Federal Bond Reform Project
This year, the FCJC created a Federal Bond Reform Project that is having far-reaching local and national impact. FCJC Director Alison Siegler and Associate Director Erica Zunkel conceived of this project because we were concerned about rising federal pretrial detention rates nationwide and in Chicago. Our in-court experiences also suggested that pretrial release and detention practices in federal court in Chicago and elsewhere deviated from the legal strictures of the Bail Reform Act.
FCJC faculty and students developed a courtwatching initiative to gather data about how the federal pretrial detention system operates in practice and to determine whether our concerns were well founded. To our knowledge, this was the first courtwatching initiative undertaken in federal court anywhere in the country. Over a period of 10 weeks, students, faculty, and volunteers watched over 170 hearings—nearly every bond-related hearing in federal court in Chicago. We gathered and logged detailed information about each hearing and about the demographics of the participants. We gathered quantitative data about a variety of questions, including whether defendants were being detained without a statutory basis, whether the government was requesting detention for reasons not authorized by the statute, and whether defense counsel was zealously advocating against detention using the full statutory arsenal.
The courtwatching initiative was largely conceived and executed by FCJC students. During the preliminary research and planning stage, the student team developed a general framework for collecting data about bond practices. The students identified research questions, created training protocols for volunteers, developed an administrative infrastructure for identifying and documenting hearings, and situated the project within a broader policy framework. The students also recruited 70 volunteers from the law school and the greater university community to participate as courtwatchers. Prospective volunteers were required to attend a total of three hours of training, and the student team presented those trainings alongside faculty.
The courtwatching initiative revealed some troubling trends in the federal pretrial detention system in Chicago. We discovered that the U.S. Attorney’s Office frequently requests detention on grounds not authorized by the bond statute. We also found that, in some cases, clients were being detained without a statutory basis. The detention rate for non-citizen clients was especially high, in part because defense attorneys rarely requested bond in such cases.
Another goal of our Bond Reform Project was to implement best practices in the bond arena. To assist the defense bar in litigating pretrial detention issues in writing, students researched and drafted numerous template bond motions. To help the defense bar litigate bond issues orally, students drafted checklists and flowcharts for use in court. We disseminated these motions and documents to the Chicago Federal Defender, the broader Chicago federal criminal defense bar, and to Federal Public Defenders around the country. The FCJC also conducted a CLE training on bond for over 80 Federal Defenders and federal criminal defense attorneys in Chicago, where students orally presented our courtwatching data. Professor Siegler conducted similar trainings at the National Conference for Chief Federal Defenders in February 2019 and the National Seminar for Federal Defenders in May 2019.
To engage other stakeholders in the conversation about federal bond reform, Professor Siegler presented our data to federal judges and attorneys at the Seventh Circuit Judicial Conference. FCJC faculty also met with additional stakeholders in the federal system in Chicago, including many of the federal magistrate judges and the First Assistant U.S. Attorney.
The Bond Reform Project is changing pretrial detention practices in Chicago and beyond. Defense attorneys are filing our template motions and winning release for clients who otherwise might not have been freed. Prosecutors in Chicago have changed their practices and are increasingly basing their detention requests on factors explicitly authorized in the statute. And federal magistrate judges are issuing orders and opinions that focus on the bond statute’s legal requirements.
Stash House Impact Litigation
From 2014 through 2018, the FCJC spearheaded complex, nationally-recognized systemic litigation on behalf of 43 indigent criminal defendants in Chicago who were charged in twelve federal criminal “stash house” sting cases, before nine U.S. District Court judges. Professors Siegler, Miller, and Zunkel supervised students who filed and litigated Motions to Dismiss for Racially Selective Law Enforcement for all 43 clients, alleging that the ATF unconstitutionally discriminated on the basis of race in targeting people of color for these cases, in violation of the Equal Protection Clause. (Of the 94 people selected by the ATF to commit this offense from 2006–2013, 91.5% were Black or Hispanic.) The FCJC’s groundbreaking litigation resulted in dramatically lower sentences for scores of clients and changed discovery law in the Seventh Circuit and beyond.
The FCJC approached the legal issue of selective law enforcement in an innovative fashion by coordinating across cases and bringing empirical evidence to bear. The clinic retained an expert witness who is one of the nation’s premier authorities on race discrimination in policing—Professor Jeffrey Fagan of Columbia Law School. Professor Fagan conducted a statistical analysis on behalf of all 43 clients which found that the ATF discriminated against people of color in our cases. (Motions and expert report available at this link.)
In 2017, all nine of the judges involved in these cases held a two-day joint evidentiary hearing on our Motions to Dismiss in the Ceremonial Courtroom of the federal courthouse. It was essentially an en banc evidentiary hearing in federal district court, an unprecedented occurrence.
When the FCJC began this litigation, our clients were facing 15–25 year mandatory minimums and far higher sentences under the Sentencing Guidelines. In the wake of the evidentiary hearing, the U.S. Attorney’s Office in Chicago made highly unusual plea offers in all of the cases, offering to dismiss all of the remaining mandatory minimum gun and drug charges. See Under Pressure By Judges, Prosecutors to Offer Plea Deals in Controversial Drug Stash House Cases (Feb. 21, 2018).
