Federal Bail Reform Project
The FCJC created a Federal Bail Reform Project in 2018 and has been pursuing a multi-pronged campaign to combat the federal bail crisis—a crisis that contributes to mass incarceration and devalues the lives and liberty of people of color. Professor Alison Siegler and Professor Erica Zunkel conceived of this project because we were concerned about rising federal pretrial detention rates nationwide and in Chicago. While much attention has been focused on the “cash bail” problem in state systems, we are shedding light on the myriad problems in the federal pretrial detention system. The FCJC’s leadership on this issue is transforming the practices of federal judges and defense attorneys, and is changing the culture of detention nationwide. From 1985 to 2018, federal detention rates climbed steadily. But from 2018 to 2019, federal detention rates finally leveled off for the first time in decades, even as the government’s detention requests increased.
FCJC students and faculty created the first federal courtwatching project ever undertaken in federal court in this country, working with volunteers to gather and log data that revealed major problems in federal bail practices in Chicago. During Phase 1, courtwatchers gathered and logged data from 173 federal bail-related hearings in Chicago over the course of 10 weeks. We learned that prosecutors often request detention for reasons not authorized by the statute and that, in some cases, clients are illegally detained. We also observed troubling racial disparities in pretrial detention. After Phase 1, we met with a supervisor at the U.S. Attorney’s Office and with federal magistrate judges in Chicago to convey our findings. In mid-2019, we ran Phase 2 of the courtwatching project and were heartened to see that prosecutors, defense attorneys, and judges had begun adhering more closely to the statute in the wake of our interventions.
In November 2019, Professor Siegler testified before Congress about the federal bail crisis: The Administration of Bail by State and Federal Courts: A Call for Reform: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 115th Cong. (2019), https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=2256. Professor Siegler, Professor Zunkel, and their students submitted written testimony in connection with the hearing, Truth-in-Testimony Statement (Nov. 14, 2019), https://docs.house.gov/meetings/JU/JU08/20191114/110194/HHRG-116-JU08-TTF-SieglerA-20191114.pdf; Written Statement of Alison Siegler (Nov. 14, 2019),https://docs.house.gov/meetings/JU/JU08/20191114/110194/HHRG-116-JU08-Wstate-SieglerA-20191114.pdf. In addition, the FCJC presented a proposed rewrite of the federal Bail Reform Act of 1984 to Congress, and House members hope to introduce the bill this year.
Another goal of our Federal Bail Reform Project was to implement best practices in the federal bond arena and to reduce racial disparities. To this end, FCJC students co-wrote bond motions on behalf of individual clients and wrote template motions for federal criminal defense attorneys to file in their own cases. Professors Siegler and Zunkel also conducted trainings for Federal Defenders and judges around the country.
In addition, Professors Siegler and Zunkel wrote articles about federal bail to bring the issue into the public conversation and the scholarly literature. They are publishing an article aimed at practitioners and judges in NACDL’s Champion journal: Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, The Champion (forthcoming 2020),https://ssrn.com/abstract=3601230. They also have a forthcoming paper that encourages federal judges to use their discretion at the bail and sentencing stages to ameliorate the harshness and racial disparities created by the federal drug laws: Erica Zunkel & Alison Siegler, The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction, 18 Ohio St. J. Crim. L. 1 (forthcoming 2020),https://ssrn.com/abstract=3589862.
COVID-19 Rapid Response
When the COVID-19 pandemic hit, the FCJC quickly pivoted from other projects to help people in federal jails and prisons. Under the supervision of Professors Siegler and Zunkel, the FCJC’s work took several different forms. We worked with Congress on legislation that would release more people from jails and prisons. We also worked with the Federal Defenders nationwide on their policy response and compiled the most up-to-date information on the Bureau of Prisons (BOP)’s inept response to COVID-19’s rapid spread in federal jail and prisons. To get the word out about COVID-19’s impact on the federal bail crisis, Professors Siegler and Zunkel published an Op Ed in the Chicago Tribune: Alison Siegler & Erica Zunkel, Commentary: Don’t Let Chicago’s Federal Jail Become the Next Coronavirus Hot Spot, Chi. Trib., Apr. 24, 2020, at 19, https://www.chicagotribune.com/opinion/commentary/ct-opinion-coronavirus-jail-cook-county-mcc-20200424-zagv2nvjyzcrvknxbfasusx63a-story.html.
