At least three cases involving a statute in New York that permits courts to take into account the effects of domestic abuse when sentencing criminal offenses are scheduled to be heard by the state’s top court this year.
Court of Appeals decisions in these cases will have the potential to instruct lower courts on how to address allegations of domestic violence and related crimes adequately.
Advocates in the criminal justice system and the legal community have collaborated since the passage of the Domestic Violence Survivors Justice Act in 2019 to lessen prison terms handed down to victims of domestic violence who have committed crimes related to their abuse.
The statute has resulted in the sentencing of 68 individuals as of December. Survivors Justice Project reports that among the resentful population, women make up about 90% and persons of color nearly 70%. With 16 possible life sentences added to their initial term, they would have spent more than 175 years behind bars. According to the group, over 507 years of incarceration could have been prevented if each person had been sentenced in accordance with the law during their original trial.
Despite the fact that the law has been in place for almost six years, proponents maintain that judges, prosecutors, and defense attorneys still lack proper knowledge of how to apply it.
“There are so many folks potentially eligible, or attorneys whose clients may be eligible,” stated Karin Portlock, a partner at Gibson Dunn. “Some individuals might not have all the necessary information to determine their eligibility and proceed with an application.”
Fresh Approach to Law
The statute, which was a result of 10 years of advocacy, provides a way for survivors of domestic violence, whether they were men or women, to have their sentences reduced if they endured physical, psychological, or sexual abuse that may have influenced their criminal behavior.
Invoking the statute before trial allows defendants to seek a lower sentence, and resentencing and early release are options for individuals serving eight years or more in prison.
The validity of a mandatory minimum sentence, including a period of post-release supervision, is one of the issues that the Court of Appeals will consider in a DVSJA case this year. Another case will determine whether the defendant was eligible for a new sentencing hearing. Third, the state is appealing a reduction of sentence by an appellate court.
Survivors Justice Project director Kate Mogulescu stated that the upcoming cases present a chance for the Court of Appeals to “put some guardrails” on lower courts unwilling to consider applications. Mogulescu argues that this will demonstrate to the courts that they are capable of considering factors beyond the specifics of a case, such as how a person’s choices were impacted by the abuse they endured.
Since 2019, organizations dedicated to women’s justice, public defense groups, the Survivors Justice Project, the Legal Aid Society, and significant law firms have collaborated to submit resentencing applications for those who meet the legal requirements. Juries and attorneys have frequently been forced to reevaluate offenses by means of these applications, which were selected from a pool of approximately 500.
Hi there, Liz L.
According to defense attorneys and advocates, the district attorneys’ offices in the five boroughs of New York City and the neighboring counties have been great allies. Several of these offices even have units that pursue resentencing for qualifying cases.
Catherine Christian, a partner at Liston Abramson and a former Manhattan district attorney who served for over 30 years, speculated that certain upstate offices might lack trauma-informed training or adequate resources.
Portlock referenced the “Liz L.” case, in which a prosecutor from upstate New York fought against resentencing a defendant entitled to it because doing so would violate a plea deal. After she took her case to an Albany intermediate appellate court, they cut her sentence in half.
Not all areas upstate are affected by this. An employee of the office of Sandra Doorley, the Republican district attorney for Monroe County, divides her time between the Rochester Family Justice Center and the screening of potential law-enrollee cases. In the past, the head of the domestic violence unit was responsible for screening all cases in the county.
According to Doorley, her office’s main challenge is the lack of sufficient defense information to make an informed determination regarding the Act’s applicability.
The defense attorneys are usually too preoccupied with ongoing cases to worry about what happens after sentencing. So that may be why we see more coming from pro bono departments in more prominent firms that have time to dig deep than a public defender’s office or legal aid up here,” she said.
Progress Being Made
Some change has already been noticed, according to advocates and attorneys.
According to Gibson Dunn associate Brian Yeh, the Liz L. case marked the first time an appellate had directly modified a sentence under the law instead of sending it back to the lower court. It was “a welcome step” that saved Liz L. “lots of time and stress going back into court to have another hearing,” Yeh said. He and Portlock were among the attorneys working on the case.
In October, the Albany appellate court lowered the sentence of “Ava OO,” a woman with no prior criminal record who was sentenced to five years in prison and another five years of post-release supervision for robbery. Despite her legal requests, the lower court denied her appeal for a new sentencing.
The appellate court ruled Ava OO should have been granted compassionate sentencing and reduced her prison time to three-and-a-half years since her partner had subjected her to “substantial” abuse. The ruling cited the case of Liz L. and similar appellate decisions.
According to Yeh, the Albany court is producing some solid cases. “It’s an encouraging sign that judges are recognizing the effect domestic violence has on the survivor and understanding how that might have contributed to the offense they committed.”