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.

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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 Michigan, the Parole Board receives clemency applications, conducts public hearings, and makes formal recommendations to the Governor. The Governor has the power to grant a commutation for any sentence except treason. Commutation is the only release from prison for a person with a non-parolable life sentence. If commutation is granted, a life sentence is first commuted to a term of years. Then the prisoner is paroled from that sentence. 57

Grants of commutation have been rare indeed in Michigan in the last decade. While in the mid-1960s, Governor Romney commuted the sentences of 107 inmates. Twenty years later, Governor Blanchard granted only six commutations -- all but one just before he left office. Governor Engler has granted just five commutations since 1990.

B. The "Citizens'" Parole Board

One would like to think that a battered woman's petition for clemency would be approved or denied according to the merits of the woman's case and her prison record. Unfortunately, in Michigan, as elsewhere, it is the composition of the Parole Board and the occurrence of high profile crimes by recent parolees which ultimately determines whether a petitioner is released.

The current Michigan Parole Board has shown itself to be extremely unsympathetic not only to women seeking clemency, but to many prisoners seeking parole. In the late 1980s and early 1990s, about two-thirds of Michigan prisoners who applied for parole were released. 58 In 1995, the Parole Board approved only about half of the appeals it heard. 59 The Parole Board's reluctance to grant parole is causing the Michigan prison population to soar, even when the number of incoming inmates is declining.

Between 1985 and 1995, Michigan's prison population has skyrocketed from 17,744 to 41,112. 60 A report to the Michigan Sentencing Commission states that if the Board continues these parole practices, the prison population will reach 65,000 by the year 2007. That is an increase of 20,000 in ten years. 61

Tight Parole Board control has caused a drastic increase in prison population for two reasons:

1. Michigan's indeterminate sentencing policy allows the Parole Board great power over a prisoner's out-date. 62 Under an indeterminate sentencing system, a sentencing judge gives prisoners a minimum term proportional to the crime committed. The Parole Board then sets the exact amount of time to be served according to post-sentencing factors. The current Parole Board does not assume that the prisoner should be released at the end of the minimum sentence.

2. The current Parole Board revokes parole for minor and technical violations of parole conditions. Critics contend that while the Parole Board's function should be to assess whether a person poses a danger to society, it has, in fact, become a re-sentencing court. 63 This re-sentencing function is especially dangerous since prisoners do not have a right to counsel or to dispute inaccurate information at their hearing.

The Parole Board's reluctance to grant clemency or parole can be traced to an incident in 1992 in which a parolee committed a series of rape-murders. 64 The ensuing public outrage led to formation of a "law and order" Parole Board.

From 1976 to 1992, Parole Board members all had corrections experience and civil service protection. 65 Following the 1992 incident, the Board was stripped of its civil service protection and completely reconstituted. Today, the Director of the Department of Corrections appoints Parole Board members. Stature requires that at least four members have no prior Department of Corrections employment. Thus, the Parole Board has gone "from a professional Board with corrections experience to a 'citizens' board not required to have any experience with prisons or prisoners." 66 (See appendix 7 for an up-to-date list of Parole Board members.) Because the Parole Board may be held politically accountable for the actions of parolees, it may deny parole or clemency to any controversial candidate.

67

1. Criteria for Making a Determination

Currently, the Parole Board does not rely on written guidelines in evaluating a prisoner for commutation purposes. 68 The MDOC once used commutation grid scores to determine the number of years a prisoner should serve before it would make a positive recommendation. 69 In 1987, however, the MDOC rescinded this policy. Since then, the Board has considered petitions on a case-by-case basis. To determine priority areas of Parole Board concern, you might look at parole guidelines. 70 When deciding whether to grant parole the Board considers factors such as: the offense for which the prisoner is incarcerated; the prisoner's institutional program; the prisoner's institutional conduct; the prisoner's prior criminal record; the prisoner's statistical risk screening; and the prisoner's age. 71

2. Composition of the Parole Board

M.C.L.A. § 791.23 (1)(a) mandates that the Parole Board shall consist of ten members appointed by the Director of MDOC. Members may not be within the state civil service. Members are appointed to terms of four, three, or two years. A member may be re-appointed.

3. Procedure

Procedure for application, interviews, review, investigation, and public hearing are set forth in M.C.L.A.. § 791.244. (See Appendix 6.) A brief summary follows:

1. One member of the Parole Board should automatically interview a prisoner serving a non-parolable life sentence after ten years. 72 Subsequent interviews will be conducted as deemed appropriate by the Board, but not later than every five years until which time as the prisoner is granted a reprieve, commutation, or pardon by the Governor, or is deceased. 73 PLEASE NOTE: Senate bill 873, proposed on February 10, 1998 would eliminate the "every five year" requirement and leave all the interviews after the initial ten year interview up to the discretion of the Parole Board.

Alternatively, an inmate may initiate the clemency process by submitting a written petition to the Parole Board containing the information required by R 791.7760. (See Appendix 5.) Applications for pardons, reprieves, and commutations must be filed with the Parole Board on forms provided therefor by the Parole Board. 74 (See Appendix 1 for application form).

2. Not more than 60 days after receipt of an application the Parole Board must conduct a review to determine whether the petition has merit. 75 The Board will deliver to the Governor either written documentation of initiation or the prisoner's original application with the Parole Boards' decision, pending an investigation and hearing. Favorable action requires a majority vote by the entire Board.

3. If there is a favorable vote, the Board member who initiated interest in the prisoner requests a PER, a psychological report, and a medical report. 76 If that member decides to proceed, within ten days the Board will send a lifer survey report to the sentencing court and prosecuting attorney for comment. 77 The sentencing judge and the prosecuting attorney, or their successors in office, have 30 days to file information at their disposal or objections, in writing.

4. Within 270 days after receipt of an application that the Parole Board has determined to have merit, the Board will make a full investigation and determination on whether to proceed to a public hearing.

5. Not later than 90 days after making a decision to proceed, a public hearing will be held. At least 30 days before the public hearing, the Parole Board will provide written notice of the hearing by mail to the Attorney General, the sentencing trial judge, the prosecuting attorney or his successor, and each victim who requests notice pursuant to the Crime Victim's Rights Act. 78

6. The hearing will be conducted by one member of the Parole Board. The public is represented by the Attorney General or a member of the Attorney General's staff.

