NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4314C
SPONSOR: Aubry (MS) TITLE OF BILL: An act to amend the penal law and the criminal proce-
dure law, in relation to sentencing and resentencing in domestic
violence cases
PURPOSE:
To expand upon the existing provisions of alternative sentencing for
domestic violence cases; second, to allow judges the opportunity to
resentence Currently incarcerated persons for offenses in which certain
domestic violence criteria was a significant element of the offense.
SUMMARY OF PROVISIONS:
Section 1 of the bill amends § 60.12 of the penal law and adds new
subparagraphs 4 and 5 to specify which offenses may be considered under
the alternative indeterminate sentence of imprisonment for domestic
violence cases.
Section 2 of the bill amends § 70.45 of the penal law to permit determi-
nate sentencing for persons sentenced pursuant to § 60.12(5).
Section 3 of the bill adds a new § 440.47 to the criminal procedure law
to allow currently incarcerated persons to apply for resentencing pursu-
ant to 6 60,12 of the penal law.
Section 4 of the bill amends 6 450.90 of the criminal procedure law to
grant leave for appeal.
Section 5 of the bill provides that these amendments would take effect
120 days after it shall have become law.
JUSTIFICATION:
Domestic violence and women's incarceration are inextricably linked:
nine of 10 incarcerated women have experienced severe physical or sexual
violence in their lifetimes, eight of 10 experienced serious physical or
sexual violence during childhood; 75% suffered severe physical violence
by an intimate partner during adulthood; and 37% were raped before their
incarceration. Ninety-three percent of women convicted of killing an
intimate partner were abused by an intimate partner in the past.
Over the past 30 years, domestic violence has been increasingly recog-
nized as a national epidemic. Unfortunately, the significant advances
made by the anti-violence movement have stopped short of reforming the
unjust ways in which the criminal justice system responds to and
punishes domestic violence survivors who act to protect themselves from
an abuser's violence.
All too often, when a survivor defends herself and her children, our
criminal justice system responds with harsh punishment instead of with
compassion and assistance. Much of this punishment is a result of our
state's current sentencing structure which does not allow judges
discretion to fully consider the impact of domestic violence when deter-
mining sentence lengths. This leads to long, unfair prison sentences for
many survivors.
The Domestic Violence Survivors Justice Act would address this problem
for both male and female survivors of domestic violence by: (1) allowing
judges to sentence survivors to alternative sentences of imprisonment
including determinate sentences and, in some cases, community-based
alternative-to-incarceration program and (2) providing survivors
currently in prison the opportunity to apply for resentencing, granting
much-deserved relief for incarcerated individuals who pose no threat to
public safety.
The Act contains protections to ensure appropriate use of this
discretion - a judge can only grant an alternative sentence to a defend-
ant if s/he finds that: (1) the defendant was, at the time of the
offense, a victim of domestic violence subjected to substantial phys-
ical, sexual or psychological abuse inflicted by a member of the "same
family or household" as the defendant as that term is defined in subdi-
vision one of section 530.11 of the criminal procedure law; (2) the
abuse was a "significant contributing factor" to the defendant's partic-
ipation in the crime; and, (3) a sentence under current law would be
"unduly harsh."
The bill requires a judge to apply the same test when determining resen-
tencing eligibility for an incarcerated survivor who submits a resen-
tencing application to the court. In order to be considered for eligi-
bility, an incarcerated survivor is also required to include evidence
corroborating the claim she was, at the time of the offense, a victim of
domestic violence.
The Act would address shortcomings in New York's current domestic
violence sentencing exception, enacted-as part of the state's 1995
Sentencing Reform Act; commonly known as Jenna's Law. This exception-al-
lows judges to give survivors indeterminate sentences. At the time,
state officials thought this exception would lead to less punitive
sentencing for survivors - unfortunately, it did not. In 2007, only one
person had been sentenced under this exception. He received 6 to 12
years (longer than the minimum term allowed for individuals not
sentenced under this provision) and was denied parole twice. In 2009,
not a single person was incarcerated under the exception.
The New York State Sentencing Commission, established in 2007, noted
that this law should be replaced "with a comparable ameliorative
provision that would allow for the imposition of less harsh, determinate
sentences in such cases." The Domestic Violence Survivors justice Act
would do just that.
Eligibility for alternative indeterminate sentences of imprisonment,
determinate sentences of imprisonment and alternatives to incarceration
for women survivors is particularly appropriate as they most often have
no prior criminal records, no history of violence and extremely low
recidivism rates: of the 38 women convicted of murder and released
between 1985 and 2003, not a single one returned to prison for a new
crime within a 36-month period of release - a 0% recidivism rate.
Community-based alternative programs are far more effective than prison
in allowing survivors to rebuild relationships with their families,
recover from abuse, and take responsibility while positively participat-
ing in their communities. Allowing mothers to live in the community
while serving sentences also permits them to maintain ties to children
and lessen the trauma of separation - thereby increasing the likelihood
that children will receive the support they need to become healthy,
productive adults.
In addition, New York can save substantial costs by sentencing DV survi-
vors to lower sentences and alternative programs. It costs approximately
$43,000 per year to incarcerate a person in a New York State prison,
while the annual cost per participant of an alternative to incarceration
program in New York City is only $11,000. Alternative programs save
taxpayers tens of thousands of dollars per person each year while help-
ing to build healthy and safe individuals and communities.
Domestic and international human rights standards uphold the right of
women - and all people - to live free from violence. Our government has
recognized its responsibility to preserve this right and provide support
for DV survivors. This responsibility does not end when a survivor
becomes involved in the criminal justice system because of the abuse she
suffers - in part because the very lack of adequate protection, inter-
vention and support is what often leads to this involvement in the first
place. with no compromise to public safety, the DV Survivors Justice Act
will help New York address the years of injustice faced by survivors
whose lives have been shattered by domestic abuse and decrease the like-
lihood of survivors being victimized by the very system that should help
protect them.
PRIOR LEGISLATIVE HISTORY:
A.7874-A amended and recommitted to codes in 2011; referred to codes in
2012 and 2013.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
Given that this legislation may result in: (1) alternative sentences and
non-incarcerative sentences for at least some domestic violence survi-
vor-defendants and (2) resentencing and conditional release for at least
some currently incarcerated survivors, it is very likely that this bill
will save the state funds.
EFFECTIVE DATE:
This act shall take effect on the one hundred and twentieth day after it
shall have become law.