The centerpiece of our COVID-19 rapid response was researching and filing compassionate release motions for six clients in federal prison. Our clients were particularly vulnerable to COVID-19 because of their age and serious underlying health conditions, such as diabetes, hypertension, and heart disease. Federal compassionate release permits a judge to reduce a person’s sentence for medical reasons, family circumstances, or any other “extraordinary and compelling” circumstance. 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.
FCJC students spent countless hours scouring our clients’ case records, reaching out to our clients and their families and friends to verify release plans, doing legal research, and drafting compassionate release motions. The FCJC’s efforts had a significant impact. All four of the clients for whom we filed motions were released from federal prison, are safe from COVID-19’s deadly spread in the BOP, and are now serving the remainder of their sentences at home. One of our clients, who found himself in a particularly harrowing situation at FCI Butner—where 9 incarcerated people have died—praised the FCJC’s work: “Their assistance, persistence, and relentless advocacy allowed me to be writing you this letter from the safety of the home to which I have been released. What [the FCJC] accomplished was nothing short of a miracle.” We are still working to bring our remaining clients home from prison.
Stash House Impact Litigation
The FCJC received the 2020 Clinical Legal Education Association Award for Excellence in a Public Interest Case for its innovative “Stash House” litigation, a multi-year endeavor that exposed—and effectively eliminated—racial discrimination in an entire category of federal cases. As CLEA wrote in announcing the award: “The FCJC’s district court Stash House litigation used statistical evidence to save their 43 clients from hundreds of years in prison. The FCJC’s appellate litigation dramatically improved the legal standard for people seeking discovery about race discrimination by police, ushering in a new wave of litigation challenging racial bias. The project exemplifies individual client representation as a vehicle for systemic change. It was helmed by Professor Alison Siegler, FCJC’s Founder and Director, along with FCJC Associate Director Professor Erica Zunkel and Professor Judith Miller, and was litigated by FCJC students over four years. Former FCJC students supported the nomination, detailing the thousands of hours they’d devoted to the project and adding: ‘Professor Siegler’s vision and strategic brilliance forged the path…, but it was her enormous dedication to her students and sharp pedagogical insight that ensured we were part of the team at every step.’ The FCJC’s litigation strategy was so successful that lawyers elsewhere adopted it to change the law in other circuits, and it promises to produce just outcomes for hundreds of people unfairly targeted and incarcerated nationwide.”
Under the supervision of Professors Zunkel and Miller, FCJC students filed and argued motions to terminate supervised release on behalf of two of the FCJC’s stash house clients. Federal judges granted the motions. As a result, our clients are no longer under court supervision and can move on with their lives.
Professor Siegler and a student are publishing an article about the broader impact the FCJC’s stash house litigation has had on equal protection law: Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Northwestern L. Rev. (forthcoming 2020), https://ssrn.com/abstract=3548829. This article describes how the FCJC’s litigation ultimately led three federal courts of appeals to deviate from the Supreme Court’s insurmountable standard when a person charged with a crime seeks discovery regarding racial discrimination by the police (as opposed to prosecutors). The paper proposes that other federal and state courts should likewise adopt a lower discovery standard for claims of race discrimination by the police.
Impact Litigation: Crimmigration Project
Under the supervision of Professor Miller, a team of FCJC students launched a project to challenge federal criminal prosecutions for immigration offenses. So-called “crimmigration” offenses include felony “illegal reentry” charges for returning to the United States after having been removed from the country. Crimmigration offenses constitute an enormous and increasing percentage of the federal docket—doubling in number in the Northern District of Illinois and Seventh Circuit from 2017 to 2018 and constituting over half of all federal arrests nationwide in 2018.