7. The applicant has a right to be present, to testify, and to be represented by counsel. The amended statute provides a victim the opportunity to address and be questioned by the Parole Board at the hearing or to submit written testimony for the hearing. 79 In hearing testimony, the Parole Board shall give liberal construction to any technical rules of evidence. 80

8. In the event that the Board approves a recommendation by a majority vote, the Board will send its formal recommendation, along with a transcript of the hearing and a summary of the case to the Governor. 81 If granted, the Governor will sign a commutation of sentence.

•Chapter IV

Theories of Defense: Excuse v. Justification

A. The Excuse Defense

B. The Effect of an Enhanced Understanding of Spousal Abuse on Theories of Defense

1. Similarities Between the Battered Woman Syndrome and the Stockholm Syndrome

2. Separation Assault

3. Does the BWS Support an Excuse or a Justification Theory of Defense?

C. The Justification Defense

D. The Self-Defense Instruction in Michigan
 
 

Theories of Defense: Excuse v. Justification

Excuse and justification are theories of defense employed to convince a trier of fact that a defendant lacked criminal responsibility for her actions. A defendant who employs an excuse defense admits that the offense she committed was a crime, but submits that factors peculiar to her situation should prevent a judgment of criminal responsibility. Examples of an excuse defense include temporary insanity and diminished capacity. A defendant who employs a justification defense attempts to show that her action was not a crime at all; rather, it was justified under the circumstances to avoid greater harm or to further important societal interests.

A. The Excuse Defense

Before 1980, lawyers defending battered women who killed their spouses typically employed an excuse theory of defense. In 1977, a 29 year old housewife, Francine Hughes, was charged with first degree murder for killing her abusive husband. 82 After enduring thirteen years of vicious beatings, death threats, intimidation, and humiliation, Ms. Hughes set fire to the bed in which her husband was sleeping. For years before the murder, Ms. Hughes tried to escape from her husband without success. She actively sought help from lawyers, judges, social service agencies, and the police, all to no avail. Had she not killed her husband, it seems probable that she would have died at his hands.

Ms. Hughes' defense counsel believed that a self-defense claim would be legally infirm because self-defense is defined as occurring in the presence of imminent danger. 83 Ms. Hughes fought back at a moment when her husband was sleeping. At the time, Ms. Hughes' lawyer could not find a single precedent for an argument for self-defense in a case in which a woman killed her abuser in a non-confrontational situation. 84

Instead of relying on a self-defense claim, Ms. Hughes utilized an excuse defense--she claimed she had been temporarily insane when she killed her husband. An expert testified that she was "overwhelmed by the massive onslaughts of her most primitive emotions." 85 In this case, temporary insanity was a successful defense. Ms. Hughes was found "not guilty."

Although the temporary insanity defense produced a just result in the Hughes case, it has lost favor for several reasons. First, temporary insanity is a perilous defense. A defendant acquitted because of temporary insanity goes free. But a defendant found "guilty but mentally ill" faces the same term in prison as a sane person.

A second flaw in the excuse defense is that it presumes that a battered woman suffers from a mental defect. Recent psychological and scholarly literature argues that, in fact, battered women who kill their abusive partners behave as would any reasonable, sane person in their situation.

B. The Effect of An Enhanced Understanding of Spousal Abuse on Theories of Defense

Studies on (1) similarities between the Stockholm syndrome and the BWS and (2) the phenomenon of "separation assault" have led to widespread rejection of the belief that battered women suffer from mental defect.

1. Similarities between the BWS and Stockholm Syndrome

Studies of similarities between the BWS and the Stockholm Syndrome support a feminist analysis of the BWS. 86 The Stockholm Syndrome is a psychological theory which attempts to explain why a hostage bonds with her captor. Four conditions give rise to the development of the Stockholm Syndrome 87:

a. A captor threatens to kill a person, and is perceived as having the ability to do so.

b. The person cannot escape, so her life depends on the captor.

c. The person is isolated from outsiders.

d. The captor is perceived as showing some degree of kindness to the person.

The Stockholm Syndrome describes a group of behaviors which develop in response to a threat to survival posed by a captor. Hostages develop survival rather than escape skills because they see opportunities to escape as too dangerous to pursue. 88 Because escape seems impossible, hostages respond to their situation by becoming highly attuned to the pleasures and displeasure of the captor. They cope with a continuous and immediate threat of death by adopting their captor's world view and assuming submissive postures. Other behaviors attributable to the Stockholm Syndrome include:

•Victim denies anger at abuser and focuses on abuser's good qualities.

•Victim's "fight or flight" reactions are inhibited.

•Victim fears interference by authorities.

•Victim feels overwhelmingly grateful to the abuser for having spared her life.

•Victim fears that even though captor is jailed, he will return to capture her again.

Research on the Stockholm Syndrome suggests that the behaviors characteristic of battered women are not pathological or masochistic, but are what we would expect from an individual in a life threatening captor/captive situation. In support of this conclusion, Graham et al. cite the fact that lower income women who continue to live with partners because they have no financial resources reported more partner bonding. 89 In other words, women who are realistically the most unable to escape rationally perceive the impossibility of their situation and reasonably respond to it in the only way possible: by nurturing an emotional bond with the batterer.

Graham et al. also found that women who separated from partners but returned because their partner located them, or because he threatened to kill them, showed more partner bonding. 90 Thus, the degree of "traumatic bonding" is rationally related to the degree to which a woman feels her life is in danger.

Despite the fact that battered women and hostages exhibit shared psychological responses to a similar experience, popular opinion condemns battered women who bond to their partners as masochistic, while sympathizing with hostages who bond to their captors. The media treats hostage situations as high drama, while a battered woman's plight is considered a private family affair. Outsiders are more likely to negotiate and win the release of hostages. Outsiders are often reluctant to involve themselves when a battered woman asks for help. 91

2. Separation Assault

Traumatic bonding may not be the only reason that a battered woman is reluctant to leave her abuser. She may have a perfectly reasonable belief that if she leaves, he will track her down and harm her or kill her.

Law enforcement experts agree that leaving an abuser greatly increases the danger a woman faces. 92 According to the Bureau of Justice Statistics, in 1994, women separated from their husbands had a violent victimization rate of 128 per 1,000.

