The Federal Criminal Justice Clinic is the nation’s first legal clinic devoted to representing indigent clients charged with federal felonies, pursuing impact litigation through criminal cases in federal court, and engaging in systemic reform of the federal criminal system to combat racial and economic inequities. Professors Alison Siegler, Erica Zunkel, and Judith Miller work together and with students to advocate in these areas.
Freedom Denied Systemic Reform Project
The FCJC’s Freedom Denied Project aims to dismantle the culture of detention and encourage judges to adhere to the Bail Reform Act through legislative advocacy, judicial training, advocacy to the Biden Administration, and impact litigation.
In Fall 2022, Professor Siegler and students in the Federal Criminal Justice Clinic (FCJC) released the first comprehensive national investigation of federal pretrial jailing, Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis. The FCJC pursued this study to understand why federal jailing rates are astronomically high, with three out of every four people jailed before trial—far more than in state systems. Our Report reveals a “culture of detention,” with some judges locking people in jail in violation of federal bail law, leading to skyrocketing jailing rates and intensifying the already severe racial disparities in the federal criminal system. In particular, we found that some federal judges: (1) illegally jail people at their first bail hearing (the “Initial Appearance”); (2) jail people without lawyers at that hearing; (3) jail indigent individuals for poverty, imposing financial conditions that people cannot meet; and (4) misapply the presumption of detention, automatically jailing people in many low-level drug cases.
In Summer and Fall 2022, FCJC students joined Professor Siegler in writing the Report, designing the Report website, and preparing the Report’s launch. At the Report’s launch, USA Today wrote an exclusive report on our findings and published an in-depth article, highlighting how the Report “paints a portrait of a judicial system that has neglected the rights of especially poor arrestees and people of color.” Study: Federal Magistrates, Prosecutors Misunderstand Bail Law, Jailing People Who Should Go Free. Professor Siegler and Brandon Buskey, Director of the ACLU’s Criminal Law Reform Project, also coauthored an Op Ed about the Report for The Hill. This project would not have been possible without the generous philanthropic contributions of the Astor Street Foundation, the Yagan Family Foundation, Pegah Sadr, Paul Mandell, and others.
Since the Report launched, the FCJC has been working to rectify the problems identified in our Report. In May 2023, FCJC students engaged in legislative advocacy by giving a presentation to Senator Dick Durbin (D. Ill.), Chair of the Senate Judiciary Committee. Students shared the clinic’s findings with Senator Durbin and proposed several potential legislative fixes. Senator Durbin recently reintroduced the Smarter Pretrial Detention for Drug Charges Act, which would eliminate the presumption of detention in federal drug cases—one of the problems identified in our Report—and dramatically reduce federal jailing rates.
The FCJC has also been asking DOJ and the Biden Administration to change the government’s approach to detention. In January 2023, DOJ issuing a groundbreaking new directive telling all federal prosecutors to approach pretrial detention differently. US Dep’t of Just., Just. Manual § 9-6.100 (2023). In direct response to the FCJC’s advocacy, the new directive addresses what we call the access-to-counsel crisis—the problem of presumptively innocent people being jailed without lawyers at Initial Appearance hearings. § 9-6.110. FCJC students have gathered additional information on the access-to-counsel crisis since our Report was released. The FCJC has used this information to educate stakeholders about the crisis.
In addition, the FCJC has been changing the culture of detention through trainings and presentations. This year, Professor Siegler trained hundreds of federal judges, including all newly appointed magistrates. Professor Siegler has also trained thousands of Federal Public Defenders, including presenting our findings to all Chief Federal Public Defenders and all new Federal Public Defenders, co-running a multi-day national bail workshop, and giving a national webinar attended by nearly 800 Federal Defenders and CJA attorneys. FCJC students co-authored all presentations, drafted follow-up action items, analyzed webinar data, and used information gathered during trainings to conduct other interventions.
The FCJC’s interventions have likely contributed to increased pretrial release since 2018, as well as preventing a return to pre-pandemic jailing rates. As one federal judge told us: “Detention rates are coming down, and much of that is attributable to you and your efforts. You have made a real difference in how the federal judiciary sees release and detention.” Freedom Denied Report at 196. The clinic’s interventions have resulted in judges in some districts appointing lawyers at Initial Appearance hearings for the first time ever, after decades of violating the law. In other districts, federal defenders have been able to present legal arguments at Initial Appearance hearings for the first time, leading to pretrial release.
