Avon Global Center
for Women and Justice
at Cornell Law School

&

The Women in Prison Project
of the Correctional Association
of New York

From Protection
to Punishment
Post-Conviction Barriers to Justice for
Domestic Violence Survivor-Defendants
in New York State

Avon Global Center
for Women and Justice

Correctional Association of New York

Avon Global Center for Women and Justice at Cornell Law School
The Avon Global Center for Women and Justice at Cornell Law School works with judges, legal
professionals, and governmental and non-governmental organizations to improve access to justice in an
effort to eliminate violence against women and girls. The Center’s gender justice initiatives include indepth practice-oriented projects, legal research support for judges, a searchable collection of online legal
resources, the annual Women & Justice conference, and other events. For more information, please visit:
www.womenandjustice.org.

Women in Prison Project of the Correctional Association of New York
The Correctional Association of New York (CA) is a non-profit criminal justice policy advocacy organization.
One of four projects at the CA, the Women in Prison Project works to stop the misuse of prison as a
response to the social problems that drive crime, to ensure that prison conditions for women are more
humane and just, to facilitate the involvement and leadership of currently and formerly incarcerated
women in efforts to reform policies that directly affect their lives, and to create a criminal justice system
that addresses women’s specific needs, protects women’s rights, and treats people and their families with
fairness, dignity, and respect. 
Under the CA’s legislative mandate, the Project has the unique authority to monitor conditions inside
correctional facilities that house women in New York State.  The Project also manages ReConnect, a semiannual leadership training program for women recently released from prison and jail, and coordinates
the Coalition for Women Prisoners, a statewide alliance of more than 1,600 individuals and over 100
organizations. For more information, please visit: www.correctionalassociation.org.
This report was made possible by the generous support from donors of the Women in Prison Project of
the Correctional Association of New York and the Avon Foundation for Women, which helps fund the Avon
Global Center for Women and Justice at Cornell Law School and the Women in Prison Project. This report
does not necessarily reflect the views of the Avon Foundation for Women, Avon Products, Inc., or individual
members of the Avon Global Center for Women and Justice’s Steering Committee.

Foreword

F

or the past six years, the Women in Prison Committee of the National Association of Women Judges
Women (New York chapter) has worked with the Correctional Association of New York on efforts to
improve the administration of criminal justice in New York State, specifically with respect to female prisoners.
With the establishment of the Avon Global Center for Women and Justice at Cornell Law School, my Women
in Prison Committee colleagues and I encouraged the Center, with its exemplary team of legal scholars in
the field of human rights, and the Correctional Association, with its extraordinary century and a half history
of inspecting and reporting on conditions in our state’s prisons, to undertake a joint project to study and
report on the barriers to justice for domestic violence survivors who become criminal defendants in New
York State. We felt that this research would make a critical contribution to our collective understanding of
the inextricable link between domestic violence and women’s incarceration in particular and to our ability to
better address the needs and rights of survivors in the criminal justice system.
The statistics are heart-wrenching: an estimated 75% of women in New York’s prisons have suffered severe
violence at the hands of an intimate partner during adulthood, and more than 9 out of 10 women convicted
of killing an intimate partner in New York State were abused by an intimate partner in the past. Efforts
to address the inequities in the system of criminal law for domestic violence survivor-defendants are vital
not only to ensure a more humane and just criminal justice system but also to enhance and propel global
efforts to advance justice and safety for women overall.
With its interviews of experts and survivors and extensive and comprehensive research, this report
illuminates the failure of our criminal justice system to respond humanely and compassionately to survivors
who become criminal defendants in New York State as a result of illegal acts substantially related to their
victimization at the hands of intimate partners, arising out of efforts to protect themselves from extreme
physical and mental abuse. The report also offers keen accounts of the challenges survivor-defendants
face after they are convicted.
As this report illustrates, these punishments represent not only failures of policy and practice but
also violations of survivor-defendants’ fundamental human rights. I am hopeful that this report will
invigorate and inform the efforts of advocates, policymakers, justice system actors, and others to address
the injustices identified. With continued dialogue, understanding, and innovation, and with action on
the recommendations for reform contained in this report, our State may look forward to a day when
survivors who act to protect themselves and their children from an abuser’s violence are given support
and protection instead of harsh punishment and incarceration—to a day when survivor-defendants are
treated with the fairness and dignity they deserve.

Justice Debra James
Supreme Court, Civil Branch, New York County
Chair, New York Women in Prison Committee,
National Association of Women Judges

Table of Contents
Introduction & Methodology	

2

Executive Summary	

3

Key Recommendations	

7

Chapter 1
Domestic Violence Survivor-Defendants: Sentencing	

10

	

A) Overly Restrictive Mandatory Minimum Sentencing Laws	

10

	

B) Inadequacies in Jenna’s Law Domestic Violence Exception	

11

	

C) Limited Access to Alternative-to-Incarceration Programs (ATIs)	

14

Chapter 2
Domestic Violence Survivor-Defendants: Parole, Clemency, & Release	

18

	

A) Barriers to Making Parole	

18

	

B) Restrictions on Merit Time & Work Release	

19

	

C) Obstacles to Receiving Clemency	

22

	

D) Negative Collateral Consequences of Conviction	

22

Chapter 3
Domestic Violence Survivor-Defendants & International Human Rights	

26

Conclusion	29
Full Recommendations	

30

Acknowledgements	32
Endnotes			

34

Introduction & Methodology

O

ver the past 30 years, domestic violence has been increasingly recognized as a national epidemic.
Although significant reforms are still needed, New York, along with many other states, has made
important advances in the fight against domestic abuse.1 These advances, however, have stopped short
of reforming the way the criminal justice system responds to survivors who engage in illegal acts to protect
themselves from an abuser. Too often, the system responds to such women solely as perpetrators – not
survivors – of violence, sending them to prison for long periods of time with little chance for early release.
In the cruelest of ironies, these punishments are inflicted on survivors by the very system that should have
helped protect them in the first place.
As efforts to eliminate domestic violence move forward, it is critical that the experiences of survivordefendants2 are heard and respected, and that the challenges they face are not overlooked. To that end,
this report aims to:
(1) Explain the link between domestic violence and incarceration, and the reality that survivordefendants are routinely sentenced to long prison terms;
(2) Identify some of the many barriers to justice for survivor-defendants convicted of crimes
directly related to the abuse they suffered; and
(3) Offer recommendations for reforms that policymakers and practitioners can institute to
begin to address the injustices confronting survivor-defendants.
This report is based on research that the Avon Global Center for Women and Justice at Cornell Law School,
the Women in Prison Project of the Correctional Association of New York, and students in the Cornell Law
School International Human Rights Clinic conducted in New York State. This team:
(1) Analyzed relevant statutes, case law, articles, reports, social science literature, and statistical
and qualitative data relating to domestic violence and survivor-defendants in New York State;
(2) Interviewed advocates, attorneys, scholars, a former parole board commissioner, and other
experts nationally and within New York;
(3) Conducted and analyzed interviews with domestic violence survivors who were convicted
of a crime either involving the use of force against their abusers or under threat of harm
from their abusers; and
(4) Collaborated with researchers at Cornell University who polled 800 randomly selected
New York State residents about their views on judicial discretion in sentencing survivordefendants as part of the 2010 Cornell University Empire State Survey.3

The names of all survivors featured in the report have been replaced with pseudonyms in order to protect
their privacy.

Page 2 	

From Protection to Punishment – Introduction & Methodology

Executive Summary

T

he link between domestic violence4 and
women’s incarceration is inextricable and
undeniable. A 1999 report by the federal
Bureau of Justice Statistics, the most recent
study assessing abuse history prevalence among
women in state prisons across the country,
found that 57% of women in state facilities had
experienced physical or sexual abuse prior to their
incarceration.5 These figures, however, are likely
underestimates given: (1) the current collective
experience of many organizations working with
currently and formerly incarcerated women6 and
(2) a 1999 study of women in New York’s Bedford
Hills Correctional Facility, which found that 94%
of the women studied had experienced physical
or sexual abuse in their lifetime, 82% had been
severely physically or sexually abused as children,
and 75% had suffered serious physical violence
by an intimate partner during adulthood.7
The crimes for which women are incarcerated
are often directly related to domestic abuse.
The New York State Department of Correctional
Services, for example, found that 67% of women
sent to prison in 2005 for killing someone close
to them were abused by the victim of their
crime.8 A 1996 study by the State Division of
Criminal Justice Services reported that 93% of
women convicted of killing intimate partners
had been physically and sexually abused by an
intimate partner during adulthood.9 That same
year, another study of women in New York City’s
main jail, Rikers Island, found that most of the
32 domestic violence survivors interviewed
reported engaging in illegal activity in response
to experiences of abuse, the threat of violence, or
coercion by a male partner.10
The failure to adequately address domestic
violence in the community creates conditions that
increase the likelihood of survivors taking actions
to cope with abuse and protect themselves and

From Protection to Punishment – Executive Summary	

94% experienced
physical or sexual abuse
in their lifetime

100%

82% severely
physically or sexually
abused as children
75% suffered serious
physical violence by an
intimate partner
during adulthood

Women in Bedford Hills Correctional Facility (1999 Study)

their children – actions for which they are later
criminally charged. These acts should not be
criminalized and prosecuted, yet, in most cases
they are.
Many survivor-defendants spend years, and
sometimes decades, behind prison walls. For
example, four of the survivors whose narratives
appear in this report served a combined total of
57 years: Kate, Victoria, and Desiree, all of whom
defended themselves from abusive partners after
years of devastating battering, served 17 years,
17 years, and 13 years, respectively, and Natalie,
who followed her long-time abuser’s orders to
participate in a robbery, served 10 years.  When
this happens, it represents a shameful miscarriage
of justice and a violation of survivor-defendants’
fundamental human rights.
Much has been identified and written regarding
the difficulties facing survivor-defendants during
arrest and trial. Survivors confront numerous
challenges during this phase of the criminal justice
process. For example, law enforcement officials
may use coercive tactics during investigation and
interrogation such as telling the survivor that her
abuser is still alive, promising to let the survivor go
if she recounts her story, and stopping the survivor
if she begins to discuss the abuse.11 Prosecutors
may decline to factor information about battering
Page 3

into their decisions about which crime to charge
or whether to dismiss the charges entirely, even
where there are clear indications that the alleged
crime was directly related to an ongoing pattern of
repeated abuse.12 Defense counsel may not have
the resources or training to adequately explore
their clients’ history of domestic abuse and, as a
result, may neglect to pose relevant questions to
potential jurors during voir dire and may overlook
or ineffectively present important potential
defenses.13 Judges may fail to take survivordefendants’ experience with battering and its
effects into account during jury instructions.14
Juries may interpret defendants’ claims of abuse
as merely an excuse and hand down more
punitive verdicts to survivor-defendants who
do not fit preconceived stereotypes such as the
misconception that “true” battered women are
passive and helpless.15
Much more about survivors’ experiences during
arrest and trial still needs to be investigated and
brought to light. This report, however, focuses on
the challenges and injustices survivor-defendants
face after they are convicted. It explores three
main areas:
[ Overly restrictive sentencing statutes and
limited access to alternative-to-incarceration
programs (ATIs).
Post-conviction sentencing statutes that establish
mandatory minimum sentences constrain judges’
ability to take survivor-defendants’ experiences
of abuse into account, particularly when survivors
have been convicted of violent crimes.16 Harsh
sentencing provisions persist notwithstanding an
exception carved out for survivor-defendants in
New York’s 1998 Sentencing Reform Act, known as
“Jenna’s Law.” This law requires judges to impose
determinate, or “flat” sentences (for example,
eight years) for all violent felony offenses except
the most serious (designated as “A-1 offenses”),
which still carry an indeterminate term of no less
than 15 years to life in prison.
The domestic violence exception permits judges
to grant indeterminate terms (i.e., sentences
that have a minimum and maximum and permit
Page 4	

a parole board appearance after completion of
the minimum term) to survivors convicted of
certain homicide or assault crimes against their
abusers.17 At the time, the Legislature reasoned
that retaining indeterminate sentencing and
parole for survivors would lead to less punitive
sentencing. Unfortunately, it did not.
The current exception fails to offer sufficiently
lower prison terms, does not permit nonincarcerative sentences, is too narrow, and
has been woefully underutilized. In 2007,
for example, the New York State Sentencing
Commission found that only one person was
incarcerated on an indeterminate sentence under
the exception; he was given 6 to 12 years – longer
than the minimum five-year term allowed under
the law’s general sentencing provisions – and was
denied parole twice.18 In 2009, the Commission
found that no individuals were incarcerated on
sentences under the exception.19
Because judges lack discretion when sentencing
individuals convicted of violent and certain nonviolent offenses, probation and ATI programs are
possible only if a prosecutor agrees to reduce
the charge to a lower-level offense. This is a rare
occurrence, especially without strong advocacy by
a defense attorney and the presence of an ATI that
is ready to accept the defendant into its program.20
For example, Katarina, a survivor whose narrative
is presented in this report, initially faced 15
years to life in prison for defending herself from
her husband after suffering long years of abuse.
She was ultimately sentenced to probation and
a community-based alternative program only
because that program worked with her attorney
to advocate for diversion and to persuade the DA
to prosecute her for a lower charge.
The underuse of ATIs is a missed opportunity.
Such programs lower recidivism rates, cost
less than incarceration, and are more effective
than prison in helping individuals heal from
abuse, reconnect with children, and become
productive community members.21 In addition,
survivors incarcerated for crimes directly related
to ongoing battering are particularly good
candidates for ATIs because the vast majority
From Protection to Punishment – Executive Summary

have no prior felony convictions and pose no risk
to public safety. For example, 80% of women sent
to New York’s prisons for a violent felony in 2009
had never before been convicted of a felony,
and of the 38 women convicted of murder and
released between 1985 and 2003, not a single
one returned to prison for a new commitment
within a 36-month follow-up period.22
Unfortunately, even for survivors who do receive
probation, the options for specialized programs
are few. Although New York maintains an array of
excellent ATIs,23 only one program in the state is
specifically designed to meet the needs of women
survivor-defendants, and it only serves survivors
in New York City.24
[ Restrictions on early release programs and
barriers to making parole and receiving
clemency.
In addition to misguided statutory restrictions
on diversion to community-based ATI programs,
incarcerated individuals convicted of violent
crimes, including survivor-defendants, face
statutory bars on earning “merit time” credits
while in prison25 and limitations on participating
in transitional work release programs.26 Parole
boards also often turn a blind eye to the impact of
domestic violence on an incarcerated survivor’s
crime and, particularly in cases involving violent
offenses, repeatedly deny release from prison
based on the “nature of the crime” rather than
the individual’s institutional record and actual
public safety risk.27 Finally, New York’s Governor,
who holds the sole authority to grant clemency,
has rarely used this power for convicted
survivors: only two of the 30 clemencies granted
to women in New York State from 1980 to 2008
were recorded as involving survivors of domestic
violence.28
[ Negative collateral consequences resulting
from felony convictions.
Beyond serving time, felony convictions also carry
a host of negative collateral consequences – such
as barriers to accessing living-wage employment,
affordable housing, educational opportunities,
and health insurance coverage, separation
From Protection to Punishment – Executive Summary	

from and potential loss of custody of children,
limitations on voting, and potential immigration
consequences – that damage survivors’ ability
to lead safe, healthy, and productive lives after
release. These additional penalties have a
particularly harmful impact on the communities
most heavily affected by incarceration – lowincome communities and communities of color.
By further marginalizing the individuals and
communities in greatest need of support and
opportunity, incarceration and its consequences
ultimately perpetuate the conditions in which
violence against women thrives.29
The challenges discussed in this summary are
particularly pronounced for survivors of color,
low-income survivors, and Lesbian, Gay, Bisexual,
Transgender, and Queer (LGBTQ) survivors who
face the intersecting oppressions of racism,
sexism, classism, and homophobia and, as a
result, confront additional discrimination and
stereotyping at all stages of the criminal justice
process.30 Immigrant survivors may also confront
anti-immigrant bias and penalties related to their
immigration status, including deportation.31
2,480
2,480

1,860
1,860

384
384
1973
1973 2010
2010
Women
Women
in in
NYS
NYS
Prisons
Prisons

288
288
1973
1973 2010
2010
Intimate
Intimate
Partner
Partner
Violence
Violence
Survivors
Survivors
in in
NYS
NYS
Women’s
Women’s
Prisons
Prisons
(estimated)
(estimated)

In addition, the injustices facing survivordefendants have only become more pronounced
with the dramatic increase in the incarcerated
populations of New York State and the United
States.32 From 1973 to 2010, the number of
women in New York State prisons swelled by
546%.33 The number of intimate partner violence
survivors in New York’s custody likely rose at a
Page 5

similar rate.34 This increase disproportionately
affects women of color and women from lowincome communities. Sixty-five percent of New
York’s incarcerated women, for example, are
African American or Latina,35 yet women of color
comprise less than 30% of the state’s female
population.36 Nationally, about 37% of women in
state prison had incomes of less than $600 per
month prior to arrest.37
In 1985, New York State policymakers and
women at Bedford Hills Correctional Facility held
a unique hearing at the prison about the impact
of domestic violence on women’s incarceration.
Twelve incarcerated survivors testified about
their shared histories of horrific intimate partner
violence and the failure of the criminal justice
system to recognize the impact of that violence
on the actions for which they were convicted.38
That, more than 25 years later, acts by survivordefendants to protect themselves from and cope
with abuse are still routinely prosecuted and
survivor-defendants are still routinely sent to
prison serves as a call to action.