Orders of protection and pressing criminal charges are not always sufficient to protect a battered woman when her batterer, recognizing his loss of power and control, comes after her. As is clear from the following incidents, some batterers will go to any length to hurt their former partners 93:

• Patricia Kastle, an Olympic skier, was shot by her former husband notwithstanding a protection order forbidding him from coming near her.

• For eight years, Lisa Bianco of Indiana feared the day her husband would be released from prison. When prison officials granted her husband an eight-hour pass, he drove directly to her home, broke in, and beat her to death with the butt of a shotgun.

• Shirley Lowery, a grandmother of 11, was in the hallway of the courthouse where she had gone to get an order of protection when her former boyfriend stabbed her 19 times with a butcher knife.

Martha Mahoney coined the term "separation assault" to focus attention on the empirical evidence of the harm that comes to women who try to leave their abusers. 94 According to Mahoney, battered women in the legal system suffer from legal actors' misconceptions about the reasons battered women stay in abusive relationships. Recognition of the prevalence of separation assault supports the fact that a battered woman acting in self-defense is acting according to a rational perception of danger.

Given the modern view that battered women who kill their spouses are not insane, but rather acting rationally in an effort to defend themselves, the excuse theory of defense is employed less often than it used to be.

3. Does the BWS Support and Excuse or a Justification Defense Where a Battered Woman Kills?

At first glance, the theory that battered women experience traumatic bonding would seem inconsistent when applied to a battered woman who killed. Some critics of using the BWS argue that there is an "inherent inconsistency of describing the battered woman's unhealthy mental state to show the reasonableness of her belief of imminent danger." 95 In her article arguing against admissibility of expert testimony on the BWS, Mira Mihajlovich states that a battered woman's "learned helplessness" necessarily blurs her ability to form rational beliefs about when she is in imminent danger.

Statutory and case law have also misconstrued the BWS as evidence in support of an excuse defense. For example, Missouri law has procedurally equated the BWS with an insanity plea by providing that a defendant who seeks to introduce evidence on the BWS must submit to an exam by a court appointed psychologist or psychiatrist. 96 In addition, appellate opinions have characterized battered women as psychologically disturbed. 97

"Learned helplessness" is misinterpreted when it is defined as a mental defect or character flaw. The whole point of learned helplessness as a psychological theory is to remove the stigma of mental defect from the battered woman by emphasizing that the behaviors associated with it developed as an adaptive survival mechanism in response to abuse.

Angela Browne, author of Assault and Homicide at Home: When Battered Women Kill, explains that there is no inconsistency between learned helplessness and a battered woman who kills--that a battered woman ceases to practice the survival skills characterized by the Stockholm Syndrome when she endures an act of violence which is significantly above the normal range of violence she has previously experienced. A woman who kills her batterer often does so only when she thinks it is impossible to survive the next episode of abuse, or when the batterer escalates or threatens escalation of violence towards a child. Thus, the theory that battered women, like hostages, may experience traumatic bonding is consistent with the fact that some battered women ultimately kill their abusers in defense of their lives.

C. The Justification Defense

Today, a lawyer defending a woman in Francine Hughes' position would probably employ a justification defense. There is a common myth that most battered women kill while their husbands are asleep, or during a lull in the violence. Actually, about 70% of battered women who kill their batterers do so during a confrontation with the batterer. 98 Thus, the trend toward a justification theory of defense is an appropriate one.

Use of a justification defense is still not without its problems, however. Legal scholars engage in hot debate over whether existing definitions of self-defense can accommodate battered women who kill their spouses.

In determining whether a defendant acted in self-defense, a trier of facts considers issues such as: (1) whether the defendant reasonably feared that she needed to use force to defend herself; (2) whether the threat to the defendant was imminent; (3) whether the defendant met the threat with excessive force; and (4) whether the defendant had a duty to retreat.

Some critics charge that battered women, like Francine Hughes, who killed their abusive partners in a non-confrontational situation cannot get a fair trial under existing definitions of self defense. For example, Cynthia Gillespie, author of Justifiable Homicide, asserts that because self-defense jurisprudence requires a threat to be imminent, a woman who kills her batterer while he is sleeping is prevented from utilizing the defense. 99 Specifically, Gillespie argues that under self-defense law strictly applied, a woman is not allowed to fight back with a weapon until her batterer actually beats her severely enough to make it clear that death or great bodily harm is imminent. Of course, by that time, she would be rendered helpless.

Critics of self-defense laws as they apply to battered women who kill also contend that traditional principles of self-defense jurisprudence are based on two men of equal strength who have never met, and that traditional principles do not consider the problems posed by combatants of vastly different size and strength. Scholars who see existing definitions as hurting women's ability to receive a fair trial propose modification of definitions of "imminence," expansion of the reasonable person doctrine to include the "reasonable battered woman, " and elimination of duty to retreat.

Other scholars argue that existing self-defense doctrines can, in principle, accommodate battered women who kill their spouses. 100 According to Professor Holly Maguigan, existing self-defense law is adequate if trial judges properly apply the laws to battered women who kill. Maguigan argues that the requirement that the threat to a defendant be imminent before she act in self-defense is not so limited that it prevent consideration of the woman's circumstances. Rather, a jury can and will consider the imminence requirement fulfilled when, for example, a woman kills her batterer with an honest and reasonable belief that the moment he wakes up he will kill her, and if she waits she will be powerless to defend herself. Thus, Magiugan argues, existing definitions can accommodate the self-defense claim for battered women.

D. The Self-Defense Instruction in Michigan

The Michigan self-defense instruction is a hybrid of the subjective and the objective reasonable person standards. (See Appendix 8). According to the subjective standard, a woman is justified in using deadly force if she honestly believes it is necessary to prevent death or great bodily harm. According to an objective standard, the fact finder asks whether a reasonable person would believe it necessary to use force to protect herself. The Michigan instruction requires that a woman's belief be "honest and reasonable," but also directs the jury to consider "all the circumstances as they appeared to the defendant at the time." 101 The Michigan instruction makes no provision for the special circumstance of battered women with regard to the requirement that she believe her acts are " immediately necessary.".

