What's happening
This bill allows domestic violence survivors convicted of certain crimes to receive reduced sentences or apply for resentencing based on their abuse.
Why it matters
Expands Eligibility and Reduces Sentences. The bill allows survivors of domestic violence convicted of certain offenses (excluding the most serious crimes like murder or sex offenses) to receive much lower sentences if the abuse they suffered was a significant factor in their criminal behavior. This can mean a drastic reduction in prison time, recognizing the role that trauma from abuse can play in criminal acts.
Retroactive Resentencing for Past Convictions. People currently in prison who were sentenced to at least eight years for eligible crimes before this law takes effect can apply for resentencing. If they can prove they were victims of substantial domestic violence that contributed to their crime, their sentence could be reduced under the new, more lenient standards—even if their original sentencing didn't consider their abuse.
Concrete Standards and Evidence Requirements. The law sets out what proof is needed to show someone was a victim of substantial domestic violence, including at least one official record (like a police report, order of protection, or sworn witness statement). This creates a clear, but not insurmountable, path for survivors to seek relief, aiming to balance fairness with the need to prevent abuse of the system.
Broader Justice System Impact. By allowing courts to revisit past sentences and making new sentencing more responsive to the context of domestic violence, the bill could lead to significant changes in how domestic violence survivors are treated in the criminal justice system. It acknowledges the unique circumstances of these defendants and could set a precedent for trauma-informed sentencing reforms nationwide.
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Who cares
Headline styles
Reduce Sentences for Abuse Survivors
Plain English, a few words. Used as the page title.
Sponsors
30 Co-sponsors
- Joseph P. Addabbo Jr.
- Jamaal Bailey
- Brian Benjamin
- Alessandra Biaggi
- Phil Boyle
- Neil D. Breslin
- David Carlucci
- Leroy Comrie
- Andrew Gounardes
- Brad Hoylman-Sigal
- Robert Jackson
- Timothy M. Kennedy
- Liz Krueger
- John Liu
- Monica Martinez
- Rachel May
- Shelley Mayer
- Jen Metzger
- Velmanette Montgomery
- Kevin S. Parker
- Jessica Ramos
- Gustavo Rivera
- Julia Salazar
- James Sanders Jr.
- Diane J. Savino
- Luis R. Sepúlveda
- José M. Serrano
- James Skoufis
- Toby Ann Stavisky
- Kevin Thomas
History
- Substituted by A3974
- Ordered to third reading cal.252
- Committee discharged and committed to rules
- Referred to codes
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Reduce Sentences for Abuse Victims
Signed by Governor · Sponsor Jeffrion Aubry
Full text
7 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
1077
2019-2020 Regular Sessions
IN SENATE
January 10, 2019
Introduced by Sen. PERSAUD -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in relation to sentencing and resentencing in domestic violence cases
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Section 60.12 of the penal law, as added by chapter 1 of the laws of 1998, is amended to read as follows: § 60.12 Authorized disposition; alternative [indeterminate] sentence [of
imprisonment]; domestic violence cases.
1. Notwithstanding any other provision of law, where a court is imposing sentence upon a person pursuant to section 70.00, 70.02 [upon a conviction for an offense enumerated in subdivision one of such section], 70.06 or subdivision two or three of section 70.71 of this title, other than for an offense defined in [article one hundred thirty of this chapter] section 125.26, 125.27, subdivision five of section 125.25, or article 490 of this chapter, or for an offense which would require such person to register as a sex offender pursuant to article six-C of the correction law, an attempt or conspiracy to commit any such offense, and is authorized or required pursuant to [such section] sections 70.00, 70.02, 70.06 or subdivision two or three of section 70.71 of this title to impose a [determinate] sentence of imprisonment [for such offense], the court, upon a determination following a hearing that (a) at the time of the instant offense, the defendant was [the] a victim of domestic violence subjected to substantial physical, sexual or psychological abuse [by the victim or intended victim of such offense,] inflicted by a member of the same family or household as the defendant as such term is defined in subdivision one of section 530.11 of the criminal procedure law; (b) such abuse was a significant contributing factor [in causing the defendant to commit such offense and] to the defendant's criminal behavior; (c) [the victim or intended victim of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00863-01-9
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such offense was a member of the same family or household as the defendant as such term is defined in subdivision one of section 530.11 of the criminal procedure law, may, in lieu of imposing such determinate sentence of imprisonment, impose an indeterminate sentence of imprisonment in accordance with subdivisions two and three of this section.] having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, that a sentence of imprisonment pursuant to section 70.00, 70.02 or 70.06 of this title would be unduly harsh may instead impose a sentence in accordance with this section.
A court may determine that such abuse constitutes a significant contributing factor pursuant to paragraph (b) of this subdivision regardless of whether the defendant raised a defense pursuant to article thirty-five, article forty, or subdivision one of section 125.25 of this chapter.