Page 6 	

Women of Color
in NYS General Public: 30%

Women of Color
in NYS Prisons: 65%

The following are among the key reforms that
New York policymakers and practitioners should
make to begin to redress the injustices that often
occur in survivor-defendants’ cases. By increasing
opportunities for survivors to be diverted
from prison to alternative-to-incarceration
programs, serve shorter sentences, and apply for
resentencing and earlier release, these reforms
would also help the state reduce its costly and
misguided overreliance on incarceration without
compromising public safety.39

From Protection to Punishment – Executive Summary

Key Recommendations
To the New York State Legislature and Governor:
• Enact legislation, such as the pending Domestic Violence Survivors Justice Act, that would: (1) reform
sentencing laws and the Jenna’s Law domestic violence exception to permit judges to sentence
survivor-defendants to shorter, determinate terms and to community-based ATI programs in
cases where the abuse was a significant contributing factor to the crime; and (2) permit currently
incarcerated survivors to petition the courts to review their cases for resentencing.
• Allocate funds to expand and establish more ATI, court advocacy, and reentry programs specifically
designed to meet the needs of domestic violence survivor-defendants.
• Fully fund organizations that provide support services for survivors of violence and ensure that
funding streams permit organizations – who may currently receive funding that prohibits them from
working with survivors after arrest – to continue to work with and advocate for survivors regardless
of criminal justice involvement.
• Allow individuals incarcerated for violent crimes, including domestic violence survivors, to be eligible
for merit time (a discretionary program based on institutional record and programmatic achievement)
and temporary work release.
• Eliminate punitive collateral consequences of conviction and incarceration for all individuals, including
survivor-defendants.
To New York State District Attorneys:
• Carefully weigh evidence of domestic violence when deciding whether to prosecute a case or what
charges to bring against a survivor-defendant. For cases where there is clear indication that the
abuse was a significant contributing factor in the alleged crime, institute an office-wide policy for
prosecutors either to lower charges to permit defendants to serve time in community-based ATI
programs or to refrain from presenting the case to the grand jury for action.
To New York State Judges:
• Make use of the limited discretion afforded under New York law, including the domestic violence
exception to Jenna’s Law, to sentence survivor-defendants to lower sentences.
• Wherever a survivor-defendant meets the statutory guidelines for community diversion, sentence
her to probation and an alternative-to-incarceration program instead of prison.  
To the New York State Parole Board:
• Make release decisions – for all incarcerated individuals, including survivors – that do not rely solely
on the nature of the offense for which an individual is incarcerated and that give appropriate weight
to an individual’s institutional confinement record and actual public safety risk.

From Protection to Punishment – Key Recommendations	

Page 7

Kate
“I was a victim before I was a defendant,” Kate explains. It started when Kate was seven and her stepfather
began to sexually abuse her. The abuse continued until she was 10.
At 20, Kate began to date Damien. The first time Damien physically abused Kate was when she told him
she could not accept his marriage proposal because she was not yet divorced from a previous marriage.
Damien repeatedly slapped her and slammed her head against the car window.
From that day forward and throughout their four-year relationship, Damien beat and raped Kate. On
two occasions he held her hostage, once keeping her in their car for 16 hours. On three occasions, Kate’s
injuries required hospitalization. Twice, Kate admitted to hospital personnel that Damien had caused her
injuries.
Kate remembers one of the many incidents when Damien beat her:
One evening, I picked him up from work [in my car] . . . . We were low on gas, and he said, “If
we run out of gas I will kill you.” He kept threatening me, and I tried to jump out of the car.
He grabbed a pair of scissors and stabbed me in the hip as I held onto the wheel. When we
got home, he took me into the garage. As I started walking, I started crying because the pain
in my hip hit me. He raped me over his car and then took all of my money. Inside the house,
he forced me to lie on the carpet while he lay down on the couch. He said, “Don’t get blood
on the carpet.” . . . When he beat me, it was usually in the car, because I was alone. Most of
the time, I was driving. I always drove with my left hand, so I could block the blows with my
right hand. . . . I had him arrested five times, but he was never incarcerated.
Late one December evening, Kate was home looking after her sister when Damien drove up and honked
the horn. Kate went outside and got into his car. Damien had been doing drugs. He wanted Kate to
perform oral sex, but she refused. Damien became upset and accused Kate of being with someone else.
He threatened: “That’s my ass. I’ll take it when I want it.” From past experience, Kate knew this meant
Damien was going to anally rape her. She tried to calm him down but he only became more enraged.
He demanded to know who Kate was sleeping with, adding that she was “good for nothing” and “ugly”
and that no one would ever want her because of the scars he inflicted on her. “This is it! I’m through!”
Damien shouted. He grabbed Kate’s throat and started to strangle her. Kate could not breathe. She
struggled to pry his hands from her neck. Even if she could have managed to scream, it was late at night
and no one was around who could help. All she could hear was Damien’s voice shouting, “This is it! This
is it!”
Damien took his hands off Kate’s throat and grabbed her face. “What the fuck did I tell you?” he yelled.
Kate went into panic mode. She knew Damien kept a gun under the passenger seat; she was always
scared it would go off and shoot her in the ankle. She reached for the gun. Kate had never shot one
before. The safety was off. Bullets, it seemed to her, were “just flying out of the gun.” Damien let go,
and Kate opened the door and fell out of the car. She scrambled to get into the house and fell when she
reached the doorway. Kate heard Damien scream, “Bitch, get back here!”

Page 8 	

From Protection to Punishment – Kate’s Story

Kate was terrified. In her mind, Damien was invincible, all-powerful and incapable of being harmed,
especially by her. She didn’t really believe she shot him. Kate ran to her bedroom and locked the door.
When investigators came to Kate’s house, they informed her that Damien had been killed in a car accident
the night before. They asked her to come with them to identify the car. In shock, Kate complied with
the request. As soon as she was in the car, however, one investigator said, “Cut the act. We know you
did it. We know you shot him. We know you killed him. Where is the gun? Why did you do it? Sign a
statement, and we will take you back home.”
At the station, the police told Kate that she would not be convicted if she confessed because she was
an abused woman acting in self-defense. Without a lawyer present, Kate gave the police an eightpage statement detailing the events from the previous night. Afterwards, Kate was formally charged,
processed, and held in jail.
During trial, Kate wanted to take the stand and tell her story, but her lawyer worried that the prosecutor
would diminish Kate’s credibility and warned against it. Kate followed his advice. Throughout the trial,
Kate felt that nobody seemed to really listen to her about Damien’s abuse or want to offer help.
In his closing, Kate’s attorney stated, “[Kate] notes calling the police five other times and obviously didn’t
have the opportunity to call the police on this occasion. [Her abuser] was on her and he was strangling
her and she was trying to break free and opening the car door and trying to get out and [in] the same
motion trying to display this gun.” The jury was not persuaded and found Kate guilty of first-degree
manslaughter.
When it came time for sentencing, Kate was nervous. She felt that the judge did not believe she was a
“true” battered woman because Kate had a job, a car, and a bank account. Nevertheless, Kate appealed
to the judge for understanding:
I pray for your compassion because I feel that I have already served too much time through
all of the years I suffered, from the time I have already done . . . and through the agony of
having to defend myself from the man I thought loved me. . . . I was trying to help myself.
I was trying to stop the beatings, and I did try to get [my abuser] to help stop himself from
battering me and from abusing drugs. Judge [], please, you can affirm today that women
are worthy of respect and those women’s lives do matter and that battering women must
simply stop.
The judge sentenced Kate to the maximum term of 8⅓ to 25 years in prison. She was denied parole five
times based on the nature of her crime before her release in 2008. In recounting her experiences in front
of the parole board, Kate comments:
I went to the last live parole board . . . in 2000, and I sat in front of [the] Commissioner and
I showed him the Polaroid I had . . . of bruises on me and handprints on my neck. “Do you
see this?” Every time you go to the parole board, you feel like you’re on trial again. They are
interrogating you and screaming at you. I had one Commissioner that was sleeping. The
rest of my Parole Board was teleconferenced, which I think is so impersonal. I waited two
years for this 2½ minutes, and you can’t even come before me? This is my life.
Kate was finally released in 2008, after serving 17 years in prison.49

From Protection to Punishment – Kate’s Story	

Page 9

Chapter 1

Domestic Violence Survivor-Defendants:
Sentencing
A) Overly Restrictive Mandatory
Minimum Sentencing Laws
In contrast to the discretion in sentencing recently
granted to judges in many cases involving drug
offenses,40 New York law requires judges to
sentence individuals convicted of violent offenses
(such as murder in the first and second degree,
and manslaughter, assault, robbery and burglary
in the first degree) to mandatory prison terms in
almost all cases.41 Mandatory prison terms are
also still required for certain higher-level nonviolent, non-drug offenses.42 Under New York
law, the most serious crimes involving violence
(called “A-1 offenses”) carry indeterminate
sentences – sentences with a minimum and
maximum term, where the minimum is no less
than 15 years and the maximum is life in prison.43
For almost all other offenses considered violent
under New York’s Penal Code, judges must
impose a determinate or flat prison sentence –
for example, eight years – within a pre-set range
outlined in the statute.44
Mandatory minimum sentencing removes
judges’ ability to evaluate the circumstances
of the offense and the background of the
defendant, including whether she was in an
abusive relationship at the time of the alleged
crime, in determining whether to impose a
sentence of imprisonment. Under such schemes,
prosecutors hold a disproportionate amount of
power to determine the outcome of a given case.
This imbalance results from the fact that, under
mandatory provisions, the charge determines
the length of the prison term if the defendant
is convicted.45 Because prosecutors determine
the charge, they can, in effect, control the type
and length of sentence a judge must dispense

Page 10	

upon conviction.46 District attorneys often use
this power to pressure individuals charged with
crimes to accept pleas rather than risk going
to trial and facing potentially long mandatory
prison terms.47

Sentencing for Convicted Survivors:
Public Opinion
Of New York State residents who responded
to a 2010 Empire State Poll conducted by
Cornell University,48 60% reported that
they believe judges should have the option
of giving reduced sentences to domestic
violence victims convicted of crimes directly
related to their abuse.
In telephone interviews with a random
sample of 800 New Yorkers, researchers
asked the following question:
Tell me if you agree or disagree
with the following statement:
Judges should have the option
to give reduced sentences to
victims of domestic violence
who have been convicted of
crimes against their abusers
(such as homicide or assault)
and/or other crimes committed
because of an abuser’s influence
(such as forgery or robbery).	
That 60% of respondents either agreed or
strongly agreed with this statement indicates
that public opinion across the state favors
judicial discretion in survivor-defendants’ cases.

From Protection to Punishment – Sentencing – Mandatory Minimums

B) Inadequacies in Jenna’s Law
Domestic Violence Exception

survivors for not committing physical crimes
against abusers.

New York currently has a statute that, in theory,
provides some mitigated sentencing for certain
domestic violence survivors convicted of crimes
against their abusers. The State passed this
statute as part of its 1998 Sentencing Reform
Act – commonly referred to as Jenna’s Law.50
Among other things, Jenna’s Law requires
judges to impose determinate sentences for all
violent felony offenses except the most serious
(designated as A-1 offenses, which carry life as
the maximum term) and requires that individuals
convicted of violent offenses serve 85% of their
sentence in prison. The law also increased
sentence lengths for individuals convicted of firsttime violent felonies.51

Excludes murder convictions. The exception
also does not include murder convictions – an
inappropriate exclusion considering that some
survivor-defendants are convicted of these
charges. For example, a battered woman may be
convicted of murder for killing her abuser, or she
may be convicted of felony murder if she is found
guilty of aiding her abuser to commit a robbery
during which her abuser killed someone.54
Survivor-defendants convicted of such acts in
which domestic violence was a significant factor
should also be eligible for less punitive sentencing.

The Jenna’s Law domestic violence exception
permits judges to grant indeterminate sentences
(i.e., eligibility to come before the parole board
after completion of the minimum term) to
survivors convicted of certain homicide or assault
crimes against their abusers.52 At the time, the
Legislature reasoned that retaining indeterminate
sentencing and parole would lead to less punitive
sentencing for survivors. Unfortunately, it did not.
Although the underlying concept of providing
ameliorative sentencing for survivors is positive,
the exception fails to offer sufficiently lower
prison terms, does not permit non-incarcerative
sentences, is too narrow, and has been woefully
underutilized in practice.
Limitations of Jenna’s Law Exception
Applies only to survivor-defendants convicted of
crimes against their abusers. The Jenna’s Law
exception applies only to certain homicide and
assault crimes committed against an abuser and
does not include other offenses, such as robbery,
burglary, or other property crimes where the
abuse was a significant factor in the defendant’s
actions.53 This overly narrow provision disregards
the complex and powerful role that violence,
coercion, intimidation, and control play in a
survivor’s experiences and actions, and, in effect,
creates an unfair double standard that penalizes
From Protection to Punishment – Sentencing – Jenna’s Law	

Does not permit judges to dispense nonincarcerative sentences. Under current law, nonincarcerative sentences are permitted mainly
for certain non-violent offenses.55 In these
cases, judges can sentence defendants to serve
their time on probation while participating in a
community-based ATI program. Notwithstanding
the significant benefits associated with ATIs,56
the current Jenna’s Law exception permits only
mandatory prison penalties.
Contains insufficiently reduced sentences and
may lead to longer prison terms than those
available under the general sentencing statute.
Though intended to be more compassionate than
the general sentencing statute, the Jenna’s Law
exception retains a sentencing structure that is
too harsh. First, under the exception, defendants
can actually receive longer sentences than those
permitted under the general sentencing statute.
The one person serving a sentence under the
exception in 2007, for example, was given an
indeterminate sentence of 6 to 12 years – longer
than the minimum five-year term allowed under
the law’s general provisions.57 Second, because
the exception retains an indeterminate structure,
with release decisions determined by the parole
board, defendants may end up serving more
time in prison than they would have under
a non-exception determinate sentence. The
aforementioned person sentenced under the
exception, for example, was denied parole twice.58
Defendants convicted of violent offenses have
Page 11

good reason to fear being turned down by parole:
the board often denies release for individuals
serving time for violent crimes, regardless of
whether abuse was a factor.59 Such sentence
lengths and structure undermine the intent of
the exception to offer more compassionate and
lower sentences for survivors.
Exception rarely used. According to the New
York State Sentencing Commission appointed
by then-Governor Elliot Spitzer, as of February
2007, only one person was serving time under
the Jenna’s Law domestic violence exception –
a male survivor convicted of assault against his
father.60 In 2009, the Commission found that no
individuals were incarcerated on sentences under

the exception.61 Among the possible reasons for
the exception’s disuse are: (1) lack of awareness
among defense attorneys and judges about the
exception’s existence; (2) defendants’ reluctance
to forgo a determinate sentence with a known
release date and accept an indeterminate
sentence with a release date contingent upon
parole board approval; (3) the exclusion of
murder charges; and (4) the law’s exclusion until
recently of intimate relationships where survivors
and abusers do not live or share children together
and possible continuing lack of awareness among
attorneys and judges about the law’s expansion
to include these intimate partners.62

Victoria
Victoria met Jim shortly after high school. When they first began dating, Victoria was pleased by Jim’s
attentiveness. For example, he would always wait for her at the train station to take her home after
work. At the time, Victoria thought that this was a kind gesture but, looking back, she realizes that it
was a way to limit her association with other people. As the months passed, Victoria grew increasingly
isolated until her “world just became everything [Jim].” Jim also began to threaten and verbally abuse
her, but he always apologized profusely later, saying that it would never happen again.
Victoria and Jim dated for two years and then got married. They were married for 11 years and
had two children. A short time after the wedding, Jim began to abuse Victoria physically, sexually,
emotionally, and financially. Victoria would do anything she could to please him, but even the smallest
things would set him off.
When Victoria was six months pregnant with her daughter, Jim threw her down a flight of stairs. She
was amazed that her baby survived. Jim would also make large purchases that the family could not
afford, such as a motorcycle or boat or the latest and best gun on the market. In retrospect, Victoria
sees that misusing their finances was another way that Jim exercised his control over her. Sometimes
Jim would hide things from Victoria. At night, she would put her jewelry in her jewelry box, but in the
morning it wouldn’t be there. Jim used these tricks to make Victoria think she was going crazy.
Victoria called the police a few times but this only made matters worse, especially because Jim was a
police officer himself. The cops would take Jim out of the house and tell him to walk around the block
a few times, or they would stand outside with him for awhile. “And after the cops would leave, it was,
get ready for round two, put your boxing gloves on . . . . By calling the cops, I actually did make it worse

Page 12 	

From Protection to Punishment – Sentencing – Jenna’s Law

than maybe it would have been.” Wary of police involvement, Victoria never told the nurses what had
happened to her when, on multiple occasions, she was hospitalized as a result of Jim’s abuse.
Eventually, Jim was fired from the police force and started working as a private investigator. One night,
Jim came home and told Victoria that he had lost his job again. They got into an argument and he
came after her with a gun. Victoria was able to tear the gun away from Jim during the struggle. When
the fight ended, Jim went to the bedroom to sleep.
Victoria recalls, “I just felt so strongly at that point in the evening [that] it was either going to be a
matter of his life or my life. That was the second time that he had tried to use a gun on me, and it was
also two weeks before [that] he had actually tried to commit suicide. . . . I clearly felt that if he was
going to take his own life, that he would take my life first and then take his life.” Victoria went into the
bedroom where Jim had fallen asleep, took the gun, and shot him. Victoria left the house and drove
around. She was afraid to go back because she did not know the extent of Jim’s wound. After about
15 minutes, Victoria decided to go to her neighbor’s house. It was not until the police came that she
learned Jim had died.
During the interrogation at the police station, Victoria acknowledged that she shot Jim. When the
detectives asked if she had been battered, Victoria did not reveal much about the abuse: “I had told
them whatever I felt comfortable telling them about my relationship with my husband at that point
because, believe it or not, in my own sick way I was still trying to protect my husband.”
Victoria notes that the District Attorney who prosecuted her case refused to acknowledge the
circumstances that led to Jim’s death or give any consideration to the abuse she had suffered. Although
Victoria thought her attorney was empathetic and trustworthy, she did not think he represented her
well – in part because he had no criminal defense experience. Her lawyer did not call any experts to
offer testimony about battering and its effects.
Victoria accepted a plea of first-degree manslaughter. Although she had no previous criminal record,
not even a speeding ticket, she was sentenced to the maximum term of 8 1/3 to 25 years. She served
a total of 17 years in prison.63

