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Avon Global Center for Women and Justice at Cornell Law School

Comment: The Domestic Violence Survivors Justice Act: How You Can Help Stop the Criminal Justice System’s Unjust Response to Survivor-Defendants in New York.

Guest Comment by Tamar Kraft-Stolar, Women in Prison Project Director and Jaya Vasandani, Women in Prison Project Acting Director, Correctional Association of New York

Kate’s Story

“I was a victim before I was a defendant.” Kate’s father died when she was a baby, and her mother remarried a volatile man who was physically and verbally abusive. From the time Kate was seven until she was 10, a friend of Kate’s step-father sexually abused her. At 20, Kate began to date Darnell.

“He instilled fear in me and once the fear is instilled, it’s always there.” In the years that followed, Darnell beat and raped Kate. Kate had Darnell arrested five times, but by the time the summons would arrive, they had usually reconciled and the summons would only ignite Darnell’s anger again. On a number of occasions, Kate’s injuries were so severe that she went to the hospital.

“Experience taught me happiness didn’t come without pain. I thought dealing with Darnell’s temper was a small price to pay.” One day, while driving, Darnell and Kate got into a terrible fight. Darnell pulled over, kept arguing and then Darnell started choking Kate. Kate tried to leave the car, but Darnell shoved her head down onto the floor. As they struggled, Kate reached for a gun Darnell kept under the seat. As she swung up to a sitting position, the gun went off. Kate left the car and ran. Darnell drove away. The next day, Kate learned that Darnell had died.

Kate was convicted of Manslaughter in the 1st Degree. A domestic violence expert did not testify on her behalf at trial.  The prosecutor would not lower his plea offer. 

Kate was sentenced to 81/3 to 25 years. She was denied parole 4 times and served 17 years before her release in 2008.

Does this sound like justice to you?

The Correctional Association of New York’s Women in Prison Project and its Coalition for Women Prisoners – a statewide alliance of more than 1,600 people from over 100 organizations – recently launched a campaign to change the criminal justice system’s unjust and inappropriate response to domestic violence survivors who are criminalized for acting to protect themselves from an abuser’s violence or threats of violence.  The centerpiece of this campaign is the Domestic Violence (DV) Survivors Justice Act, which would permit judges to sentence survivors convicted of crimes directly related to an abuser’s violence to lower prison terms and, in some cases, to community-based alternative to incarceration programs instead of prison.  This legislation would begin to address years of injustice faced by survivors whose lives have been shattered by domestic abuse.  

All too often, New York State law removes judges’ sentencing discretion and requires them to dispense long, harsh prison sentences – even when defendants pose no threat to public safety.  The DV Survivors Justice Act would help address this problem by creating an alternate ameliorative sentencing statute for survivor-defendants and providing survivors currently in prison the opportunity to apply for resentencing and earlier release.

Under the Act, a judge could grant an alternative sentence if s/he finds that: (1) the defendant was, at the time of the offense, a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a spouse, intimate partner or relative; (2) the abuse was a “significant contributing factor” to the defendant’s participation in the crime; and, (3) a sentence under current law would be “unduly harsh.”

The Act would also address shortcomings in New York’s current DV sentencing exception, enacted as part of the state’s 1998 Sentencing Reform Act, commonly known as Jenna’s Law.  At the time, state officials thought this exception would lead to less punitive sentencing for survivors – unfortunately, it did not.  In 2007, only one person was serving a sentence under the exception.  He received 6 to 12 years (longer than the minimum term allowed for individuals not sentenced under this provision) and was denied parole twice.  In 2009, not a single person was incarcerated under the exception.

Eligibility for shorter prison terms and alternatives to incarceration for women survivors is particularly appropriate as they most often have no prior criminal records, no history of violence and extremely low recidivism rates.  For example, of the 38 women convicted of murder and released between 1985 and 2003, not a single one returned to prison for a new crime within a 36-month period of release – a 0% recidivism rate.
 

  • 75% of women in New York's Prisons suffered severe physical violence by an intimate partner during adulthood.
  • 8 out of 10 had a childhood history of severe physical and/or sexual abuse, and 9 out of 10 women had suffered physical or sexual violence in their lifetimes.
  • 37% were raped before their incarceration.
  • 93% of women convicted of killing an intimate partner were abused by an intimate partner in the past.
  • From 1973 to 2010, the number of women in New York's prisons increased by more than 507%.
  • 65% of the state's female inmates are women of color: 44% are African American, 19% are Latina, and 35% are white.  Women of color comprise only 30% of New York's entire female population.

Community-based alternative programs are far more effective than prison in allowing survivors to rebuild relationships with their families, recover from abuse, and take responsibility while positively participating in their communities.  Allowing mothers to live in the community while serving sentences also permits them to maintain ties to children and lessen the trauma of separation – thereby increasing the likelihood that children will receive the support they need to become healthy, productive adults.   

In addition, New York can save substantial costs by sentencing DV survivors to lower sentences and alternative programs.  It costs approximately $55,000 per year to incarcerate a person in a New York State prison, while the annual cost per participant of an alternative to incarceration program in New York City is only $11,000.  Alternative programs save taxpayers tens of thousands of dollars per person each year while helping to build healthy and safe individuals and communities.
 
Domestic and international human rights standards recognize the rights of women – and all people – to live free from violence.  When survivors are convicted of crimes directly related to abuse, it is, in effect, a consequence of our failure to defend this fundamental human right and to provide adequate intervention and support.  With no compromise to public safety, the DV Survivors Justice Act will help New York address this failure and decrease the likelihood of survivors being victimized by the very system that should help protect them.

For more information about the campaign to pass this critical legislation or for a template that your organization can use to prepare a letter of support to be sent to NY State Legislators, please contact Jaya Vasandani, Women in Prison Project Acting Director at the Correctional Association of New York at (212) 254-5700 x334 or jvasandani@correctionalassociation.org