When Justice Is Battered

Carol Jacobsen

MOST, IF NOT all, women in prison come from abusive backgrounds, including incest, domestic violence, emotional and/or physical abuse. Half of the women in U.S. prisons would not be there at all if they were men because of far fewer alternatives to prison for women, and because of gender-based crimes, including prostitution, crimes committed to support children when courts fail to go after deadbeat dads, and crimes committed against or under duress of an abuser.

Estimates range between 40-80% of women convicted of murder acted in self-defense against their abusers. Male aggression is evident in almost all homicides, even when women are the ultimate offenders. Unlike men, most women who kill do not have criminal histories. Women serving time for Murder I or II or Voluntary Manslaughter comprise about 10-15% of women in prison.

One-third of murdered women are killed by male partners; only 4% of men are murdered by female partners. The number of men killed by female partners has gone way down over the years, due to public education, domestic violence education and shelters, and economic opportunities for women. Yet the number of women murdered by husband and boyfriends has not decreased significantly. Many women continue to face severe and life-threatening violence from male partners. In Michigan, one woman is murdered by a husband or boyfriend every five days.

A study conducted by the Michigan Women’s Justice & Clemency Project (see Hastings Women’s Law Journal, 2007) of all homicide convictions and sentences in Oakland County over a three-year period from 1986 to 1988, revealed startling levels of discrimination against defendants who were victims of domestic violence.

These domestic violence victims had higher conviction rates (78%) and longer sentences than all others charged with homicide, including those with previous violent criminal records (62%). African-American women were convicted at a higher rate (80%) than all others (62%) of all others.

Overall, a white female defendant who killed a white person could expect an average sentence of 10-30 years; however, if the woman was a victim of domestic violence her predicted sentence was life. Several women represented by the Clemency Project were convicted in Oakland County during that period, and are still in prison.

No Right of Self-Defense

In U.S. law, killing in self-defense is not a crime; however for most women, neither the laws of self-defense nor evidence of battering work for women in actual trials. Hence 75-80% of women who killed in self-defense are convicted or convinced to plead guilty, and are sentenced to long terms.

Women are disadvantaged in court because prosecutors, judges, juries and defense attorneys all bring a shocking amount of ignorance about domestic violence to the courtroom. Prosecutors fail to consider issues of abuse when charging women; they fail to consider the abandonment of battered women by law enforcement and courts and take no responsibility for this failure; they ignore women’s lack of criminal history; they refuse to define self-defense in any way other than from male experience; and they trot out myths and stereotypes in order to “win” convictions.

Some scholars have shown that judges are the major obstacle to fair trials for battered women defendants because they fail to give proper instructions to juries, and make decisions in the court room that defeat the arguments for self-defense and the context and history of battering. Judges also fail to state that any testimony or evidence about abuse is sufficient to establish battering.
It was not until 1992, in the case of People v. Geraldine Wilson, that evidence/testimony of battered women could be presented at trial in Michigan and judges had to allow it. Even since, judges have wrongfully disallowed such evidence.

Use of expert testimony on “Battered Woman’s Syndrome” (BWS) is problematic in court for a number of reasons. First identified by Dr. Lenore Walker in The Battered Woman, 1979, the syndrome has been criticized by feminist scholars for pathologizing women. No woman can fit the perfect victim mold, and the syndrome concept engenders stereotypes that exclude many women, especially strong women, Black women, large women, women with responsible jobs, etc.

The syndrome engenders stereotypes. Further, the syndrome ignores facts, because women use many strategies to survive, including leaving, and doing whatever they believe is necessary to protect their children.  It allows prosecutors to make claims that this is not a “perfect victim.”  The syndrome also does not take into account gender inequality and structural obstacles to women’s economic, educational, housing, family and other disadvantages.

In court BWS is often confused as a defense, but it is not a defense; rather it’s an explanation for a battered woman’s state of mind. A major problem is that the syndrome confuses judges and juries by shifting the focus to “does she suffer from battered woman’s syndrome?” rather than, “was she acting to save her own life?”