At the hearing to determine whether the defendant should be sentenced pursuant to this section, the court shall consider oral and written arguments, take testimony from witnesses offered by either party, and consider relevant evidence to assist in making its determination. Reliable hearsay shall be admissible at such hearings.
2. [The maximum term of an indeterminate sentence imposed pursuant to subdivision one of this section must be fixed by the court as follows:] Where a court would otherwise be required to impose a sentence pursuant to section 70.02 of this title, the court may impose a definite sentence of imprisonment of one year or less, or probation in accordance with the provisions of section 65.00 of this title, or may fix a determinate term of imprisonment as follows:
(a) For a class B felony, the term must be at least [six years] one year and must not exceed [twenty-five] five years;
(b) For a class C felony, the term must be at least [four and one-half years] one year and must not exceed [fifteen] three and one-half years;
(c) For a class D felony, the term must be at least [three years] one year and must not exceed [seven] two years; and
(d) For a class E felony, the term must be [at least three years] one year and must not exceed [four] one and one-half years.
3. [The minimum period of imprisonment under an indeterminate sentence imposed pursuant to subdivision one of this section must be fixed by the court at one-half of the maximum term imposed and must be specified in the sentence] Where a court would otherwise be required to impose a sentence for a class A felony offense pursuant to section 70.00 of this title, the court may fix a determinate term of imprisonment of at least five years and not to exceed fifteen years.
4. Where a court would otherwise be required to impose a sentence for a class A felony offense pursuant to subparagraph (i) of paragraph (b) of subdivision two of section 70.71 of this title, the court may fix a determinate term of imprisonment of at least five years and not to exceed eight years.
5. Where a court would otherwise be required to impose a sentence for a class A felony offense pursuant to subparagraph (i) of paragraph (b) of subdivision three of section 70.71 of this title, the court may fix a determinate term of imprisonment of at least five years and not to exceed twelve years.
6. Where a court would otherwise be required to impose a sentence for a class A felony offense pursuant to subparagraph (ii) of paragraph (b) of subdivision two of section 70.71 of this title, the court may fix a
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determinate term of imprisonment of at least one year and not to exceed three years.
7. Where a court would otherwise be required to impose a sentence for a class A felony offense pursuant to subparagraph (ii) of paragraph (b) of subdivision three of section 70.71 of this title, the court may fix a determinate term of imprisonment of at least three years and not to exceed six years.
8. Where a court would otherwise be required to impose a sentence pursuant to subdivision six of section 70.06 of this title, the court may fix a term of imprisonment as follows:
(a) For a class B felony, the term must be at least three years and must not exceed eight years;
(b) For a class C felony, the term must be at least two and one-half years and must not exceed five years;
(c) For a class D felony, the term must be at least two years and must not exceed three years;
(d) For a class E felony, the term must be at least one and one-half years and must not exceed two years.
9. Where a court would otherwise be required to impose a sentence for a class B, C, D or E felony offense pursuant to section 70.00 of this title, the court may impose a sentence in accordance with the provisions of subdivision two of section 70.70 of this title.
10. Except as provided in subdivision seven of this section, where a court would otherwise be required to impose a sentence pursuant to subdivision three of section 70.06 of this title, the court may impose a sentence in accordance with the provisions of subdivision three of section 70.70 of this title.
11. Where a court would otherwise be required to impose a sentence pursuant to subdivision three of section 70.06 of this title, where the prior felony conviction was for a felony offense defined in section 70.02 of this title, the court may impose a sentence in accordance with the provisions of subdivision four of section 70.70 of this title.
§ 2. Paragraphs (a), (b), (c), (d), (e) and (f) of subdivision 2 of section 70.45 of the penal law, as amended by chapter 7 of the laws of 2007, are amended to read as follows:
(a) such period shall be one year whenever a determinate sentence of imprisonment is imposed pursuant to subdivision two of section 70.70 of this article or subdivision nine of section 60.12 of this title upon a conviction of a class D or class E felony offense;
(b) such period shall be not less than one year nor more than two years whenever a determinate sentence of imprisonment is imposed pursuant to subdivision two of section 70.70 of this article or subdivision nine of section 60.12 of this title upon a conviction of a class B or class C felony offense;
(c) such period shall be not less than one year nor more than two years whenever a determinate sentence of imprisonment is imposed pursuant to subdivision three or four of section 70.70 of this article upon conviction of a class D or class E felony offense or subdivision ten of section 60.12 of this title;
(d) such period shall be not less than one and one-half years nor more than three years whenever a determinate sentence of imprisonment is imposed pursuant to subdivision three or four of section 70.70 of this article upon conviction of a class B felony or class C felony offense[;] or subdivision eleven of section 60.12 of this title;
(e) such period shall be not less than one and one-half years nor more than three years whenever a determinate sentence of imprisonment is
S. 1077 4
imposed pursuant to subdivision three of section 70.02 of this article or subdivision two or eight of section 60.12 of this title upon a conviction of a class D or class E violent felony offense or subdivision four, five, six, or seven of section 60.12 of this title;
(f) such period shall be not less than two and one-half years nor more than five years whenever a determinate sentence of imprisonment is imposed pursuant to subdivision three of section 70.02 of this article or subdivision two or eight of section 60.12 of this title upon a conviction of a class B or class C violent felony offense.