Most of the danger of injustice to battered women comes from application of the self-defense instruction. For example, the instruction says that a person must not kill to protect herself from minor injury. In determining the degree to which the injury the woman faced at the hands of her batterer was minor, a judge or jury may or may not know that abused women are exquisitely attuned to subtle actions, movements, and threats by a batterer. An action on the part of the deceased batterer which might seem minor to the judge may, because of the victim's prior conduct, alert the woman that there is much worse harm to come. Subtle actions which may not signify danger to an outsider may be known to a woman as a sign that she is in great danger. Some courts have recognized these unique perceptive abilities among survivors of battering. 102

Also, in Michigan, the self-defense instruction asks the jury to consider, in the course of evaluating the woman's reasonable belief, whether the deceased batterer was armed with a dangerous weapon. This instruction may prejudice battered women because batterers are often armed with potentially lethal objects which are not considered deadly weapons. Research and common sense dictate that even non-lethal objects like fists, keys, books, bottles, hot food, or ashtrays can be very threathening--especially when the person wielding the object is significantly bigger and stronger. 103

•Chapter V

Admissibility of Expert Testimony on the Battered Woman Syndrome

A. Admissibility of Expert Testimony on the BWS in Michigan

B. Admissibility of Expert Testimony on the BWS in Other States

1. Caselaw

2. Statutory Law

C. Admissibility: Pro and Contra

1. Battered Women's Experiences Are Beyond the Knowledge of the Average Juror.

2. "Junk Science" and the Anti-Syndrome Movement

3. Claims that Expert Testimony on the BWS Coupled with a Self-Defense Plea Amount to a "License to Kill."

A. Admissibility of Expert Testimony on the BWS in Michigan

In 1992, the Michigan Court of Appeals held that expert testimony on the BWS is admissible in cases where domestic violence was a factor in the commission of an offense. 104 (See Appendix 11). Wilson was subsequently limited in 1995 by People v. Christel, 449 Mich. App. 578, 537 N.W. 2d 194 (1995).

In People v. Wilson, the defendant shot her husband while he slept. She claimed, however, that she shot him in self-defense in response to forty-eight hours of abuse and death threats, and years of battery. The Wilson court held that expert testimony on the BWS is necessary to give the trier of fact a better understanding of the evidence--especially in light of the fact that the average juror is unaware or misinformed about certain characteristic behaviors of battered women. In its opinion, the court included a description of the cycle of domestic violence and its effects on the psyche of the battered woman. 105 The Wilson court stated that expert testimony on the BWS should be limited to an explanation of symptoms and a general description of the syndrome. Wilson forbids experts from expressing an opinion about whether the defendant in a particular case suffered from the BWS or acted pursuant to it. In addition, the court held that an expert could not testify that the defendant's allegations of battery were, in fact, truthful.

In 1995, the court in People v. Christel limited the admissibility of expert testimony on the BWS in a case where the battered woman was a witness (not a defendant) against her assailant. 106 The court in Christel acknowledged that expert testimony on the BWS is relevant when needed to explain a complainant's actions--such as prolonged endurance of physical abuse, delays in reporting abuse, or recanting allegations of abuse. However, the court held that expert testimony on the BWS is admissible "only when it is relevant and helpful to the jury in evaluating a complainant's credibility." (emphasis added).

In Christel, the defendant was charged with criminal sexual conduct and sentenced to fifteen to twenty-five years for breaking into his ex-girlfriend's house and raping her. During cross-examination, the defense attempted to portray the complainant as a liar. To rebut some of these claims, the prosecution called an expert to testify on the BWS. The court held that admission of expert testimony was error where the complainant did not remain in the abusive relationship, did not try to hide the abuse, and did not delay in reporting the incident. The court stated: "Expert testimony usually is not needed to explain alternative prosecution theories, but to explain things not readily comprehensible to the average juror."

The Christel decision will probably not have a limiting effect on the trials of battered women who kill their partners because in these cases the woman's credibility (specifically her reasonable belief that she was acting in self-defense) is very much at issue.

B. Admissibility in Other States

1. Caselaw

The vast majority of states allow expert testimony on the BWS in support of battered women's defense claims. 107 Such testimony is most readily accepted in cases involving traditional self-defense situations. Still, expert testimony has also been admitted in a number of state courts in non-traditional self-defense situation, such as when a battered woman kills her sleeping abuser (accepted by 29% of the states ) or when she hires someone to kill her abuser (accepted by 20% of the states). 108 In about 25% of states, experts can give an opinion on whether the defendant acted in self-defense. Most states do not allow an expert to testify on whether the defendant's belief that she was in imminent danger was reasonable. 109

2. Statutory Law

Since 1990, nine states have enacted legislation to provide for admissibility of expert testimony on the battered woman syndrome. 110 In 1991, the Texas legislature amended the evidence section of the Texas Penal Code to require courts to admit expert testimony if the woman is trying to establish that use of deadly force was imminently necessary. 111 According to the amendment, the woman "shall be permitted to offer" (1) relevant evidence that the defendant had been the victim of acts of family violence committed by the deceased (2) relevant expert testimony regarding the condition of the defendant's mind at the time of the offense.

Some states, like California and Ohio, have enacted legislation to preclude attacks on admissibility by declaring the the BWS is scientifically valid. 112 Maryland has gone so far as to admit evidence of the BWS "notwithstanding evidence that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense." 113

C. Admissibility: Pro and Contra

When a battered woman is accused of killing her assailant, the degree to which expert testimony should be admissible to show her state of mind is a subject of some controversy yet today. The Supreme Court has not yet decided the issue. Most frequently, such testimony has been referred to as "battered women's syndrome testimony." Opponents of admitting expert testimony on the BWS argue that the expert testimony should be excluded because (1) battered women's experiences are not beyond the ken of the average juror; (2) the BWS is "junk science;" and (3) when offered in conjunction with a self-defense plea, expert testimony seeks to give women a license to kill. Proponents of expert testimony argue that it is essential to a woman's self-defense claim.

1. Battered Women's Experiences Are Beyond the Knowledge and Experience of the Average Juror.

In an article arguing for the exclusion of expert testimony of the BWS, Mira Mihajlovich states that jurors do not need the help of expert testimony to understand that previous violent encounters alter a woman's perception about when she is in imminent danger. 114 Mihajlovich further argues that questioning during voir dire is sufficient to root out jurors who hold biased views about women who stay in abusive relationships.

Most courts have found Mihajlovich's argument unpersuasive. As discussed below, the Court of Appeals of Michigan found that the average juror is uninformed or misinformed about certain characteristic behaviors of battered women. 115 Specifically, the admission of expert testimony regarding battering and its effects is imperative to explain to laypeople why the woman stayed in the relationship.