Working to Release Women

We in the Michigan Women’s Justice & Clemency Project believe this is a pivotal moment for Michigan’s wrongfully convicted battered women prisoners. Ironically, it’s the budget crunch in Michigan that is forcing the Governor’s promise to release many prisoners, not a decision for justice or a step taken to end women abuse. Nevertheless, we hope for the release of many women who never should have gone to prison.

The Clemency Project aims to free women, wrongly convicted, who acted in self-defense against abusers but did not receive due process or fair trials based on the facts of their cases. We also are dedicated to public education and advocacy for justice and human rights for all women in Michigan prisons, opposing the four-point chaining, sexual assaults, medical neglect, harassment and retaliation and other torture perpetrated by the Department of Corrections against women in custody.

The Clemency Project (formerly Michigan Battered Women’s Clemency Project) was founded by Susan Fair in 1991, to respond to the unjust treatment of battered woman by the criminal/legal system. We are a grassroots, all-volunteer effort, organizing, advocating for women serving life- or long-term sentences for murder.

Some killed their batterer; some hird/ conspired against their abusers after efforts to get help from police, prosecutors, doctors and others completely failed and they were ignored; some were defended by a so-called “friend” who took it upon themselves to kill the abusers, but the wife or girlfriend was convicted whether she knew anything about it or not, and whether police had ignored her pleas for help or not.

Some — especially teenaged girls — are convicted of crimes committed by, or under duress of, their abusers. Most were never allowed to present evidence of abuse at trial.

The Clemency Project investigates each case for a woman who contacts us from prison to determine if we can represent her case for clemency or parole. If after an initial review of court documents, we believe it may be a case for us, we interview her, read all the court files, transcripts, conduct interviews with family members, friends, attorneys, jurors and/or others who have knowledge of the abuse or the case facts.

We decide on cases to represent, and either prepare a clemency petition, including documents and evidence of the abuse, or prepare a support package for parole, if she does not have a life sentence. Occasionally, if we have attorneys who are able to take on a long term, heavier commitment, we assist with appeals, motions for relief from judgment and other court procedures. We also appear with women we represent before the parole board for their hearings, if requested, to provide support for their release.

An important goal of our Project is public education through. lectures and screenings of films narrated by women prisoners. Many of our volunteers are undergraduate and graduate students from more than a dozen Michigan colleges and universities.

Each summer we organize our annual campaign with volunteers who visit prisoners; do case research in courthouses, police stations and libraries around the state; publish articles and op-ed pieces; work on outreach and policy; design our website, brochures, posters and other materials; conduct other legal and scholarly research with us; and help to organize our annual rally at the State Capitol steps. We are constantly recruiting and consulting volunteer attorneys, educated reporters, physicians and other professionals who can assist us.

We also collaborate with a long list of other organizations, including the American Civil Liberties Union, Amnesty International USA, Human Rights Watch, Prisoner Creative Arts Project at the University of Michigan; American Friends Service Committee; Families Against Mandatory Minimums; Citizens Alliance on Prisons and Public Spending; The National Lifers Association; Michigan CURE; Women’s Prison Association of New York; the National Clearinghouse for the Defense of Battered Women; Free Battered Women in California; Critical Resistance.

We also publish original research; most recently our study, “Battered Women, Homicide Convictions and Sentencing,” appeared in the Hastings Women’s Law Journal, Vol. 18, No. 1, 2007; and forthcoming articles will appear in Signs: Journal of Women in Culture and Society, and other publications.

Successes and Struggles

In 1998-’99 The Clemency Project freed two women from life sentences, through Motions for Relief from Judgment. Since then we’ve tried this strategy for several more women, but with no luck. It’s very difficult to convince prosecutors to review cases fairly for battered women defendants.

