Today, the Connecticut Judiciary Committee heard public testimony on a bill that would offer sentence reductions to criminals who show “clear and convincing evidence” that domestic violence, sexual assault, stalking or human trafficking represented “a contributing factor” to the commission of their crimes.
“I just feel a lot of mothers, you know, that go through this with their daughters or their children, — It’s a lot on us,” said Betty Hines, the mother of a woman convicted of murdering her allegedly abusive husband. “With this bill, I believe it could help them, if they [lawmakers] just, you know, reach deep down in their soul and understand domestic violence, because it’s a lot. It’s a lot on the mothers, it’s a lot on the survivors.”
The proposed bill would allow for alleged victims of such crimes, who are accused of crimes themselves, to file a motion in court anytime prior to their sentencing to request eligibility for a reduced sentence. Additionally, the bill would allow already incarcerated survivors of abuse to apply for eligibility if granted a request for sentence modification. Many felony charges, such as murder, are subject to strict sentencing guidelines, meaning judges have less leeway when deciding what sentence a person found guilty of such a crime should receive. This bill would allow judges more discretion when sentencing if they determine the perpetrators to be abuse survivors, and determine that abuse to be a contributing factor in the commission of their own crime.
Per the proposed bill, survivors would have to provide the court with “at least two pieces of documented proof corroborating” that they are victims of such crimes. The bill states that documents such as court, medical, social services or law enforcement records, as well as prior restraining or protective orders, and even sworn statements from potential witnesses of the abuse, such as clergy members, doctors, counselors, therapists, attorneys, social workers, or any “other advocate” acting on the survivors’ behalf, would suffice as evidence for this purpose.
If the court deems the survivor eligible for a reduction, any crime committed by them usually punishable by a life sentence without possibility of release could get their sentence reduced to a term of 30-years or less, any crime usually mandated to receive fifty years or more could receive sentences of 25-years or less, and so-on and so-forth, to the point that mandatory sentences of three-to-five years could be reduced to sentences of 18-months or less.
New York passed a similar bill, called the Domestic Violence Survivors Justice Act (DVSJA), in 2019. Kate Mogulesco, Legal and Policy Director of the Survivors Justice Project, testified in support of Connecticut’s proposed bill. Mogulesco said the Survivors Justice Project is the “only entity that is actually collecting data on New York’s DVSJA” since its passage, and said her clinic has been handling DVSJA cases “all over New York State” while studying laws regarding survivor sentence and post-conviction measures across the country.
“The lessons that we’ve learned in New York show that these laws are critical for survivors of domestic violence who have been arrested, prosecuted and punished,” said Mogulesco. “Our law in New York has surfaced so many important issues that face survivors who have been criminalized, and this law simply makes clear that domestic violence can contribute to a criminal offense and therefore should be taken into consideration in sentencing and in other important contexts.”
Mogulescu assured members of the Judiciary Committee that the fears presented by New York prosecutors who were skeptical of DVSJA prior to its passage, such as the possibility that felons take advantage of tenuous ties to prior abuse to validate their commission of “particularly brutal or disturbing offenses,” have “not come into fruition.” Mogulescu said that, “we’ve seen exactly the opposite,” in that many survivors who were intended to receive relief via the DVSJA, have not because of the law’s “strict requirements and guardrails.”
Mogulescu said the Survivors Justice Project has identified 232 re-sentencing applications filed in New York by alleged abuse survivors since the DVSJA’s passage, and that only 79 of those applicants were granted re-sentencing, with 50 applications still pending. Furthermore, Mogulescu said that of the prosecutors in these 79 cases that were granted re-sentencing modifications, 59 of them agreed with the re-sentencing.
“What’s interesting is in 12 of those cases, the prosecutors initially opposed survivors’ justice relief, and then changed their position upon hearing and learning more about the survivor and their application,” said Mogulescu. “So in New York, this has saved for those 79 survivors, 234 years from what would have been their earliest possible release.”
Lisa Angelo, Connecticut’s Deputy Chief State’s Attorney, wrote testimony on behalf of the state’s Department of Criminal Justice in opposition to the bill based on the grounds that judges are already provided “broad discretion at sentencing” to consider “a wide variety of circumstances surrounding the crime and the offender’s background and history, including whether the defendant was a survivor of abuse or trauma.” Angelo noted that current state law already requires judges to order the creation of pre-sentencing investigation reports (PSI) for any crime in which the punishment exceeds a year of imprisonment, and said that PSIs give survivors a forum through which they can contextualize their crimes through the lens of their past abuse.
“In short, the information this bill seeks to allow a defendant to present in front of a sentencing court already can be put in front of a sentencing court under existing law and rules of practice,” wrote Angelo.
Mogulescu addressed this notion directly.
“We often hear prosecutors say that domestic violence is already taken into account as cases are adjudicated in the criminal legal system, and sometimes that is true,” said Mogulescu. “A bill like the Survivors Justice Act makes sure that there is consistent application of that concept across the board, not just when prosecutors already are conditioned to.”
Mogulescu argued that the sentencing discretion currently provided to judges by state law is often undermined by abuse survivors’ reluctance to speak up on their experiences “at the times that we deem sort of appropriate,” leading to survivors being sentenced before they muster the courage to speak about their abuse in open court.
“A lot of this hinges, of course, on a survivor’s ability to not only identify what they are experiencing as domestic violence, sexual assault or human trafficking, but also to be able to disclose it to a lawyer, to their legal team, in a courtroom,” said Mogulescu. “Many survivors are prosecuted alongside the people who abuse them, rendering that scenario very unlikely.”