The future impact of the FCJC’s interventions could be wide-reaching: If there is just a 1% decrease in jailing rates annually, 13,267 additional people will be released in five years. Since each of those individuals would otherwise spend one year in jail on average, the collective amount of life they would be spared is over 13,000 years. That would not only improve public safety, but it would also save taxpayers at least $412 million in jailing costs. Every time a person gains pretrial release as a result of the FCJC’s interventions, it is life-changing, and the FCJC has learned frequently of cases where a client was released due to the best practices advocated in our Report.
Compassionate Release & Second Chances Cases and Projects
The FCJC continued its advocacy for second chances and ameliorating excessive sentences in the federal system. Under the supervision of Professor Zunkel, this work took multiple forms: (1) litigating post-conviction compassionate release motions, with a specific focus on stash house clients who are serving lengthy mandatory minimum sentences; and (2) broader advocacy for the increased use of compassionate release and other second chance mechanisms to reduce mass incarceration in the federal system.
Building on several prior successful motions for compassionate release, including three releases for stash house clients, the FCJC litigated two additional stash house motions and also litigated a motion for a survivor of sexual abuse at the Bureau of Prisons’ (BOP) FCI Dublin women’s prison. Federal compassionate release permits a judge to reduce a person’s sentence for family circumstances, medical reasons, or any other “extraordinary and compelling” reason. In 2018, Congress expanded compassionate release so that people in federal prisons can bring these motions to judges, rather than waiting for the BOP to grant relief.
In our motions for stash house clients, we argued that they should be released immediately for “extraordinary and compelling” reasons: their conviction and sentence are unjust, and they have rehabilitated. In the motion for our client who was sexually abused in prison, we argued that the abuse and retaliation she suffered and her efforts to rehabilitate in spite of that abuse were “extraordinary and compelling” reasons for immediate release. The underlying facts were horrific—our client had suffered significant sexual abuse at the hands of several different correctional officers.
The FCJC’s compassionate release work has been incredibly impactful. In April 2023, a judge in the Northern District of Illinois granted one of our motions, releasing our stash house client 10 years early from a 25-year mandatory minimum sentence. The judge concluded that our client’s situation was “extraordinary and compelling” because the government had disavowed stash house reverse stings, thus creating troubling sentencing disparities between similarly situated individuals. In May 2023, a judge in the Southern District of California granted the FCJC’s motion for our client’s immediate release based the sexual abuse she had suffered in prison, which was one of the first compassionate release grants in the country for a survivor of sexual abuse at the Dublin prison. The case was profiled on NPR, in the New York Times, and in the local San Francisco Bay Area media here and here. And in June 2023, a judge in the Northern District of Illinois granted the immediate early release of two additional FCJC stash house clients, concluding that their circumstances were “extraordinary and compelling.”
In addition to representing clients, the FCJC advocated more broadly for expanding second chances in the federal system. The centerpiece of this advocacy was Professor Zunkel’s written and oral testimony before the US Sentencing Commission in February 2023, which encouraged the Commission to expand federal compassionate release. Professor Zunkel’s written testimony, co-written with FCJC students, highlighted the BOP’s failure to administer the compassionate release program, the need for judges to retain broad discretion to identify unenumerated extraordinary and compelling reasons for release, and statutory guardrails that ensure administrability. In addition, at the same hearing, FCJC stash house client Dwayne White testified before the Commission about how compassionate release and the FCJC’s work on his behalf changed his life. It was the first time in the Commission’s history that formerly incarcerated individuals like Mr. White were invited to testify. Mr. White’s story was profiled in the Chicago Tribune after the FCJC secured his release in August 2021. After the hearing, Professor Zunkel and her students submitted a public comment to the Sentencing Commission to address issues raised by the Commissioners during testimony.
To elevate the importance of expanding compassionate release, Professor Zunkel and FCJC student Jaden Lessnick, ’23, authored a piece in the Federal Sentencing Reporter titled Putting the “Compassion” in Compassionate Release: The Need for a Policy Statement Codifying Judicial Discretion, about the need for district judges to retain broad discretion to identify “extraordinary and compelling” reasons for compassionate release. Professor Zunkel explained the proposed Commission changes to federal compassionate release on Wisconsin Public Radio here and commented on the problems of medical compassionate release in the federal system here.