§ 3. The criminal procedure law is amended by adding a new section 440.47 to read as follows: § 440.47 Motion for resentence; domestic violence cases.
1. (a) Notwithstanding any contrary provision of law, any person confined in an institution operated by the department of correction and community supervision serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to the effective date of this section and eligible for an alternative sentence pursuant to section 60.12 of the penal law may, on or after such effective date, submit to the judge or justice who imposed the original sentence upon such person a request to apply for resentencing in accordance with section 60.12 of the penal law. Such person must include in his or her request documentation proving that she or he is confined in an institution operated by the department of corrections and community supervision serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to the effective date of this section and that she or he is serving such sentence for any offense eligible for an alternative sentence under section 60.12 of the penal law.
(b) If, at the time of such person's request to apply for resentencing pursuant to this section, the original sentencing judge or justice is a judge or justice of a court of competent jurisdiction, but such court is not the court in which the original sentence was imposed, then the request shall be randomly assigned to another judge or justice of the court in which the original sentence was imposed. If the original sentencing judge is no longer a judge or justice of a court of competent jurisdiction, then the request shall be randomly assigned to another judge or justice of the court.
(c) If the court finds that such person has met the requirements to apply for resentencing in paragraph (a) of this subdivision, the court shall notify such person that he or she may submit an application for resentencing. Upon such notification, the person may request that the court assign him or her an attorney for the preparation of and proceedings on the application for resentencing pursuant to this section. The attorney shall be assigned in accordance with the provisions of subdivision one of section seven hundred seventeen and subdivision four of section seven hundred twenty-two of the county law and the related provisions of article eighteen-A of such law.
(d) If the court finds that such person has not met the requirements to apply for resentencing in paragraph (a) of subdivision one of this section, the court shall notify such person and dismiss his or her request without prejudice.
2. (a) Upon the court's receipt of an application for resentencing, the court shall promptly notify the appropriate district attorney and provide such district attorney with a copy of the application.
(b) If the judge or justice that received the application is not the original sentencing judge or justice, the application may be referred to
S. 1077 5
the original sentencing judge or justice provided that he or she is a judge or justice of a court of competent jurisdiction and that the applicant and the district attorney agree that the application should be referred.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the penal law and the criminal procedure law, in relation to sentencing and resentencing in domestic violence cases
Purpose
To expand upon the existing provisions of alternative sentencing for domestic violence cases; second, to allow judges the opportunity to resentence currently incarcerated persons for offenses in which certain domestic violence criteria was a significant element of the offense.
Summary of provisions
Section 1 of the bill amends § 60.12 of the penal law to add new subdi- visions 4 through 11 to specify which offenses may be considered under the section, and provides the alternate sentencing ranges a judge may impose upon a determination the defendant was a victim of domestic violence at the time of the offense and the abuse was a significant contributing factor in the commission of the offense.
Read the full memo (1,375 words)
Section 2 of the bill amends § 70.45 of the penal law to permit determi- nate sentencing for persons sentenced pursuant to § 60.12(12).
Section 3 of the bill adds a new § 440.47 to the criminal procedure law to allow currently incarcerated persons to apply for resentencing pursu- ant to § 60.12 of the penal law.
Section 4 of the bill amends § 450.90 of the criminal procedure law to Grant leave for appeal to include the new § 440.47.
Section 5 of the bill amends § 390.50 of the criminal procedure law to allow defendants seeking relief under § 60.12 to access his or her pre- sentence reports.
Section 6 of the bill provides that sections one and two of this act shall take place immediately, with sections three, four, and five, taking place within 90 days after it has become law.
Justification
Domestic violence and women's incarceration are inextricably linked: 9 out of 10 incarcerated women have experienced severe physical or sexual violence in their lifetimes; 8 out of 10 experienced serious physical or sexual violence during childhood; 75% suffered severe physical violence by an intimate partner during adulthood; and 37% were raped before their incarceration; Ninety-three percent of women convicted of killing an intimate partner were abused by an intimate partner in the past.
Over the past 30 years, domestic violence has been increasingly recog- nized as a national epidemic. Unfortunately, the significant advances made by the anti-violence movement have stopped short of reforming the unjust ways in which the criminal justice system responds to and punishes domestic violence survivors who act to protect themselves from an abuser's violence.
