The following is an interview with one of our members Kate Mogulescu who was involved in a landmark decision to free a human trafficking survivor under a new New York State Law.
*Thank you to Patrice Smith for giving us permission to publish this information.
In your own words can you tell us about Patrice’s Case?
Patrice Smith went to prison at the age of 16 for killing a 71 year old reverend who had been paying her for sex for nearly a year, asking her to recruit other teenagers for commercial sex and threatening to tell her father about their “relationship” if she did not continue to submit to his sexual abuse.
In 1999, after her conviction at trial, the judge sentenced her to the maximum, 25 years to life in prison. Under this sentence, Patrice would not have been eligible for parole until 2023 and, even then, it is unlikely she would have been paroled immediately. An indeterminate life sentence means she could have potentially spent the rest of her life in prison.
In September, after almost 22 years incarcerated, Patrice was given a new sentence that allowed for her immediate release. This was because of a new law in New York State, the Domestic Violence Survivors Justice Act (DVSJA), which provides alternatives to mandatory minimum sentencing for survivors of domestic violence where the offense for which they are convicted is connected to the abuse they experienced. The law also allows survivors currently in prison serving long sentences to seek reductions of their sentences.
As the law is so new, Patrice’s resentencing is significant for a number of reasons. It is the first resentencing to be granted over the prosecutor’s objection. The Erie County District Attorney’s Office fought against Patrice’s release. It is the first case involving a murder conviction, and Patrice is the first person to be freed who had been given an indeterminate life sentence.
How did you end up taking Patrice Smith’s case/how did you hear about her?
I learned about Patrice through a former colleague who now volunteers with the organization Survived + Punished. When the DVSJA passed last year, many advocates and organizations mobilized to identify survivors in prison who might be able to bring resentencing petitions. Survived + Punished has done a tremendous amount of work over the last several years on the issue of criminalized survivors of violence including a mass commutations campaign. They were already connected to many survivors in prison. Together with law students in our clinic at Brooklyn Law School, my former colleague and I worked on Patrice’s resentencing application.
The Domestic Violence Survivors Justice Act led to the re-sentencing in Patrice’s case. Can you tell us a little more about that legislation?
Passage of the DVSJA was a hard-fought victory for advocates in New York State. It is important to know that the idea for the law, and so much of the work to make it a reality, came from women in prison who had experienced domestic violence. The campaign was led by currently and formerly incarcerated survivors. These women knew how their experience was not recognized during their initial prosecution and saw how severely they were punished in their cases. Women inside and outside of prison worked together for nearly a decade to make the DVSJA law. Ten years after the campaign’s launch, Governor Andrew Cuomo signed the DVSJA in 2019.
Now that the law has gone into effect, efforts across the state are proceeding in the same way. We have formed the Survivors Justice Project (SJP), which is an interdisciplinary collective seeking to implement the DVSJA, identify potentially eligible survivors, gather data/information and promote accountability. The project’s core is an advisory group of people who have direct experience with incarceration, many of whom also have experienced abuse.
SJP is committed to several principles. Although lawyers are important in the effort to decriminalize survival, they can’t be the gatekeepers to relief. The expertise lives in people’s own experience. Further, people in prison and facing prosecution need access to resources and community. The project’s research collective is committed to documenting everything we can about this moment in time and comparing the law’s intent with its practical interpretation. We study how information travels within the prisons themselves and chronicle the way that misogyny and anti-blackness impact everything in the criminal legal system. We identify and expose the tropes and misunderstandings that have led to such harsh sentences for so many survivors.
Do you see the Domestic Violence Survivors Justice Act as a stepping stone to more criminal justice reform that will favor survivors?
Yes! The DVSJA holds enormous potential to challenge the incarceration of criminalized survivors and to inform parallel movements, including broader decriminalization/decarceration, sentencing reform, parole reform, and clemency. The law’s recognition that mandatory sentencing can be too harsh itself marks a huge shift.
One cautionary note, though. The law is not inclusive of all human trafficking survivors. Because it focuses on domestic violence, there must be a family or intimate partner relationship implicated in the violence, which includes siblings, parents and children, extended kin, married or formerly married individuals, those who share a child in common, and individuals who are or have been in an intimate relationship. Living in the same household is not required. This will apply to survivors who were trafficked by family members or anyone they had a sexual relationship with (whether that relationship was consensual or not) but may not fit for other survivors who were trafficked in different circumstances.
What impact do you hope this landmark case will have in the future?
With respect to the DVSJA, we hope the decision in Patrice’s case will pave the way for more courts to grant resentencing to survivors and to allow alternative sentences to incarceration at the front end of a prosecution. The case is a strong signal to judges across the state, and the country, to overcome resistance to reexamining past decisions. The decision also encourages consideration of individual circumstances and complexity.
Patrice’s experience reinforces what so many of us have been saying for years. First, that survivors of trafficking and abuse are criminalized in ways that extend far beyond minor offenses such as prostitution. That our legal system fails to appreciate the reality of people’s experiences is not news, and we continue to see the devastating impact of punitive responses in criminal cases. As anti-violence and anti-trafficking advocates, we must move “solutions” outside of the criminal punishment system. Those who have argued for more punishment and longer sentences, and consistently seek to exclude people convicted of certain offenses from reform and relief, need to critically examine that position.
In the meantime though, laws like the DVSJA, if passed across the country and implemented well, can move us closer to decarceration. The court’s decision in Patrice’s case recognized the paradigm shift the law embodies. For survivors serving lengthy prison sentences, many of whom have already spent years if not decades in prison, the DVSJA could mean freedom.