2. Junk Science and the Anti-Syndrome Movement

Increasingly, parties seeking to refute evidence that an adversary acted in accordance with one of the syndromes are calling experts of their own to say that syndromes are nothing but half-baked unscientific attempts to categorize diverse behavioral characteristics into tidy categories. Rape trauma syndrome and battered child syndrome have borne the brunt of the backlash against syndrome evidence in the court room. Nonetheless, some of the same criticisms lodged against rape trauma syndrome and battered child syndrome have been lodged against the BWS in other jurisdictions. 116

First, syndromes like the BWS are not listed in the Diagnostic and Statistical Manual published by the American Psychiatric Association. Second, expert critics of "junk science" maintain that syndromes are the creation not of scientists and researchers, but of therapists who from pseudo-scientific theories on the basis of personal experience and anecdotal evidence. 117 Critics argue that therapists are not in a position to confirm whether symptoms reported by clients actually exist or exist to the degree that they are reported. Junk science witnesses explain that therapists like to impose order on diversity of experience because it makes them "feel better" to attach a name to a series of complex behaviors. 118

According to these skeptics of so-called "junk science," the symptoms and definitions of syndromes become so all-encompassing that every conceivable human behavior is seen as confirming the existence of the syndrome. Thus, syndromes become evidence of everything and nothing; anything a woman does is taken to be consistent with the fact that she was raped/battered. "Junk science" experts seek to place doubt in the minds of judges and juries about whether syndrome evidence is empirically reliable.

3. Claims that expert testimony coupled with a self-defense plea amounts to "license to kill."

In the wake of the recent Bobbit and Menendez trials, one often hears members of the media use the term "the abuse excuse" to describe what was perceived as a disingenuous attempt by defense attorneys to direct attention away from their clients' bad actions. Not only media and lay people, but also judges and lawyers often misconstrue the purpose of expert testimony on abuse in criminal trials.

Some have misconceived expert testimony as an effort to create a special "battered women's defense" to homicide which would allow a woman to "destroy her tormentor at her own discretion." 119 There is no such special defense. No unique legal rules on self-defense apply to the battered woman's self-defense case. When a battered woman kills her abusive partner, expert testimony on the BWS is used not to explain away her actions, but to support her self-defense claim.

According to Jane Parrish, a consultant for the National Clearinghouse for the Defense of Battered Women:

Supporting the introduction of expert testimony does not promote vigilantism; it promotes fair trials. Defendants--including battered women defendants--should be able to introduce all relevant evidence at their trials, including evidence of and expert testimony about their experiences of abuse, that can help the jurors better understand their situations. 120

Parrish further notes that this type of social context information is not unique to battered women's self-defense cases. 121 For example, in a barroom brawl case, a defendant may bring in evidence of the victim's prior threats to support the fact that his actions in self-defense were reasonable. In the same way, expert testimony on the nature and effects of battering can help explain why a woman who killed her partner in self-defense held a reasonable belief that she was in imminent danger.

•Chapter VI

Interviewing

A. Introduction

B. Physical Environment

C. Establishing Rapport

D. Eliciting Information

E. Empathetic Responding
 
 

A. Introduction

Interviewing 122

Your object in conducting interviews with potential Clemency Project candidates is to elicit information sufficient to compile a comprehensive report on almost every area of the candidate's life. You will be asking questions about: family relationship, marital history, employment, educational and medical history, the offense, her trial, the woman's prison record, and her goals for the future. Your Clemency Interview Questionnaires will be of great assistance to you in structuring the interview. (See Appendix 12). But what if your client responds in monosyllables? How can you elicit the information you need with sensitivity? What can you say if the client becomes emotional? In order to prompt your client's story and to respond to the emotional nature of her recollections, you may want to consider the following suggestions:
 
 

B. Physical environment

The physical setting in which an interview is conducted in part determines the attitude and responsiveness of the client. 123 During an interview in which you expect to discuss highly emotional issues, an interviewer would be wise to do what she can to make her client as physically comfortable as possible. Outside a prison setting, this might include taking care that the interviewing room has adequate ventilation, comfortable room temperature, comfortable chairs, freedom from distraction, and privacy.

In a prison setting, obviously, an interviewer has little control over the physical conditions under which the interview is conducted. Do the best you can. If you cannot do anything about the uncomfortable condition, at least be aware of it and its potential effect on the co-operativeness and responsiveness of the client.

Privacy is vital to a good interview. A client will be less willing to share painful memories with a stranger if she feels she can be overheard. Likewise, you as an interviewer may have trouble concentrating or expressing yourself if you feel that others can hear you. If you are an attorney or an attorney's representative, request a confidential room, as discussed in Chapter VIII.

The presence of a desk between you and the client tends to emphasize the interviewer's authority and to create a sense of formality that may not be conducive to open communication. Think about arranging chairs in a way that fosters a sense of equality.

C. Establishing Rapport

During the course of your interview, you will be asking your client to reveal to you, a total stranger, some of the most painful, humiliating, unendurable moments of her life. You may be working with a client who has difficulty confiding in others, who distrusts lawyers or social workers, or whose culture has conditioned her not to discuss her private matters with outsiders. Before delving into the substance of the interview, it is important to focus on achieving rapport. 124

• Greet the client warmly and introduce yourself

• Extend the courtesy of asking the client how she would care to be addressed. Doing so conveys your respect for your client. Be aware that in some ethnic and social backgrounds it may be considered impolite to address an older adult by her first name.

• Engage in a "warm up" period with your client. You might tell her a little bit about yourself and why you are interested in the Clemency Project.

• Assure the woman that the information she conveys is confidential, and that you will not disclose it to anyone outside the Clemency Project without her express informed consent.

• Be respectful and attentive. Try to remember names the client has told you. Take notes, but do not bury your head in your papers.

• Pay attention to the non-verbal messages you are sending to your client. Maintain good eye contact. Try not to slouch in your chair, flip through your papers, fiddle with your pen, or tap your foot in a distracting manner while she is talking.

• Dress professionally, but do not overdress. You do no want to make your client feel that you are inaccessible.

• Start where the client is. If she appears to have something pressing on her mind, allow her to express her concerns before beginning the interview.

Some verbal barriers to effective communication include:

• Moralizing (e.g. "You shouldn't have done that.")