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From Protection to Punishment – Victoria’s Story

C) Limited Access to Alternative-toIncarceration Programs (ATIs)
Community-based ATIs have significant benefits.
They enable individuals to serve their sentences
while addressing underlying personal issues,
rebuilding connections with children and family,
and becoming productive members of society.64
In addition, ATIs are significantly less expensive
than imprisonment: while most ATI programs in
New York City cost only $11,000 per person per
year,65 the annual cost of incarcerating one person
in New York is nearly $55,000.66 ATIs decrease
recidivism rates and increase community
safety while saving money.67 Such programs
are particularly appropriate for many survivordefendants, as they need significant assistance in
recovering from abuse, most often have no prior
felony convictions, and pose no threat to public
safety. For example, 80% of women sent to New
York’s prisons for a violent felony in 2009 had
never before been convicted of a felony,68 and of
the 38 women convicted of murder and released
between 1985 and 2003, not a single one returned
to prison for a new commitment within a 36-month
follow-up period.69

Page 14	

Because of restraints on judicial discretion,
however, probation and ATI programs in cases
involving violent and certain non-violent crimes
are possible only if a prosecutor agrees to
prosecute the survivor-defendant for a lowerlevel offense. This is a rare occurrence, especially
without strong advocacy by a defense attorney
and the presence of an ATI that is ready to accept
the defendant into its program.70 Unfortunately,
even for survivors who do receive probation,
the options for specialized programs are few.
Although New York maintains an array of excellent
ATIs,71 only one program in the state is specifically
designed to meet the needs of battered women
defendants, and it only serves survivors in New
York City.72

$$$$$
$

Incarceration in NYS:
$55,000

ATI Programs in NYC:
$11,000
Average Annual Cost Per Person

From Protection to Punishment – Sentencing – ATIs

STEPS to End Family Violence (STEPS):
An Alternative-to-Incarceration Program
for Survivor-Defendants
The non-profit organization STEPS73 manages the only alternative-to-incarceration program (ATI)
specifically designed for survivor-defendants in New York State. It is also the only program of its
kind in the country.
STEPS works with courts in New York City to advocate for a disposition – a reduction or complete
dismissal of charges, or an adjournment in contemplation of dismissal (ACD, where a judge agrees
to dismiss the charges after six months or a year if the defendant stays out of trouble) – that
involves mandating the survivor-defendant to participate in STEPS as an alternative to being sent
to prison. STEPS monitors survivors’ compliance and progress and reports directly to the court.
In addition, STEPS provides survivors with individual and group counseling, assistance in navigating
the trial process, and services to address the collateral consequences resulting from arrest,
including family court involvement, housing issues, and employment and immigration difficulties.
STEPS also advocates for survivor-defendants to be released before their trial begins under the
program’s supervision.
Although STEPS does not directly represent survivor-defendants, it does provide guidance on
defense strategy and sentencing mitigation for attorneys and works with individuals close to the
survivor-defendant to fill out and corroborate her story.
Defendants and attorneys can benefit from STEPS’ involvement: charges have been reduced or
dismissed in 85% to 90% of cases on which STEPS has worked.74
ATIs like STEPS lower recidivism rates, enhance community safety, and are more effective than
prison in helping individuals heal from abuse, reconnect with children, and become productive
community members. In addition, ATI programs can save significant taxpayer dollars: annual
per-person incarceration costs in New York can run up to five times more than annual ATI fees. 75
Unfortunately, New York’s sentencing law restricts judges from sentencing many survivordefendants to probation and ATIs. For example, survivor-defendants charged with violent crimes
are able to take advantage of STEPS’ ATI program only when a district attorney agrees to reduce
the charge to a non-violent offense that permits a sentence of probation and the judge agrees
to sentence the person accordingly. These restrictions lead to a missed opportunity for survivordefendants, the overwhelming majority of whom pose no risk to public safety, their families, or
society at large.76

From Protection to Punishment – Sentencing – ATIs	

Page 15

Natalie
At age 16, Natalie moved in with her 21-year-old boyfriend, Mark. The abuse began almost immediately.
It started with emotional abuse. Mark would call her names, yelling at her and saying things like, “I’m
your master” and “I’m your only daddy.” The physical and sexual violence soon followed, including
slaps, “beat downs,” and rapes. As the abuse continued, Natalie became increasingly scared and
isolated. “I felt like I needed him. I felt like he was my only support.”
Mark was involved in a lot of illegal activity, including selling drugs, and he kept a gun in their house.
One day Mark came home and told Natalie to get dressed and get in the car. After driving for a while,
Mark seemed to search for something. When Natalie asked what was going on, Mark responded,
“Don’t ask me questions. Do what I say. I’ll let you know what you need to know.”
Mark put his gun in his jacket pocket and told Natalie to get out of the car. He took her to the side of
a building and told her to stay there. He then approached a woman getting into her car, pointed his
gun at her, and yelled to Natalie, “Come on! Hurry up. Let’s get in the car.” Natalie hurried toward
the car, in disbelief about what Mark had just done. Mark told the woman to sit in the back seat and
Natalie in the passenger seat.
Mark handed Natalie the gun and told her to point it at the woman. He gave Natalie a look she knew
well – it meant that he would hurt her if she did not comply. Natalie tried to reassure the woman with
her eyes. She thought, “If only this lady knew how petrified I was.”
Mark demanded that the woman give him her ATM card and threatened to kill her if she did not hand
it over. He pulled over and put the woman in the trunk of the car. Natalie stayed quiet. She was afraid
and in shock.
By this time, it had become dark. Mark continued to drive, and suddenly the police began pursuing
them. Later, Natalie learned that the woman had cut the taillights from the trunk of the car. Mark
floored the gas, swerving everywhere, and Natalie felt like she was going to die. Finally, Mark stopped
the car and told Natalie to run. Eventually, the police caught up with her and placed her under arrest.
They found and arrested Mark a couple of miles away.
At the station, Natalie remained silent as she was questioned by the police. She later learned that they
were charging her with robbery and kidnapping.
The court appointed Natalie a lawyer. She told him every detail of the abuse, but she believes that he
didn’t really understand: “He had a complete poker face when I told him the story. He had an I-heardit-all-before-and-she’s-bullshitting-me attitude. . . . I really felt like he didn’t have my best interests at
heart.”

Page 16	

From Protection to Punishment – Natalie’s Story

At Natalie’s first court appearance, the judge asked what she, a young girl without a record, was doing
with a guy like her abuser, Mark, who had “a rap sheet a mile long” – one that Natalie didn’t even know
about.
The District Attorney initially offered Natalie 6½ to 12 years if she agreed to plead guilty. She refused
because she feared that it would force her to discuss Mark’s role in the crime and that he would find
out and kill her. She could hear his voice saying to her, “Snitches get stitches and wind up in ditches.”
She was extremely afraid to implicate him in any way.
At the next court appearance, Natalie and Mark were in the courtroom together. The judge remarked
that he did not like the way Mark looked at her and decided that the two would be tried separately.
While Natalie was in pre-trial detention, she received a letter from Mark. In the letter, he told Natalie
that if she testified against him or talked to anyone about him, her life would be over. He explained
that he might not be able to kill her himself but would get someone to do it. Natalie’s fear of going
to trial overwhelmed her fear of taking a plea. She pled guilty to robbery in the first degree and was
given a sentence of 7½ to 15 years. She was denied parole twice before finally being released, after
having spent 10 years in prison.77

From Protection to Punishment – Natalie’s Story	

Page 17

Chapter 2

Domestic Violence Survivor-Defendants:
Parole, Clemency, & Release
A) Barriers to Making Parole
As previously discussed, whether an incarcerated
person must see the parole board for a release
determination depends upon the type of sentence
she received. Individuals given indeterminate
sentences with minimums and maximums (e.g.,
15 years to life) generally appear before the parole
board after serving their minimum term or less,
depending on “merit time” credits.78 Individuals
with determinate terms (e.g., eight years) do not
see the parole board and are eligible for release
after serving their sentence minus possible “merit
time” and/or “good time” credits.79
Appointed parole board commissioners make
decisions to grant parole at their discretion.80
Although parole board commissioners must
adhere to legal guidelines set forth in the state’s
Executive Law,81 they have broad authority
regarding the interpretation of these guidelines.82
Parole commissioners’ discretion presents
particular challenges for people serving sentences
for the most serious crimes (A-1 offenses) and
violent crimes prior to 1998 – the year New York
law was amended to require most violent crimes
to carry determinate prison terms. At least
some individuals in prison for these offenses are
battered women serving time for crimes related
to domestic violence.
It became particularly difficult for individuals
convicted of A-1 offenses to make parole under
the administration of former New York State
Governor George Pataki. For example, in 1994,
the year before former Governor Pataki took
office, the parole board granted release to 28%
of people incarcerated for A-1 offenses on their
initial appearance. By contrast, in 2002, near the
beginning of former Governor Pataki’s third term,
only 3% of people incarcerated for A-1 offenses
Page 18	

were granted parole on their first appearance,
dramatically lower than the 1994 rate, as well as
the overall approval rate that year (51%).83 This
unstated policy of blanket denials continued
notwithstanding that recidivism rates for people
convicted of A-1 offenses are significantly lower
than those for people convicted of other types
of offenses.84
As illustrated by the aforementioned statistics,
parole commissioners – appointed by the
Governor with the advice and consent of the
State Senate85 – are subject to influence by the
policies favored by political leaders in office
during the time they serve. For example, Robert
Dennison, Chair of the Parole Board under former
Governor Pataki observes that he “never got any
direct pressure from Pataki not to let certain
people out . . . but he did make it clear in the
newspapers that he didn’t want violent felons
released.”86 Former Commissioner Dennison
further notes that “if you were sponsored by a
particular state senator and you made a decision
he didn’t like, it is conceivable that the next time
you are up to be reappointed, he may not push
your name to the governor.”87
More recently, it appears that more individuals
convicted of A-1 offenses have been granted
parole than in prior years. Over the last four
years, 14% of parole-eligible individuals serving
time for A-1 offenses were granted release.88 This
increase was likely influenced by new political
realities: the election of a Democratic Governor
who took a more progressive stance on criminal
justice matters than his Republican predecessor
and a class-action lawsuit filed in 2006 on behalf
of individuals in New York’s prisons who were
eligible for parole after serving the minimum term
for an A-1 felony offense but denied release based
on the “‘seriousness of the offense,’ the ‘nature
of the present offense,’ or similar reasons.”89 The
From Protection to Punishment – Parole, Clemency, & Release

suit aimed to challenge the legality of the apparent
unstated policy under former Governor Pataki’s
administration of basing release decisions on the
“seriousness of the offense” without sufficient
regard to the other criteria the parole board is
statutorily mandated to consider, including the
individual’s institutional record and public safety
risk90 – and to reverse this practice in the future.
Notwithstanding this positive trend, individuals,
including domestic violence survivors, convicted
of A-1 offenses and pre-1998 violent crimes
continue to face significant obstacles to obtaining
parole release. Survivors also confront specific
additional hurdles related to parole. First,
parole commissioners often decline to consider
information about the impact of domestic
violence on the crime in their deliberations.91
Second, even where an incarcerated woman
wants to raise her domestic violence history,
evidence of past abuse is often missing from
court records, and documents that do exist
(e.g., orders of protection, hospital records, and
witness statements) are often difficult to gather
– particularly from prison.92 In fact, the only
document that automatically follows a defendant
to prison and is included in a report prepared
for the Parole Board about her case is the Presentence Report,93 a document frequently rife
with inaccuracies and often incomplete, with
little or no information about a history of abuse.94
Third, although an incarcerated survivor can
submit a statement to the Parole Board about
the domestic violence, many incarcerated people
know – through their own and other women’s
experiences – that inmates must appear contrite
to convince the board that they are “reformed.”
This reality often deters women from including
details of their survivor status, which could be
viewed as an excuse and avoidance of accepting
full culpability for the crime.95
In addition, review of parole board decisions is
limited. Although an incarcerated person has the
right to appeal a decision to the board itself or,
after exhausting her “administrative remedies,”
to seek judicial review by a court,96 a parole
board’s decision can only be overturned if a court
finds that the board’s decision was “arbitrary
and capricious” or affected by a “showing of
From Protection to Punishment – Parole, Clemency, & Release	

irrationality bordering on impropriety”97 –
extremely difficult standards to meet.98 Even
if a judge makes such a finding, he or she is
only permitted to remand the case for a parole
rehearing,99 and it is exceedingly rare for a parole
board to reverse its own decision.100
As a result of these barriers, many incarcerated
survivors may serve sentences significantly
higher than the minimum terms imposed by the
judge at trial.

B) Restrictions on Merit Time and
Temporary Work Release
In addition to difficulties related to parole,
survivors incarcerated for violent offenses
are excluded from eligibility for early release
through “merit time.” Established in New York
in 1997, merit time allows state prison officials
to grant early release to incarcerated individuals
who meet certain criteria, such as obtaining a
General Equivalency Diploma (GED) or vocational
trade certificate, completing a substance abuse
treatment program, or performing community
service.101 While incarcerated people convicted
of non-violent crimes can earn merit time in the
amount of one-sixth or one-seventh off their
sentences depending on the offense, people
convicted of violent offenses – including survivordefendants – are not permitted to earn merit
time credits at all.102
Though denied merit time eligibility, a 2009
amendment to the Correction Law permits almost
all incarcerated individuals convicted of A-1 or
other violent offenses to earn a “Limited Credit
Time Allowance” of six months off their minimum
or determinate term.103 Though a positive step,
this credit time is minimal – especially compared
with merit time amounts, which range from
one-sixth to one-seventh off the minimum or
determinate term104 – and is significantly more
difficult to earn than merit time.105
Unlike with merit time, certain incarcerated
survivors convicted of violent offenses are eligible
for temporary release programs, which can help
shorten prison terms, provide opportunities for
individuals to establish productive community ties,
Page 19

and improve the likelihood of successful reentry.
Although then-Governor Pataki closed temporary
release to people convicted of violent offenses in
1996,106 eligibility for these programs – including
work release, a transitional program that permits
incarcerated people to work in the community
while living part-time in prison – was restored for
certain domestic violence survivors in 2002.107
Unfortunately, similar to the Jenna’s Law domestic
violence sentencing exception, the work release
exception was too narrowly conceived – it includes
only survivors convicted of homicide or assault
crimes against abusers, and it excludes many
relationships from eligibility, including abuse
by a relative of a spouse, intimate partner who
did not regularly live with the survivor, or blood
relation other than a parent, sibling, or child.108
The latter restriction is particularly disappointing
considering that such relations are included in
the Jenna’s Law sentencing exception and in the
definition of survivor used by domestic violence
service organizations. It makes little sense to

define an individual as a domestic violence victim
in one context and not another.
Also similar to the Jenna’s Law exception, the
work release exception has been woefully
underutilized: as of 2008, only five of the 25
women in New York State prisons who applied
were granted work release under the domestic
violence exception.109 Possible reasons for the
exception’s underuse include: (1) the statute’s
exclusion of incarcerated survivors not convicted
of homicide or assault crimes against their
abusers; (2) the law’s overly-narrow definition
of what constitutes a domestic relationship;
(3) corrections officials’ wariness in granting
eligibility for fear of potential negative outcomes
and press coverage if the individual were to
commit another crime while participating in
the program; (4) lack of awareness about the
exception among incarcerated survivors and
their advocates; and (5) incarcerated survivors’
reluctance to apply after learning that many
other applications were rejected.

