On a recent episode of Stanford Legal, Stanford Criminal Justice Center Executive Director Debbie Mukamal, along with SLS student Jacqueline Lewittes, JD ’25, discussed their recently released report, “Fatal Peril: Unheard Stories from the IPV-to-Prison Pipeline and Other Stories Touched by Violence,” researched and drafted as part of an SLS Law and Policy Lab practicum. The report, which was prominently featured in a recent New York Times opinion piece, is the result of a multi-year effort by the Regilla Project, a research initiative of the Criminal Justice Center that focuses on women incarcerated for homicide offenses growing out of their own abuse.
Mukamal and Lewittes were interviewed by podcast co-hosts Pamela Karlan, the Kenneth and Harle Montgomery Professor of Public Interest Law and co-director of Stanford Law School’s Supreme Court Litigation Clinic, and Richard Ford, the George E. Osborne Professor of Law. In the wide-ranging conversation, Mukamal and Lewittes explained the genesis of the project, what they learned after interviewing more than 600 prisoners, and why they believe the criminal legal system needs to better accommodate women who are survivors of intimate partner violence.
The following is a shortened and edited version of the full podcast transcript, which can be found here.
Pam Karlan: You’ve done so many different empirical projects in the Criminal Justice Center here at Stanford. What led you to do this project?
Debbie Mukamal: In 2020, the Criminal Justice Center hosted a webinar on the impact of the pandemic on domestic violence. One of our guest speakers was Rachel Louise Snyder, a journalist who wrote the book No Visible Bruises. At some point in her remarks she said, “We don’t know how many women are in prison for killing their abusers.” The statement was shocking to me and David Sklansky [faculty co-director of the Criminal Justice Center]. We know that the criminal legal system doesn’t keep good data, but we thought that was pretty appalling.
So, we called Rachel the next day and asked, “What do you mean that we don’t know how many women are in prison for killing their abusers?” She explained that there was no national data and that she had tried to get it at some point, but was unsuccessful. There and then we decided that we would try to do it ourselves. I don’t think we realized how hard the undertaking would be, but it led to a really good research project.
Pam Karlan: So can you tell us about the research design for this study?
Debbie Mukamal: At first we were interested in how many women are in prison for killing their abusers. We reached out to advocates, formerly incarcerated survivors, criminologists, to people who work in the Department of Corrections, and we quickly realized that the threshold question was too narrow. If we were interested in understanding how intimate partner violence contributes to people landing in prison, we needed it to be a larger question, because there were a lot of women who were in prison for crimes stemming from intimate partner violence, but the decedent wasn’t the intimate partner. The decedent could have been a child, a family member, or a stranger. Secondly, we had to figure out how we were going to get the information. We thought perhaps we could go through court records, but we figured out pretty quickly we needed to go directly to the women themselves. We were encouraged to try to do an in-person survey in prisons if we could get permission to do so, which we were able to do. Another part of the protocol that we needed to figure out was how we were going to assess whether someone had a history of intimate partner violence. That’s when we met our colleague, Andrea Cimino, who’s a gender violence scholar who had worked very closely with Jackie Campbell of Johns Hopkins University, who had developed the Danger Assessment, a validated instrument that predicts intimate partner homicide, the risk of someone being killed because of the intimate partner violence they’re experiencing.
Pam Karlan: That was the flip side, in some ways, of what you were wanting to figure out: which is that’s a scale that was designed to measure whether the woman in most of these cases was at risk of being killed?
Debbie Mukamal: Yes. It goes to how serious the violence was that the person was experiencing. The other instrument that we used was the Composite Abuse Scale that comes out of Canada. It is an instrument that lets us figure out if the person was experiencing intimate partner violence. So instead of asking the question of respondents, “Were you a victim of intimate partner violence? Yes or no?” We asked them a series of 20 questions that got at whether or not they were experiencing physical violence, psychological violence, and sexual violence. We asked about the kind of violence they were experiencing in the year before the act for which they went to prison.
Jacqueline Lewittes: In the fall quarter, we focused on mining the dataset because we had these open-ended response questions that varied a lot in what they discussed. But we looked for emerging themes, working off a code book that Debbie and Andrea developed before the class had started. What I found most surprising was the prevalence of decedent categories that weren’t just intimate partners. We saw a lot of strangers and specifically, in those cases, what emerged was this pathway with substance use. A lot of respondents use substances to cope with the experiences of intimate partner violence. And that often led to DUIs. In other cases, people were killed when respondents were trying to flee their abusers.
There was one case where a woman [who said she was fleeing her abuser] struck a light pole, with her children in the back of her car, and her daughter died. So we looked at the widespread nature of abuse, how it’s not isolated to just an individual partnership. Also, I was struck by the ways that the criminal legal system, from start to finish, was failing these people. Even though we have a revised evidence law that permits evidence of intimate partner violence, it isn’t being used reliably.
We saw that a lot of defense counsel or judges weren’t admitting the evidence, and it didn’t seem like that many actors, from police to prosecutors, judges, and defense counsel, knew exactly how to handle questions of intimate partner violence, particularly for cases of traumatic brain injuries.
Rich Ford: Could you give one or two examples?