The litigation concluded during the 2018-2019 academic year, resulting in time-served sentences for many of our 43 clients and substantially below-Guidelines sentences for the rest. Clients on bond were allowed to remain in the community, clients in custody were promptly released, and our clients collectively were spared hundreds of years in prison. FCJC faculty and students directly handled several of the sentencings, and coordinated with the other defendants and their attorneys. Under the supervision of Professors Siegler and Zunkel, and Lecturer in Law James DuBray, FCJC students worked tirelessly to prepare outstanding oral and written sentencing presentations for their clients, focusing in particular on the clients’ impressive post-offense rehabilitation and the questionable way in which they were targeted by the ATF. All of the FCJC’s clients were given sentences of “time served,” a dramatic reduction from the 15–25 year minimums they were originally facing. The chart at this link depicts some of these incredible outcomes. During one sentencing, Judge Gettleman issued an opinion “express[ing] this court’s disgust with the ATF’s conduct in this case.” United States v. Paxton, 2018 WL 4504160, at *2 (N.D. Ill. Sept. 20, 2018).
In all, the Stash House litigation was a resounding success. When the FCJC first took on these cases pro bono, no one in the country had successfully litigated a systemic selective prosecution or enforcement challenge. As a result of the FCJC’s litigation, the Seventh Circuit, Third Circuit, and Ninth Circuit instituted lower standards for defendants seeking discovery regarding racially selective law enforcement. In addition, the U.S. Attorney’s Office and the ATF entirely stopped bringing stash house cases in Chicago and in other districts around the country, and all 43 clients who participated in our litigation received sentences far below the decades they otherwise would have served behind bars.
A team of FCJC students supervised by Associate Clinical Professors Judith Miller and Erica Zunkel handled a Seventh Circuit appeal on behalf of a long-standing FCJC client. This vigorously contested case followed years of extensive pretrial litigation and the first trial in FCJC’s history.
In briefing the appeal, a team of FCJC students mastered an unusually large number of highly complicated issues. Building on four years of prior students’ research and writing, the appellate team developed seven serious constitutional and evidentiary arguments. Each question required synthesizing reams of legal research with the multi-year district court record.
None of the legal issues were straightforward, making the students’ achievements all the more notable. The constitutional questions required confronting multiple circuit splits dating back to the early twentieth century. A “reasonable suspicion” argument addressed an issue of first impression in this circuit, and required distinguishing that argument from the other potential reasons our client was stopped. And our “right to present a defense” and “right to a unanimous jury” arguments required finding a clean line through unclear and inconsistent case law. The evidentiary matters posed the unusual question of how to understand deference to a visiting district court judge who admits he is unfamiliar with the record developed by the original judge.
Students also prepared for oral argument, honing the lengthy briefing into concise points and participating in moots. At argument, the government conceded error on part of one issue and further conceded that it had no case law to support one of its evidentiary claims. We are currently awaiting a decision from the Seventh Circuit. A victory will mean dismissal or a re-trial. A loss could mean filing a petition for certiorari on one of the multiple circuit splits the case implicates.
District Court Litigation: Suppression Motions
The FCJC partnered with a local criminal defense attorney to successfully suppress a client’s statements as violating Miranda, and also as involuntary under the Fifth Amendment.
A video of our client’s interrogation recorded the federal agents’ inexplicable choice to free-lance their own version of the Miranda warnings in lieu of the pre-printed warnings sitting on the table in front of them, resulting in omitted, misleading, contradictory, and incoherent warnings. The video also showed the agents ignoring the client’s repeated requests for counsel, and interrogating the client even though he told them at least thirteen times that he did not understand what was going on.
Despite these issues, the government initially refused to concede that the agents had violated our client’s Miranda rights. Under the supervision of Professor Miller, a team of FCJC students consolidated the issues into a thirty-page motion to suppress that co-counsel called the best suppression motion he had ever seen. As a result of this motion, the government ultimately conceded that the interrogation had violated Miranda in lieu of filing a response brief. The government insisted, however, that the interrogation was nonetheless voluntary and therefore could be used against our client for impeachment purposes. After a second round of excellent student briefing arguing that the interrogation was involuntary, the government again conceded the issue rather than file a response. Concessions such as these are exceedingly rare, and in this instance were directly attributable to the students’ stellar work.
District Court Litigation: Trial Case
The FCJC also partnered with co-counsel for a federal drug conspiracy trial. Under the supervision of Professors Zunkel and Miller, a team of FCJC students drafted innovative motions, uncovered extraordinary facts, and prepared for trial itself. Three students were prepared to stand up in court at trial before the case was unexpectedly continued to the fall.
 The “stash house” cases are unique, in that each case arises out of a proactive sting operation where the ATF targets individuals to rob a stash house that does not actually exist. The ATF encourages the person it targets to bring guns and recruit additional manpower. In fact, however, the stash house and the drugs are purely fictional. The United States Attorney’s Office ultimately charges the defendants with federal drug, gun, and robbery crimes, many of which carry draconian mandatory minimum penalties.