We’ve assisted three more women who had sentences of terms of years in getting paroles at their earliest release dates. We were told by the governor’s office that our efforts helped them obtain paroles, although we can’t really count these as successes since they were not released before their earliest out dates.
Over the years, we have presented clemency petitions for 28 women, most of them repeatedly. Each time a petition is presented, it must be rewritten and include new documents and “evidence.” All of these women have served over 10 years, most over 20. About half killed their abusers in face-to-face struggles, two shot their husbands after a long history of abuse and a night of assaults; two killed in defense of their child; eight are convicted of hiring or conspiring against their abusers. Sixteen received life sentences.

In addition, we have represented many more women for parole or other efforts. And we have worked with a number of mentally ill women who have been chained down, raped, abused and violated to protest their neglect and abuse by the Michigan Department of Corrections.

The Law in Michigan

Here’s a summary of required grounds for self-defense under Michigan law and the problems they pose for battered women defendants.

1) Honest belief that death or harm is imminent, according to a reasonable person.

Problem for battered women: The “reasonable man” is not a battered woman. Battered women act reasonably in a situation of terror and violence, but in a courtroom, reasonable and woman have not been compatible since the court relies on male experience to define reasonable.

2) Threat is imminent.

Problem: It is not understood that the battered woman’s history may tell her that deadly threat is imminent; perhaps not immediate, but nevertheless imminent. She may recognize that he will kill her — in a day, an hour, or a second – if she does not defend herself.

3) Harm is death, deadly injury or sexual assault.

Problem: The assumption is of two persons of relatively equal size and strength. This punishes women who “equalize” the threat with a weapon.

4) Necessity.

Problem: The assumption is that women should leave, or should have left, even though there’s no duty to retreat before acting in self-defense. Nobody asks why didn’t the law stop him from beating her, or why prosecutors, law enforcement and courts fail to fulfill the Constitutional promise of equal protection to women.

Our strategies and recommendations are:

1) Clemency/commutation for all battered women who acted in self defense against abuser.

2) Michigan legislature pass a Habeas law, similar to California’s, to allow battered women who acted in self-defense against abusers to apply for parole.

3) Michigan alter sentencing guidelines to mitigate sentences of battered women defendants. Consideration must be given to the history of abuse, self-protection strategies, and responses or lack of responses by police, courts, health care, social systems.

4) Mandatory education and testing programs on domestic violence beyond those already in existence for all law enforcement and court officers, including all police, prosecutors, judges, parole board members and correctional personnel.

5) Preferred arrest policies to allow officers to make judgment calls, which are preferable to mandatory arrests that result in too many wrongful arrests of women.

6) Mandatory education programs be enforced by law enforcement and courts for all first-time and repeat batterers-offenders.

7) Michigan Judges Association should recommend prosecutors to review cases for release and/or reduced pleas for battered women prisoners convicted of murder who have terms of years.

8) Michigan Judges Association require proper instructions to juries in cases involving battered women defendants to explain self-defense law in ways inclusive rather than exclusive of women’s experience, including, but not limited to, what a reasonable person (woman) would do in the context of ongoing assault and terror from an abuser; that imminent threat may or may not be immediate, but is nonetheless  imminent when subjective knowledge of life-threatening danger compels a battered woman to act in her own defense.

Conclusion

Currently, The Clemency Project has 12 petitions for clemency for battered women on the Governor’s desk. Governor Jennifer Granholm has recently appointed a new Commutation/Clemency Panel to review all petitions. This takes the political heat off her and may result in more releases, we hope.

The Governor alone has the power to grant clemency and should use it generously and responsibly, especially in cases such as those involving battered women where race or gender inequan so much injustice.

We also represent many more women for paroles who acted to save their own lives against abusers as well as work with doctors on medical and mental release petitions.

Like Angela Davis, we envision a world without prisons, a world with humane and civilized alternatives: universal health care; basic housing; drug treatment programs, treatment for mentally ill, and an end to the crisis of women abuse.

RALLY FOR CLEMENCY
For Women Prisoners who acted in self defense against abusers and for human rights for all women in Michigan prisons.
FRIDAY, OCTOBER 5 NOON
State Capitol, Lansing, MI
For further information, contact Jacobsen@umich.edu

from ATC 130 (September/October 2007)