• Using sarcasm or humor which is distracting or makes light of a client's problems

• Interrupting

• Responding infrequently

• Using self-disclosure inappropriately

• Mumbling or speaking inaudibly

• Speaking too loudly

• Nervous laughter

• "Empty consolations" (e.g. "You'll feel better tomorrow;" "Don't worry. Things will work out;" "I really feel sorry for you.")

D. Eliciting Information

If your client is responding in monosyllables, this may be a sign that you are phrasing your questions too narrowly. Instead of asking:

"Did your husband get mad?" ASK

"What impact did that have on your husband?"

Instead of asking:

"How many children do you have?" ASK

"Tell me about your children."

E. Empathic Responses

There may be moments during your interview when you want to convey to your client that you are trying to appreciate the magnitude of the emotional trauma that she has experienced. You can do this with empathic responses. An "empathic response" is a social work jargon for a response that identifies a feeling a client has just expressed, and reflects it back at them. For example:

"It sounds like you felt completely powerless to help your child."

"You did the best you could under the circumstances."

In making empathic responses, try to avoid telling the client that you know how she feels. Listen to her carefully, and try to respond to what she has just told you with words carefully chosen to reflect emotional nuances.

If a client does become emotional, allow it to happen. You need not immediately jump in with consolations. This may make her feel like it is unacceptable to show emotion around you and you want her to stop. Finally, be attentive to signs that a client may be too emotionally exhausted or otherwise indisposed to continue with the interview.

F. Confidentiality

All Project volunteers will be expected to maintain strict confidentiality. This means you are not to discuss the substance of your interview even with close friends and family. If you have questions about confidentiality issues, please consult one of the Project Coordinators.
 

•Chapter VII

Tips on Submitting Effective Clemency Petitions

What is the Board Looking for?

• Emphasize the length of time your client has spent in prison. Board members want to feel that any action they take is not too radical or controversial.

• Emphasize that the client will be moving into a stable supportive environment if she is granted clemency. Include information about where she will live, how she will support herself, and who is included in her support network on the outside.

• Consider mentioning the fact that other governors and parole boards in other states have granted clemency. Cite specific examples.

Tips on Writing and Organization

• Include an introductory paragraph or section in which you lay out the strongest part of your petition up front. For example, one woman who recently submitted a petition for clemency graduated summa cum laude from Western Michigan University while in prison. Another woman's sentencing judge specifically stated that he hoped the Parole Board would commute her sentence. Do not hide facts like these in the middle of the petitions

• Be concise.

• Use clear headings to organize and separate your arguments.

• If there is clearly documented evidence of abuse, consider presenting it in table format to achieve maximum dramatic effect. For example:

DATE	NATURE OF THE ABUSE	DOCUMENT
7/1/70	Dan found on top of Paula with his hands around her neck.	Smith Affidavit, Ex. 1
11/23/72	Dan beats Paula so badly that she has contusions all over her body.	Cook County Hospital Records, Ex. 2
10/3/75	Crisis Center overhears abuse and calls police	Support Service Records, Ex. 4
4/4/73	Dan violates restraining order. He is arrested for punching hand through window.	Detroit, MI

Exhibits

• Include letters of support from prison administrators, work supervisors, religious leaders, educators, and social workers.

• Include police and hospital records documenting abuse.

• Include affidavits from friends, family members, or domestic violence workers who witnessed the abuse, or had first hand knowledge of it.

Media

• Use it! Clemency is intensely political, and our ability to sway public opinion may be our best hope of success.

• Consider:

• Editorials

• A press conference

• Bar journal articles

• Lectures in the community, at law schools, and undergraduate institutions

• Press releases (contact PRNewswire at 800-697-9712)

•Chapter VIII

General Tips

A. Prison Visits

B. Client Communications

1. Telephones

2. Mail

C. Acquiring Necessary Documents

1. Prisoner Files

2. Domestic Violence Shelter Records

3. Hospital Records

4. Police Reports
 
 

General Tips: Prison Visits, Client Communications, and Acquiring Necessary Documentation 125

A. Prison Visits 126

Visiting hours vary from one institution to another. Prisoners cannot move to the visiting room during count 127 and visitors cannot enter the gates during staff shift change. All times should be checked in advance to avoid predictable delays.

All visits are processed at the institution's information desk and noted on the prisoner's record. Adult visitors must present picture identification such as a driver's license, Secretary of State identification card, or passport.

Visitors are given a locker in which they must place their coats, purses, the contents of their pockets, and any other personal possessions. Depending on the institution, the visitor may also bring in up to $10 in silver change to buy refreshments from vending machines.

All visitors, including attorneys and clergy, are subject to search and will be prohibited from visiting if they refuse to submit. (See Appendix 13 for one facility's search policy). When you visit your client in prison, avoid wearing lots of metal jewelry, lace up boots, or other difficult to remove items. Visitors may be required to pass through a metal detector or permit inspection by a handheld device. In addition, they must submit to a "clothed body search" by an employee of the same sex. Such a search is defined as:

A thorough manual and visual inspection of all body surfaces, hair clothing, wigs, briefcases, prostheses and similar items; includes visual inspection of the mouth, ears, and nasal cavity. Removal of clothing is not required except outerwear, e.g. jacket or coat, hat, shoes, and socks to allow inspection of the shoes and soles of the feet. All items shall be removed from pockets. 128

Prisoners are strip searched after all visits.

MDOC policy allows for an unlimited number of attorney visits during regular business hours, the prisoner's regular visiting schedule, or other hours by special arrangement. These visits do not count against the prisoner's quota of personal visits. 129 In addition to a picture identification, attorneys need to present their Bar cards. Paralegals, investigators and other agents of the attorney need a letter on the attorney's letterhead stating that the person is employed in a particular capacity and is assisting on this client's case.

Attorneys should contact the institution where the client resides 24 hours in advance and inform the institution of the planned visit. Arrangements are typically made through the facility's Litigation Coordinator, or the Warden's Administrative Assistant. While calling ahead may not be required at all facilities, it is always a good idea and may reduce waiting time upon arrival.

Even if the client is generally restricted to non-contact visits, the attorney can request a contact visit. 130 Attorneys can and should insist on being provided interview space where the conversation cannot be overheard. 131 Always ask for and keep the name of the person you talked to at the institution in case something has changed upon your arrival.