Angelo also took issue with the bill’s proposed sentence reduction guidelines, saying they “appear to be arbitrarily selected and lack a thorough analysis of their implications.” Angelo argued that the proposed reductions do “not align with the principles of proportionality in sentencing,” and “fail to account for the broader context of victims’ rights and public safety.”
Rep. Craig Fishbein (R-Wallingford), a practicing attorney who said he represents “victims of domestic violence all the time,” was also skeptical of the bill, saying it might set a precedent that anybody the court deems to have been “coerced or forced” to commit a “wrongful criminal act” be “treated differently in sentencing.”
“How is the coercion that’s dealt with in this bill different from that of, let’s say, a gang member, a young man who is, you know, coerced or threatened, to commit a heinous criminal act, the same criminal act that is addressed here, but the sentencing would be different?” said Fishbein. “You’re creating a protected class, and this legislation creates a sentencing structure just for that particular class, for whatever reason. I’m very sympathetic to victims of domestic violence, but two similarly situated individuals, both coerced to commit a murder and who have a different sentencing structure? I think you’ve got some significant issues here.”
Mogulescu said that of all the opposition she has heard to New York’s DVSJA, she had never heard any on the grounds Fishbein had provided, and shared her belief that he was conflating two separate issues.
“I don’t think anyone would downplay the severity of coercion among gangs, it’s just simply not what’s before you right now,” said Mogulescu. “What is before you right now is a sensible sentencing reform that recognizes the link, the very clear link, between domestic violence and incarceration and participation in certain criminal offenses.”
Fishbein responded by saying that, “as a lawmaker, if you start to open up the door to all persons that have been coerced to commit a murder therefore can avail themselves of this different sentencing structure, then you’re opening it up to everybody, and just by attrition, it’s just going away.”
Fishbein also highlighted the fact that the proposed bill would allow alleged survivors the opportunity to apply for a post-sentencing modification even if the evidence they present has already been considered before the court that tried them. Mogulescu said that it’s already “well within” the power of Connecticut’s Board of Pardons and Paroles to “consider everything that happened initially in the prosecution” when deciding to grant a pardon.
“So I’m not sure that this creates any distinction other than what they already do,” said Mogulescu.
Rep. Jillian Gilchrest (D-West Hartford) said that one of the “stated concerns” she’s heard surrounding Connecticut’s proposed bill was the possibility that felons with a history of child abuse might “30 years later” commit a crime and try to connect “that crime to the abuse.” She asked Mogulescu why adding a time limit to the bill, so that survivors could only tie their crimes to recent abuse when requesting reductions, would “make a policy like this unworkable.”
Mogulescu cited the proposed bill’s current language, which stipulates the court “must find that the abuse was a contributing factor” to the crime the survivor is convicted of, is already an effective enough guardrail against Gilchrest’s concern. Adding a timeliness provision would not take into account survivors of abuse acting in response to a “triggering event,” said Mogulescu, who believed that Connecticut’s bill should “reflect that nuance.”
“It is not the case that every person that experienced abuse at any point in their life can come into a courtroom and identify that abuse and therefore get a different sentence,” said Mogulescu. “There must be a connection between the abuse and the offense, and so if you were to impose a time limit there, what we would find is many survivors, again, who are precisely the people that we see as the beneficiaries of this important law, would be excluded.”
Expecting survivors to “be healed from abuse after one specific time” doesn’t “really align with how people experience trauma and domestic violence,” said Mogulescu. She said that, thus far, New York has not seen “an overflow or floodgates of people coming in claiming early childhood abuse and then being either released from prison or given sentencing alternatives, it just hasn’t happened.”
Rep. Melissa Osborne (D-Simsbury) asked for Mogulescu to clarify whether the bill would only apply to situations in which the survivor committed a crime against their abusers, or more broadly applied to any crime committed by the survivor against anyone, so long as that crime could be deemed their abuse “was a contributing factor.” Mogulescu said the bill would work in the latter fashion.
Rep. Dominique Johnson (D-Norwalk) asked whether Mogulescu had any concerns with the bill in its current form, or whether there are any lessons Connecticut’s lawmakers could take away from New York’s passage of the DVSJA. Mogulescu said her primary concern was the proposed law’s requirement that survivors provide two pieces of evidence to claim eligibility, a provision also included in the DVSJA.
“What we’ve seen in New York is that actually many survivors don’t have the documentation required to meet the law’s standard,” said Mogulescu. “As we all know, many victims of domestic violence simply do not engage with these systems. And so I think, actually, a place for Connecticut to go is to eliminate that requirement, because again, I think many deserving survivors would not be eligible or won’t be able to establish, with documentation, their abuse.”
Mogulescu said that in New York, she’s seen the DVSJA have a “profound impact” on victims of abuse, just by virtue of the fact that it allows them an additional opportunity to be recognized by the courts as survivors. She said that one of New York’s first re-sentencing cases under the act freed a woman who was 17-years old when she was given 25-to-life for killing a 77-year old man who had “been commercially sexually exploiting her for months.” The survivor explained the nature of her abuse in her original trial, but “simply wasn’t believed at that time,” said Mogulescu. When the survivor filed her request for re-sentencing, it was brought before the same judge who originally sentenced her. That same judge ultimately granted her her freedom.
“She had effectively grown up in prison, and at the time of her re-sentencing, and this is the recognition that I was talking about before, the judge said to her, ‘We owe you an apology for how you were treated initially,'” said Mogulesco. “That’s an example of a re-sentencing experience, where I think all can agree that a sentence of 25-to-life for that young person in that circumstance was not appropriate. The DVSJA allowed a second look at that.”
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