How the Legal System Got Ray Rice a Free Pass on Domestic Violence

When TMZ released the elevator security video showing Ray Rice brutally knocking his wife unconscious, it eliminated any shadow of a doubt as to what occurred inside the metallic doors. It also reignited the criticism of Rice's lenient two-game suspension by the NFL. Peter King had reported that the NFL offices had access to the interior elevator footage, prompting questions of how Goodell could be so forgiving in the face of such abject brutality.

Hours later, the Ravens terminated Rice's five-year, $35 million contract and the NFL suspended him indefinitely, issuing astatement reading in part, "We requested from law enforcement any and all information about the incident, including the video from inside the elevator. That video was not made available to us and no one in our office has seen it until today." Whether or not the NFL had seen the video prior to today, there's no debate that the Atlantic County Prosecutor's office had it. The anger over Goodell's leniency applies even more towards the civil servants tasked with administering justice. While the NFL's responsibility to adjudicate criminal justice is up for debate, what isn't in question is the Atlantic County District Attorney's failure to punish a brutal act. As Rice's career has disintegrated in a matter of hours, the question remains how he emerged from this incident without a criminal conviction.

Prosecutor Jim McCain accepted Rice's application for a pretrial diversion (PTD), saying in a press release:

"This decision was arrived at after careful consideration of the information contained in Mr. Rice's application in light of all the facts gathered during the investigation. After considering all the relevant information in light of applicable law it was determined that this was the appropriate disposition."

The press release compares a PTD to probation, although a PTD expunges the defendant's record of the offense upon completion, essentially eliminating it from public record. Whereas probation can be applied to a wide array of offenses, PTD programs have typically been reserved for first-time offenders of a very specific set of crimes where incarceration may not be appropriate.New Jersey describes appropriate cases as those which "avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant…" The benefits of a PTD are two-fold: it better serves perpetrators who are more fit for rehabilitation than prison and it saves the courts time and money by not pursuing a criminal trial.

However, PTD programs are almost exclusively for non-violent crimes, since they pertain to defendants who are not a general risk to society and to whom "a full criminal disposition does not appear required," as the 1967 President's Commission on Law Enforcement & Administration of Justice put in awidely-cited recommendation for the earliest PTDs. Today, PTDs are typically reserved for non-violent misdemeanors and certain non-violent felonies, particularly those related to drug abuse, mental illness, and veterans with Post-Traumatic Stress Disorder. As theNational Conference of State Legislatures explains on its website, only ten states permitted "some domestic violence and child abuse offenses to be diverted" as of last year.

But Rice's charge wouldn't have fallen under any domestic violence PTD program due to a basic and telling fact about the way the American criminal justice system views domestic violence. Alison Lawrence, a Senior Policy Analyst at the NCSL told me that, despite the name, domestic violence is not categorized as a violent crime for the purposes of PTD programs. Ray Rice was charged with third-degree aggravated assault, which is of course a violent crime. So the few states with provisions for domestic violence in their PTD statutes would not have accepted Rice's application under that condition.

Further,New Jersey state law is fairly explicit about excluding violent crime from its PTD program: "If the crime was… deliberately committed with violence or threat of violence against another person…the defendant's application should generally be rejected." Clearly, the Prosecutor's office felt Rice's case was an exception to this general rule, although the reason for this exception remains largely a mystery. (The Atlantic County District Attorney's Office declined to make Rice's application or PTD report available to VICE Sports.)

One possible explanation is that Rice's fame and fortune granted him privileges that go against the spirit of the program. "Laws provide the framework and set boundaries," Lawrence told me, "but they do not necessarily reflect the full picture." It seems exceptions can be made and boundaries can be stretched on occasion. In June, Ravens offensive lineman Jah Reid wasaccepted into a diversionary program for an altercation in a Florida strip club where he "allegedly head-butted, punched and kicked a man and attacked security personnel" because another patron allegedly "bumped" him. In 2012, actor Andy Dick was admitted to PTD forsexually assaulting two men at a West Virginia nightclub, despite having a criminal history.

Still, this isn't exactly a compelling case for the widespread abuse of PTD programs by a privileged class. In some ways, that would be too easy of an answer. Rather, this is a window into an endemic societal ill where the criminal justice system fails a vast segment of its citizens. According to theNational Coalition Against Domestic Violence, approximately three quarters of all physical assaults by intimate partners go unreported to the police. Of the incidents that do go reported, criminal prosecution has little effect on repeat offenses. Onelongitudinal study by the Department of Justice found that police involvement had a deterrent effect on domestic violence but "the effect of arrest is small and statistically insignificant." Perhaps this isbecause 54 percent of domestic aggravated assault defendants are granted pretrial release and thus allowed to go right back into the dangerous situation they created.

We're reminded that the Ray Rice saga is not about the unusual degree of leeway granted him by the criminal justice system, but that this leeway, the lack of criminal conviction for assaulting another human, is built into the system. When asked why Rice's application for the PTD program was accepted, Jay McKeen, the Public Information Officer for the Atlantic County Prosecutor's Office, told me "Mr. Rice received the same treatment as any other first-time offender in similar circumstances." Unfortunately, he's probably right.