Katarina
Katarina fell in love with Eddy, her older brother’s friend, when she was eight. A few years later, Katarina
began dating Eddy. She married him at 15 and was pregnant with their first child one year later.
The first years of marriage were happy ones. Then, after Katarina and Eddy both lost their jobs, Eddy began
his abuse. At first, Katarina didn’t realize that she was being abused. “I saw my dad hit my mom, and I
witnessed my father-in-law hit my mother-in-law so my interpretation was that it was okay for a husband
to hit his wife. So when he started to put his hands on me, I didn’t feel like I was being abused but that I
messed up again and he was mad at me.”
As the years went on, the violence escalated. Sometimes Katarina was beaten so badly that she had to
go to the hospital – once she had to stay for two months. Eddy would take her to different hospitals each
time to avoid suspicion. He would always stay near her in the hospital, and no one asked Katarina if he was
responsible for her injuries. Katarina was afraid and didn’t want Eddy to get in trouble, so she would say
that she had fallen or accidentally hurt herself.
One time, Eddy threw Katarina down a flight of stairs. She broke her ankle in three places, fractured her
wrist, and dislocated her shoulder. One day while Katarina was home recuperating from the injuries, Eddy

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From Protection to Punishment – Katarina’s Story

beat her because his sister told him that Katarina had left the apartment without his approval. Katarina was
not allowed to go outside without letting Eddy know.
Eventually, Katarina could identify signs that meant Eddy was about to become abusive: “I knew that if his
voice was raised, there would be profanity and then there would be hitting. You get used to a pattern of
violence.”
The first person Katarina told about the violence was her mother, who had also been a victim of abuse.
But her mother cautioned that, “What happens in your household, stays in your household.” Katarina also
told someone in her church, but somehow Eddy found out and responded furiously: “Don’t you ever again
in your life go outside of this house and tell anyone what goes on in this house. This is my house and I do
whatever the hell I want.”
One day Katarina summoned her courage to ask Eddy for a divorce. He was outraged and beat her so
badly that she was afraid she might die. Katarina felt powerless and continued to stay with Eddy even
as his violence got even worse and more frequent. Katarina called the police several times, but they just
came and told Eddy to “have a beer, calm down, and take a walk.” Eddy had family members in the police
department, and Katarina felt that “calling them was like calling no one.”
The only time Eddy was arrested was when a new officer, unfamiliar with the precinct’s usual protocol, came
to their house. Even then, Eddy was only taken in for a few hours and was even angrier when he came home.
One day, Katarina came home and found Eddy drunk. He had been suspended from his job for drinking. He
demanded, “Bitch, where the hell you been?” He swung Katarina against the wall and started strangling
her. Katarina could not breathe; she knew that he was going to kill her. Her vision blurred, and she felt
herself begin to black out: “I just reached out and found something. At the time, I didn’t know what it was,
but it was a little steak knife. I was trying to get him off me, I stabbed him.” Katarina then ran into the street,
looking back only once to see Eddy chasing her. She saw two acquaintances and told them, “Oh God, I just
stabbed Eddy. I hope he doesn’t kill me.”
Shortly after Katarina told her friends, the police showed up, grabbed her, and threw her up against the
wall. They took her to the police station but did not tell her that Eddy had died until after they charged her
with murder. “Everything stopped. I was in complete shock. I had no idea that my husband was dead.”
Katarina’s lawyer never really asked her exactly what happened. One time, he even mistook Katarina for
another client. “To him,” she recalled, “I was just another number.” At her first grand jury hearing, the
District Attorney portrayed Katarina as a violent woman who had a drug problem and went on a killing
spree. He dismissed the abuse Katarina suffered at Eddy’s hands and at one point asked, “If he was beating
on you all the time like you allegedly say he was, then why didn’t you leave?”
Katarina was indicted for murder. After 80 days in jail, Katarina’s brother introduced her to STEPS to End
Family Violence, an ATI program that assists survivor-defendants. STEPS worked with Katarina’s lawyer
and helped convince the DA to change his position. The DA seemed to become more sympathetic after he
learned that Katarina had choke marks on her neck the day Eddy was killed. The trial ended in a hung jury.
As a result, a second grand jury was convened, and Katarina was indicted for manslaughter in the second
degree – a lower charge without a mandatory prison sentence.
Katarina pled guilty and was sentenced to five years probation, conditioned on her participation in STEPS’
ATI program. She credits STEPS with helping her to understand her past and move forward. “STEPS gave
me the ability I needed to find myself, to be more empowered and have my own voice. My self-worth had
been based on Eddy, a man who screamed hurtful words at me and beat me. STEPS allowed me to rebuild
my life because they gave me unwavering support that empowered me to develop myself.”110
From Protection to Punishment – Katrina’s Story	

Page 21

C) Obstacles to Receiving Clemency
Clemency is used even less frequently than either
the Jenna’s Law or work release domestic violence
exceptions. The New York State Constitution
imparts to the Governor sole authority to grant
clemency to people convicted of crimes in New
York.111 From 1980 through 2008, executive
clemency was granted to a mere 30 women in
New York State – and only two of those cases were
documented as involving survivors of domestic
violence.112 Given the failures of the criminal
justice system to respond fairly and humanely to
survivor-defendants, clemency is an option that
should be much more rigorously explored and
employed by Governors in the future.

2 Clemencies Involving
Survivors of Domestic Violence

30 Total Clemencies

Clemencies Granted to Women in New York State, 1980–2008

D) Negative Collateral
Consequences of Conviction
Beyond the loss of liberty and often harsh
conditions113 associated with imprisonment,
felony convictions carry a host of negative
collateral consequences that damage survivors’
ability to lead safe and healthy lives after
release and inflict serious harm on communities,
particularly the low-income communities and
communities of color most heavily impacted by
incarceration.114 By destabilizing communities
and diminishing community members’ ability to
access opportunity and sustain productive lives
and families, incarceration and the additional
hidden penalties attached to conviction erode the
community conditions needed to help prevent
and combat domestic violence.
Housing: Public housing authorities in New York
generally have wide discretion to decide whether
an individual with a criminal record will be granted
Page 22	

eligibility for public housing.115 Unfortunately,
authorities frequently use their discretion to deny
admittance to people with felony convictions.116 In
addition, they can prohibit individuals with felony
convictions from living with family members in
public housing and can evict the entire family
if a person with a felony conviction is found to
be living in the apartment. Overall, the stigma
associated with having a felony conviction and the
shortage of affordable housing for all low-income
individuals – whether they have a criminal record
or not – makes it extremely difficult for formerly
incarcerated people to secure permanent
housing after release.117 Safe and stable housing
is an essential component of successful reentry
for all individuals118 and is particularly important
for formerly incarcerated survivors attempting to
avoid returning to abusive relationships.
Employment: With the exception of certain jobs,
such as those in the law enforcement and home
health care fields,119 New York State law prohibits
discrimination against individuals with a criminal
record by public employers, occupational
licensing agencies, and private employers with
10 or more employees unless there is a “direct
relationship” between the offense and the job,
or if granting employment would involve an
“unreasonable risk” to the property, safety, or
welfare of others.120 While this statute provides
critical protection, lack of awareness about the
statute along with the stigma associated with
incarceration and a challenging job market make
it very difficult for individuals to secure livingwage employment after they return home from
prison.121 This is especially true for women,
who often enter prison with less employment
experience, lower education levels, and in more
dire economic circumstances,122 and who may
exit prison with a disproportionate burden
in caring for children and elderly relatives.123
Gainful employment is vital to successful reentry
for all individuals, including survivors for whom
achieving economic self-sufficiency is a necessary
component of avoiding financial reliance on an
abusive partner.
Public benefits: Individuals reentering the
community after incarceration often need public
From Protection to Punishment – Parole, Clemency, & Release

benefits in order to pay rent, buy food and other
necessities, and take care of children while they
search for employment. As a result of federal
law, individuals, formerly incarcerated or not,
are only allowed to receive public benefits for
a five-year period.124 This restriction makes it
even more important for formerly incarcerated
individuals – particularly women, who are more
likely to have received public assistance than men
prior to incarceration – to find employment and
affordable housing quickly after prison.125
Education: While federal law only bars a small
number of individuals with felony convictions
from receiving federal financial aid,126 confusion
about the ban remains and may discourage
formerly incarcerated individuals from applying
for assistance.127 In addition, even where there
are no legal bans, college admissions personnel
may discriminate against formerly incarcerated
applicants.128
Individuals who leave prison
without a high school diploma may have trouble
obtaining a diploma or a GED because of the
time they must spend on covering basic life
needs, including reunifying with and caring for
families, and finding stable housing and steady
sources of income. Access to education allows
formerly incarcerated individuals better access to
living-wage jobs and increased ability to provide
for themselves and their families.129 It also
significantly reduces the chances of an individual
returning to prison and heightens self-esteem,130
essential for all formerly incarcerated people and
particularly for survivors who often suffer from
intense feelings of shame and low self-worth.
Children: In addition to the pain of being
separated from children during incarceration,
parents in prison with children in foster care are
at disproportionate risk of losing their parental
rights to their children forever.131 Although
significant reforms to New York’s child welfare
laws in 2010 make it less likely that incarcerated
and formerly incarcerated parents will lose their
rights, parents in and home from prison remain
in danger of experiencing this devastating
outcome.132 Incarcerated survivors may already
have a history of negative interactions with the
child welfare system – because of the domestic
From Protection to Punishment – Parole, Clemency, & Release	

abuse itself or because the batterer has accused
the survivor of child neglect or abuse as part of
his attempts to harm and control his victim.133 A
formerly incarcerated mother’s ability to quickly
secure housing and employment after release is
often critical to her ability to preserve her parental
rights and prove to the child welfare agency that
she deserves to reunify with her children.
Voting: In New York State, individuals currently
incarcerated for a felony or on parole are barred
from voting134 while individuals who have
completed their maximum sentence or who are
convicted of misdemeanors or on probation retain
their voting rights.135 Misconceptions about who
can and cannot vote, however, are pervasive and
lead many people who are, in fact, eligible to vote
to refrain from visiting the polls.136 Felony voting
restrictions undermine individuals’ self-worth,
agency, and ability to take part in decisions that
affect their lives. They also distort the electoral
process and disproportionately disenfranchise
poor communities of color.137
Health insurance: Many individuals leaving
prison must wait until they are released to begin
the application process for Medicaid, which can
take 45 to 90 days. Without insurance, formerly
incarcerated individuals can be denied access
to substance abuse and other rehabilitative
programs that provide needed support and may
be a mandated condition of parole. In addition,
people released from prison without coverage
may delay seeking care and use costly emergency
medical services.138 In 2007, New York enacted
a law requiring the state to suspend, instead of
terminate, Medicaid for people entering prison
and jail with prior enrollment.139 Though a very
positive step, not all incarcerated individuals
have Medicaid at the time of their incarceration.
Immediate access to coverage can help individuals
achieve stability and success during the early days
of reentry140 and is particularly important given
the incarcerated population’s disproportionately
high rates of chronic illness.141 The need is
especially urgent for women transitioning from
prison, who suffer from certain chronic illnesses
at higher rates than men and have specific needs
related to reproductive health.142
Page 23

Desiree

Carlos frequently abused Desiree, especially when he was high on drugs. He often gave Desiree black
eyes, which she had to cover up with sunglasses when she went to work. When Carlos left the house
to buy drugs, he would usually take Desiree’s clothes off and tie her to a chair while he was gone.
One time, when she decided to go with him rather than be left at home tied to a chair, he took off her
stockings and used them to tie her hands to the steering wheel. Another time, while she was naked
and tied up, he cut her on the arm with his razor, and she bled until he came back.
Carlos also abused Desiree sexually. “He cut off a broomstick,” Desiree recalls, “and laid me on the bed
and abused me with it.” Desiree felt that the worst thing was when Carlos took his gun out of his tool
box and threatened her with it: “First he would shoot it out the window and let me hear it go off. Then
he would put it to my head and pull the trigger. . . . I couldn’t believe this was happening, just because
I didn’t want to be with [him]. And then he would sit there and put that stuff up his nose.”
Desiree did not want to be with Carlos, but when she told him, he grew angry and beat her up. Desiree
had her locks changed four times, but each time Carlos took the new keys from her by force. At one
point, she went to the courthouse and got an order of protection. But when Carlos was served with
the order “he ripped it up and threw it in my face and said, ‘By the [time] the cops get here you’ll be
dead.’ So that order of protection was nothing.”
The police came once and told Carlos to go away, but he only came back later after they had left. “And
that day,” Desiree recalls, “he really beat me up bad for calling the cops.” Desiree never went to the
hospital for her injuries because she was afraid that if her landlord found out about the abuse, he
would evict her.
One morning, Carlos took his gun out. He said, “I’m really going to kill you this time, and the cops
will never find me because I’m going to be in Puerto Rico.” He had a girlfriend in Puerto Rico with
whom he had a child. Desiree knew that Carlos was serious because although he had threatened to
kill her before, he had never spoken about a specific plan. This time Carlos did not engage in his usual
routine of shooting the gun out the window; instead, he put it immediately against Desiree’s head and
released the safety. After a while, he took the gun away and put it on the nightstand. Desiree felt
that he was really going to kill her this time. As he turned around and started snorting drugs, Desiree
picked up the gun and shot him. Desiree put down the gun and ran to another room to get her brother,
who had a mental disability and lived with them, got him into her car, and drove to her daughter’s
house. After that, she called the police.
At the police station, Desiree told the cops what happened. She didn’t ask for a lawyer because she
wasn’t aware she had a right to one. She had never been arrested before and had never been to jail.
“They didn’t ask about the abuse,” she explains. “They didn’t ask nothing about what he did to me.
Nothing. All they wanted to know about was the shooting, that’s all they wanted to know about.”

Page 24	

From Protection to Punishment – Desiree’s Story

STEPS to End Family Violence, an alternative-to-incarceration program that helps defendants with a
history of abuse, became involved with Desiree’s case at the beginning. They helped find a lawyer,
who Desiree felt was very good and did everything he could for her. At trial, he presented evidence of
Desiree’s abuse and had an expert witness testify about the effects of domestic violence. The District
Attorney, however, did not offer any plea bargain. “He made me feel like I’m just a killer,” Desiree
recalls. “Like I go around just shooting people.” He said that Desiree should have left the abusive
relationship and moved out of her house, and argued that she shot Carlos out of jealousy.
In the end, even with STEPS’ assistance and a solid attorney, the jury convicted Desiree of murder in
the second degree. She feels that jury members misunderstood domestic violence and the role it
played in her crime. “I thought maybe the jury was looking at me like I didn’t care. But that’s not true
. . . I said I was protecting myself. I was tired of him beating on me. . . . [I]t was either me or him. So
I’m thinking maybe that’s why they convicted me.”
The judge sentenced Desiree to 17 years to life. Desiree recalls that his words and demeanor suggested
that he gave the sentence not because it was right but because he was forced to under the law.
Desiree appealed her case, but the appeal was denied. After many years of advocacy by a new lawyer,
STEPS, and others, the Governor of New York granted Desiree clemency. She is one of only two
domestic violence survivors granted clemency in New York from 1980 to 2008.143 Desiree was released
after serving 13 years and two months in prison.144

From Protection to Punishment – Desiree’s Story	

Page 25

Chapter 3

Domestic Violence Survivor-Defendants:
International Human Rights

S

urvivors’ fundamental rights are protected
not only by the laws of the United States
and New York, but also by international human
rights law. The United States has obligations
under international human rights treaties, as
well as principles of customary international
law.145 Government officials at all levels – federal,
state, and local – are responsible for complying
with and enforcing these international law
obligations.146 In the context of domestic abuse,
these obligations include the duty to act with due
diligence to prevent, respond to, protect against,
and provide redress for all forms of gender-based
violence.147 In situations where survivors have
become defendants, they also include the duty
to uphold the rights of survivor-defendants to a
fair trial and to equality and non-discrimination
throughout the criminal justice process.148
Domestic violence impedes women’s ability to
enjoy all human rights and fundamental freedoms
– including the rights to non-discrimination;
to not be tortured or subjected to other cruel,
inhuman, or degrading treatment; to life, liberty
and personal security; to equal protection of
the law; to equality within the family setting;
to just and favorable conditions of work; and to
the highest attainable standard of physical and
mental health.149 When a domestic violence
survivor engages in illegal activity to protect
herself and her children from abuse, it represents
a failure of the government, as well as of social
service providers and the community at large,
to have provided adequate protection before
her situation progressed to that point.
The
government continues to have a responsibility
towards survivors – now survivor-defendants –
whom it did not adequately protect, to ensure
that they are treated fairly and humanely.

Page 26	

For survivor-defendants, a criminal justice process
that respects their human rights is one that takes
into account their experiences of abuse at every
stage of the process. As the UN Special Rapporteur
for Violence Against Women stated, “[W]omen’s
criminality under situations of extreme abuse and
violence needs to be treated with diligence, and
their cases must be assessed in light of mitigating
circumstances.”150 Similarly, the UN General
Assembly, recognizing the link between domestic
abuse and women’s involvement in the criminal
justice system, has called on states to address
structural causes of gender-based violence and
strengthen prevention efforts, “including with
regard to women who need special attention in
the development of policies to address violence,
such as . . . women . . . in detention.”151
International human rights law holds particular
implications for the treatment of survivordefendants following conviction. Several sets of
international rules contain standards for a human
rights-based approach to sentencing that is
discretionary and includes serious consideration
of alternatives-to-incarceration. The UN Rules
for the Treatment of Women Prisoners and
Non-custodial Measures for Women Offenders
(Bangkok Rules) affirm that states have a duty
to apply human rights standards to all convicted
persons and prisoners without discrimination;
this duty includes a responsibility to take into
account the gender-specific challenges and
circumstances of convicted and incarcerated
women.152 The Bangkok Rules recognize that
“violence against women has specific implications
for women’s contact with the criminal justice
system”153 and call for the development of
gender-specific options for diversion and
sentencing alternatives that recognize women’s
common histories of victimization and that do not
From Protection to Punishment – International Human Rights

involve prison time.154 The Rules further provide
that states should allocate sufficient resources
to sentencing alternatives that combine noncustodial sanctions with interventions such as
therapeutic courses and counseling for survivors
of domestic violence.155 The UN Standard
Minimum Rules for Non-Custodial Measures
(Tokyo Rules) similarly recognize the importance
of judicial sentencing discretion, providing
that judges should have available to them a
range of non-custodial sentences, consider the
rehabilitative needs of the convicted person, and
evaluate whether incarceration is required for
the protection of society.156

From Protection to Punishment – International Human Rights	

International human rights standards serve as
a powerful reminder that domestic violence
survivor-defendants – like all people involved in
the criminal justice system – are not only criminal
defendants but also human beings with rights
and that the government has a duty to ensure
that these rights are upheld. Such standards,
in addition to U.S. legal guarantees and moral
principles, can and should guide lawmakers in
implementing policy changes to help ensure that
survivor-defendants are afforded justice and
dignity at all stages of the criminal justice process.