All too often, when a survivor defends themselves and/or their children, our criminal justice system responds with harsh punishment instead of with compassion and assistance. Much of this punishment is a result of our state's current sentencing structure which does not allow judges discretion to fully consider the impact of domestic violence when deter- mining sentence lengths. This leads to long, unfair prison sentences for many survivors.
The Domestic Violence Survivors Justice Act would address this problem for both male and female survivors of domestic violence by: (1) allowing judges to sentence survivors to alternative sentences of imprisonment including determinate sentences and, in some cases, community-based alternative-to incarceration program and (2) providing survivors currently in prison the opportunity to apply for resentencing, granting much-deserved relief for incarcerated individuals who pose no threat to public safety.
The Act contains protections to ensure appropriate use of this discretion - a judge can only grant an alternative sentence to a defend- ant if s/he finds that: (1) the defendant was, at the time of the offense, a victim of domestic violence subjected to substantial phys- ical, sexual or psychological abuse inflicted by a member of the "same family or household" as the defendant as that term is defined in subdi- vision one of section 530.11 of the criminal procedure law; (2) the abuse was a "significant contributing factor" to the defendant's partic- ipation in the crime; and, (3) a sentence under current law would be "unduly harsh."
The bill requires a judge to apply the same test when determining resen- tencing eligibility for an incarcerated survivor who submits a resen- tencing application to the court. In order to be considered for eligi- bility, an incarcerated survivor is also required to include evidence corroborating the claim she was, at the time of the offense, a victim of domestic violence.
The Act would address shortcomings in New York's current domestic violence sentencing exception, enacted-as part of the state's 1995 Sentencing Reform Act; commonly known as Jenna's Law. This exception allows judges to give survivors indeterminate sentences. At the time state officials thought this exception would lead to less punitive sentencing for survivors but unfortunately, it did not. In 2007, only one person had been sentenced under this exception. He received 6 to 12 years (longer than the minimum term allowed for individuals not sentenced under this provision) and was denied parole twice. In 2009, not a single person was incarcerated under the exception. The New York State Sentencing Commission, established in 2007, noted that this law should be replaced "with a comparable ameliorative provision that would allow for the imposition of less harsh, determinate sentences in such cases." The Domestic Violence Survivors Justice Act would do just that.
Eligibility for alternative indeterminate sentences of imprisonment, determinate sentences of imprisonment, and alternatives to incarceration for women survivors is particularly appropriate as they most often have no prior criminal records, no history of violence and extremely low recidivism rates: of the 38 women convicted of murder and released between 1985 and 2003, not a single one returned to prison for a new crime within a 36-month period of release - a 0% recidivism rate.
Community-based alternative programs are far more effective than prison in allowing survivors to rebuild relationships with their families, recover from abuse, and take responsibility while positively participat- ing in their communities. Allowing mothers to live in the community while serving sentences also permits them to maintain ties to children and lessen the trauma of separation - thereby increasing the likelihood that children will receive the support they need to become healthy, productive adults.
In addition, New York can save substantial costs by sentencing DV survi- vors to lower sentences and alternative programs. It costs approximately $43,000 per year to incarcerate a person in a New York State prison, while the annual cost per participant of an alternative to incarceration program in New York City is only $11,000. Alternative programs save taxpayers tens of thousands of dollars per person each year while help- ing to build healthy and safe individuals and communities.
Domestic and international human rights standards uphold the right of women and all people - to live free from violence. Our government has recognized its responsibility to preserve this right and provide support for DV survivors. This responsibility does not end when a survivor becomes involved in the criminal justice system because of the abuse they have suffered - in part because the very lack of adequate protection, intervention and support is what often leads to this involvement in the first place.
With no compromise to public safety, the DV Survivors Justice Act will help New York address the years of injustice faced by survivors whose lives have been shattered by domestic abuse and decrease the likelihood of survivors being victimized by the very system that should help protect them.
Prior legislative history
2017/2018: S. 5116 passed Assembly, died in Senate Codes Committee 2015/2016: A.4409-8 was referred to codes 2013/2014: A.4314-C was amended and recommitted to codes 2011/2012: A.7874-A amended and recommitted to codes
Fiscal implications for state and local governments
Given that this legislation may result in: (1) alternative sentences for at least some domestic violence survivor-defendants and (2) resentencing and conditional release for at least some currently incarcerated survi- vors, it is very likely that this bill will save the state funds.
Effective date
This act shall take effect immediately; provided, however, that sections one and two of this act shall apply to offenses committed on, after and prior to such effective date where the sentence for such offense has not yet been imposed; provided, further that sections three, four and five of this act shall take effect on the ninetieth day after it shall have become law.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.