The Crimmigration Project is combatting the federal system’s focus on crimmigration prosecutions by expanding the arsenal of legal defenses and challenging their legality and legitimacy altogether. This year, students took a deep dive into the legal history of the federal illegal reentry statute and other criminal immigration laws, and developed statutory and constitutional challenges. The statute and Constitution require dismissing the case when the underlying removal in an illegal reentry case violates due process. The students discovered, however, that dismissal is functionally unavailable in the Seventh Circuit. Specifically, no other circuit requires defendants to overcome as many procedural barriers before such a case can be dismissed. These barriers appear to constitute a complete block to dismissal: Research revealed no appellate cases in the Seventh Circuit affirming an illegal reentry dismissal or reversing the denial of such a dismissal.
Students quickly identified a case to litigate these issues. They then investigated the client’s immigration and criminal history and crafted careful legal arguments wending their way through existing precedent, while also challenging the statute as unconstitutional. The client ultimately plead guilty with a favorable plea agreement. Students hope to challenge to bring these legal challenges on behalf of a new client next year.
Students also successfully partnered with a federal defender in another district to argue that a crimmigration case should be dismissed in light of the coronavirus pandemic, among other things. The client had been released on bond from his federal case and then detained in immigration custody, despite the district court’s release order. Students argued that the Bail Reform Act required either dismissal of the criminal case or release from immigration custody, and that the coronavirus pandemic deepened the need for dismissal or immediate release under the Fifth, Sixth, and Eighth Amendments. The government ultimately dismissed the criminal case, and the students have been further developing their arguments into a model motion for nationwide distribution.
Petition for Certiorari
A team of FCJC students supervised by Professor Miller submitted a petition for a writ of certiorari on behalf of a long-standing FCJC client. This vigorously contested case followed years of extensive pretrial litigation, the first trial in FCJC’s history, and a Seventh Circuit appeal.
Students focused on one key critical issue: Whether the jury instructions violated the First Amendment and/or were inconsistent with the statute’s language. The petition argued that the Court should take the case to resolve a three-way circuit split about the statute’s language and because of the importance of the underlying issues: at best, a federal criminal statute that criminalizes different conduct in different circuits, or, worse, a statute that violates the First Amendment’s prohibition on criminalizing false speech.
District Court Litigation: Trial Case
The FCJC continued its partnership with a local criminal defense attorney in a federal drug conspiracy case where previous FCJC students under the supervision of Professor Miller had successfully suppressed the client’s statements as violating Miranda, and also as involuntary under the Fifth Amendment. A team of FCJC students were prepared to stand up in court at the scheduled trial during Spring Quarter until the COVID-19 pandemic required continuing the trial to Fall 2020. The students performed stellar work preparing the case against the government’s main witnesses and developing a potential defense case, including creative legal research support the use of an unexpected outside expert. Students’ in-depth examination of every aspect of the case also revealed critical facts and resulted in a raft of compelling pretrial motions for the fall.
District Court Litigation: Trial Case
The FCJC also partnered with a local criminal defense attorney on a federal drug conspiracy trial. Under the supervision of Professors Miller and Zunkel, a team of 2018-2019 FCJC students had drafted innovative motions, uncovered extraordinary facts, and prepared for trial. Three students were prepared to stand up in court at trial before the case was unexpectedly continued to Fall 2019.
In September 2019, part of that student team participated in that week-long trial under the supervision of Professor Miller. The previous year’s students’ work proved critical on a key legal issue: Prohibiting the jury from convicting the client for “deliberate ignorance” of drug trafficking. After reading the student team’s motions, the government first agreed that it would not mention deliberate ignorance during opening arguments. Then, before closing arguments, the court ruled that the government could not present a deliberate ignorance theory of knowledge to the jury at all. The government was instead forced to argue that the client actually knew about the drugs. This task was made especially challenging for the government after their main witness lied to the jury on the stand—a fact the government agreed to in a stipulation read aloud to the jury. The case is currently on appeal before the Seventh Circuit.