonable seizures; or (4) the federal and state constitutional right to Due Process. 

In an effort to provide enhanced protection to victims of domestic violence, this Article argues that the General Assembly should strengthen Tenn. Code Ann. § 40-11-150 by removing the current exception permitting judges to lift domestic violence holds if they determine that “sufficient time has or will have elapsed for the victim to be protected.” However, in order to avoid both unintended policy consequences and potential constitutional challenges, it also argues that the General Assembly should retain the requirement that a judge or a magistrate must “find that the offender is a threat to the alleged victim” before imposing a hold in the first place.