State’s temporary restraining orders don’t always take effect

Each year, over 8,000 people in Connecticut file for a temporary restraining order against their abusive partners, family members and roommates. But the state’s flawed and outdated system is literally failing to serve many of them.

After a TRO application is filed, a family court judge often orders emergency protection that lasts up to two weeks, until both parties attend a follow-on hearing. But the emergency order only takes effect (and the follow-on hearing can only be held) if the accused abuser has been properly served.

But in Connecticut, failure of service often renders restraining orders null and void.

In a recent study, we analyzed more than 1,000 TRO applications filed in New Haven. We found that only 36 percent of emergency orders or hearing orders were served in-hand, meaning they were personally delivered by a state marshal. Some applicants — in particular, those who are white or who have an attorney — tended to fare relatively better. We’ve created an online widget that you can use to predict the probability that orders concerning different types of people will be served. While our study design doesn’t allow us to identify the precise causal mechanism of these effects (racial bias, geography, income, and other unobservable factors could all play a role), the data suggests to us that the system is clearly broken.

As an alternative to in-hand service, Connecticut law also permits “abode service,” where a marshal leaves the order at the respondent’s home. About one quarter of all orders are served this way, but this method suffers from both constitutional and practical limitations. While many respondents do receive the order and come to their hearing, some may genuinely not receive the order, or only discover it too late to prepare a defense. Further, a 2015 study commissioned by the CT legislature found that prosecutors were unlikely to criminally prosecute restraining order violations unless there was in-hand service, and judges were more likely to dismiss cases with no-show respondents when there was only abode service.

And even despite the abode alternative, over one-third of orders go completely unserved. In fairness to marshals, some of this failure of service is likely due to factors outside of their control. Ten percent of orders were never picked up by the applicants. Respondents may be hard to track down, or marshals may have been given an incorrect address. But only in 5 percent of cases did marshals affirmatively report back to the court that they tried but were unable to serve an order. This leaves hundreds of orders each year in New Haven alone that were never served, and with no clear reason why.

In some cases, applicants may have been unaware of the need to provide the order to a marshal or were unable to meet the marshal during the one hour per day they are required to be at the court. In other cases, some marshals may have failed to serve these orders and neglected to self-report their failures.

These problems are fixable. Our study provides evidence that a Yale Law School program, where students provide clerical assistance and reminder phone calls to applicants, is associated with an 11 percentage point increase in in-hand service. Other schools or the state could replicate these efforts with similar programs. In addition, the state could implement three straightforward structural reforms.

First, the state should create a secure website to increase transparency and self-help for applicants, who could use it to track their service in real time, prod their marshals, and provide more information when needed. Orders should be entered into this database as soon as they are picked up and given to a marshal, rather than the ex post self-reporting by marshals under the current system

Second, judges and the marshal commission should leverage data from the service-tracking database to identify and investigate marshals with especially low service rates or those who frequently use abode service as a first resort, instead of a last resort.

Third, the state should create a belt-and-suspenders system of alternate service where court clerks would automatically send notice of an order to a respondent by certified mail or a text message. This certified mail or cell phone service would provide evidence of actual notice in cases where marshals only provide abode service or where marshal service fails entirely.

In order to better serve the victims of domestic abuse, the state must do a better job serving their accused abusers.

Ian Ayres is the William K. Townsend Professor & Anne Urowsky Professorial Fellow in Law Yale Law School. Brendan Costello is a 2019 graduate of Yale Law School.