Criminal Archives - Columbia Law Review

Introduction Existing literature does little to address the unique victimization of Black women in the law. Studies looking through a racial lens may ignore Black women by failing to address gender.[footnote]See Stewart M. Coles & Josh Pasek, Intersectional Invisibility Revisited: How Group Prototypes Lead to the Erasure and Exclusion of Black Women, 6 Translational Issues Psych. Sci. 314, 315 (2020) (“Existing conceptualizations of intersectional invisibility identify its source as a dual lack of recognition of Black women as women and as Black people—that is, intersectional invisibility occurs because the prototypical woman is a White woman and the prototypical Black person is a Black man.”). In cases involving domestic violence and criminal culpability, readers may discern the gender of the defendant, but neither the opinion, nor the court itself, may reveal race. See, e.g., People v. T.P. , 188 N.Y.S.3d 842, 843 (App. Div. 2023). The race of the woman was not mentioned in the opinion, but the media revealed a photo of a Black woman. See Buffalo Woman to Spend 8 Years in Prison for Killing Her Boyfriend, 2 WGRZ (Sept. 6, 2019), https://www.wgrz.com/article/news/crime/71-9def0c07-4e39-4f32-8b5f-a776061c0982 [https://perma.cc/X8ZS-6NKR].[/footnote] Alternatively, gender analysis may center around issues specific to white women.[footnote]See Coles & Pasek, supra note 2, at 315 (“Black women may be systematically harmed by single-axis feminist movements that fail to recognize . . . their unique concerns as Black women.”).[/footnote] White feminist scholars promote carceral feminism, a “neoliberal law-and-order agenda pursued by a coalition of secular anti-prostitution feminists and white evangelicals.”[footnote]Shirley LaVarco, Note, Reimagining the Violence Against Women Act From a Transformative Justice Perspective: Decarceration and Financial Reparations for Criminalized Survivors of Sexual and Gender-Based Violence, 98 N.Y.U. L. Rev. 912, 922 (2023) (citing Elizabeth Bernstein, The Sexual Politics of the “New Abolitionism”, Differences: J. Feminist Cultural Stud., Fall 2007, at 128, 137, 143).[/footnote] Carceral Feminism focuses on white womanhood and harms marginalized communities, actively pushing Black women into prison.[footnote]See id. (“[T]he carceral approach . . . culminat[ed] in the passage of the Violence Against Women Act as part of the notoriously racist 1994 Crime Bill.” (footnote omitted)).[/footnote] To address this, Black feminist scholars have developed key theories to understand Black women’s experiences.[footnote]See Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1244 (1991) (explaining the concept of intersectionality “to denote the various ways in which race and gender interact to shape the multiple dimensions of Black women’s employment experiences” (footnote omitted) (citing Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 140)); see also, e.g., Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment 2–3 (2d ed. 2000) (detailing Black women’s unique viewpoints of themselves within their communities as a part of a larger “intellectual tradition”).[/footnote] One such scholar, Moya Bailey, coined the term misogynoir to describe “the uniquely co-constitutive racialized and sexist violence that befalls Black women as a result of their simultaneous and interlocking oppression at the intersection of racial and gender marginalization.”[footnote]Moya Bailey, Misogynoir Transformed: Black Women’s Digital Resistance 1 (2021).[/footnote] Misogynoir operates as a form of implicit or explicit bias that informs how and why the state views Black women as dual victims and victimizers. In 2019, the New York State Legislature passed the DVSJA.