Page 27

Conclusion

S

urvivor-defendants in New York State confront a criminal justice system that routinely fails to recognize
the profound impact of violence on their lives and on their alleged criminal activity. A myriad of barriers
to justice result in many survivor-defendants serving years – and sometimes decades – behind prison walls.
Felony convictions also carry a host of negative collateral consequences that damage survivors’ ability to
lead safe, healthy, and productive lives after release. Incarceration and its consequences harm individuals
and communities, particularly the low-income communities of color most impacted by incarceration, and
ultimately perpetuate the conditions in which violence against women thrives. These punishments are
inflicted on survivors by a criminal justice system that should have helped protect them in the first place.
The following recommendations would help New York take steps to redress these shameful miscarriages of
justice and to ensure that survivor-defendants are treated with more fairness and humanity. In addition, by
increasing opportunities for survivors to be diverted from prison to ATI programs, serve shorter sentences,
and apply for resentencing and earlier release, these reforms would also help the state reduce its costly
and misguided overreliance on incarceration without compromising public safety.157

From Protection to Punishment – Conclusion	

Page 29

Full Recommendations
To the New York State Legislature and Governor:
• Enact legislation, such as the pending Domestic Violence Survivors Justice Act, that would: (1) reform
sentencing laws and the Jenna’s Law domestic violence exception to permit judges to sentence
survivor-defendants to shorter, determinate terms and to community-based ATI programs in
cases where the abuse was a significant contributing factor to the crime; and (2) permit currently
incarcerated survivors to petition the courts to review their cases for resentencing.
• Allocate funds to expand and establish more ATI, court advocacy, and reentry programs specifically
designed to meet the needs of domestic violence survivor-defendants.
• Fully fund organizations that provide support services for survivors of violence and ensure that
funding streams permit organizations – who may currently receive funding that prohibits them from
working with survivors after arrest – to continue to work with and advocate for survivors regardless
of criminal justice involvement.
• Allow individuals incarcerated for committing violent crimes, including domestic violence survivors,
to be eligible for merit time (a discretionary program based on institutional record and programmatic
achievement) and temporary work release. Until full eligibility for work release is restored for all
people convicted of violent offenses, ensure that the domestic violence exception is expanded to
include: (1) incarcerated survivors whose abuse was a significant contributing factor in their crimes
(currently, only survivors convicted of physical acts against their abusers are eligible); and (2) a wider
range of domestic relationships (currently, the exception excludes many relationships from eligibility,
including abuse by a relative of a spouse, intimate partner who did not regularly live with the survivor,
or blood relation other than a parent, sibling, or child).
• Allocate funds to implement enhanced domestic violence counseling and support programs in women’s
correctional facilities, to make all services in women’s prisons trauma-informed, and to train staff on the
specific circumstances of working with and guarding incarcerated survivors of trauma and abuse.
• Eliminate punitive collateral consequences of conviction and incarceration for all individuals, including
survivor-defendants. Such measures should include: increasing access to and ending discrimination
against formerly incarcerated people in housing, employment, and higher education; enhancing
protection of parental rights for currently and formerly incarcerated parents with children in foster
care; expanding visiting and reunification programs for all families separated by incarceration;
ensuring immediate access to health insurance upon release; and removing restrictions on voting for
individuals with felony convictions.
• Require and fund regular, comprehensive training on domestic violence and the experiences of
survivor-defendants for all law enforcement and court officers, including police, prosecutors and
prosecution support staff; judges; public defenders and support staff; corrections officials; probation
and parole officers; and parole board members.

Page 30	

From Protection to Punishment – Full Recommendations

• Ensure sufficient funding to allow each public defender office across the state to hire or train at least
one supervising attorney to have specialized expertise in representing survivor-defendants and to
train all support staff on battering and its effects. To ensure that defendants, including survivordefendants, receive competent representation and support, such offices must be adequately funded
to employ social workers or other comparable staff, to maintain legal support personnel, and to
incorporate an interdisciplinary approach to defense efforts.
To New York State District Attorneys:
• Participate in regular, comprehensive training on domestic violence and experiences of
survivor-defendants.
• Carefully weigh evidence of domestic violence when deciding whether to prosecute a case or what
charges to bring against a survivor-defendant. For cases where there is clear indication that the
abuse was a significant contributing factor in the alleged crime, institute an office-wide policy for
prosecutors either to lower charges to permit defendants to serve time in community-based ATI
programs or to refrain from presenting the case to the grand jury for action.158
To Defense Attorneys in New York State:
• Along with support staff, participate in regular, comprehensive training on domestic violence and
battering and its effects, including how to safely and effectively investigate whether a client’s history
of abuse is directly related to the crime with which the client is charged and whether the history of
abuse is relevant to possible defenses and sentencing mitigation strategies.
• Wherever possible, partner with advocates, social workers, mental health professionals, and other
persons and organizations specifically trained in working with domestic violence survivors to provide
clients with needed support services and to assist in understanding and drawing out the full history
and context of the abuse – critical to presenting an effective defense.
• Vigorously explore, develop, and, where appropriate, present defenses supported by evidence of
battering and its effects, working in partnership with attorneys that have experience in representing
survivor-defendants and with experts who can testify knowledgeably about battering and its effects.
To New York State Judges:
• Participate in regular, comprehensive training on domestic violence and battering and its effects.
• Make use of the limited discretion afforded under New York law, including the domestic violence
exception to Jenna’s Law, to sentence survivors to lower sentences.
• Wherever a survivor-defendant meets the statutory guidelines for community diversion, sentence
her to probation and an alternative-to-incarceration program instead of prison.  
To the New York State Parole Board:
• Make release decisions – for all incarcerated individuals, including survivors – that do not rely solely
on the nature of the offense for which an individual is incarcerated and that give appropriate weight
to an individual’s institutional confinement record and actual public safety risk.

From Protection to Punishment – Full Recommendations	

Page 31

Acknowledgements
This report is part of an ongoing project to document and contribute to the dialogue about barriers to
justice for domestic violence survivor-defendants in New York State. Much of the work completed by
the people acknowledged here has been part of this ongoing project and is not necessarily represented
in this report.
This report was written by Tamar Kraft-Stolar, Women in Prison Project Director at the Correctional
Association of New York, and Elizabeth Brundige, Associate Director, Avon Global Center for Women
and Justice at Cornell Law School and Adjunct Professor of Law, Cornell Law School, with Sital Kalantry,
Associate Clinical Professor of Law and Faculty Director of Avon Global Center for Women and Justice at
Cornell Law School, and Jocelyn Getgen Kestenbaum, Program Director, Virtue Foundation and former
Women and Justice Fellow, Avon Global Center for Women and Justice.
We are grateful to Sara Lulo, Executive Director, Avon Global Center for Women and Justice at Cornell
Law School and Adjunct Professor of Law, Cornell Law School; Soffiyah Elijah, Executive Director,
Correctional Association of New York; Robert Gangi, former Correctional Association Executive Director;
Peter v. Z. Cobb, Chair of the Correctional Association’s Board or Directors; and Teresa A. Miller, member
of the Correctional Association’s Board, for their guidance and helpful editorial commentary. We also
thank Jaya Vasandani, Associate Director of the Correctional Association’s Women in Prison Project, for
her review and editorial input, and Serena Alfieri, former Women in Prison Project Associate Director
of Policy, for her assistance with the development of the project and for coordinating interviews with
formerly incarcerated survivors.
The following Cornell Law School students provided significant assistance in researching legal cases and
relevant literature, interviewing survivors, and contributing in a variety of other meaningful ways to the
project: Samantha Cherney, Cornell Law School, J.D. 2011; Kelly Harrell, Cornell Law School, J.D. 2011;
Shameka Jamison, Cornell Law School, J.D. 2011; Natalie Kim, Cornell Law School, J.D. 2010; Lindsay
Strauss, Cornell Law School, J.D. 2010; and Rasika Teredesai, Cornell Law School, J.D. 2011.
We also thank Allison Schwartz, Women in Prison Project intern, for her assistance in interviewing survivors
and all the members of the Violence Against Women Committee of the Coalition for Women Prisoners
(coordinated by Correctional Association of New York’s Women in Prison Project) for their dedication to
and support of this project, particularly Committee Co-Chairs Jesenia A. Santana and Sister Mary Nerney.
We are enormously grateful to Katarina, Kate, Latisha, Natalie, Barbara, Charisa, Victoria, and Desiree for
sharing their lived experiences as survivors in the criminal justice system and their ideas for changing the
system on behalf of women with experiences similar to theirs. The names of survivors whose narratives
are included in this report have been changed to protect their anonymity.

Page 32	

From Protection to Punishment – Acknowledgements

Our heartfelt gratitude goes to the following expert reviewers whose editorial comments were an
invaluable part of the process:
• Judge Maria Arias, New York City Family Court and former Clinical Law Professor, Battered Women’s
Rights Clinic, City University of New York
• Andrea Bible, Special Projects Coordinator, National Clearinghouse for the Defense of Battered
Women (NCDBW)
• Justice Debra James, Supreme Court, Civil Branch, New York County and Chair, New York Women in
Prison Committee, National Association of Women Judges
• Justice Marcy L. Kahn, Supreme Court, New York County
• Holly Maguigan, Professor of Clinical Law, New York University School of Law
• Sister Mary Nerney, Co-Chair, Violence Against Women Committee, Coalition for Women Prisoners
and Founder, STEPS to End Family Violence
• Sue Osthoff, Director and Co-Founder, National Clearinghouse for the Defense of Battered Women
(NCDBW)
• Jesenia A. Santana, Co-Chair, Violence Against Women Committee, Coalition for Women Prisoners
and Legal Services Coordinator, STEPS to End Family Violence
• Elizabeth M. Schneider, Rose L. Hoffer Professor of Law, Brooklyn Law School and Co-Chair, Committee
on Domestic Violence, National Association of Women Judges, 2009-present
A special thank you to the experts, scholars, and practitioners in the field who interviewed with our
research team: Dr. Catherine Cerulli, Assistant Professor of Psychiatry and former Director, Laboratory for
Interpersonal Violence and Victimization, University of Rochester; Robert Dennison, Parole Board Chairman
and Commissioner (ret.); Amber Hui, PhD Candidate, CUNY Graduate Center, Women and Media Prison
Project; Sister Mary Nerney, Teacher, Psychologist, and Founder, STEPS to End Family Violence; Jesenia A.
Santana, Legal Services Coordinator, STEPS to End Family Violence; Sue Osthoff, Director and Co-Founder,
National Clearinghouse for the Defense of Battered Women (NCDBW); Cathy Selin, former Senior Attorney,
STEPS to End Family Violence; and Andrea Bible, Special Projects Coordinator, National Clearinghouse for
the Defense of Battered Women (NCDBW), whose additional input in the review process was especially
helpful in shaping the direction of the report.	
And last but certainly not least, we offer our sincere gratitude to the members of the National Association
of Women Judges, New York Chapter, Women in Prison Committee, for suggesting that Cornell Law School’s
Avon Global Center for Women and Justice and the Correctional Association’s Women in Prison Project
undertake this effort and for their support throughout the research and writing process.

From Protection to Punishment – Acknowledgements	

Page 33

Endnotes
1.  For more information, see the National Coalition Against Domestic Violence, http://www.ncadv.org/ (last visited May 26, 2011) and
the New York State Coalition Against Domestic Violence, http://www.nyscadv.org/ (last visited May 26, 2011).
2. This report uses the term survivor-defendant to describe a person who, at the time she was charged with a crime, was a victim of domestic violence and for whom that domestic violence was a significant contributing factor in the crime for which she was charged.
3.  The demographic composition of residents surveyed generally comported with the demographic breakdown of the United States
identified by the U.S. Census Bureau in its 2006-2008 American Community Survey 3-Year Estimates. See Yasamin Miller, Cornell
University Survey Research Institute, Empire State Poll 2010, Report 1: Introduction and Methodology 3 (2010), available at
http://www.sri.cornell.edu/sri/files/esp/2010/Report%201%20-%202010%20-%20Introduction%20and%20Methodology.pdf.
4.  The New York State Office for the Prevention of Domestic Violence (OPDV) defines domestic violence as “a pattern of coercive tactics
that can include physical, psychological, sexual, economic, and emotional abuse perpetrated by one person against an adult intimate
partner, with the goal of establishing and maintaining power and control. Domestic violence occurs in all kinds of intimate relationships, including married couples, people who are dating, couples who live together, people with children in common, same-sex
partners, people who were formerly in a relationship with the person abusing them, and teen dating relationships.” Suzanne Cecala
& Mary M. Walsh, New York State Office for the Prevention of Domestic Violence, New York State’s Response to Domestic
Violence: Systems and Services Making A Difference 7 (2006), available at http://www.opdv.state.ny.us/whatisdv/about_dv/nyresponse/nysdv.pdf. Approximately one in four women nationwide is a victim of intimate partner violence. Patricia Tjaden & Nancy
Thoennes, The Extent, Nature, and Consequences of Intimate Partner Violence: Findings from the National Violence Against
Women Survey 9 (National Institute of Justice & Center for Disease Control, July 2000), available at http://www.ncjrs.gov/pdffiles1/
nij/181867.pdf.
5.  Caroline Wolf Harlow, Bureau of Justice Statistics Selected Findings: Prisoner Abuse Reported by Inmates and Probationers,
U.S. Department of Justice 1-2 (April 1999), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/parip.pdf. In 2002, the Bureau reported that 55% of female jail inmates indicated past abuse. Doris J. James, Bureau of Justice Statistics, U.S. Department of Justice
Office of Justice Programs, Profile of Jail Inmates, 2002, 10 (revised Oct. 12, 2004), available at http://bjs.ojp.usdoj.gov/content/
pub/pdf/pji02.pdf.
6.  See, e.g., information from Greenhope Services for Women (http://www.greenhope.org/); Hour Children (http://www.hourchildren.
org/); Project Path to Recovery at the Postgraduate Center for Mental Health (http://www.pgcmh.org/programs/clinical_programs.
html); Women’s Prison Association (http://www.wpaonline.org/) (on file with authors).
7.  Angela Browne et al., Prevalence and Severity of Lifetime Physical and Sexual Victimization Among Incarcerated Women, 22 Int’l J. L. &
Psychiatry 301, 310–22 (1999) and Summary: Physical and Sexual Assault Across the Lifespan, attachment to Prevalence and Severity of Lifetime Physical and Sexual Victimization Among Incarcerated Women. A 1994 study of 557 incarcerated women in Oklahoma
found that 80% of the women studied reported having been abused in the past. Susan Marcus-Mendoza et al., Changing Perceptions
of the Etiology of Crime: The Relationship Between Abuse and Female Criminality, 1 Oklahoma Criminal Justice Research Consortium
Journal (1994).
8.  “Among the 36 women committed for a homicide in 2005, in which the victim-offender relationship was able to be determined, 12
(33%) killed someone they were close to, other than their children . . . [and] 8 of these women (67%) had experienced prior abuse
at the hand of the victim.” New York State Dep’t of Correctional Services, Female Homicide Commitments: 1986 vs. 2005, 14
(July 2007) [hereinafter NYS DOCS], available at http://www.docs.state.ny.us/Research/Reports/2007/Female_Homicide_Commitments_1986_vs_2005.pdf.
9.  This study, conducted by the National Development and Research Institutes in partnership with the New York State Division of Criminal
Justice Services, analyzed interviews with 215 women incarcerated for homicide in New York State between April 1992 and May 1993.
New York State Division of Criminal Justice Services, Homicide by Women 8 (June 1996).
10.  See Beth E. Richie, Compelled to Crime: The Gender Entrapment of Battered Black Women 127-131 (1996). Another study evaluated 525 abused women at a mental health center who had committed at least one crime and found that nearly half had been coerced
into committing crimes by their abusers. Marti Tamm Loring & Pati Beaudoin, Battered Women As Coerced Victim-Perpetrators, 2 J.
Emotional Abuse 3, 13 (2000). The authors of this study are clinicians based in Atlanta, Georgia.
11.  See Interview with Katarina, Survivor-Defendant, in New York., N.Y. (Feb. 26, 2010 and April 14, 2011); Telephone interview with Sister
Mary Nerney, Founder of STEPS to End Family Violence and, Jesenia Santana, Legal Services Coordinator, STEPS to End Family Violence
(May 13, 2011).
12.  Allison M. Madden, Clemency for Battered Women Who Kill Their Abusers: Finding a Just Forum, 4 Hastings Women’s L.J. 1, 34–39
(1993). See generally Angela Browne, When Battered Women Kill 159–78 (1987); Elizabeth Dermody Leonard, Convicted Survivors: The Imprisonment of Battered Women Who Kill 27 (2002).
13.  Telephone Interview with Cathy Selin, Senior Attorney, STEPS to End Family Violence, (Nov. 5, 2009); Sarah M. Buel, “Effective Assis-

