Seventh Circuit Sides with Law School's Federal Criminal Justice Project
In 2008, the Federal Criminal Justice Project was new to the Law School's Mandel Legal Aid Clinic--and was a new concept to the clinic world in general. As far as anyone knows, no other law school has a clinic that allows students to take primary responsibility for representing indigent criminal defendants charged with federal felonies. But that was no reason for students and the project's director, Alison Siegler, to proceed slowly. They jumped right in to take on an ambitious issue, one that had vexed federal public defenders for years.
And they won.
The U.S. Court of Appeals for the Seventh Circuit recently sided with the Federal Criminal Justice Project in a case with the potential to dramatically impact the prison sentences given to defendants in illegal reentry cases.
Chicago law students convinced the Seventh Circuit that federal judges should have the discretion to grant below-guidelines sentences to illegal reentry defendants to bring sentences in line with those given in federal districts with "fast track" programs. Those programs allow judges to reduce defendants' sentences if they promptly plead guilty and waive certain rights. The Seventh Circuit, which is based in Chicago, has jurisdiction over federal courts in Illinois, Indiana, and Wisconsin--all jurisdictions that lack fast-track programs.
In siding with the FCJP, the Seventh Circuit reversed prior precedent. Previously, the Seventh Circuit had ruled that judges could not consider a district's lack of a fast-track program as a reason to reduce sentences.
This latest ruling already has had an impact on at least two people and has the potential to impact many more. Pedro Sanchez-Gonzalez, the FCJP's client in the case, and Jaime Reyes-Hernandez, whose case the court of appeals consolidated with Sanchez-Gonzalez's, have had their sentences vacated and will be given a second chance before sentencing judges. The judges now will be allowed to consider deviating from the guidelines to bring the sentences in line with those given to similarly-situated defendants in fast-track districts.
To hear the story of how the FCJP achieved this win is to learn the history of the project's first year.
When Siegler joined the clinic and founded the FCJP, the fast-track sentencing issue wasn't new to her. As an attorney with the Federal Defender Program in Chicago, she and other public defenders in her office had argued successfully in federal district court that their clients' sentences should be reduced to account for the fact that they were in a jurisdiction without a fast-track program. Had they been arrested in a district with such a program, their sentences would have been shorter.
But the Seventh Circuit shut down this practice by ruling in 2006 that judges couldn't take the fast-track disparity into account when deciding sentences. The next year, when the U.S. Supreme Court issued Kimbrough v. United States, allowing judges to deviate from the sentencing guidelines for policy reasons, Siegler saw an opportunity to revive the fast-track issue before the Seventh Circuit.
Siegler joined the Law School in 2008 with a plan to push this legal issue with the FCJP. She and her clinic students discussed first litigating the issue in district court, in the hopes that they could make a good record and get the issue in front of the Seventh Circuit.
"I jumped on it right away because I thought it sounded really interesting," said James Burnham, '09, who was then a law student in that first FCJP class.
Though the clinic was new and had no proven track record, Burnham and his fiancee Emma Mittelstaedt, '09, had been eager to join because they were impressed by Siegler's energy and the unusual opportunity the clinic offered. The FCJP is the only legal clinic that exclusively represents criminal defendants charged with federal felonies and allows students to appear extensively in federal court on their behalf. In addition to litigating cutting-edge legal issues like the fast-track disparity, under Siegler's supervision students in the clinic begin representing indigent clients in the district court at the time of arrest and carry those cases through to the end, continuing to represent the clients on appeal if necessary.
Students are involved in every aspect of the cases: They conduct hearings, write and argue motions, meet with clients in jail, and negotiate with Assistant U.S. Attorneys. "Other clinics let you practice in state court, but not many other clinics offer you the chance to work on the trial level in federal court," he said. "Both Emma and I crossed examined FBI agents in federal court at preliminary hearings-that opportunity doesn't exist at any other law school."
All students in the first FCJP class worked on the fast-track sentencing issue at the district court level, but the most involved were Burnham, Mittelstaedt, and Tom Gorman, then a second-year student who was writing a Law Review Comment, published in Winter 2010, on the fast-track disparity. Burnham and Mittelstaedt, both 3Ls, handled other individual FCJP cases while they worked on the broader fast-track issue.
The students started by drafting an email that was sent to all federal public defender offices in the Seventh Circuit. The email stated the project's interest in fighting the fast-track issue and asked the offices to alert the FCJP to any illegal reentry sentencings the students could help litigate. The clinic eventually represented clients in nine illegal reentry cases.
Clinic students wrote a 10-page sentencing memorandum that was included in each defendant's case. Students tailored the memo tailored to the different facts of each case. Other students collected information about how fast-track programs work from federal defender offices around the country, while Gorman issued Freedom of Information Act requests to the government.
Meanwhile, they kept their eyes open for the perfect case to bring before the Seventh Circuit. They finally found it in Pedro Sanchez-Gonzalez, a Mexican citizen who was charged in 2005 with illegal reentry. The clinic entered the case, with Burnham and Mittelstaedt drafting a lengthy sentencing memorandum laying out the fast-track argument, which they filed with U.S. District Judge Matthew F. Kennelly. Burnham then argued the issue at Sanchez-Gonzalez's sentencing hearing. In a written opinion published a few weeks later, Judge Kennelly held that the Seventh Circuit's previous ruling prevented him from reducing Sanchez-Gonzalez's sentence by taking into account the fast-track argument. However, he also expressed his opinion that "as a matter of policy... it is unjust to permit sentencing disparities based on the fortuity of the judicial district in which a defendant in an illegal reentry case is charged."
That ruling set the appeal to the Seventh Circuit in motion. Under Siegler's supervision, Burnham, Gorman, and Mittelstaedt researched and wrote the initial brief and reply brief, revising and redrafting each one multiple times before submitting to the court.
Siegler and Gorman also used the case as a springboard to edit and write scholarly articles for the June 2009 issue of the Federal Sentencing Reporter. Siegler's article was "Disparities and Discretion in Fast-Track Sentencing" and Gorman wrote "A History of Fast-Track Sentencing."
In November 2009, Siegler argued the case before the Seventh Circuit. But the work wasn't done. After oral arguments before the Seventh Circuit, new cases were decided in other circuit courts that were relevant to the fast-track sentencing case. Gorman wrote six Fed. R. App. P. 28(j) letters either informing the court of those developments or responding to those filed by the federal government.
The last year has been one of celebration. Gorman graduated in June, and Mittelstaedt and Burnham married in July. Earlier this month, Siegler contacted them with the good news that the Seventh Circuit had sided with the FCJP.
"Although district courts may arrive at the same outcome whether they choose to consider the fast-track argument or not, we clarify today that the absence of a fast-track program and the resulting difference in the guidelines range should not be categorically excluded as a sentencing consideration," the court held.
The Seventh Circuit's ruling is in line with decisions reached by the First, Third, and Sixth Circuits. However, the Fifth, Ninth, and Eleventh Circuits have ruled oppositely. If the federal government asks for certiorari, the FCJP could be in a position to brief and argue the issue before the U.S. Supreme Court.
Though Siegler praised Burnham, Mittelstaedt, and Gorman, saying they "epitomize the very best of what our students are and can be," Burnham said the accolades belong with Siegler.
"We worked hard, but Alison deserves the credit here," he said. "She found the issue, kept everyone organized in the middle of a lot of distractions. Her ability to run this operation in its first year with such amazing results is incredible."