Professor Zunkel also educated lawyers and other advocates on best practices for litigating compassionate release motions. She hosted an online training in December 2022 with the Prisonology consultancy group, presented to criminal defense attorneys at the Advanced Federal Defender Seminar (May 2023), and presented at the Annual National Seminar on Federal Sentencing (May 2023).
Jury Trial and Case Dismissal
Under Professor Miller’s leadership, the FCJC partnered with criminal defense attorney Matthew Madden to represent a long-standing client during a week-long federal jury trial. One week after the trial, the government dismissed the case with prejudice—a truly astounding victory. The clinic client would have faced an extremely lengthy sentence had the case not been dismissed.
The dismissal came after the government discovered impeachment evidence about officers who testified at trial, after the trial had concluded. This undisclosed evidence came to light in a later trial of a federal agent who had exchanged text messages about the FCJC case with agents in our case. According to the government, the text messages were “distasteful” and “insensitive” regarding, race, sex, sexual orientation, and gender. Failing to disclose this evidence pretrial was especially egregious because the FCJC had filed numerous motions requesting discovery about the other agent and related matters; the court even held a related pretrial evidentiary hearing at which the case agent testified.
This unheard-of victory builds on four years of FCJC student work in this case. The 2018–2019 student team suppressed our client’s post-arrest statements as involuntary—itself an incredibly rare victory. The 2019–2020 team first prepared the case for trial before it was moved due to the pandemic. The 2021–2022 team prepared the case again, and their advocacy created so many contested legal issues that the court delayed the trial. The 2022–23 team’s investigation, research, writing, and trial preparation culminated in the astonishing final result of dismissal.
FCJC students were central to the unusually creative, vigorous and successful pretrial motions practice in this trial case. First and foremost, the 2021–22 and 2022–23 teams persuaded the court to allow the defense to present neuropsychological testimony that the client’s borderline intellectual functioning rendered him not guilty of the conspiracy charge. The student teams drafted numerous rounds of briefing to support the admissibility of this unusual testimony, prepared our expert to testify at a rare criminal Daubert hearing, and ultimately obtained the broadest opinion in the country on this issue. Obtaining this result required mastering the technical issues, including a deep dive into the neuropsychological literature on how to properly examine a Spanish-speaker, as well as the meaning of borderline intellectual functioning. The team also engaged in careful planning about how to present this technical evidence persuasively to the judge and ultimately to the jury. Professor Miller and FCJC students are now brainstorming ways of using the court’s opinion and the years of work that led to it to help other attorneys.
Second, the 2021–22 team vigorously investigated and litigated two lines of discovery and Brady issues relating to the destruction and non-disclosure of statements. In addition to the discovery/impeachment issues connected to the case’s dismissal, the team precluded one of the cooperators’ from testifying by showing that the destruction of the cooperator’s prior statements prevented the government from complying with its mandatory discovery obligations regarding those statements. The team also argued that the statements’ potentially exculpatory content meant that a raft of other evidence should also be excluded.
Third, and finally, all three student trial teams successfully persuaded the government not to attempt to raise a deliberate ignorance theory of knowledge, also known as the “ostrich” theory. In general, the government can prove the “knowledge” element of a drug offense by showing that the person actually knew about the drugs or was deliberately ignorant about them—the latter of which can improperly lower the government’s burden of proof. This case marks the second trial in a row where the FCJC successfully prevented the government from arguing deliberate ignorance to the jury. Professor Miller and her students are now developing model motions for other attorneys to use.
The FCJC team was equally central to the trial itself. Students mastered the discovery, uncovered key contradictions in the cooperators’ testimony, and helped draft cross examinations and direct examinations. Professor Miller and the students prepared and presented lay and expert witnesses for direct examination, and the cross-examination of the government’s expert. A student even cross-examined a federal expert witness, successfully eliciting key points for the defense. The 2019–20 FCJC team bears special mention for discovering a central issue highlighted at trial, namely, an inconsistency between the government’s claims about how the client was paid and the government’s own evidence. The 2019–20 team likewise laid the foundation for the 2022–23 trial team’s work developing cross-examinations of the cooperators.