tance of Counsel for Battered Women Defendants: A Normative Construct,” 26 Harv. Women’s L.J. 217 (2003).
14.  Telephone Interview with Sister Mary Nerney, Founder of STEPS to End Family Violence, and Jesenia Santana, Legal Services Coordinator, STEPS to End Family Violence (May 13, 2011).
15.  See Mary Becker, Access to Justice for Battered Women, 12 Wash. U. J. L. & Pol’y 63, 73 (2003); Telephone Interview with Sister Mary
Nerney, Founder of STEPS to End Family Violence, and Jesenia Santana, Legal Services Coordinator, STEPS to End Family Violence (May
13, 2011). These preconceptions can be particularly detrimental to women of color who often suffer from racist and sexist stereotypes
of being more assertive and aggressive than white women. See, e.g., Sharon Angella Allard, Rethinking Battered Woman Syndrome: A
Black Feminist Perspective, 1 UCLA Women’s L.J. 191 (1991).
16.  See, e.g., N.Y. Penal Law §§ 70.02, 70.04, 70.08 (McKinney 2010).
17.  See infra note 52 and accompanying text. Jenna’s Law is codified as N.Y. Penal Law § 70.02 (1998) (2010). The exception to Jenna’s
Law carved out for domestic violence survivors is N.Y. Penal Law § 60.12 (2010).
18.  New York State Commission on Sentencing Reform, The Future of Sentencing in New York State: A Preliminary Proposal for
Reform 18 (October 15, 2007).
19.  New York State Commission on Sentencing Reform, The Future of Sentencing in New York State: Recommendations for Reform
60 (January 30, 2009).
20.  Telephone Interview with Sister Mary Nerney, Founder of STEPS to End Family Violence, and Jesenia Santana, Legal Services Coordinator, STEPS to End Family Violence (May 13, 2011).
21.  See The New York City ATI/Reentry Coalition Services Report 2010 (2010), available at http://www.ati-ny.org/files/ATI-final.pdf (last
visited Jan. 9, 2010); Telephone interview with Sister Mary Nerney, Founder of STEPS to End Family Violence, and Jesenia Santana,
Legal Services Coordinator, STEPS to End Family Violence (May 13, 2011).
22.  Table 1B, Crimes by Predicate Felony Status by Gender; 2009 New Court Commitments to NYSDOCS, NYS DOCS, prepared May 29, 2010
(on file with the Women in Prison Project, Correctional Association of New York). As of April 1, 2010, 79% of women in New York State
prisons for violent felony convictions had never been convicted of a felony prior to their current offense. Table 3B, Crime by Predicate
Felony Status by Gender; Under Custody at NYS DOCS as of April 1, 2010, NYS DOCS, prepared May 25, 2010 (on file with the Women in
Prison Project, Correctional Association of New York). Although it is unclear how many of the 38 women identified in this statistic were
incarcerated for protecting themselves from an abuser, given the rates of intimate partner violence among women in prison, it is likely
that at least some of the 38 women fit into that category. Testimony on Behalf of the Alliance for Rational Parole Policies, Testimony
Before the New York State Senate Standing Committee on Crime Victims, Crime and Corrections, submitted by the Center for Alternative Sentencing and Employment Services, Center for Community Alternatives, Coalition for Parole Restoration, College and Community Fellowship, The College Initiative, Correctional Association of New York, Exodus Transitional Community, Family Justice, Fortune
Society, Interfaith Coalition of Advocates for Reentry and Employment, Legal Action Center, The Osborne Association and Women’s
Prison Association (January 15, 2008), at 2.
23.  See, e.g., Center for Alternative Sentencing and Employment Services (CASES), http://www.cases.org/ (last visited May 26, 2011);
Center for Community Alternatives, http://www.communityalternatives.org/ (last visited May 26, 2011); Fortune Society, http://fortunesociety.org/ (last visited May 26, 2011); Greenhope Services for Women, http://www.greenhope.org/ (last visited May 26, 2011);
Osborne Association, http://www.osborneny.org (last visited May 26, 2011); Women’s Prison Association, http://www.wpaonline.org/
(last visited May 26, 2011).
24.  See STEPS to End Family Violence, http://www.stepstoendfamilyviolence.org (last visited January 7, 2011).
25.  N.Y. Correction Law § 803.
26.  Id. § 851.
27.  Telephone Interview with Sister Mary Nerney, Founder of STEPS to End Family Violence, and Jesenia Santana, Legal Services Coordinator, STEPS to End Family Violence (May 13, 2011). See N.Y. Exec Law 259-i(c)(A).
28.  Email from Director of Media Relations and Public Affairs, New York State Division of Parole sent on January 23, 2009 (on file with the
Women in Prison Project, Correctional Association of New York).
29.  See National Clearinghouse for the Defense of Battered Women, The Impact of Arrests and Convictions on Battered Women
(September 2008), available at http://www.biscmi.org/wshh/NCDBW_%20Impact_of_Arrest.pdf.  See also infra notes 113-142 and
accompanying text. 
30.  Sharon Angella Allard, Rethinking Battered Woman Syndrome: A Black Feminist Perspective, Chapter 13 in Domestic Violence at the
Margins: Readings on Race, Class, Gender and Culture 194-205 (Natalie J. Sokoloff, with Christina Pratt, eds. 2006). See generally
Joey L. Mogul et al., Queer (In)Justice: The Criminalization of LGBT People in the United States 120, 132-40 ( (2011); National
Coalition of Anti-Violence Programs, Lesbian, Gay, Bisexual, Transgender and Queer Domestic Violence in the United States in
2008 (2009), available at http://www.avp.org/documents/2008NCAVPLGBTQDVReportFINAL.pdf; Beth E. Richie, Compelled to Crime:
The Gender Entrapment of Battered Black Women 127-131 (1996); Michelle Bograd, Strengthening Domestic Violence Theories:
Intersections of Race, Class, Sexual Orientation and Gender, Chapter 2 in Domestic Violence at the Margins: Readings on Race, Class,
Gender and Culture 25-38 (Natalie J. Sokoloff, with Christina Pratt, eds. 2006); Valli Kalie Kanuha, Compounding the Triple Jeopardy:
Battering in Lesbian of Color Relationships, Chapter 6 in Domestic Violence at the Margins: Readings on Race, Class, Gender and
Culture 71-82 (Natalie J. Sokoloff, with Christina Pratt, eds. 2006).

31.  Shamita Das Dasgupta, Women’s Realities: Defining Violence against Women by Immigration, Race, and Class, Chapter 5 in Domestic
Violence at the Margins: Readings on Race, Class, Gender and Culture 56-70 (Natalie J. Sokoloff, with Christina Pratt, eds. 2006).
32.  From 1973 to 2009, the state’s total prison population increased by nearly 388%. As of January 2009, 2,618 women were incarcerated
in New York’s prisons – about 4.3% of the state’s total prison population of just under 61,000. Figures derived from Daily Population Capacity Report, 01/01/09 09, NYS DOCS. Letter from NYS DOCS Director of Public Information (May 15, 2001) (on file with the
Women in Prison Project, Correctional Association of New York). The increase in the prison population in New York is largely the result
of the state’s adoption in 1973 of the Rockefeller and Second Felony Offender laws which, until recent reforms, required judges to impose harsh mandatory minimum sentences on individuals convicted of drug offenses. For example, from 1973 to 2008, the number of
women in New York’s prison for drug crimes increased by 787%. New York’s prison population has, however, dropped dramatically in
the past decade: the total population dropped by more than 15,000 from its peak in 1999, a decrease of 21%; the women’s population
dropped by more than 1,400 since 1997, a decrease of 38%. Recent reforms to the drug laws have contributed to this decrease. For
example, the number of drug offenders in New York State custody dropped from 17,106 in 2003 to 8,894 in 2010. Total prison population statistics: Letter from NYS DOCS Director of Public Information (May 15, 2001); Table 4A: Crime by Predicate Felony Status by Gender; Under Custody Population NY DOCS Jan 1 2008, NYS DOCS, prepared February 14, 2008 (on file with the Women in Prison Project,
Correctional Association of New York). Female prison population statistics: NYSDOCS Admissions and Releases, January-October 2010
(Preliminary Data) and NYS DCJS Data Sheet 01/03/97, revised 02/18/97. Drug offender statistics: DOCS Drug Offenders by Race, 19862007, NYS DOCS (2008); statistics relayed by NYS DOCS by phone, October 27, 2010.
33.  The total female prison population in New York rose from 384 in 1973 to 2,480 in 2010. State of New York Department of Correctional Services, Under Custody Report: Profile of Inmate Population Under Custody on January 1, 2010, 2 (May 2010), available
at http://www.docs.state.ny.us/Research/Reports/2010/UnderCustody_Report.pdf; Letter from NYS DOCS Director of Public Information (May 15, 2001) (on file with the Women in Prison Project, Correctional Association of New York).
34.  This statement assumes that the rate of incarcerated women reporting intimate partner violence (75%) in Angela Browne’s 1999 study
at New York’s Bedford Hills Correctional Facility was similar in 1973 and 2010. Applying the 75% rate, there were 288 intimate partner
violence survivors in New York’s prisons in 1973 and 1,860 in 2010. Angela Browne et al., Prevalence and Severity of Lifetime Physical
and Sexual Victimization Among Incarcerated Women, 22 Int’l J. L. & Psychiatry 301, 310–22 (1999); State of New York Department
of Correctional Services, Under Custody Report: Profile of Inmate Population Under Custody on January 1, 2010, 2 (May 2010),
available at http://www.docs.state.ny.us/Research/Reports/2010/UnderCustody_Report.pdf; Letter from NYS DOCS Director of Public
Information (May 15, 2001) (on file with the Women in Prison Project, Correctional Association of New York).
35.  State of New York Department of Correctional Services, Under Custody Report: Profile of Inmate Population Under Custody on
January 1, 2010, 3 (May 2010), available at http://www.docs.state.ny.us/Research/Reports/2010/UnderCustody_Report.pdf; NYS Data
Center, 2000 Census of population and housing, Age by Sex by Race and Hisp/Latino Ethnicity, Section 3, http://www.census.gov/prod/
cen2000/ (last visited May 26, 2011).
36.  U.S. Census Bureau, State & County Quick Facts: New York, http://quickfacts.census.gov/qfd/states/36000.html (last visited July 29,
2010).
37.  Compared to 28% of men. Lawrence A. Greenfield and Tracy L. Snell, Bureau of Justice Statistics, U.S. Department of Justice,
Women Offenders (December 1999, rev. 10/3/00).
38.  Transcript of Hearing on Domestic Violence, Convened by the Governor’s Commission on Domestic Violence, the N.Y. State Division
for Women, and the N.Y. Department of Correctional Services, Bedford Hills, New York, September 26, 1985, available at http://www.
biscmi.org/wshh/dubow_transcript.pdf (last visited on January 16, 2011).
39.  This is a goal that New York Governor Andrew Cuomo has repeatedly endorsed. See Executive Order No. 7, signed by Andrew M.
Cuomo (February 9, 2011), available at http://www.governor.ny.gov/executiveorder/7; State of New York, 2011-2012 Executive Budget Briefing Book: Public Safety 63-67 (2011), available at http://publications.budget.state.ny.us/eBudget1112/fy1112littlebook/
PublicSafety.pdf; Governor Andrew M. Cuomo, State of the State Address, Jan. 5, 2011, available at http://www.governor.ny.gov/sl2/
stateofthestate2011transcript.
40.  Reforms made to New York’s drug sentencing statutes codified in sections of New York State’s Penal Law and Criminal Procedure Law,
including N.Y. Criminal Procedure Law §§ 216.05 and 440.46 and N.Y. Penal Law §§ 60.04, 70.70 and 70.71.
41.  See N.Y. Penal Law § 70.02.
42.  See id. § 70.00.
43.  Id. § 70.00(3). For certain serious crimes judges are required to impose longer sentences. For example, a conviction of murder in the
first degree carries a minimum sentence of 20 to 25 years or life in prison without parole; a conviction of aggravated murder carries a
sentence of life in prison without parole; a conviction of attempted murder in the first degree or attempted aggravated murder carries
a minimum sentence of 20 to 40 years. Id. § 70.00(3)(a)(i)(a) (2010). The drug law reforms of 2004 altered sentencing for A-I drug
offenses. The determinate sentencing range for individuals convicted of an A-I drug offense with no prior felony convictions is 8 and
20 years; for individuals convicted of an A-I drug offense with a prior non-violent felony conviction, the range is 12 to 24 years; and for
individuals convicted of an A-I drug offense with a prior violent felony conviction, the range is 15 to 30 years. Id. § 70.00 and Chapter
738 of the Laws of 2004.
44.  N.Y. Penal Law §§ 70.02, 70.04, 70.08 (McKinney 2010); Telephone Interview with Robert Dennison, retired Chairman, State of New
York Parole Board (Oct. 22, 2009); New York State Division of Criminal Justice Services, Overview of Key Provisions of Chapter 1 of the
Laws of 1998 Jenna’s Law, http://criminaljustice.state.ny.us/pio/jenna.htm (last visited Aug. 6, 2010).

45.  See, e.g., N.Y. Penal Law § 70.02(3), which details the mandatory prison terms required for certain violent felony offenses. See Philip
Oliss, Comment, Mandatory Minimum Sentencing: Discretion, the Safety Valve, and the Sentencing Guidelines, 63 U. Cin. L. Rev. 1851,
1851, 1954-1855 (1995).
46.  See, e.g., Correctional Association of New York, Stupid and Irrational and Barbarous: New York Judges Speak Against the Rockefeller Drug Laws (December 2001), available at http://www.correctionalassociation.org/publications/download/ppp/judgesreport.
pdf.
47.  Philip Oliss, Comment, Mandatory Minimum Sentencing: Discretion, the Safety Valve, and the Sentencing Guidelines, 63 U. Cin. L. Rev.
1851, 1854-1855 (1995); See Erik Luna and Paul G. Cassell, Mandatory Minimalism, 32 Cardozo Law Review 1, 12 (2010); Elizabeth
Sheehy, Battered Women and Mandatory Minimum Sentences, 39 Osgoode Hall L.J. 529, 530 (2001).
48.  This percentage excludes individuals who answered “I don’t know” when asked the poll question. See Yasamin Miller, Cornell University Survey Research Institute, Empire State Poll 2010, Report 1: Introduction and Methodology 3 (2010), available at http://
www.sri.cornell.edu/sri/files/esp/2010/Report%201%20-%202010%20-%20Introduction%20and%20Methodology.pdf.
49.  Interview with Kate, Survivor Defendant, in Ithaca, N.Y. (Nov. 19, 2009 and Feb. 2, 2011); Transcript of Kate’s trial (on file with authors);
Memorandum from Kate’s Defense Counsel to Marge Booker (Jan. 20, 1994) (on file with authors); Letter from Kate to Mrs. Turner (no
date) (on file with authors).
50.  The 1995 Sentencing Reform Act eliminated indeterminate sentencing and parole for people convicted of second-time violent felony
offenses. The 1998 Sentencing Reform Act, Jenna’s Law, expanded on the 1995 reforms to require determinate sentences and the 85%
rule for all first-time violent felony offenders. Jenna’s Law is codified as N.Y. Penal Law § 70.02 (1998) (2010). The exception to Jenna’s
Law carved out for domestic violence survivors is N.Y. Penal Law § 60.12 (2010). See also Spiros A. Tsimbinos, New York’s “Jenna’s
Law”: Text and Analysis 3 (Matthew Bender 1998).
51.  NYS Department of Criminal Justice Services, Overview of Key Provisions of Chapter 1 of the Laws of 1998 – Jenna’s Law, http://criminaljustice.state.ny.us/pio/jenna.htm (last visited May 26, 2011); Katherine J. Rosich & Kamala Mallik Kane, Truth in Sentencing and
State Sentencing Practices, NIJ Journal (Issue No. 252), Pub. No. NCJ- 208706, available at http://www.ncjrs.gov/pdffiles1/jr000252e.
pdf.
52.  N.Y. Penal Law § 60.12 (2010). The court may impose an indeterminate sentence if, after a hearing, the defendant has proved the
following: “a) [she] was the victim of physical, sexual or psychological abuse by the victim or intended victim of [her] offense; b) such
abuse was a factor in causing the defendant to commit [the] offense; and c) the victim or intended victim [of the offense] was a member of the same family or household as the defendant . . . .” Id.
53.  New York State Division of Criminal Justice Services, Overview of Key Provisions of Chapter 1 of the Laws of 1998 Jenna’s Law, http://
criminaljustice.state.ny.us/pio/jenna.htm (last visited May 26, 2011).
54.  A person can be convicted of Murder in the second degree in New York State if: “Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first
degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and,
in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any,
causes the death of a person other than one of the participants . . . .” N.Y. Penal Law § 125.25.
55.  In a very limited number of instances, New York law permits a judge to sentence individuals convicted of certain D- and E-level violent
felony offenses to a non-incarcerative sentence. See N.Y. Penal Law §§ 70.02(2)(c) and 70.02(4)(a).
56.  See The New York City ATI/Reentry Coalition Services Report 2010 (2010), available at http://www.ati-ny.org/files/ATI-final.pdf (last
visited Jan. 9, 2010); Telephone interview with Sister Mary Nerney, Founder of STEPS to End Family Violence, and Jesenia Santana,
Legal Services Coordinator, STEPS to End Family Violence (May 13, 2011).
57.  New York State Commission on Sentencing Reform, The Future of Sentencing in New York State: A Preliminary Proposal for
Reform 18 & n.18 (October 15, 2007) (“The inmate is a man convicted of manslaughter in the first degree for shooting his father in
the head following an argument. He received an indeterminate sentence of 6 to 12 years, a sentence that is actually longer than the
minimum determinate term for the crime (5 years). Notably, the Board of Parole has twice denied this inmate release.”), available at
http://www.criminaljustice.state.ny.us/legalservices/sentencingreform/2007prelimsentencingreformrpt.pdf.
58.  Id. at 18.
59.  See Citizens Against Recidivism, Inc., Parole Statistics, http://www.citizensinc.org/parolestatistics.html (last visited Aug. 6, 2010) (citing State of N.Y. Dep’t of Correctional Services, Under Custody Report: Profile of Inmate Population Under Custody on Jan. 1,
2009, available at http://www.docs.state.ny.us/Research/Reports/2009/UnderCustody_Report_2009.pdf); Graziano v. Pataki, 2007 WL
4302483, at *2 (S.D.N.Y. Dec. 5, 2007).
60.  New York State Commission on Sentencing Reform, The Future of Sentencing in New York State: A Preliminary Proposal for
Reform 18 (October 15, 2007).
61.  New York State Commission on Sentencing Reform, The Future of Sentencing in New York State: Recommendations for Reform
60 (January 30, 2009).
62.  The New York State Coalition Against Domestic Violence (NYSCADV, http://www.nyscadv.org) led a coalition of organizations in the successful effort to pass the “Expanded Access Law” in 2008 (Chapter 326 of the Laws of 2008). This law amended sections of the Family
Court Act, Criminal Procedure Law and Judiciary Law to include in the definition of “members of the same family or household” indi-

