Clemency for
Battered Women:
A Manual for Attorneys,
Law Students and Social Workers
Prepared
by the Michigan
Battered Women’s Clemency Project
•Chapter
I:
Domestic
Violence, The Battered Woman Syndrome, and Women Who Fight
Back
A. The
Epidemic of Domestic Violence in
America
1.
Statistics
2. What
is Domestic Violence?
B. Self-Defense and
The Battered Woman Syndrome
1. The Origins of
Battered Woman Syndrome?
2. Expanding and
Alternative Views of the Battered Woman
Syndrome
C. When Women
Strike Back
1. Facts About
Women Who Kill Their Abusers
2. Systemic
Prejudice in Michigan
3. Why Didn't She
"Just Leave?"
A. The
Epidemic of Domestic Violence in
America
1. The
Statistics
? A
recent FBI report on crime found that in 1995, 26% of all female
murder victims were known to have been killed by husbands or
boyfriends.1
? By the
most conservative estimate, each year one million women suffer
non-fatal violence by an intimate.2
?
Between 22% and 25% of all visits by women to emergency rooms are
for injuries inflicted by domestic partners.
In the
State of Michigan, someone dies as a result of domestic violence
every five days.3 The following accounts are excerpted from the
Domestic Violence Project's report on "Michigan Domestic and Sexual
Homicides: October 1996 to September 1997."4 (The full text of this
document can be found in Appendix 2).
Yolanda
Bellamy - Age 24. Detroit,
MI
August
13, 1997, Yolanda was found dead in her home with 11 gashes across
her head and neck. Scattered about her on the living room floor were
the bodies of four small children who had also been stabbed and
slashed to death. Reco Jones, age 22, Yolanda's ex-boyfriend, has
been charged with five counts of homicide
Lori
Fossum - Age unknown. Eaton Rapids, MI
Found
dead in the home of her ex-boyfriend July 23,
1997. Lori's
parents found her body, and the body of Glenn Glazier still holding
a gun. They had become worried about their daughter and were
searching for her. She was engaged to another postal worker at the
time of her murder.
Helen
Howard - Age 47. Grand
Rapids,
MI
Died
June 12,
1997 from a
blow to the head. Her boyfriend, Andrew Cummings age 34, thought
Helen was hiding his beer. She was on the telephone with one of her
adult children when he hit her. She died several hours later. He is
charged with involuntary manslaughter.
Lisa
Juchemich - Age 31. Iron
Mountain,,
MI
Died
February
5, 1997. After
what a newspaper described as a "spat", Lisa Juchemich was stabbed
by her husband Roger Juchemich, age 30, and shot in the back as she
tried to escape from the house. He then shot and killed himself.
Donna
Kay Kuster - Age 32. Marquette,
MI
Killed
by a single shotgun blast to the abdomen August
25, 1997, by her
estranged husband, David E. Kuster, age 43. He sat in his pickup for
over an hour waiting for her to return to her car after attending
the first day of classes at Northern
Michigan
University. A
Personal Protection Order was found in her purse. It was not enough
to protect her from being stalked and murdered.
2. What
is Domestic Violence?
Domestic
violence is a pattern of abusive behaviors, accompanied by physical
or sexual violence or the threat of such violence, used by one
person to control his/her current or former intimate partner. The
partners may be married or not married, gay or lesbian, living
together, separated or dating. The victim of this abuse is referred
to as the "survivor", because she in fact engages in many strategies
that help her survive the abuse. The partner engaging in the abuse
is referred to as the batterer or assailant.
Domestic
violence occurs in many forms and at varying degrees of intensity.
Some examples of abuse include: emotional abuse through mind games,
name-calling, or put-downs; isolation from family or friends;
economic abuse by withholding money or being prevented from getting
or holding a job; actual or threatened physical harm; sexual
assault; stalking; and intimidation.
Domestic
violence occurs at about the same rate in gay and lesbian
relationships as in heterosexual relationships.5 Victims of same-sex
domestic violence may face unique abusive tactics such as the threat
of "outing" - that is, revealing the victim's sexual orientation to
family, neighbors or co-workers in cases where disclosure may have a
negative impact on the victim. Gay male survivors of domestic
violence are at greater risk of contracting AIDS.
