Histories of abuse are commonly reported among incarcerated people, particularly women, and when those experiences influence their involvement in crime, they are typically not accounted for by courts. A report released this week by The Sentencing Project and the Survivors Justice Project offers guidance to states on creating a more trauma-informed approach to sentencing practices for survivors of intimate partner violence, family abuse, and trafficking.
“Despite the criminal legal system’s purported goal of securing justice for crime victims, survivors of domestic violence and trafficking are instead often arrested, prosecuted, and imprisoned,” said Liz Komar, Sentencing Reform Counsel at The Sentencing Project, and a co-author of Sentencing Reform for Criminalized Survivors. “Confronting the many drivers of criminalization is essential for justice. A fair and proportional criminal legal system should account for the multitude of factors that led to an offense, including abuse.”
Today’s report highlights lessons learned from passage of New York’s 2019 Domestic Violence Survivors Justice Act and offers model legislation for other states to follow. New York’s law created opportunities for survivors to receive a shorter sentence at their original sentencing hearing and, for those already incarcerated, provided an opportunity for resentencing. Thus far, 35 women, 4 men and 1 non-binary person, have received retroactive sentencing relief under the law; 80% are people of color.
A growing number of states are considering similar bills. For example, the bipartisan Oklahoma Domestic Violence Survivorship Justice Act, which would allow courts to have more discretion when sentencing survivors for crimes where domestic abuse played a significant factor and provide opportunities for survivors to be resentenced, is headed for a state senate vote later this month after passing unanimously in the Oklahoma House of Representatives. According to a 2014 study of incarcerated Oklahoma mothers, over 65% of the women reported abuse from their intimate partner in the year prior to their incarceration. Efforts are also underway in Louisiana, Oregon and Minnesota, as well as other states.
According to the report, domestic abuse and human trafficking can lead survivors into the criminal legal system in several ways. Victimization can result in loss of housing, income, savings, and other instability – all of which push individuals into committing crimes to meet basic survival needs. Survivors may also be criminalized for defending themselves or others, or be coerced into crime. Coping with the effects of trauma can also lead to substance abuse and arrest. Once in the criminal legal system, survivors have few opportunities for relief.
“The need for sentencing reform for survivors is urgent, and part of a broader decarceration movement,” said Kate Mogulescu, Project Director for the Survivors Justice Project, and a co-author of the Criminalized Survivors report. “While most women in prison report a history of abuse, survivor sentencing reform, like that being modeled here in New York, would benefit incarcerated abuse survivors of all genders across the country who are serving or facing extreme felony sentences.”
The report also highlights the experiences of individuals who have applied for DVSJA relief in New York, as well as individuals who would benefit from similar laws being enacted in their respective states. For example, April Wilkens is currently serving a life sentence in Oklahoma for killing her abusive former partner. On the night that would lead to her incarceration, Wilkens’s former partner beat and sexually assaulted her for hours until she was able to take his gun and fire multiple times, killing him. If passed, the Oklahoma Domestic Violence Survivorship Justice Act would provide her with an opportunity to receive a lower sentence.
Along with Komar and Mogulescu, Clarissa Gonzalez, J.D., Legal Fellow for the Survivors Justice Project; Elizabeth Isaacs, J.D., Teaching & Advocacy Fellow for the Survivors Justice Project; and Monica Szlekovics, Project Coordinator for the Survivors Justice Project, co-authored the Sentencing Reform for Criminalized Survivors report – with support from the Survivors Justice Project Advisory Group.
The full report is available online.
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