A progressive new bill in New York would give judges greater discretion when answering that question.
Under the legislation, judges could consider the role of domestic abuse in a case during sentencing, and bypass mandatory minimums set by the state. They could opt to give survivors shorter sentences, or let them avoid prison altogether by sentencing them to alternative programs.
“This law unties judges’ hands so they can consider the impact of abuse at sentencing,” said Gail Smith, director of the Women in Prison Project at the Correctional Association of New York. “Women who have acted to save their lives should not be punished by long prison sentences.”
To be eligible for alternative sentencing, the survivor needs to pass a three-part test. She needs to be a victim of domestic violence at the time of the offense; the abuse has to be a “significant contributing factor” in the crime; and the judge has to find that sentencing the survivor under the current sentencing guidelines would be “unduly harsh.”
Women who have acted to save their lives should not be punished by long prison sentences.
Eligible domestic violence survivors who are currently incarcerated could apply for resentencing, but they’d have to provide corroborating evidence, such as hospital records or police reports, to back up their claim that they were being abused at the time of the crime. For women who have been incarcerated for a number of years, gathering acceptable documentation may be difficult.
Survivors who were forced into criminal activity by abusive partners could also be eligible for alternative sentencing under the legislation. Advocates stress that abusers often use violence to coerce survivors into committing crimes like robbery or drug trafficking.
A lot of survivors are forced by their abusers to make really hard decisions, like whether or not they want to participate in their abusers’ criminal activity or keep themselves and their children safe,” said Saima Anjam, director of public policy at the New York State Coalition Against Domestic Violence. “It can literally be a life or death decision.”
Supporters of alternative-to-incarceration programs say they are not only more humane than prison, but also a lot cheaper.
It costs more than $55,000 a year to incarcerate an adult in New York. In comparison, a person can receive services at an alternative-to-incarceration program for just $11,000 a year, according to a 2010 report by a coalition of service organizations.
Anjam said that domestic violence survivors are ideal candidates for alternative sentencing, since they often have no prior criminal records and pose a low threat to public safety.
“They need a little bit of compassion and assistance,” she said.
It’s impossible to know exactly how many domestic violence survivors are incarcerated for crimes directly related to their abuse, as no government agency gathers this data.
“I’ve been trying to track down these numbers for over 20 years,” said Sue Osthoff, director of the National Clearinghouse for the Defense of Battered Women. “It’s really hard to track this. Who gets to decide who is a victim of battering? Or if they were acting to defend themselves? That information is just not kept.”
However, there is some state-level data. The New York State Department of Corrections and Community Supervision, for example, found that 67 percent of women sent to prison in 2005 for killing someone close to them were abused by that person.
Think about how different this would be if we spent the money to help these women escape abuse instead of locking them up.
If you talk to women in any prison, you will find a huge percentage of them are there for crimes related to their abuse,” said Rene Renick, vice president of programs and emerging issues at National Network To End Domestic Violence. “Think about how different this would be if we spent the money to help these women escape abuse instead of locking them up.”
In an interview with HuffPost, Joan Meier, professor of clinical law at George Washington University Law School, called New York’s proposed legislation “cutting edge” and said she did not know of similar bills.
Problems can still arise when judges exercise discretion poorly, she cautioned, especially if they don’t understand how domestic violence and trauma affect victims and their behaviors.
“But this is still better than nothing, because it does invite judges to weigh the fairness of the sentence, and to consider the circumstances more broadly,” Meier added. “Hopefully, reasonable and thoughtful judges will make use of it.”
Williams-Julien believes other women deserve to have the opportunity she did — a second chance for a life free of violence.
“Power and control is the core of domestic violence,” she said. “Prisons are governed by that. If your goal is to rehabilitate and rebuild, incarceration is not the answer.”
The whole point of the DVSJA, she said, is to avoid re-victimizing the victim.
“It’s not about, ‘you committed a crime, you need to be punished,’” Williams-Julien said. “He or she has already been punished. What they need to be is taken into the right environment to get them the help they need to begin to rebuild as a person.”