(Back
to top)
1. The
Origins of Battered Woman Syndrome
In her
1979 book, The Battered Woman, Lenore Walker, a forensic
psychologist, identified the essential elements of what has become
known as the "battered woman syndrome" (BWS). According to
Walker, a
battered woman is "a woman who is repeatedly subjected to any
forceful physical or psychological behavior by a man in order to
coerce her to do something he wants her to do without any concern
for her rights."
The BWS
essentially refers to characteristics which appear in women who have
been physically and psychologically abused by their husbands or
partners. Walker
described a pattern of cyclical violence.
The
typical pattern of violence consists of three recurrent phases of
abuse; a tensions building stage, characterized by minor abuse; an
acute battering stage, characterized by uncontrollable explosions of
brutal violence; and a loving respite stage, characterized by calm
and loving behavior of the batterer, coupled with pleas for
forgiveness. The continued cycle of violence and contrition results
in the battered woman living in a state of learned
helplessness...The battered woman lives with constant fear, coupled
with a perceived inability to escape. Eventually, she comes to
believe that her only options are enduring the abuse, striking back,
or committing suicide. 6
Using
Walker's
analysis, in order to be classified as a battered woman, the woman
must go through the battering cycle at least twice. According to
Walker's
theory, battered women suffer from "learned helplessness", whereby
the psychological stress of living in a constant state of fear
inhibits her ability to perceive the possibility of escape. She
becomes submissive, compliant, passive, and meek. All her energies
are focused on avoiding the next attack, and when that has failed,
living through it.
2.
Expanding and Alternative Views of the Battered Woman
Syndrome
Not all
researchers, psychologists and commentators accept
Walker's
conception of the battered woman. Professionals working within the
domestic violence field have expressed concern that
Walker's
theories essentially imply that battered women are mentally ill.7
(See Chapter IV). As well, the concept of learned helplessness may
engender stereotypical pictures of a battered woman, which then are
used to exclude battered women who perform competently in other
areas of life. General acceptance of the concept of learned
helplessness may make it difficult to convince a jury that a woman
who runs a business or is organized and capable in other areas
suffers from the BWS.8
Walker's
conception of battered women has been challenged on the ground that
it is inapplicable to non-white women.9 According to Sharon Allard's
article, Rethinking the Battered Woman Syndrome: A Black Feminist
Perspective, "battered woman syndrome relies on prevailing
gender characterizations of dominant white society."10 In support of
her argument, Allard points to the experiences of Hedda Nussbaum and
Geraldine Mitchell, both of whom claimed to have been battered by
their companions, and both of whom were charged in the battering
death of a child. Charges against Nussbaum, a middle class white
woman, were dropped when she agreed to testify against her batterer.
Mitchell, a poor black woman, received no such deal. She pled guilty
to manslaughter.11
Allard
contends that this difference in treatment might be explained by the
fact that BWS theory is based on stereotypical behaviors of white
women. According to Walker, women
experiencing learned helplessness are passive, gentle, submissive,
emotional, and dependent. The BWS is of limited usefulness to black
women, according to Allard, because of pervasive stereotypes,
reinforced by media, that black women are domineering, sexually
aggressive, assertive, hostile, immoral, and physically stronger
than white women. These images make it difficult for judges and
juries to attribute black women's acts of self-defense to "learned
helplessness". Allard's argument is further supported by the fact
that the ratio of black women to white women convicted of killing
their abusive partners is 2:1. 12
Finally,
using only the theory of BWS ignores the context of the battered
woman's life within which the abuse is occurring. Some have
suggested an alternative theory, the survivor theory, which
recognizes "that battered women respond to abuse with help-seeking
methods that are largely unmet and that women increase their
help-seeking as the danger to themselves and their children
increases." 13 All too often, the context includes repeated failures
by various societal institutions to provide meaningful assistance to
survivors, which can lead survivors to believe that they have no
recourse but to protect themselves in whatever way they can.
