NY High Court to Weigh Domestic Violence Victim Sentencing Cases

New York’s highest court is slated to hear at least three cases this year centered on a state law that allows courts to consider the impact of domestic violence when handing out sentences for criminal offenses.

The cases will give the Court of Appeals the chance to provide guidance on how the lower courts handle discussions around domestic violence and crimes committed as a result of the abuse.

Since the Domestic Violence Survivors Justice Act was enacted in 2019, lawyers and criminal justice advocates have worked together to reduce sentences for survivors of domestic violence who have committed crimes linked to the abuse.

As of December, 68 people have been resentenced after filing applications under the law. Nearly 90% of those resentenced are women and almost 70% are people of color, according to Survivors Justice Project. That adds up to more than 175 years of incarceration under their original sentence, including 16 potential life sentences. If each person had been sentenced under the law at their original trial, it would have avoided over 507 years of incarceration, the group says.

However, nearly six years after the law took effect, advocates say judges, prosecutors, and defense attorneys still need to be better informed of how to implement the law.

“There are so many folks potentially eligible, or attorneys whose clients may be eligible,” said Karin Portlock, a partner at Gibson Dunn. “People may not have information they need to evaluate their eligibility and move an application forward.”

Novel Legal Approach

The law, which came to fruition after a decade of lobbying, offers a path to lower sentences for domestic violence survivors—both women and men—who suffered sexual, psychological, or physical abuse that may have contributed to their crime.

Defendants can invoke the law to seek a reduced sentence during trial, while those who are currently incarcerated and serving at least eight years can apply for resentencing and early release.

One of the DVSJA cases the Court of Appeals will hear this year will address whether a term of post-release supervision is allowed when someone is sentenced under the law, while another case will address whether the defendant was entitled to resentencing. In the third, the state is appealing an appellate court’s sentence reduction.

The upcoming cases give the Court of Appeals an opportunity to “put some guardrails” on lower courts that have been resistant to considering applications, and show the courts that they can look beyond the facts of the case to consider how a person’s choices were affected by the abuse they experienced, Survivors Justice Project director Kate Mogulescu said.

Since 2019, the Survivors Justice Project, Legal Aid Society, women’s justice organizations, public defender groups, and large law firms have worked together to file applications on behalf of people who are eligible for resentencing under the law. Those applications, narrowed down from an initial list of nearly 500, have often pushed judges and lawyers to reconsider the crimes through a new lens.

Liz L.

Defense attorneys and advocates say district attorney offices in the five boroughs of New York City and surrounding counties have been excellent partners, and many have units dedicated to pursuing resentencing of eligible cases.

But some offices upstate may have fewer resources or may not have as much trauma-informed training, said Catherine Christian, a partner at Liston Abramson who spent more than 30 years in the Manhattan District Attorney’s office.

Portlock pointed to the case of “Liz L.” in which an upstate prosecutor argued against resentencing for the defendant, despite her being eligible, because the prosecutor didn’t want the law to upend a plea agreement. Eventually, her sentence was reduced by half when she appealed to an intermediate appellate court in Albany.

This isn’t the case everywhere upstate. Monroe County District Attorney Sandra Doorley’s (R) office has a representative who splits time between working in the Rochester Family Justice Center and screening cases that could be eligible under the law. Previously, all case screening in the county was done by the chief of the domestic violence unit.

Doorley said her office’s biggest obstacle is not having enough information from the defense to make an educated decision to see if the statute applies.

“A lot of the time the defense bar is so busy; they’re working on current cases, not post-sentencing matters. So that may be why we see more coming from pro bono departments in bigger firms that have time to dig deep than a public defender’s office or legal aid up here,” she said.

Making Headway

Advocates and attorneys say they are already seeing some progress.

The Liz L. case marked the first time an appellate had directly modified a sentence under the law instead of sending it back to the lower court, according to Gibson Dunn associate Brian Yeh. It was “a welcome step” that saved Liz L. “lots of time and stress going back into court to have another hearing,” Yeh said. He and Portlock were among the lawyers on the case.

In October, the Albany appellate court lowered the sentence of “Ava OO,” a woman with no prior criminal record who was sentenced to five years in prison and another five years of post-release supervision for robbery. She requested resentencing under the law but was unsuccessful in the lower court.

The appellate court ruled Ava OO should have been granted compassionate sentencing and reduced her prison time to three-and-a-half years, since her partner had subjected her to “substantial” abuse. The ruling cited the case of Liz L. and similar appellate decisions.

There are some good cases coming out of the Albany court, Yeh said. “It’s an encouraging sign that judges are recognizing the effect domestic violence has on the survivor and understanding how that might have contributed to the offense they committed.”