[footnote]Domestic Violence Survivors Justice Act, ch. 31, 2019 N.Y. Laws 144 (codified as amended at N.Y. Crim. Proc. Law § 440.47 and N.Y. Penal Law §§ 60.12, 70.45 (McKinney Supp. 2024)); see also Nicole Fidler & Ross Kramer, New York Appellate Court Issues Landmark Ruling on DVSJA in the Case of Nicole Addimando, Sanctuary for Fams. (July 23, 2021), https://sanctuaryforfamilies.org/dvsja-appeal-nicole-addimando/ [https://perma.cc/E5TY-ZHZS] (explaining that the DVSJA allows judicial discretion to reduce a defendant’s “unduly harsh” sentence if they were a victim of domestic violence inflicted by “a member of the same family or household” and if the abuse was “a significant contributing factor” of the crime (internal quotation marks omitted) (quoting Penal § 60.12(1))).[/footnote] The DVSJA amended New York’s existing Penal Law § 60.12 and created Criminal Procedure Law § 440.47 to provide resentencing for currently incarcerated individuals.[footnote]Domestic Violence Survivors Justice Act, ch. 31, 2019 N.Y. Laws 144 (codified as amended at Crim. Proc. § 440.47 and Penal §§ 60.12, 70.45); The Law, Survivor’s Just. Project, https://www.sjpny.org/dvsja/the-law [https://perma.cc/QXL8-V3NF] (last visited Aug. 8, 2024) (“The DVSJA amended Penal Law § 60.12, which allows for an alternative sentence, and created Criminal Procedure Law § 440.47, which allows for resentencing for survivors currently in prison serving sentences of 8 years or more.” (emphasis omitted)).[/footnote] This statute permits a judge to change a domestic violence survivor’s initial sentence if the abuse was a “significant contributing factor” to the crime.[footnote]See Penal § 60.12(1)(b) (describing the “significant contributing factor” requirement when assessing a defendant survivor’s claim of abuse); The Law, supra note 9.[/footnote] The DVSJA is the first legislation of its kind in the United States.[footnote]SJP Trainings, Survivors Just. Project, https://www.sjpny.org/new-page-1 [https://perma.cc/UV2F-PTPW] (last visited Aug. 24, 2024) (“It is the first sentencing reform of its kind in the country, and one of the only sentencing reform efforts to include survivors convicted of serious violent crimes and offenses involving harm to people other than an abuser.”).[/footnote] Advocates and survivors promoted this statute to decriminalize trauma and help individuals who commit crime while suffering abuse.[footnote]The Domestic Violence Survivors Justice Act (DVSJA), Sanctuary for Fams., https://sanctuaryforfamilies.org/our-approach/advocacy/justice-for-incarcerated-survivors-ny [https://perma.cc/ZYF7-652H] (last visited Aug. 7, 2024) [hereinafter Sanctuary for Fams., The DVSJA] (“By untying judges’ hands and giving them discretion, the DVSJA would help restore humanity and justice to the way we treat survivors of severe abuse who act to protect themselves and would bring long overdue relief to survivors who have been incarcerated for many years.”).[/footnote] Other states have enacted similar laws,[footnote]See Liz Komar, Alexandra Bailey, Clarissa Gonzalez, Elizabeth Isaacs, Kate Mogulescu & Monica Szlekovics, Survivors Just. Project & Sent’g Project, Sentencing Reform for Criminalized Survivors: Learning From New York’s Domestic Violence Survivors Justice Act 1 (2023), https://www.sentencingproject.org/app/uploads/2024/02/Sentencing-Reform-for-Criminalized-Survivors.pdf [https://perma.cc/GTX6-YGQT] (“Across the country, a growing number of jurisdictions are . . . passing or considering bills designed to allow survivors of family violence, intimate partner violence, and human trafficking to receive shorter sentences for offenses deeply entwined with their victimization.”).[/footnote] but Black women still face lingering issues that exacerbate coercive abuse, racism, and gendered violence. This Note examines the impact of New York’s revolutionary DVSJA on Black woman survivorship while proposing solutions and improvements for other states aiming to replicate the statute. Part I summarizes the DSVJA and contextualizes the case law that preceded its passing. Part II describes the unique impact of domestic violence on Black women, the challenges of qualifying for relief under the statute, and the limitations of resentencing. Lastly, Part III offers noncarceral solutions that replace sentencing and help Black women share their experiences as abuse survivors.