C. When
Women Strike Back
1. Facts
about Women Who Kill Their Abusers
- Currently, there are
approximately 2,000 battered women in
America who are serving
prison time for defending their lives against their batterers. 14
- As many as 90% of
the women in prison today for killing men had been battered by
those men. 15
- Women charged with
the death of a mate have the least extensive record of any people
convicted. 16
- The average prison
sentence for men who kill their intimate partners is 2 to 6 years.
Women who kill their partners are sentenced, on average, to 15
years. 17 A pair of Maryland cases vividly
illustrates this inequality in sentencing. 18 In one case, a judge
in Baltimore County, Maryland sentenced Kenneth
Peacock to 18 months for killing his unfaithful wife. The very
next day, another judge in the same county sentenced Patricia Ann
Hawkins to three years in prison for killing her abusive husband.
Significantly, the prosecutor in the Peacock case requested a
sentence twice as long as the one imposed, while the prosecutor in
the Hawkins case requested one-third of the sentence imposed.
2.
Systemic Prejudice in Michigan
In 1989,
the Michigan Supreme
Court's Gender Task Force issued a Final Report on Gender Issues in
the Courts. The report concluded that:
• Women
defendants who killed abusive partners are treated unfairly by the
criminal justice system due to a lack of understanding of the
effects of abuse. Specifically, battered women are blamed when they
do not leave the relationship.
•
Self-defense and the use of expert testimony are not used
consistently in defending women who killed abusive partners.
•
Evidence of past violent acts is not consistently raised or
admitted.
• The
instructions that a woman has no duty to retreat from her home in
the face of an attack is not consistently given.
A survey
of post-1980 cases handled by the
Michigan Office
of the State Appellate Defender found that
Michigan
prosecutors consistently overcharge female defendants in victim
precipitated homicides. 19 This survey also found that when battered
women kill their spouses, judges often refuse to follow appropriate
jury instructions and deviate from sentencing guidelines. 20
3. Why
Didn't She "Just Leave"?
This
frequently asked question has special force when it is directed at a
woman who has killed her abusive partner. Prosecutors typically
point out that instead of killing her partner, a battered woman
could have stayed with family, filed a complaint, gone to a shelter,
or called the police. These arguments demonstrate a lack of
understanding of the reality of a battered woman's situation. To
understand this reality, one must begin with the plight of battered
women in a historical context.
According
to Sir William Blackstone, when a husband kills his wife, it is
comparable to killing a stranger; but when a wife kills her husband,
it is comparable to treason by killing the king. 21 In 1874, a
North
Carolina court
became the first court to limit a man's right to beat his wife.
Still, that court held that unless he beat her nearly to death, the
law should not become involved.
Throughout
most of this century, unfortunately, domestic violence has been
ignored or openly tolerated by legal actors who have looked upon
domestic violence as a family matter. Judicial insensitivity to and
disrespect for battered women accounts for some of the failure of
the law to protect women. In 1986, a judge in
Boston granted
a restraining order against a man who allegedly choked and beat his
wife. Before granting the order, he told the husband, "You want to
gnaw on her and she on you, fine, but let's not do it at the
taxpayer's expense." He also reprimanded the wife for "wasting the
court's time." The wife was later murdered by her husband. 22
In more
recent times, police traditionally turned a blind eye to domestic
violence. Some police dislike responding to domestic violence
complaints because such situations are often -- and erroneously --
perceived as particularly dangerous for the officer. Police also may
feel that making arrests is a waste of time when women decline to
press charges. Prior to recent reforms, the responsibility for
prosecution was placed on the survivor, despite the fact that
prosecution could proceed without her participation, through
introduction into evidence of 911 tapes, police testimony, medical
records, and other witnesses' accounts. 23
In
Michigan, more
recent legislation has helped to strengthen the law enforcement
response to domestic violence. 24 Legislative reforms and changes in
prosecutorial policies have helped to take the responsibility for
pressing charges out of the hands of victims. In some cities and
counties in Michigan, there
are special prosecution units for domestic violence cases. Police
are being required to develop preferred arrest policies. Penalties
for crimes of domestic violence have increased. 25
Even
today, however, there remain systemic impediments to battered women
seeking to flee their assailants. For example, in
Michigan, a
significant number of counties retain practices which commonly
discourage prosecution, such as: requiring the victim to sign the
complaint, requiring a "cooling off" period, requiring corroboration
of the victim's account, and issuing peace bonds. 26 Police officers
sometimes fail to prepare reports and collect evidence which would
enable the prosecutor to charge and try the batterer without the
survivor's participation as a witness. And prosecutors in many
counties still routinely dismiss criminal cases at trial when the
survivor does not appear, rather than trying those cases with other
evidence.
