If Illinois defendants never told jury of their own abuse, now a second chance

Willette Benford spent 24 years in prison, convicted of murder after she ran over Patricia Phillips in 1995.

Benford said the crime occurred as she fled the anger of her girlfriend, whom she contended had abused her for most of the previous two years. But based on her trial attorney’s advice that it might prejudice the jurors, the defense never presented evidence of the many months of domestic violence she experienced.

“Back then, homophobia was more prevalent than it is now,” Benford said in a recent interview. “He said there were certain things that we shouldn’t talk about. So we didn’t talk about it.”

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Photo courtesy of Willette Benford

Willette Benford after her release from prison.

But on Feb. 6, Benford walked out of prison, decades shaved from her 50-year sentence, the first person granted a new sentencing hearing following a recent change in Illinois law that establishes domestic violence as a mitigating factor to be considered in sentencing.

At least 34 women statewide have petitioned for re-sentencing since the start of 2016, when the domestic violence amendment took effect. The amendment both impacts future cases and provides a limited opportunity for re-sentencing of prisoners who, like Benford, had not raised their experience of domestic violence when they originally were sentenced.

After the amendment was passed, attorney Alexandra Hunstein, then of Cabrini-Green Legal Aid, spearheaded an effort by a coalition of advocates to help incarcerated women file petitions for re-sentencing.

Prosecutors in Cook County initially opposed the petitions filed there across the board, based in part on their legal interpretation that blocked anyone convicted more than two years earlier from being eligible for relief. But in August Cook County Circuit Court Judge Arthur Hill ruled against the prosecutors’ narrow interpretation, interpreting the statute to mean any convicted defendants were eligible who brought petitions for relief within two years of when the amendment took effect.

Following Hill’s ruling, advocates brought concerns to executive staff in the Cook County State’s Attorney’s Office, arguing that prosecutors’ interpretation ignored the intent of the law and prevented almost anyone from using it, no matter the merits of a case. “I can’t imagine that the legislature wanted to pass an amendment to a statute that nobody could really use,” said attorney Rachel White-Domain, who represents incarcerated domestic violence survivors as Equal Justice Works Fellow at Cabrini Green Legal Aid (CGLA).

The office has since reversed course and taken steps to support petitions on behalf of defendants whose experiences of domestic violence went unmentioned at sentencing. Prosecutors have stopped arguing that petitions from survivors convicted more than two years before are time-barred, and have in some cases negotiated with defense attorneys to reduce sentences, including agreeing to a time-served sentence for Benford once she had served 24 years.

“We talked internally and decided that in the best interest of justice, and looking at these cases with a critical eye towards receiving the best outcomes, that we would change our policy and do a broader review,” said Cook County State’s Attorney Kim Foxx.

Foxx said that trial prosecutors had taken a contrary position because “our priorities were different. But our willingness to engage, their willingness to engage with us, made this a priority where it might not have been without that level of advocacy. And we accept that, we’re grateful for it. It makes us better at what we do.”

White-Domain called the reversal “a move by the State’s Attorney’s Office that’s kind of unheard of,” adding, “We hope that the office will continue to be willing to work with us to look at the merits of the cases and engage with us in negotiations, and ultimately, that this will result in more survivors we represent being freed.”

The Illinois Attorney General, like the State’s Attorney, has withdrawn opposition to granting relief in one case, a change that occurred soon after Illinois Attorney General Kwame Raoul came into office in mid-January. A state senator before his election last November, Raoul was a chief sponsor of the domestic violence amendment. Still, other Illinois prosecutors have not adopted the more expansive interpretation. “We’ll still need to battle it out, especially in counties other than Cook,” said White-Domain.

Foxx said she meets regularly with domestic violence advocates, and the new position on the amendment reflects her office’s broader efforts to take issues surrounding domestic violence seriously. She cited a pilot program to reduce the number of individuals to whom survivors must repeat their stories of trauma, the creation of a specific sexual assault and domestic violence track for assistant state’s attorneys, and efforts to consider domestic violence in charging decisions.

Jennifer Gonzalez, Chief of the Sex Crimes and Domestic Violence Bureau, said “one of the biggest hurdles” in charging cases appropriately has been that prosecutors often do not know the defendant’s side of the story, and as a result, need to be extra vigilant about the possibility of abuse. Gonzalez said she has been working closely with the public defender’s office, encouraging them to bring cases involving domestic violence to her attention.

“Even really small, nonviolent offenses often have domestic violence at their root,” said Gail T. Smith, an attorney who has been active in organizations on behalf of domestic violence victims who are criminally charged. She noted that in more serious cases, survivors are often poorly served by self-defense law.

“The legal model for that is a bar fight… That has very little resemblance to what people go through in domestic violence,” she said. “Nationwide, the system has not taken into account what it is to have your life under threat every day.”

Advocates say that the amendment is only a first step, and said they will push for more changes, including extending the time limit imposed on filing petitions.

“Finality should not trump justice,” said Margaret Byrne, co-director of the Illinois Clemency Project for Battered Women, pointing out many whom the law was intended to benefit never heard of it in time.

“To tell them that small window of opportunity is closed now, forever? It makes people hopeless,” Benford said. “Some people don’t have the help I had.”