Pursuant to an August 25, 1995 Memorandum issued by Deputy Director Dan Bolden, attorneys may take the following items into a prison visiting room when seeing a client:

•Legal papers, including the attorney's file on the prisoner's case, e.g., correspondence, pleadings, transcripts;

•Writing pads and implements (pen and/or pencil);

•Softbound copies of law books.

Tape recorders, video cameras, or other equipment may be taken in with the prior approval of the warden's office where there is a special need. These items are "not routinely allowed." All items are subject to search.

At most institutions, attorneys cannot leave paperwork for the client in connection with a visit. If transcripts, briefs, or other documents are given to the client during the visit, they will be confiscated and the client will receive a major misconduct for possessing contraband. However, some facilities will allow attorneys to "mail" correspondence through the institutional mail system while at the facility.

B. Client Communications 132

1. Telephones

All institutions have prisoner telephones. All calls placed from these phones must be collect. Each prisoner is assigned a Personal Identification Number (PIN) to allow access to a maximum of 20 telephone numbers. Changes in attorney phone numbers must be entered in to the computer within one business day of the prisoner's request.

Telephone calls are automatically terminated after 15 minutes. Warning messages are given a few minutes before the time limit is reached. Then the telephone system simply disconnects the call. If the parties want to continue speaking, the prisoner must dial again, and the recipient must pay the additional charges for accepting another collect call.

Attorney-client telephone conversations are exempt from monitoring if the attorney is not related to the prisoner by blood or marriage. The prisoner must identify the telephone number as that of her attorney, and staff must verify that the number really is a lawyer's. 133 Clients may not be able to return calls to the attorney's home or another office if that number is not listed in the Bar Journal Directory.

If an attorney wants a client to phone, it is advisable to set a specific date and time. An attorney can usually call the warden's office and arrange for the client to call at a specific time during business hours. If the attorney cannot be in the office at the scheduled time, it is strongly recommended that someone be authorized to accept the charges and reschedule another date and time for the call. Prisoners take these "appointments" very seriously.

2. Mail

Mail addressed to a prisoner must include the person's name and number. All regular incoming mail is opened and inspected for contraband.

A prisoner may arrange to have legal mail be treated as confidential and opened only in his or her presence. The client must submit a written request to the mail office in the institution where she resides asking that all mail received from the client's designated attorney "be opened and inspected for contraband in the prisoner's presence." 134 Upon receipt of the clients' request, the mail office will enter an "ATTY" code on the computer. After that, any legal mail will be specially routed to the housing unit where it will be opened and inspected for contraband in the prisoner's presence. Attorneys should clearly mark on the exterior of the envelope: "LEGAL MAIL-CONFIDENTIAL."

An attorney may send one stamped, self-addressed envelope to a client 135. Indigent prisoners are provided with some postage, writing materials, and photocopies to assist them in obtaining access to the courts.

C. Acquiring Necessary Documents 136

•Institutional File: Contains any document that affects a prisoner's incarceration. The pre-sentence report is in the institutional file. (See Appendix 15 for an explanation of the significance of the pre-sentence report.) The institutional file follows a prisoner from institution to institution.

•Central Office File: Contains documents of the parole board decision making process including the Board's notes and additional documents that were considered. This file is located at the MDOC in Lansing.

•Counselor's File: Copies of classification documents and all contacts with prisoners. This file follows prisoners through transfers to other facilities.

•Medical File: Contains all information relevant to a prisoner's medical history and treatment during incarceration. You will need a medical release to access this file.

Domestic violence shelters will not release records of client contacts without verbal or written authorization from the client. Some shelters will require you to submit a release of information on their own forms. Others will accept a letter from the client.

3. Hospital Records

To obtain hospital records, call the patient records office at the hospital where your client went for treatment. Although hospital policies differ, the hospital will likely tell you to send in a written request for the documents you are seeking. The records office will probably want to know the patient's name, date of birth, social security number, and the specific information you are requesting.

In addition, you will need a signed release form. Usually, hospitals will accept a simple letter on attorney letterhead requesting release of information, signed by the patient. Some hospitals may require a more formal letter in which you cite to relevant statutes.

While some hospitals keep all records in storage, others purge their records after seven years. Hospitals may charge a special lawyers' fee for copying. 137

4. Police Reports

To obtain police records, call the records office in the county where the event occurred. The records office may require you to fill out a FOIA request explaining: your relationship to the client, why you need the report, and the case number (if you have it). At some departments, the FOIA request will be forwarded to the City Attorney who will decide whether to release the information.

Police department policies for storing records vary. Some police departments archive their older records off-site. Some shred their records after seven years. If the event you are researching led to a prosecution, and if records of the event have been shredded by the police department, try contacting the prosecuting attorney's office to see if they still have records on file.

Police records offices charge copying fees on the order of about $3 for the first page and $2 per page thereafter.

•Chapter IX

Resources

A. Prisoner Advocacy Groups

B. Women's Correctional Facilities in Michigan

C. Domestic Violence Referrals and Assistance

D. Other Helpful Resources
 
 

A. Prisoner Advocacy Groups

•Prison Legal Services of Michigan

3855 Cooper STreet

Jackson, MI 49201

(517) 780-6639 (Ph)

(517) 787-0014 (Fax)

Director: Sandra Girard
 
 

•Women's Legal Services

(Has offices at MI Women's Correctional

Facilities and Camp).

Director: Steven Ramey
 
 

•American Friends Service Committee

Criminal Justice Program

1414 Hill Street

Ann Arbor, MI 48104

(734) 761-8283 (Ph)

(734) 761-6022 (Fax)

Director: Penny Ryder
 
 

• MI-CURE

P.O. Box 2736

Kalamazoo, MI 49003-2736

(616) 383-0028

Email: kayperry@aol.com

Director: Kay Perry
 
 

• MI FAMM (Families Against Mandatory Minimums)

200 N. Washington Square, Ste. 310

Lansing, MI 48933

(517) 482-4982 (Ph)

(517) 482-5839

Director: Laura Sager
 
 

• The Sentencing Project

918 F. St. N.W. Ste. 501

Washington, D.C. 20004

(202) 628-0871 (Ph)

(202) 628-1091

Director: Malcolm Young

• National CURE Headquarters

P.O. Box 2310

National Capitol Station

Washington, D.C. 20013-2310

(202) 789-2126
 
 