In
addition, battered women's shelters are often full to capacity.
Personal protection orders are often violated by assailants and not
enforced by police or courts. Police in some jurisdictions may not
respond to emergency calls, or may not respond in a timely fashion.
Assailants routinely are released after arrest on domestic violence
charges, given low bonds and without restrictive bond conditions
which prohibit their contact with the survivors.
Significantly,
"just leaving" is often not an effective solution for the battered
woman. Leaving the assailant is not a guarantee that the violence
will stop. In fact, the risk of harm is greater at the time the
battered woman leaves. A woman is more likely to suffer injury or
death at the hands of an abuser after she has left him. 27 However,
most battered women do try to leave. On average, a battered woman
leaves her assailant 5-7 times before she is able to leave for good.
Gay and
lesbian victims of domestic violence may face unique barriers to
escaping abusive relationships. The victim may be uncomfortable
reporting domestic violence to the police, or obtaining an order of
protection against a batterer. Police and other service providers
frequently downplay the violence, calling it a "cat fight" if it
involves a lesbian couple, or "mutual battering" if it involves a
gay male couple. Some domestic violence service providers do not
effectively support, advise or advocate for gay and lesbian
survivors. 28
Several
of the women who were selected by the
Michigan
Battered Women's Clemency Project were sentenced in the late 1970s
and early 1980s when the public was still relatively uninformed
about the epidemic of domestic violence. At that time, assaults on
women were systematically ignored by police, courts, doctors, and
social service agencies. Domestic violence shelters were few and far
between. 29 "Just leaving" for these women has never been so easy as
some prosecutors suggest.
•Chapter
II
Introduction
to Clemency
A.
Clemency Defined
B.
Brief History of the Clemency Power in the
U.S.
C.
Clemency for Battered Women Who Kill
1.
Backlash
2.
Is Clemency an Appropriate Remedy?
D.
Considerations for Improving Future Exercises of Clemency: A
Comparative Analysis of Different States'
Procedures
A.
Clemency Defined
Clemency
is a general term for the power of an executive to intervene in the
sentencing of a criminal defendant to prevent injustice from
occurring. It is a relief imparted after the justice system has run
its course. 30 Clemency provisions exist in every judicial system in
the world except
China. 31 The
U.S.
Constitution gives the President the power to grant clemency. In 35
states, the governor can make clemency decisions directly, or
exercise this power in conjunction with an advisory board. In five
states, boards make clemency decisions, and in 16 states, the power
to grant clemency is shared between the governor and an advisory
board. 32
Chief
Justice William Howard Taft explained why clemency is essential to
just government:
Executive
clemency exists to afford relief from undue harshness or evident
mistake in the operation or enforcement of the criminal law. The
administration of justice by the courts is not necessarily always
wise or certainly considerate of circumstances which may properly
mitigate guilt. To afford remedy it has always been thought
essential in popular governments...to vest in some authority other
than the courts power to ameliorate or avoid particular criminal
judgments. 33
Types of
clemency include amnesty, pardon, commutation, and reprieve. Amnesty
is granted to a group of people who committed political offenses. A
pardon may lessen a defendant's sentence or set it aside altogether.
One may be pardoned even before being formally accused or convicted.
While a
pardon attempts to restore a person's reputation, a commutation of
sentence is a more limited form of clemency. It does not remove the
criminal stigma associated with the crime; it merely substitutes a
milder sentence. A reprieve postpones a scheduled execution. 34
Women seeking clemency through the Clemency Project usually request
a commutation of sentence. Alternatively, or in addition, they may
request a pardon if circumstances suggest that they were not guilty
of criminal homicide.
