In 2019, Governor Andrew Cuomo signed the Domestic Violence Survivors Justice Act, a highly anticipated law that allowed for more lenient sentencing of survivors of domestic violence who have been convicted of a crime. But nearly two years later, obstacles to the law’s implementation have left public defenders and criminal justice reform advocates concerned about how many survivors it will benefit.
The criminal legal system “goes to great lengths to preserve the status quo,” said Kate Mogulescu, the director of the Criminal Defense & Advocacy Clinic at Brooklyn Law School, who has represented survivors seeking relief under the law. “Anytime you are trying to infuse an updated way of thinking or a different way of understanding people’s experience, there is a lot of resistance.”
Over 2,000 people are currently incarcerated in New York women’s prisons. Strikingly, nine out of ten of them report being survivors of abuse. But according to the Survivors Justice Project, a collective of lawyers, advocates, and domestic violence survivors, data from the fall—the latest available—shows that fewer than ten people who were serving time when the law took effect have been resentenced under the law.
Advocates and defense attorneys say that many judges’ outdated understanding of domestic violence is posing significant obstacles to survivor-defendants seeking relief under the law.
“A lot of judges don’t really think it’s that important and would just not give it that much weight,” said Kathy Manley, an attorney who represented a survivor seeking to be resentenced under the law. “Since there’s not a lot of case law, they’re just kind of going to go with what they feel like doing.”
“It’s hard to shake the binary mentality of ‘defendants versus victims,’” said Kate Skolnick, co-chair of the DVSJA Statewide Defender Task Force, which tracks the law’s implementation. “A lot of our clients fall into both categories.”
In one recent case, a woman facing life in prison for killing her abusive husband was deemed ineligible for a lesser sentence. Despite documentation corroborating the survivor’s claims of the physical and sexual abuse she had suffered at the hands of the victim, Dutchess County Judge Edward McLoughlin ruled that Nicole Addimando did not qualify for a more lenient sentence. In February 2020, Addimando was sentenced to a minimum of 19 years in state prison. She is currently appealing her sentence.
“It’s shocking that the court didn’t apply it [the DVSJA], because if ever there was a case in which domestic violence was a significant contributing factor to the commission of the crime, it was Nicole Addimando’s case,” said Dorchen Leidholdt, director of the Center for Battered Women’s Legal Services at the Sanctuary for Families.
In September, fourteen state legislators filed an amicus brief in favor of Addimando’s appeal. “If the trial court’s decision not to apply the DVSJA is upheld, the DVSJA will be rendered effectively meaningless,” they wrote.
“A Needless Hurdle”
During the drafting of the legislation in 2019, advocates for the DVSJA received pushback from prosecutors who argued that the law could overwhelm the courts with requests for resentencing. To address these fears and ensure its passage, the law was amended to include a multi-step application process—an unprecedented design which Alan Rosenthal, the other co-chair of the DVSJA Statewide Defender Task Force, said is now a major obstacle to its widespread implementation.
“It was designed in this unique way to try and assure prosecutors that it was a more careful and exacting process,” Rosenthal said. “In the final analysis, it never got their buy-in anyway. It’s a good example of how sometimes you end up in legislation negotiating against yourself.”
The District Attorney Association of New York (DAASNY), a statewide association of prosecutors, had in previous years “strongly opposed” the DVSJA, but it is unclear whether it took a position on the legislation in 2019.
DAASNY president and Monroe County DA Sandra Doorley told New York Focus that she supports the DVSJA. “As prosecutors, we seek the truth, and to find the truth it is often necessary to look beyond the crime… I believe that the criteria laid out by the DVSJA successfully weighs the abuse suffered by the defendant with the seriousness of the crime,” she said.
Incarcerated people seeking resentencing under the DVSJA must first file a motion requesting permission to apply. Only if the motion is granted are they allowed to provide evidence to the court showing that domestic violence was a mitigating circumstance in their crime.
“In no other motions or requests to the court that anybody would make do you have to get permission from the judge to actually file a motion. If you don’t read it carefully, you get confused,” said Rosenthal. “Cases were getting thrown out.”