viduals in “intimate relationships” regardless of whether those persons live or had lived together. These amendments are important
because the definition of “members of the same family or household” is used in many circumstances to determine which individuals
are considered domestic violence victims and therefore have the right to various protections in the law, including accessing civil orders
of protection, certain domestic violence-specific parts of the criminal court system, certain police responses, and mitigated sentencing under the Jenna’s Law domestic violence exception. See Elizabeth Bliss, New York State Coalition Against Domestic Violence
(NYSCADV) Technical Assistance Frameworks: Expanded Access (no date).
63.  Interview with Victoria, Strength of a Woman, at 11 (no date) (transcript on file with authors).
64.  See The New York City ATI/Reentry Coalition Services Report 2010 (2010), available at http://www.ati-ny.org/files/ATI-final.pdf (last
visited Jan. 9, 2010); Telephone interview with Sister Mary Nerney, Founder of STEPS to End Family Violence, and Jesenia Santana,
Legal Services Coordinator, STEPS to End Family Violence (May 13, 2011).
65.  The New York City ATI/Reentry Coalition Services Report 2010 (2010), available at http://www.ati-ny.org/files/ATI-final.pdf (last
visited Jan. 9, 2010).
66.  NYS DOCS Press Release, Key Element of Drug Law Reform Takes Effect as Older Offenders, General Population Inmates Transfer into
Shock Incarceration, August 6, 2009 (“The first 202 offenders entering [a] Shock [incarceration correctional facility] as a result of the
program’s expansion will shave an average of 15 months off their sentences if they successfully complete the program. That translates
to a savings to State taxpayers of more than $13 million, based upon the $54,600 average cost to incarcerate an offender for a year.”),
available at http://www.docs.state.ny.us/PressRel/2009/shockexpansion09.html.
67.  See The New York City ATI/Reentry Coalition Services Report 2010 (2010), available at http://www.ati-ny.org/files/ATI-final.pdf (last
visited Jan. 9, 2010). This report was produced by the New York City ATI/Reentry Coalition which is a coalition of organizations coordinated by the Legal Action Center that “provides alternatives to incarceration for men, women, and youth who are charged with a crime
and also serves people after they have completed their sentence and are returning to the community.” Id. A five-year evaluation of the
Kings County Drug Treatment Alternative to Prison (DTAP) Program, for example, found that participants were 67% less likely to recidivate two years after leaving the program than non-participants. The study also found that DTAP graduates were three and a half times
more likely to be employed than they were before arrest. DTAP achieved these results at about half the average cost of incarceration.
The National Center on Addiction and Substance Abuse at Columbia University, CASA, Crossing the Bridge: An Evaluation of the
Drug Treatment Alternative-To-Prison (DTAP) Program (March 2003).
68.  Table 1B, Crimes by Predicate Felony Status by Gender; 2009 New Court Commitments to NYSDOCS, NYS DOCS, prepared May 29, 2010
(on file with the Women in Prison Project, Correctional Association of New York). As of April 1, 2010, 79% of women in New York State
prisons for violent felony convictions had never been convicted of a felony prior to their current offense. Table 3B, Crime by Predicate
Felony Status by Gender; Under Custody at NYS DOCS as of April 1, 2010, NYS DOCS, prepared May 25, 2010 (on file with the Women in
Prison Project, Correctional Association of New York).
69.  Although it is unclear how many of the 38 women identified in this statistic were incarcerated for protecting themselves from an
abuser, given the rates of intimate partner violence among women in prison, it is likely that at least some of the 38 women fit into that
category. Testimony on Behalf of the Alliance for Rational Parole Policies, Testimony Before the New York State Senate Standing Committee on Crime Victims, Crime and Corrections, submitted by the Center for Alternative Sentencing and Employment Services, Center
for Community Alternatives, Coalition for Parole Restoration, College and Community Fellowship, The College Initiative, Correctional
Association of New York, Exodus Transitional Community, Family Justice, Fortune Society, Interfaith Coalition of Advocates for Reentry
and Employment, Legal Action Center, The Osborne Association and Women’s Prison Association (January 15, 2008), at 2, available at
http://www.wpaonline.org/pdf/Alliance%20for%20Rational%20Parole%20Policies%20Testimony.pdf.
70.  Telephone interview with Sister Mary Nerney, Founder of STEPS to End Family Violence, and Jesenia Santana, Legal Services Coordinator, STEPS to End Family Violence (May 13, 2011).
71.  See, e.g., Center for Alternative Sentencing and Employment Services (CASES), http://www.cases.org/ (last visited May 26, 2011);
Center for Community Alternatives, http://www.communityalternatives.org/ (last visited May 26, 2011); Fortune Society, http://fortunesociety.org/ (last visited May 26, 2011); Greenhope Services for Women, http://www.greenhope.org/ (last visited May 26, 2011);
Osborne Association, http://www.osborneny.org (last visited May 26, 2011); Women’s Prison Association, http://www.wpaonline.org/
(last visited May 26, 2011).
72.  This program is STEPS to End Family Violence, http://www.stepstoendfamilyviolence.org (last visited January 7, 2011).
73.  See STEPS to End Family Violence, http://www.stepstoendfamilyviolence.org (last visited January 7, 2011).
74.  Telephone Interview with Sr. Mary Nerney, Founder of STEPS to End Family Violence (Oct. 29, 2009); Telephone Interview with Cathy
Selin, Senior Attorney, STEPS to End Family Violence (Nov. 5, 2009).
75.  The New York City ATI/Reentry Coalition Services Report 2010 (2010), available at http://www.ati-ny.org/files/ATI-final.pdf (last visited Jan. 9, 2010); National Institute of Corrections, Overview of New York’s Correctional System, http://nicic.gov/StateStats/?State=NY
(last visited Mar. 29, 2011).
76.  See Testimony on Behalf of the Alliance for Rational Parole Policies, Testimony Before the New York State Senate Standing Committee
on Crime Victims, Crime and Corrections, submitted by the Center for Alternative Sentencing and Employment Services, Center for
Community Alternatives, Coalition for Parole Restoration, College and Community Fellowship, The College Initiative, Correctional Association of New York, Exodus Transitional Community, Family Justice, Fortune Society, Interfaith Coalition of Advocates for Reentry and
Employment, Legal Action Center, The Osborne Association and Women’s Prison Association (January 15, 2008), at 2 (noting that none
of the 38 women convicted for murder and released between 1985 and 2003 in New York State returned to prison for a new commitment within a 36-month follow-up period), available at http://www.wpaonline.org/pdf/Alliance%20for%20Rational%20Parole%20Poli-

cies%20Testimony.pdf; Telephone interview with Sister Mary Nerney, Founder of STEPS to End Family Violence, and Jesenia Santana,
Legal Services Coordinator, STEPS to End Family Violence (May 13, 2011).
77.  Interview with Natalie, Survivor-Defendant, in New York., N.Y. (Mar. 19, 2010).
78.  N.Y. Correction Law § 803.
79.  N.Y. Penal Law § 70.40(1)(a)(ii); N.Y. Correction Law §§ 803, 804, 805 (2010) (1987).
80.  N.Y. Exec. Law § 259(c). See Todd R. Clear et al., American Corrections (8th ed. 2008) (1997).
81.  Id. § 259-i[2][c][a] (2010) (2003).
82.  See N.Y. Exec Law § 259-c[9] (2010) (2008).
83.  Testimony on Behalf of the Alliance for Rational Parole Policies, Testimony Before the New York State Senate Standing Committee
on Crime Victims, Crime and Corrections, submitted by the Center for Alternative Sentencing and Employment Services, Center for
Community Alternatives, Coalition for Parole Restoration, College and Community Fellowship, The College Initiative, Correctional Association of New York, Exodus Transitional Community, Family Justice, Fortune Society, Interfaith Coalition of Advocates for Reentry
and Employment, Legal Action Center, The Osborne Association and Women’s Prison Association (January 15, 2008) at 2, available at
http://www.wpaonline.org/pdf/Alliance%20for%20Rational%20Parole%20Policies%20Testimony.pdf; State of New York Department
of Correctional Services, Parole Board Dispositions at DOCS Facilities: Calendar Year 2002.
84.  For example, an article in Atticus, a publication of the New York State Association of Criminal Defense Lawyers, NYSACDL Supports Call
for Parole Reform, reports: “According to the Division of Parole, of the 784 people serving life sentences for A-1 violent felonies who
were released on parole during 2006, 2007, 2008 and 2009 the recidivism rate, measured by return to DOCS for a new felony conviction, was 1/4 of one percent.” Alan Rosenthal et al., Center for Community Alternatives, NYSACDL Supports Call for Parole Reform, 23
Atticus 27 (Winter 2011), available at http://www.communityalternatives.org/pdf/ATTICUS-ParoleReform.pdf. Of individuals serving
time for murder in NYS DOCS custody and released in 2006, 0.7% returned to DOCS custody for a new crime within three years of their
release compared to a 11% return rate for all individuals released from DOCS custody during that time frame. State of New York Department of Correctional Services, 2006 Releases: Three Year Post Release Follow-up 11, 37 (2006), available at http://www.docs.
state.ny.us/Research/Reports/2011/2006_releases_3yr_out.pdf.
85.  N.Y. Exec. Law § 259-b(1). 
86.  Trymaine Lee, Convicted of Murder as Teenager and Paroled at 41, N.Y. Times, June 4, 2010, at MB1 (quoting Robert Dennison, retired
Chairman, State of New York Parole Board).
87.  Id.
88.  Id. In 2009, 8% of parole-eligible individuals serving time for A-1 violent felony offenses were granted release on their initial appearance. Alan Rosenthal et al., Center for Community Alternatives, NYSACDL Supports Call for Parole Reform, 23 Atticus 27 (Winter 2011)
(citing statistics from the New York State Division of Parole Office of Policy Analysis, 2008), available at http://www.communityalternatives.org/pdf/ATTICUS-ParoleReform.pdf.
89.  See Graziano v. Pataki, 2007 WL 4302483, at *2 (S.D.N.Y. Dec. 5, 2007). In December 2010, the district court dismissed the case, and
the plaintiffs intend to appeal. See Graziano v. Pataki Update: December 10th 2010, Parole News, Dec. 10, 2010, http://parolenews.
blogspot.com/2010/12/graziano-v-pataki-update-december-10th.html (last visited Jan. 11, 2011).
90.  N.Y. Exec. Law 259-i(c)(A).
91.  See id. § 259-I [2][c][a] (2010) (2003). Telephone Interview with Robert Dennison, retired Chairman, State of New York Parole Board
(Oct. 22, 2009).
92.  Telephone interview with Sister Mary Nerney, Founder of STEPS to End Family Violence, and Jesenia Santana, Legal Services Coordinator, STEPS to End Family Violence (May 13, 2011); Telephone Interview with Robert Dennison, retired Chairman, State of New York
Parole Board (Oct. 22, 2009).
93.  See N.Y. Criminal Procedure Law § 390.60. Training material produced by Anthony J. Annucci, Executive Deputy Commissioner and
Counsel for the New York State Department of Correctional Services, states: “The single most important document is the pre-sentence
report. It is of enormous importance not only in making security and classification decisions, but also in terms of making program
assignments. This report follows the inmate throughout his incarceration. A computer generated summary of the pre-sentence is
also entered into the Department’s computer for each inmate. Hence, if a pre-sentence report contains inaccurate information, it
behooves the affected party to make the appropriate motion to correct the report before the defendant enters the prison system.”
Quoted in Alan Rosenthal, Center for Community Alternatives, Sentencing Tips for New York Lawyers: Obtain a Copy of the Pre-sentence Report, (no date), http://www.communityalternatives.org/publications/obtainACopy.html (last visited May 27, 2011).
94.  Telephone interview with Sister Mary Nerney, Founder of STEPS to End Family Violence, and Jesenia Santana, Legal Services Coordinator, STEPS to End Family Violence (May 13, 2011).
95.  Id; Telephone Interview with Robert Dennison, retired Chairman, State of New York Parole Board (Oct. 22, 2009) .
96.  N.Y. Exec. Law § 259-i[4] (2010) (2003); McKinney’s Consolidated Laws of New York § 7801 et seq.; Garofolo v. Rosa, 891 N.Y.S.2d 899,
974-975 (N.Y. Sup. 2009); Jennifer S. Bales, Equal Protection and the Use of Protest Letters in Parole Proceedings, A Particular Dilemma
for Battered Women Inmates, 27 Seton Hall L. Rev. 33 (1996).

97.  Garofolo v. Rosa, 891 N.Y.S.2d 899, 974-975 (N.Y. Sup. 2009); Telephone Interview with Robert Dennison, retired Chairman, State of
New York Parole Board (Oct. 22, 2009).
98.  See, e.g., R.B. v. State, Executive Dept., Div. of Parole, 892 N.Y.S.2d 855, 857 (2010); Richard v. Travis, 732 N.Y.S.2d 465, 466 (N.Y. App.
Div. 2001).
99.  See, e.g., Lichtel v. Travis, 731 N.Y.S.2d 533, 535 (N.Y. Sup. App. Div. 2001) (“Notably, the appropriate remedy when a prisoner successfully challenges the denial of an application for parole is remittal for a new hearing.”).
100.  Trymaine Lee, Convicted of Murder as Teenager and Paroled at 41, N.Y. Times, June 4, 2010, at MB1.
101.  N.Y. Correction Law § 803.
102.  Id.
103. N.Y. Correction Law § 803-b.
104. N.Y. Correction Law § 803(1)(d)(iii).
105. A “Limited Credit Time Allowance” requires incarcerated people to achieve more difficult objectives than merit time, such as completing two semesters of college, successfully participating in a State Department of Labor apprenticeship or working as an inmate
hospice aid for two years. See N.Y. Correction Law § 803-b(c). In addition, such programs exist only in a very limited number of prisons
and often have very few slots available.
106. Executive Order No. 5.1, signed by George E. Pataki (October 13, 1996).
107.  N.Y. Correction Law § 851.
108. The work release statute requires that the abuser have a “child in common” with the survivor or be a member of the inmate’s “immediate family” as that term is defined in N.Y. Penal Law 120.40: “spouse, former spouse, parent, child, sibling, or any other person who
regularly resides or has regularly resided in the household of a person.” N.Y. Correction Law § 851.
109. Authors cannot determine exactly how many of the 25 applicants were eligible for the domestic violence work release exception without a thorough review of case files and applications. Given the prevalence of domestic abuse histories among incarcerated women,
however, there are likely more than five individuals who fit the statutory test for the exception from 2002 to 2008. Statistics relayed
by Office of Temporary Release, NYS DOCS by phone, June 6, 2008.
110. Interviews with Katarina, Survivor-Defendant, in New York, N.Y. (Feb. 26, 2010 and April 14, 2011).
111. “The governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason
and cases of impeachment, upon such conditions and with such restrictions and limitations, as he or she may think proper, subject to
such regulations as may be provided by law relative to the manner of applying for pardons.” N.Y. Const. art. IV, § 4.
112. Email from Director of Media Relations and Public Affairs, New York State Division of Parole sent on January 23, 2009 (on file with the
Women in Prison Project, Correctional Association of New York).
113. For example, incarcerated women are separated from children, risk potential loss of parental rights, encounter substandard medical
and mental health services, have few opportunities to participate in effective rehabilitative programs, face possible sexual assault
from staff, and live with daily degradation (from being locked in cells and shackled for long periods of time to receiving inadequate
sanitary napkins and toilet paper supplies). For incarcerated survivors of violence, the prison environment often mirrors and reinforces the skewed power dynamic experienced in abusive relationships on the outside. See, e.g., Women in Prison Project of the
Correctional Association of New York, Report on Mental Health Programs and Services at Bedford Hills Correctional Facility
(September 2007); Women in Prison Project of the Correctional Association of New York, Report on Conditions of Confinement at Bedford Hills Correctional Facility (August 2007); Women in Prison Project of the Correctional Association of New
York, Report on Conditions of Confinement at Albion Correctional Facility (November 2006).
114. See National Clearinghouse for the Defense of Battered Women, The Impact of Arrests and Convictions on Battered Women
(September 2008), available at http://www.biscmi.org/wshh/NCDBW_%20Impact_of_Arrest.pdf.
115. Federal law prohibits people with certain drug and sex offense-related criminal convictions from living in public housing. See Legal
Action Center, How to Get Section 8 or Public Housing Even with a Criminal Record: A Guide for New York City Housing
Authority Applicants and their Advocates (2006), available at http://www.hirenetwork.org/pdfs/How_to_Get_Section_8_or_Public_Housing.pdf; Legal Action Center, Setting the Record Straight: What Defense Attorneys Need to Know About the Civil Consequences of Client Criminal Records (2001), available at http://www.hirenetwork.org/pdfs/setting_the_record_straight.pdf.
116.  For example, New York City Housing Authority (NYCHA) regulations bar individuals with felony convictions from public housing
eligibility for five to six years depending on the type of conviction, unless the disqualified individual presents sufficient evidence of
“rehabilitation,” which can be difficult, particularly for people convicted of violent crimes. Legal Action Center, How to Get Section
8 or Public Housing Even with a Criminal Record: A Guide for New York City Housing Authority Applicants and their Advocates
2, 12-17 (2006), available at http://www.hirenetwork.org/pdfs/How_to_Get_Section_8_or_Public_Housing.pdf.
117. See Coalition for Criminal Justice Reform, Blueprint for Criminal Justice Reform: Bringing Justice to Scale 22-23 (September
2007), available at http://lac.org/doc_library/lac/publications/Blueprint_Final_9-17-07.pdf; National Housing Law Project, An Affordable Home on Re-entry: Federally Assisted Housing and Previously Incarcerated Individuals (2008), available at http://nhlp.
org/guidebook (click on the electronically zipped guide).