Jacqueline Lewittes: There was one case that really showed the shortcomings of self-defense law as we have it. The respondent had experienced extreme abuse in the year preceding the offense and she said she could only remember the day [when she killed her partner] in three snapshots: one beginning with her being choked and her head being slammed down by her partner. In the next one, she locked herself in the bathroom and was calling like a friend to try to seek help. And then the third snapshot, she was in a room that she shared with her child, and her partner was banging on the door, and she had seen his pocket knife on the floor. I don’t know if the respondent knows how much time passed between that and the killing, but the next thing she said is that she had confronted her abuser who was lying down. I don’t know if he was asleep or not. There was some conversation that she couldn’t remember, and the next thing she knew, he was dead. She stabbed him twice, not thinking that she would kill him. So in this case, there is the accumulation of a long time of abuse, but the danger was not imminent in the way that self-defense in criminal law would define it.
Debbie Mukamal: We met with 649 respondents over the course of our six days of data collection in the two women’s prisons, and 217 people told us that they had been choked or strangled or felt dizzy, confused, or blacked out after being choked. That’s a third of our sample. Those are signs of potential traumatic brain injury. I think it’s pretty shocking that we have close to a third of the women who are in prison for murder or manslaughter potentially suffering from traumatic brain injury now—and certainly when they were moving through the criminal legal system. It’s something that we really need to be thinking about more closely.
Rich Ford: Could you give us a sense of what percentage of women currently in prison for homicide fall into the category in which the homicides were in some way related to intimate partner violence?
Debbie Mukamal: We found that 74 percent of the women of the respondents who participated in our study were experiencing intimate partner violence at the time that the offense took place. So nearly three-quarters of the population.
Rich Ford: And in the cases where the decedent was a child, were those cases where the abusive partner killed the child or the child died from neglect?
Debbie Mukamal: That category is very interesting and complex. It includes cases where the intimate partner was the party responsible for the killing, but where the woman was found liable under aiding and abetting statute called “failure to protect.” So failing to protect their child from the abuse and from the killing. But there were also cases where the woman, either in collaboration or in conjunction with the abusive partner, killed the child. Or we even had cases where we had at least four cases where what’s called a mercy or altruistic killing. So the woman talked about the abuse being so bad that they were going to kill themselves and take their child with them so as to avoid having the child to need to continue to live under that kind of abuse. And in those cases, obviously they were successful in killing their child, but not successful in killing themselves.
Rich Ford: That’s horrifying. Could you tell us about where you see these failures and what you think could be improved?
Jacqueline Lewittes: We saw failures throughout, beginning with respondents who tried to seek a protective order and the court wouldn’t believe them and denied them a protective order, or they were too scared to go to court to even seek a protective order because of all the administrative delay and potential retaliation from their partner.
Some people were mistreated by the police when they went either to report themselves if they had a codefendant type of situation, or they were scared to speak against their co-defendant if they were an abuser. And a lot of people talked about their defense attorneys either not bringing forth evidence, not investigating enough when they spoke about abuse. In some cases, actually saying if they spoke about abuse, that would show motive for the killing if it was the case of an intimate partner decedent. And then judges not admitting evidence or making disparaging remarks against them, which the prosecutors also did in some cases.
There are new reforms now to try to mitigate these sentences, but we haven’t found much data on these post-conviction remedies. That’s one of the things we’re trying to figure out now: if they’re being used and if they’re successfully being used, what roadblocks stand in the way.
Pam Karlan: In some of these ases, you’re not arguing that the person isn’t guilty of doing anything wrong. What you’re really arguing is that they shouldn’t be found guilty of homicide or of murder. There should be some sort of lesser offense with a lesser penalty. And I want to ask you about that with regard to traumatic brain injury: is the idea there that because of the traumatic brain injury, they’re unable to control their impulses? Or is it that they’re unable to form the requisite mens rea, the requisite state of mind for being guilty of murder?
Debbie Mukamal: I think it could be both of those things.We punish the women for not remembering the facts, as we showed in one of the cases. So what they tell law enforcement at the arrest stage, and then what they say at trial might differ. And then what they might say to a parole board might differ even more. And we penalize them for their story not being straight. And their story isn’t straight because their brain’s damaged from the hitting and the choking that’s happened to them. And so we need to think about it differently.
Rich Ford: Are there examples of law reforms elsewhere that you think would be worth emulating?
Debbie Mukamal: There are a number of states that are passing laws looking at re-sentencing for these kinds of cases or accelerated commutation for people who have histories of abuse.
Pam Karlan: Jacqueline, Looking forward in your legal career, what do you take away from this work?
Jacqueline Lewittes: I think we need to be listening to more stories of the people who get wrapped up in the legal system in general, but especially the criminal legal system. As someone who wants to be a public defender, hearing a lot of people say that their counsel didn’t listen to them was so disheartening, and that they didn’t really get their day in court felt very unfair in a lot of ways. So I’m hoping that this report starts to make us take a lot of people much more seriously.
Debbie Mukamal is the Executive Director of the Stanford Criminal Justice Center at Stanford Law School. During her 25-year career she has launched and managed many major projects and initiatives related to improving the criminal legal system. Her current portfolio of work includes directing the Regilla Project, an effort to study the frequency with which women in the United States are imprisoned for surviving intimate partner violence. Previous projects have included leading the Center’s efforts to analyze the move to virtual criminal court; addressing the admission bars to law school and the State Bar for people with criminal records; co-founding and running Project ReMADE, an entrepreneurship bootcamp for people with criminal records; and co-directing Renewing Communities (www.correctionstocollegeca.org), a statewide initiative to expand college opportunities for incarcerated and formerly incarcerated students in California (in partnership with Rebecca Silbert). She has taught policy labs on a range of issues including law enforcement’s use of technology, prosecutor diversity, investigation and charging of police-officer shootings, and Public Safety Realignment.