Those who receive permission must then submit two pieces of evidence proving that the abuse they survived was a “significant contributing factor” to their crime. One of the two pieces must be official documentation such as medical records, a police report, or a domestic violence shelter intake.
“The requirement that there must be two documents filed with a resentencing application that corroborate the domestic violence creates a needless hurdle,” Rosenthal said, adding that “the two document requirement was, again, an attempt to placate prosecutors.”
Supplying this kind of evidence can pose severe challenges. Many survivors don’t have official documentation of domestic violence because they never sought institutional help. “So much of this goes undocumented. It’s exactly what makes domestic violence so difficult to deal with,” Rosenthal said.
Even when official documentation does exist, it can be prohibitively difficult to find. Incarcerated people do not have access to their belongings, and many don’t have loved ones on the outside willing to track down the documentation for them. “Many abusers use isolation tactics, so a lot of the time, survivors’ relationships from friends and family have been cut off or are dwindling away,” said Lauren Gorlick, community relations coordinator for Haven House, a Buffalo area non-profit assisting domestic violence survivors.
For Kate Skolnick’s team, prohibitively high evidence standards mean many survivors of assault are screened for eligibility but cannot move forward.
“There have definitely been some cases of people we’ve screened, we’ve talked to them, they meet all the eligibility criteria. They do allege some abuse, but there is no proof that we can actually come up with,” Skolnick said. “I think it does create an additional hurdle for people who might have legitimate claims but just can’t come up with the evidence they need.”
“A judge should never say a woman could have left”
According to the Survivors Justice Project, at least 187 women have been approved by judges to apply for resentencing. It’s unclear how many of these have been able to submit the required two pieces of evidence. But even if an applicant is able to pass these first steps, the final outcome of a case is far from determined.
An applicant must then convince the judge that they have experienced substantial abuse that was a significant contributing factor to their crime, and that a sentence ignoring this would be unduly harsh. Because the judge has complete discretion over whether a case meets these requirements, the outcome of each case is highly dependent on the judge’s understanding of the psychological impact that trauma can have on survivors’ behavior.
“There are a lot of judges that see psychology as total junk science,” forensic psychologist Jacqueline Bashkoff, who testified at a DVSJA hearing in September, told New York Focus.
Insha Rahman, a vice president at the Vera Institute of Justice, a nonprofit research and policy group that focuses on criminal justice reform, said that the greatest obstacle to the DVSJA’s implementation is the personal discretion the law gives judges. In Addimando’s case, despite documentation of physical and sexual abuse and expert psychological testimony corroborating her claims, the judge ruled that Addimando did not qualify for a more lenient sentence because she had other non-lethal options at her disposal.
“It is clear that the defendant had a tremendous amount of advice, assistance, support, and opportunities to escape her alleged abusive situation,” McLoughlin wrote in his decision.
Reached over the phone, a clerk for McLoughlin said that judges are not permitted to comment on pending cases.
Senator Roxanne Persaud, the law’s primary sponsor in the Senate, told New York Focus that she fought for the legislation to combat “the misconception people have, that people in domestic violence situations can just ‘get up and go.’”
“A judge should never say a woman could have left,” Persaud said.
A recent case in Manhattan was also denied by the judge, the defense attorney in the case, who asked not to be named because it is currently being appealed, told New York Focus. The defendant had survived a series of abusive relationships over the last 30 years. The victim, who was her husband, “was definitely psychologically abusive, but maybe less physically abusive than some of the others,” the attorney said.
“Clearly, her ability to withstand some of the stressors that [her husband] was imposing was informed by everything that had happened in the past,” the attorney said. “The judge looked at only her last relationship and said, ‘Well, since it didn’t rise to the level of significant enough abuse, it couldn’t have fallen within the statute,’ and pretty much ignored the decades of prior abuse that she’d experienced.”
Is educating judges the answer?
Persaud told New York Focus that successful implementation of the DVSJA will require a concerted effort to educate judges and lawyers, so that “it won’t be left up to an individual to decide what the law meant.”
Like New York’s Drug Law Reform Act of 2004, which reduced mandatory minimums for certain drug offenses and allowed incarcerated people sentenced under the previous schemes to apply for resentencing, the DVSJA seeks to revamp legislation now seen as archaic, on the basis of new insights in neuroscience and sociology. But after the drug reform legislation passed, judges were trained on its application; few such efforts have yet been undertaken for the DVSJA.