B. A
Brief History of the Clemency Power in the
U.S.
In 1833,
U.S. v.
Wilson, 32
U.S. 150,
160 (1883) was the first case to discuss the president's pardoning
power. In Wilson, Chief
Justice Marchall defined pardoning power as an executive "act of
grace." 35. In Biddle v. Perovich 36, Justice Homes
challenged the Wilson court's
understanding of clemency. According to Holmes:
A pardon
in our days is not a private act of grace from an individual
happening to possess power. It is a part of the Constitutional
scheme. When granted it is the determination of the ultimate
authority that the public welfare will be better served by
inflicting less than what the judgment fixed. 37
While
the "act of grace" rationale for clemency was rejected for a public
welfare centered theory, courts continue to interpret the
President's pardoning power broadly.
In Ex
parte Garland, 71
U.S. 333
(1866), the Supreme Court held that the pardoning power of the
president was not subject to legislative control. Though the
judicial branch has some power to regulate the exercise of
presidential pardon, the executive clemency power is not
significantly limited by other branches.
Scrutiny
of an executive's reasoning is left to the political process. 38
When Governor Ray Blanton of
Tennessee granted
52 clemencies during his final week in office, Senator James Sasser
characterized Blanton's act as "the grossest breach of a chief
executive's discretionary power perhaps in the history of the State
of Tennessee. 39 In
1986, New Mexico's outgoing mayor, Tony Anaya, was harshly
criticized when he commuted the sentences of all five death row
inmates just before leaving office. 40 Perhaps because of this
scrutiny, the use of executive clemency has declined over the last
20 years. 41
C.
Clemency for Battered Women Who Kill
1.
Backlash
Public
scrutiny is particularly harsh when governors grant clemency to
battered women who killed. According to the National Clearinghouse
for the Defense of Battered Women, since 1978, 104 women in 23
states have received clemency. 42 Recent examples include Diane Faye
Firtzig of Illinois (1998);
June Briand of New
Hampshire (1996);
and Kimberly Soubielle of
Florida (1993).
(See Appendix 3 for newspaper articles on recent awards of
clemency).
Just
before Christmas in 1990, the outgoing governor of
Ohio,
Richard Celeste, granted clemency to twenty-five women in prison for
killing or assaulting their batterers. 43 Thereafter, he was met
with an onslaught of media criticism. The Attorney General of
Ohio
attempted to invalidate the commutations. 44 The head of the Ohio
Prosecuting Attorney's Association stated publicly that Celeste's
decision to grant clemency would encourage other battered women to
kill their abusers. 45 Other critics argued that the grant of
clemency to battered women who killed essentially sanctioned their
action, putting an implicit approval on a battered woman's right to
impose the death penalty on her abuser. Finally, critics accused
Governor Celeste of usurping the role of the jury, insensitivity to
victims' family members, and undermining the structure of the
criminal justice system. 46
2. Is
Clemency an Appropriate Remedy?
Clemency
is, of course, an imperfect tool for dealing with women who killed
their abusers--many of whom should never have gone to jail in the
first place. When clemency comes in the form of a commutation, the
only result is a reduction in the term of years or a revocation of a
death sentence. Also, a woman's ability to receive clemency depends
more on the political climate than on her crime and her prison
record.
Imperfect
or not, clemency is often the only available tool to rectify past
failings of the justice system. In response to the backlash
following Governor Celeste's grants of clemency, Christine Becker
argued:
Many of
these arguments against granting clemency for battered women who
have killed are convincing, yet they often seem to reflect a vision
of what should be, instead of what is. They often ignore the
arguments that society is somewhat responsible for the situation of
battered women, and that battered women often do not receive fair
trials for various reasons...[E]ven while advocating that battered
women should turn to various alternative sources for help...most
critics recognize that alternatives for battered women are woefully
scarce. The response of police and law enforcement officials to
battered women often leaves something to be desired, shelters are
few and far between, and court restraining orders are a makeshift
shield at best, often violated and hard to enforce. 47
Among
many other reasons, we need clemency for battered women who killed
because:
1. Legal
actors' ignorance of battered women's special circumstances
negatively impacts a battered woman's ability to receive a fair
trial. (See discussion of
Michigan Supreme
Court's Task Force on Gender Issues in the Courts in Chapter I).
