Decades-long efforts by anti-domestic violence advocates to highlight the role of trauma and abuse in the lives of incarcerated survivors have recently borne fruit in the form of new legislation. New York’s 2019 Domestic Violence Survivors Justice Act (DVSJA) passed reflects a growing awareness of the role domestic violence plays in offenses committed by many incarcerated survivors. However, since its passage, the effectiveness of the DVSJA has been hampered by slow and inconsistent implementation.
Many women have been incarcerated either for acts of self-defense against their abusers or for offenses committed in an effort to meet their needs for housing or financial security in the wake of violence. More than 80% of women detained in jails in the United States are also survivors of abuse. In New York, two-thirds of women incarcerated for killing someone close to them had been abused by that person, according to a 2007 report conducted by the Department of Correctional Services.
Across the country, state trial courts generally have not fully taken into account these histories of domestic violence during prosecution or sentencing. In New York, past legislation intended to more deeply consider the lives of survivor-defendants proved inadequate. For instance, the 1995 Jenna’s Law ended indeterminate sentencing for those convicted of first-time violent felony offenses, yet carved out exceptions for defendants who were victims of domestic violence. However, legal scholars and elected officials noted that the law was too narrowly defined and ultimately offered little relief for too few survivor-defendants. Advocates—many of whom were formerly incarcerated themselves—seek to shift public understanding to recognize the profound impact of trauma and abuse on survivor-defendants and are pushing policymakers to create compassionate legislation reflecting this connection.
The DVSJA builds on earlier legislation passed in other states that sought deeper consideration of the impact of domestic violence on survivors charged with violent offenses. In 2012, California passed Assembly Bill 1593, which requires parole boards to “give great weight” to evidence that the individual experienced intimate partner abuse at the time of their offense. Four years later, Illinois passed Public Act 099-0384, which directs judges to seriously consider during sentencing whether a defendant is a survivor of domestic violence and the role that abuse might have played in the offense. The Illinois law also allows incarcerated survivors to petition for resentencing if evidence of abuse was not presented at their trial.
DVSJA is designed to serve both survivors awaiting sentencing and those who are currently incarcerated. It allows for reduced or alternative sentencing (such as suspended sentences, community service, or various fines) in cases involving domestic violence. To be eligible, the defendant must have been experiencing domestic violence at the time of the offense and that violence must be considered a significant factor in the offense. Self-defense cases are eligible under the law, along with cases where an abuser coerced the defendant into harming someone else. DVSJA can also be applied retroactively, allowing some currently incarcerated survivors to petition for resentencing. Those hoping for resentencing must have been sentenced to at least eight years.
Formerly incarcerated women played a vital role in developing the DVSJA and ensuring it would reach survivors who have yet to be sentenced as well as those who are currently incarcerated. Advocates spent decades on legislation to address the needs of survivor-defendants, but were constantly shut down by the Republican-controlled New York Senate. Despite those setbacks, formerly incarcerated advocates trained themselves to effectively present their cause to the media. Several times a year they would also wake during the pre-dawn hours to travel to Albany and press their case with state legislators.
The legislation won wide support among lawmakers and advocacy groups, particularly those addressing the needs of incarcerated women. Supporters included Lt. Gov. Kathy Hochul, Sen. Roxanne J. Persaud, Assembly member Jeffrion L. Aubry, Sen. Brad Hoylman, the New York State Coalition against Domestic Violence, and the Coalition of Women Prisoners, among others. The only notable public opposition came from the New York District Attorneys Association, which argued that resentencing would come with a high cost to the public and that the legislation did not take into consideration crime victims’ concerns and rights.
The law could significantly benefit the lives of incarcerated domestic violence survivors. According to Sanctuary for Families, a nonprofit that adamantly advocated for the passage of the DVSJA, about 360 incarcerated survivors would be eligible for resentencing under the law. DVSJA would also affect individuals across the gender spectrum, with an estimated 365 women and 115 men being eligible for alternative sentencing per year.
Despite the legislation’s promise, critics have raised concerns around its slow implementation. The law allows for histories of abuse to be a mitigating factor in sentencing, but it does not require judges to consider it.
”In reality, the DVSJA offers only theoretical relief due to the lack of meaningful guidance with respect to judicial discretion,” wrote Miami-Dade assistant public defender Remy Bogna in the NYU Journal of Legislation and Public Policy.
Bogna cites the case of Nikki Addimando, a domestic violence survivor who shot and killed her abusive boyfriend in 2017. Addimando was convicted of second-degree murder and second-degree criminal possession of firearm and sentenced in February 2020 to 19 years to life after the judge denied her request for sentencing relief under DVSJA. While advocates and sponsors of the DVSJA say it was intended to address cases like Addimando’s, the law could not override the judge’s opinion that Addimando could have and should have escaped her relationship at any time. As of fall 2020, only two currently incarcerated survivors have had their sentences reduced as a result of DVSJA petitions.
For activists and advocates of legislation like the DVSJA, broadening public education and making direct appeals to prosecutors and judges about applying the law more frequently and fairly remains a core tenet of their work. Groups like Sanctuary for Families continue to identify defendants who are eligible for reduced sentencing under the law and are helping connect them with legal counsel. Similarly, other organizations like Legal Aid actively track and review eligible cases. However, for the legislation to affect any significant change for survivor-defendants and incarcerated survivors of abuse, what’s desperately needed is a greater awareness of the role abuse can play in violent offenses and deeper consideration of that impact in sentencing.