A spokesperson for the state Office of Court Administration said the DVSJA was discussed in training sessions for judges and court staff in 2019. But advocates say that training was minimal. Joan Gerhardt, policy director at the New York State Coalition Against Domestic Violence, told New York Focus that the failure to allocate significant funding to educate judges and attorneys on the new law and the psychological impact of domestic violence has been a key obstacle to implementing the law.
In the absence of more extensive state-funded education initiatives, advocates and lawyers at groups like Sanctuary for Families and the Survivors Justice Project are conducting outreach. The Women and Justice Project organized an online class about the DVSJA.
To supplement these efforts, defense attorneys may use expert witnesses to better inform the judge and district attorney about how the psychological impacts of trauma pertain to a particular case.
“One of the most effective tools that we have is to employ a forensic psychiatrist or psychologist to write an expert opinion that helps explain to prosecutors and judges the effects of trauma and the experiences of the individual,” said Ross Kramer, director of the Incarcerated Gender Violence Survivor Initiative at Sanctuary for Families.
But relying on expert testimony from forensic psychologists to fill in those gaps can be impractical. Forensic evaluations are expensive, and there are a limited number of people who conduct them. And advocates say that expert testimony over the course of a trial can’t replace uniform programs training judges on the dynamics of domestic violence.
“When two friends asked me to get involved in DVSJA, and I started to try and teach myself what I thought I needed to know about domestic violence and trauma, it was a good year project,” Rosenthal said. “There’s an awful lot there, so it’s hard to educate a judge in the course of a few day trial.”
The statute does not require expert evidence to prove domestic violence, Skolnick stressed. She and other attorneys on the task force worry that calling expert witnesses in DVSJA hearings poses financial barriers and could set a dangerous precedent.
“The legislature didn’t contemplate such a high burden of proof,” Skolnick said. “We’re starting to see it be interpreted in a way that is overly limiting beyond what was contemplated when the legislature passed the law.”
DVSJA In The Time Of Coronavirus
Maresa Chapman filed her motion to apply for resentencing on August 12, 2019, the first day the courts began accepting DVSJA resentencing motions.
Her motion was approved, and she was appointed an attorney just weeks later. But her final hearing, pushed back months by the pandemic, was held via Skype on September 25, 2020. She was released from Albion Correctional Facility on October 13, fifteen months after her initial motion. The drawn-out resentencing process was humiliating, Chapman said.
“It was just so embarrassing to be villainized, all over again,” she told New York Focus. “The way that the ADA made a spectacle of me right there in that courtroom, even bringing up my first felony, which had absolutely nothing to do with what happened leading up to the crime. It was all about dirtying my character.”
Chapman applied for resentencing after hearing about the law by word of mouth. But many incarcerated survivors aren’t aware of the law, public defenders and advocates said—and the limitations on visitations during the pandemic have made it difficult to inform them.
Attorneys who usually visit prisons to meet with inmates about new legal options are mostly limited to letter and legal calls, which creates challenges when discussing an issue as sensitive as domestic violence.
“It’s very difficult to talk to somebody about domestic violence and how it affected their lives. So people could be a victim of domestic violence and not even recognize it, or be able to talk about it. Now think about trying to do it by letter—nearly impossible,” Rosenthal said.
“Alive, but still not free”
One key part of the DVSJA whose impact will take longer to assess is its alternative sentencing structure, which gives judges the ability to impose more lenient sentences for newly convicted individuals when domestic violence is proven to be a mitigating circumstance. While resentencing provisions are limited because they only apply to those who were already incarcerated when the DVSJA went into effect, alternative sentencing has the potential to benefit future survivor-defendants for years to come, according to attorneys like Rosenthal.
But attorneys and advocates said that there have been very few successful attempts to use the law’s alternative sentencing structure so far, and that unsuccessful attempts, like in Nicole Addimando’s case, raise questions about how much of an impact this part of the law will have.
In a statement to the court during her sentencing hearing, Addimando spoke out about the ongoing barriers to justice faced by survivor-defendants.
“They so often end up dead or where I’m standing — alive, but still not free.”