2.
Judicial flexibility in sentencing traditionally played a large role
in treating battered women who kill justly. The trend toward
inflexible sentencing and strict enforcement of criminal sentencing
necessitates increased reliance on clemency. 48
3. The
"paradigmatic" battered woman--the subject of much expert testimony
on the BWS--excludes women who do not fit right racial or economic
types.
4. Women
who were sentenced in the late 70s or early 80s often had no
evidence of the abusive nature of their relationship presented at
trial or sentencing.
5. On
average, women who kill their intimate partners are sentenced more
harshly than men who kill their intimate partners.
D.
Considerations for Improving Future Exercises of Clemency: A
Comparative Analysis of Different States'
Procedures
It is
crucial to find ways to keep the public from hardening its
collective heart to the grant of clemency to battered women who
kill. Public reaction to clemency puts pressure on the governor to
make his or her decision accordingly. The decision of one governor
to grant clemency may influence another governor's decision to grant
clemency to a similarly situated woman. Criticism of the way in
which Governor Celeste selected candidates and reviewed women's
files has led clemency advocates to call for principled rationales
for the exercise of clemency. 49
Joan
Krause, author of Of Merciful Justice and Justified Mercy:
Commuting the Sentence of Battered Women Who Kill, suggests ways
to structure the clemency process so as to succeed with clemency
while not alienating the public. 50 Krause critiques several states'
clemency procedures, focusing on issues such as criteria for
selection of women, the group which performs the review, and the
type of information considered.
1.
Selection Criteria
States
have differing methods for selecting women for consideration. Some
of these include:
•
Reviewing the records of women convicted of violent crimes against
spouses or companions who abused them
•
Reviewing the records of women who could have presented evidence of
domestic violence at trial
•
Requiring inmate to initiate the process
•
Requiring an advocacy group to recommend candidates
•
Sending all inmates notice about requirements for eligibility for
clemency and
•
leaving it to them to choose to submit their own petitions.
51
Governor
Celeste selected the first of these alternatives. Krause expressed
concern that such a method, while reaching a large number of women,
may promote the release of women based on inaccurate and culturally
biased stereotypes, particularly when the decision makers have no
prior experience with battered women. 52 On the other end of the
spectrum, relying on inmates to submit petitions on their own may
deter deserving women from applying.
2. Who
Should Review the Petitions?
The
reviewing body also differs from state to state. In
Ohio, the
Department of Corrections review clemency applications. In
Massachusetts, the
Advisory Board of Pardons does so. In
Maryland,
information about battered women in prison is reviewed and presented
to the Governor and Parole Board by two outside advisory groups. The
Governor of Maryland was
widely criticized for relying so heavily on outside groups who were
deemed prejudiced in favor of clemency. Although expertise of
advocacy groups is essential in the process, advocates for clemency
suggest that it may be politically unwise to have too much expert
involvement in the review of clemency petitions. 53
3. What
information Should be Reviewed?
Most of
the media backlash following Celeste's clemency awards centered on
the kind of information which critics felt should--and should
not--inform the decision to grant clemency. Governor Shaefer of
Maryland was
criticized for not reviewing trial transcripts and not notifying
victims' relatives, prosecuting attorneys and trial judges. 54 In
most states, clemency provisions require notification of both
prosecuting attorney and sentencing judge. Many states require
notification of the impending decision to grant clemency in local
newspapers. Krause suggests that including family members and
prosecutors in the clemency process may make clemency more
politically palatable. 55 Finally, Krause suggests that acts of
clemency might not incur such harsh criticism if governors provided
reasoned explanations of their decisions to grant or deny clemency.
56
•Chapter
III
Clemency
in Michigan
A.
Overview
B.
The "Citizens'" Parole Board
C.
Statutory Provisions
1.
Criteria for Making a Determination
2.
Composition of the Parole Board
3.
Procedure
A.
Overview
The
power to grant commutation rests solely with the Governor. Const.
1963 art. 5 & 14. In