118. See Coalition for Criminal Justice Reform, Blueprint for Criminal Justice Reform: Bringing Justice to Scale 22-23 (September
2007), available at http://lac.org/doc_library/lac/publications/Blueprint_Final_9-17-07.pdf; National Housing Law Project, An Affordable Home on Re-entry: Federally Assisted Housing and Previously Incarcerated Individuals (2008), available at http://nhlp.
org/guidebook (click on the electronically zipped guide).
119.  Legal Action Center, After Prison: Roadblocks to Reentry, A Report on State Legal Barriers Facing People with Criminal Records (2004), available at http://www.lac.org/roadblocks-to-reentry/upload/lacreport/LAC_PrintReport.pdf.
120.  N.Y. Correction Law § 752. In addition, tax credits and bonding programs exist for employers who hire individuals with criminal records. National HIRE Network, Legal Action Center, Protecting Yourself When Using Criminal Background Checks, http://www.hirenetwork.org/crim_back_check.html (last visited April 13, 2011).
121.  See The Independent Committee on Reentry and Employment, Report and Recommendations to New York State on Enhancing
Employment Opportunities for Formerly Incarcerated People (2006), available at http://www.doe.org/criminalJustice/committeeReport.pdf.
122.  Nationally, about 40% of women were employed full-time before arrest, compared with 60% of men. About 37% of women had
an income of less than $600 in the month before arrest, compared with 28% of men. Lawrence A. Greenfield and Tracy L. Snell,
Bureau of Justice Statistics, U.S. Department of Justice, Women Offenders (December 1999, rev. 10/3/00). Nearly 54% of women
prisoners do not have a high school diploma, compared with nearly 46% of men. State of New York Department of Correctional
Services, Hub System: Profile of Inmate Population Under Custody on January 1, 2008, 51 (March 2008), available at http://www.
docs.state.ny.us/Research/Reports/2008/Hub_Report_2008.pdf.
123.  Formerly incarcerated women also face considerable time limitations resulting from meeting immediate life and reentry needs and
interacting with multiple service systems such as child welfare, public assistance, health and parole. See Dina R. Rose et al., Women’s
Prison Association, Women, Re-entry and Everyday Life: Time to Work? (March 2008).
124.  In certain circumstances, it is possible to receive public benefits for an extended period of time, beyond the five-year cut-off. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law No. 104-193 (1996). Federal law also imposes a
lifetime ban from receiving federal public assistance upon people convicted of drug-related felonies but allows states to opt out of this
provision. New York opted out of this ban. See Legal Action Center, After Prison: Roadblocks to Reentry, A Report on State Legal
Barriers Facing People With Criminal Records (2004), available at http://www.lac.org/roadblocks-to-reentry/upload/lacreport/
LAC_PrintReport.pdf.
125.  Nearly 30% of incarcerated women nationwide were on public assistance before arrest, compared to less than 8% of men. Lawrence
A. Greenfield and Tracy L. Snell, Bureau of Justice Statistics, U.S. Department of Justice, Women Offenders (December 1999, rev.
10/3/00).
126.  Federal law bars individuals who were receiving federal financial aid for higher education at the time they were convicted of a drug
offense from receiving higher education grants, loans, or work assistance for a period of time. Diana Brazzelle et al., The Urban
Institute, From the Classroom to the Community: Exploring the Role of Education During Incarceration and Reentry 39 (2009)
available at http://www.wpaonline.org/pdf/Women%20Reentry%20and%20Everyday%20Life%20-%20Final%20Report.pdf.
127.  Id.
128. Marsha Weissman et al., Center for Community Alternatives, The Use of Criminal History Records in College Admissions Reconsidered (Nov. 2010), available at http://www.communityalternatives.org/pdf/Reconsidered-criminal-hist-recs-in-college-admissions.pdf
129. Diana Brazzelle et al., The Urban Institute, From the Classroom to the Community: Exploring the Role of Education During
Incarceration and Reentry 39 (2009), available at http://www.wpaonline.org/pdf/Women%20Reentry%20and%20Everyday%20
Life%20-%20Final%20Report.pdf; Correctional Association of New York, Education from the Inside Out: The Multiple Benefits
of College Programs in Prison (January 2009); Daniel Karpowitz and Max Kenner, Education as Crime Prevention: The Case for
Reinstating Pell Grant Eligibility for the Incarcerated (n.d.), available at http://www.bard.edu/bpi/pdfs/crime_report.pdf.
130.  Diana Brazzelle et al., The Urban Institute, From the Classroom to the Community: Exploring the Role of Education During
Incarceration and Reentry 39 (2009), available at http://www.wpaonline.org/pdf/Women%20Reentry%20and%20Everyday%20
Life%20-%20Final%20Report.pdf; Correctional Association of New York, Education from the Inside Out: The Multiple Benefits
of College Programs in Prison (January 2009); Daniel Karpowitz and Max Kenner, Education as Crime Prevention: The Case for
Reinstating Pell Grant Eligibility for the Incarcerated (n.d.), available at http://www.bard.edu/bpi/pdfs/crime_report.pdf.
131.  See Julie Kowitz Margolies & Tamar Kraft-Stolar, Correctional Association of New York, When “Free” Means Losing Your
Mother: The Collision of Child Welfare and the Incarceration of Women in New York State (2006), available at http://www.correctionalassociation.org/publications/download/wipp/reports/When_Free_Rpt_Feb_2006.pdf.
132.  2010 New York Laws, Chapter 113. See Rachel Roth, Prison Shouldn’t Be a Bar to Motherhood, Women’s e-News, July 25, 2010, available at http://www.womensenews.org/story/incarceration/100722/prison-shouldnt-be-bar-motherhood; Tamar Kraft-Stolar, A Fair
Chance for Families Separated by Prison, North Star Fund Blog, June 30, 2010, http://northstarfund.org/blog/2010/06/a-fair-chancefor-families-separated-by-prison.php (last visited April 14, 2010). Because incarcerated mothers are more likely to report having
children in foster care than incarcerated fathers, these laws disproportionately affect women. Nearly 11% of mothers in state prison
nationwide report that their children are in foster homes or agencies, compared with just over 2% of fathers. More than 88% of men
in state prison report that their children are living with their mothers. In comparison, 37% of incarcerated mothers report that their
children are living with their fathers. Lauren E. Glaze and Laura M. Maruschak, Bureau of Justice Statistics, U.S. Department of
Justice, Parents in Prison and Their Minor Children 16 (Bureau of Justice Statistics Special Report, August 2008, rev 1/8/09).

133.  National Clearinghouse for the Defense of Battered Women, The Impact of Arrests and Convictions on Battered Women 2-3
(September 2008), available at http://www.biscmi.org/wshh/NCDBW_%20Impact_of_Arrest.pdf; Elizabeth M. Schneider, Battered
Women & Feminist Lawmaking 153 (2000) (“A woman with children who talks about her experience of domestic violence in any
context that can bring the legal or child-protective process to bear on her life may fear, with good reason, that she will be blamed . . . .
Battered women face serious consequences for their behavior; they may be charged with criminal conduct for failure to protect, held
liable for abuse and neglect, have their parental rights terminated, or face criminal responsibility . . . .”); Linda Quigley, The Intersection between Domestic Violence and the Child Welfare System: The Role Courts Can Play in the Protection of Battered Mothers and
Their Children, 13 Wm. and Mary J. of Women and L. 867, 867-886 (2007); Telephone interview with Sister Mary Nerney, Founder of
STEPS to End Family Violence, and Jesenia Santana, Legal Services Coordinator, STEPS to End Family Violence (May 13, 2011).
134. An estimated 5.3 million people – including almost 677,000 women – in the United States have lost the right to vote because of a
felony conviction. The Sentencing Project, Felony Disenfranchisement Laws in the United States (November 2006), http://archive.
fairvote.org/righttovote/Felony%20Dis%20Laws%20in%20the%20US.pdf (last visited March 2011).
135. Legal Action Center, After Prison: Roadblocks to Reentry, A Report on State Legal Barriers Facing People With Criminal Records (2004), available at http://www.lac.org/roadblocks-to-reentry/upload/lacreport/LAC_PrintReport.pdf.
136. “Researchers found in 2005 that nearly 30% of persons with prior criminal convictions incorrectly believed they were ineligible to
vote.” Nicole D. Porter, The Sentencing Project, Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2010, 21
(October 2010), available at http://www.sentencingproject.org/doc/publications/publications/vr_ExpandingtheVoteFinalAddendum.
pdf.
137. See Alec Ewald, Demos: A Network for Ideas and Action, Punishing at the Polls: The Case Against Disenfranchising Citizens With
Felony Convictions (September 2003), available at http://www.prisonpolicy.org/scans/demos/punishing_at_the_polls.pdf; Human
Rights Watch and The Sentencing Project, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States
(October 1998), available at http://www.sentencingproject.org/doc/File/FVR/fd_losingthevote.pdf.
138. See C. B. Forrest & B. Starfield, The Effect of First-Contact Care with Primary Care Clinicians on Ambulatory Healthcare Expenditures,
43 Journal of Family Practice 40-48 (1996), cited in Re-Entry Policy Council, Council of State Governments, Chapter 35: Physical
Health Care System, Report of the Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community (2003), available at http://reentry.microportals.net/Report/PartIII/PolicyStatement35; American College of Physicians-American Society of Internal Medicine, No Health Insurance? It’s Enough to Make You Sick - Uninsured Women at Risk, Third White Paper,
Health Issues of Uninsured Americans Series, (2001).
139. 2007 New York Laws, Chapter 355.
140. An American Journal of Public Health study, for example, confirmed that access to post-release health insurance is “associated with
lower re-arrest and drug use.” Nicholas Freudenberg et al., Coming Home From Jail: The Social and Health Consequences of Community Reentry for Women, Male Adolescents, and Their Families, 95 American Journal of Public Health 1725 (October 2005).
141. 12.2% of women and 6% of men in New York’s prisons are HIV positive. The rate of women in New York’s prisons with HIV is 80 times
higher than the rate in the general public (0.15%). Laura M. Maruschak, Bureau of Justice Statistics, U.S. Department of Justice,
HIV in Prisons, 2006, Tables 1& 2, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/hivp06.pdf; U.S. Census Bureau, Table 1:
Annual Estimates of the Population for the United States and States, and for Puerto Rico: April 1, 2000 to July 1, 2005 (2005); U.S. Department of Health and Human Services, National Institute of Allergy and Infectious Diseases (NIAID), HIV Infection and AIDS:
An Overview, Table 1 (March 2005). An estimated 22.1% of women and 12.8% of men in New York’s prisons have hepatitis C (HCV).
The rate of HCV infection among New York’s women prisoners is more than 14 times higher than the HCV infection rate in the general
public (1.6%). Prison Visiting Project of the Correctional Association of New York, Healthcare in New York State Prisons, 20042007 (January 2009), available at http://www.correctionalassociation.org/publications/download/pvp/issue_reports/Healthcare_Report_2004-07.pdf; Gregory L. Armstrong et al., The Prevalence of Hepatitis C Virus Infection in the United States, 1999 through 2002,
144 Annals of Internal Medicine 705, 707 (May 16, 2006).
142. See statistics cited in note 141 supra. See also Prison Visiting Project of the Correctional Association of New York, Healthcare
in New York State Prisons, 2004-2007 (January 2009), available at http://www.correctionalassociation.org/publications/download/
pvp/issue_reports/Healthcare_Report_2004-07.pdf.
143. Email from Director of Media Relations and Public Affairs, New York State Division of Parole sent on January 23, 2009 (on file with the
Women in Prison Project, Correctional Association of New York).
144.  Interview with Desiree, Strength of a Woman (no date) (transcript on file with authors).
145. For example, the United States has ratified, and therefore is a party to, the International Covenant on Civil and Political Rights. G.A.
Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, arts. 2, 14, U.N. Doc. A/6316 (1966) [hereinafter ICCPR]. It has signed but
not ratified the Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, art. 1, U.N. Doc. A/
Res/34/180 (Dec. 18, 1979) [hereinafter CEDAW]. However, as a signatory to the latter convention, the United States is obligated to
refrain from acts that would undermine the treaty’s object and purpose. See Vienna Convention on the Law of Treaties art. 18, May
23, 1969, 1155 U.N.T.S. 331.
146. See, e.g., ICCPR, art. 50; International Convention on the Elimination of All Forms of Racial Discrimination, art. 2, opened for signature
Mar. 7, 1966, S. Exec. Doc. C, 95-2 (1978), 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) [hereinafter CERD].
147.  See CEDAW, art. 1; Committee on the Elimination of all forms of Discrimination Against Women, G.A. Res. 34/180, Gen. Rec. No. 19
(Dec. 18, 1979) [hereinafter CEDAW Committee, General Recommendation No. 19 – Violence against Women] ; Declaration on the

Elimination of Violence Against Women, G.A. Res. 48/104 (I) (1993) [hereinafter Declaration on the Elimination of Violence Against
Women]. In elaborating upon States’ obligations to combat gender-based violence, the former UN Special Rapporteur on Violence
Against Women, Dr. Yakin Erturk, explained that States must act with due diligence to prevent violence against women, including violence that is perpetrated by private actors. The Special Rapporteur on Violence Against Women, its Causes and Consequences, Yakin
Erturk, Report on The Due Diligence Standard as a Tool for the Elimination of Violence Against Women, ¶ 19, delivered to the Economic
and Social Council Commission on Human Rights, U.N. Doc. E/CN.4/2006/61 (Jan. 20, 2006). See also CEDAW Committee, General
Recommendation No. 19 – Violence against Women, ¶ 9; Declaration on the Elimination of Violence Against Women, art. 4(c).
148. See, e.g., ICCPR, arts. 2, 14; CEDAW, arts. 1, 2, 15.
149. CEDAW Committee, General Recommendation No. 19 – Violence against Women, ¶¶ 1, 7.
150. Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Yatkin Erturk, Addendum: Mission
to Tajikistan, Apr. 29, 2009, UN Doc. A/HRC/11/6/Add.2, ¶ 37. In her report, the Special Rapporteur called upon the state party under
investigation to “[r]eview sentences against women detainees who murdered their partners because of domestic violence, taking into
account the mitigating circumstances around their crime.” Id. ¶ 84.
151.  Intensification of Efforts to Eliminate All Forms of Violence Against Women, GA Res. 61/143, Jan. 30, 2007, UN Doc. A/RES/61/143.
152. United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules),
adopted by GA Res. 65/229, Mar. 16, 2011, UN Doc. A/RES/65/229.
153. Id. at Rule 9.
154. Id. at Rule 57 (“Gender-specific options for diversionary measures and pre-trial and sentencing alternatives shall be developed within
Member States’ legal systems, taking into account of the history of victimization of many women offenders and their caretaking
responsibilities.”).
155. Id. at Rule 60 (“Appropriate resources shall be made available to devise suitable alternatives for women offenders in order to combine
non-custodial measures with interventions to address the most common problems leading to women’s contact with the criminal
justice system. These may include therapeutic courses and counseling for victims of domestic violence and sexual abuse . . . .”).
156. United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules), adopted by GA Res. 45/110, Dec. 14, 1990, UN
Doc. A/RES/45/110, Rule 8.1.
157. New York State Governor Andrew Cuomo has repeatedly endorsed the need to downsize the state’s prison system. See Executive
Order No. 7, signed by Andrew M. Cuomo (February 9, 2011), available at http://www.governor.ny.gov/executiveorder/7; State of
New York, 2011-2012 Executive Budget Briefing Book: Public Safety 63-67 (2011), available at http://publications.budget.state.
ny.us/eBudget1112/fy1112littlebook/PublicSafety.pdf; Governor Andrew M. Cuomo, State of the State Address, Jan. 5, 2011, available
at http://www.governor.ny.gov/sl2/stateofthestate2011transcript.
158. District Attorneys’ offices in other parts of the United States have adopted some of the policies in this recommendation through
specific programs designed to respond to survivor-defendants. See, e.g., Mary Asmus, At a Crossroads: Developing Duluth’s
Prosecution Response to Battered Women Who Fight Back (2004, 2007) (discussing program developed by prosecutors in Duluth,
Minnesota in which defendants who have a documented history of abuse and meet certain other criteria are eligible to have their
prosecution deferred and charges ultimately dropped upon completion of all of the terms of the deferral agreement), available at
http://www.bwjp.org/files/bwjp/articles/At%20A%20Crossroads_part1.pdf. See also Jeffrey P. Greipp et al., Aequitas: The Prosecutor’s Resource on Violence Against Women, Intimate Partner Violence Victims Charged with Crimes: Justice and Accountability
for Victims of Battering Who Use Force Against Their Batterers (2010) (arguing that prosecutors should conduct contextualized
evaluation and analysis of cases involving survivor-defendants and consider carefully whether the interests of justice support the
prosecutor’s use of discretion to dismiss the case or explore alternative dispositions), available at http://www.aequitasresource.org/
Intimate_Partner_Violence.pdf.