• The National Prison Project

1875 Connecticut Avenue, N.W., Ste 410

Washington, D.C. 20009
 
 

• Prison Legal News

2400 N.W. 80th Street, #148

Seattle, WA 98117

Publisher: Rollin Wright (561) 547-9716
 
 

• ABA Criminal Justice Section

740 15th Street NW

Washington, D.C. 20005-1009

(202) 662-1500 (voice)

(202) 662-1501 (Fax)
 
 

B. Michigan Women's Correctional Facilities and Camp

• Florence Crane Women's Facility

38 Fourth Street

P.O. Box 307

Coldwater, MI 49036

(517) 279-9165

(Warden's Office)
 
 

• Scott Correctional Facility

47500 Five Mile Road

Plymouth, MI 48170

(734) 459-7400
 
 

• Camp Branch

19 Fourth Street

Coldwater, MI 49036

(517) 278-3204

C. Other Helpful Resources

• State Appellate Defender Office

3300 Penobscot Building

645 Griswold

Detroit, MI 48266

(313) 256-9833 (Ph)

(313) 965-0372 (Fax)
 
 

• State Appellate Defender Office

200 N. Washington Square, Ste. 340

Lansing, MI 48913-0001

(517) 334-6069 (Ph)

(517) 334-6989
 
 

• Michigan Protection and Advocacy Service (MPAS)

106 W. Allegan, Ste. 210

Lansing, MI 48933-1706

(517) 487-1755 (Ph)

1-800-288-5923 (toll free)
 
 

• Legislative Corrections Ombudsman

4th Floor Capitol Hill

115 Allegan

Lansing, MI 48913

(517) 373-8573 (Ph)

D. Domestic Violence Referrals and Assistance

• Prosecuting Attorneys Association of Michigan

Domestic Violence Division

116 Ottawa, Suite 200

Lansing, MI 48913
 
 

• Domestic Violence Prevention and Treatment Board

235 S. Grand Avenue, Suite 513

Lansing, MI 48933

(517) 335-6404
 
 

• National Domestic Violence Hotline

1-800-799-SAFE (7233) *** 1-800-787-3224 (TDD)
 
 

• Family Law Project

University of Michigan Law School

Hutchins Hall

Ann Arbor, MI 48109

(734) 763-6591
 
 

• AYUDA

1736 Colombia Road N.W.

Washington, D.C. 20009

(202) 387-0434

(specializing in assistance to immigrant battered women)
 
 

•Michigan Coalition Against Domestic Violence

3893 Okemos Road

Suite #B2

Okemos, MI 48864

(517) 347-7000
 
 

• The Domestic Violence Project, Inc/SAFE House

Post Office Box 7052

Ann Arbor, MI 48107

(800) NO-ABUSE (800) 662-2873

(313) 973--0242 (Business)

(313) 973-7817 (Fax)

(313) 995-5444 (24 hour crisis line)

email: dvpsh@aol.com

Susan McGee, Executive Director
 
 

• Illinois Battered Women's Clemency Project

4669 N. Manor

Chicago, IL 60625

(773) 583-8016
 
 

• National Clearinghouse for the Defense of Battered Women

(215) 351-0010
 
 

• Michigan Domestic Violence Prevention & Treatment Board Child and Family Services/Family Independence Agency

235 South Grand Avenue

Grand Tower, Suite 513

P.O. Box 3037

Lansing, MI 48909

(517) 378-8144

(517) 335-6177 (Fax)

Coordinates Michigan's response to domestic violence. Provides shelter service funding, training, and standards on domestic violence issues, and provides advice to the Governor on legislative issues.

•Michigan's Coordinating Councils to Prevent Domestic Violence

Clearinghouses and initiators of county-wide efforts to provide coordinated community responses toward ending domestic violence, listed alphabetically by county:
 

Allegan Marge Bakker Allegan Prosecuting Attorney's Office County Building Allegan, MI 49010 616-673-0280 616-673-0599	Antrim Gary Knapp, Chair 205 Grove Street Mancelona, MI 49659 616-587-5085 616-587-5313	Baraga Patricia Baribeau, Chair contact: Char Kangas 11 S. 4th Street L'Anse, MI 49946 906-524-5017 906-524-7572
Bay Roth Noble, Linda Mendez, Chairs contace: Linda Mendez P.O. Box 1458 Bay City, MI 48706 517-686-4551 517-686-0906	Calhoun Chief L.J. McKeown, Chair 112 W. Cass Albion, MI 49224 517-629-3933 517-629-2609	Cass Pat Hillman, Chair P.O.Box 402 Three Reivers, MI 49093 616-279-5122 616-279-1624
Chalevoix/Cheboygan/Emmet Alex Kaczynski, Chair contact: Peter Armar 1 MacDonald Drive, Suite A Petoskey, MI 49770 616-347-7890 616-347-1242	Houghten/Kewenaw/Ontonagon Cynthia Antikainen, Chair contact: Emily Newhouse P.O. Box Gx 8 Calumet, MI 49913 906-337-5632 906-337-0966	Huron/Sanilac/Tuscola Sandy Gaudreau, Chair contact: Steven Cornier  429 Montague Avenue Caro, MI 48723 517-673-4121 517-673-2013
Ingham Sue LeDue & Ann Gregory, Chairs Ingham County Prosecutor's 303 W. Kalamazoo Lansing, MI 48933 517-483-6108	Ionia Jeff Winters, Chair contact: Catherine Talberg P.O. Box 93 Anne, MI 48846 616-527-3351 616-527-4350	Jackson Judge Chad Schumaker, Chair contact: Jane Myers AWARE P.O. Box 1526 Jackson, MI 49204 517-783-2861 517-783-2660
Kent Linnea Mitchell, Chair 333 Monroe NW Grand Rapids, MI 49503 616-456-3713 616-774-3095	Lenawee Judge James Sheridan, Chair contact: Khristine Henson 213 Toledo Street Adrian, MI 49221 517-264-5733 517-263-6090	Livingston David Morse, Chair contact: Cindi Tarchinski P.O. Box 72 Howell, MI 48843 517-548-1350 517-548-3034
Luce Nancy Kipling, Chair MSU Extension 407 W. Harrie Newberry, MI 49868 906-293-3203 906-293-3465	Mackinac Mary Kostecki, Chair MSU Extension 100 Marley Street