Federal Criminal Justice Clinic—Significant Achievements for 2020-21
Federal Bailwatching Project
The FCJC is currently leading the federal bail reform movement, with Professor Siegler spearheading a multi-faceted Federal Bailwatching Project aimed at revealing and reducing high rates of federal pretrial jailing and accompanying racial disparities. The Federal Bailwatching Project attacks the problem from all angles through legislative and policy advocacy, data-driven courtwatching, stakeholder engagement, and systemic litigation.
Bail reform legislation written by Professor Siegler, Professor Zunkel, and FCJC students was recently introduced in Congress. The Federal Bail Reform Act of 2020 is a complete rewrite of the current federal bail law and would institute a number of reforms, narrowing the detention eligibility net and eliminating retrograde presumptions of detention that are a product of the failed War on Drugs. Professor Siegler testified before Congress about the need for legislative change in 2019. The FCJC also contributed a call for a statutory fix to a recent Justice Roundtable report.
To further elevate national attention and galvanize change, Professor Siegler and FCJC 3L Kate Harris published an op-ed, How Did the “Worst of the Worst” Become Three Out of Four, N.Y. Times (Feb. 24, 2021), in which they called on the Biden Administration “to prioritize federal bail reform and reduce sky-high rates of pretrial jailing” to “decrease mass incarceration [and] advance racial justice.”
This year, Professor Siegler also created a four-site courtwatching project, mobilizing FCJC students and clinic students at four other law schools to watch hundreds of federal bail hearings remotely via Zoom in federal district courts in Baltimore, Boston, Miami, and Salt Lake City. The remote environment enabled cross-country collaboration with clinic students from Harvard, Boston University, University of Maryland, and Campbell law schools. The students obsesrved hearings, gathered data, and created an incredibly rich dataset that is unlike anything any researcher has previously generated on state or federal bail proceedings. The FCJC has partnered with Professor Sonja Starr and the Coase-Sandor Institute, who are in the process of cleaning, validating, and analyzing the data. FCJC students are now writing a report about our bailwatching data to demonstrate to Congress and federal judges that the current system jails too many people unnecessarily and creates racial disparities. We hope that our findings will change hearts and minds, persuading Congress to pass a new law and convincing federal judges to lock fewer presumptively innocent people in jail. This study builds on Professors Siegler’s and Zunkel’s pilot courtwatching project in 2018–2019, which they discuss in this article: Rethinking Federal Bail Advocacy to Change the Culture of Detention, The Champion (July 2020).
To convince stakeholders of the need for change, Professor Siegler has given speeches about the federal bail crisis to thousands of federal public defenders and hundreds of federal judges and Pretrial Services Officers. Professor Siegler and FCJC summer students recently created a presentation about the clinic’s four-site bailwatching data for a national federal judicial conference. During the 2021-22 academic year, we plan to continue transforming the federal bail landscape through systemic litigation.
Compassionate Release, COVID-19, and Clemency Work
The FCJC continued its post-conviction compassionate release work to advocate for the release of people in federal prisons. Under the supervision of Professor Zunkel, the FCJC expanded its work this year to fight for justice for Chicago stash house clients who are serving lengthy mandatory minimum sentences, in spite of the U.S. Attorney’s Office in Chicago disavowing the practice. This work built on the FCJC’s innovative stash house litigation, a multi-year endeavor that exposed—and effectively eliminated—racial discrimination in an entire category of federal cases. Two articles about the clinic’s stash house litigation were published this year: Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987 (2021), and Becky Beaupre Gillespie, Power in Numbers, University of Chicago Law School Record (June 30, 2021).
The FCJC filed compassionate release motions on behalf of three clients and, for one of those clients, also filed a Seventh Circuit appeal arguing that our client’s sentence was unlawful. 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 briefing, we argued that our stash house clients should be released immediately for several “extraordinary and compelling” reasons: their sentences are excessive, their sentences would be much lower today, and they have rehabilitated. We also argued that our clients are vulnerable to COVID-19 for various reasons, including their age and underlying health conditions. Federal prosecutors opposed release in all three cases. The Chicago Tribune profiled one of the FCJC’s compassionate release clients, Dwayne White, on the front page of the paper in March 2021: Annie Sweeney & Jason Meisner, ‘Stash House’ Stings Have Been Discredited. Now, the Convicted See a Chance for Redemption, Chi. Trib. (March 5, 2021). In late December 2020, the FCJC submitted a clemency petition on Mr. White’s behalf to then-President Trump.
FCJC students spent countless hours scouring our clients’ case records, reaching out to our clients and their families and friends to verify release plans, conducting legal research, and drafting compassionate release motions. All told, students filed motions totaling 161 pages with 217 pages of exhibits. One motion was granted and the judge reduced our client’s sentence by thirteen months. We are awaiting a decision in the other two cases. To get the word out about the Department of Justice’s intransigence to second chances under the new federal compassionate release law, Professor Zunkel co-authored an op-ed in USA Today: Erica Zunkel & James Zeigler, Biden Administration Needs to Walk the Walk on Second Chances for Prisoners, USA Today, May 1, 2021.
In addition to representing stash house clients, the FCJC continued its compassionate release advocacy on behalf of people who are particularly vulnerable to COVID-19 in federal prisons. This year, judges granted release to two of the FCJC’s clients: one who is 73 years old and has dementia, chronic diastolic heart failure, a cancerous kidney mass, Type II diabetes, hypertension, and a host of other health problems; and another who is 70 years old and has Type II diabetes, hyperlipidemia, and gastroesophageal reflux disease. Our clients are now safe from COVID-19’s deadly spread in the BOP and have been reunited with their families. The FCJC’s COVID-19 compassionate release work is profiled in this video.
COVID Courts
The FCJC also began a new project challenging unconstitutional pandemic-related court practices. Under the supervision of Professor Miller, students focused on a public trial challenge to video hearings and developed innovative materials to support defense attorneys who are fighting new court procedures in the wake of COVID.
The FCJC’s public trial challenge argues that COVID-era courts violate the First and Sixth Amendments when they deny the public video access to video hearings and instead limit non-participants to audio feeds. This practice effectively leaves the press and public listening outside the virtual courthouse door, in violation of the Constitution. The FCJC’s intervention appears to be the first of its kind.
Barring the press and public from watching court creates two problems. First, it devastates public advocacy for changing the criminal legal system. The Supreme Court recognizes that the ability to watch court is foundational to the fairness in the criminal system: “To work effectively, it is important that society’s criminal process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing people to observe it.” Second, barring a person’s friends and family from watching what happens in court critically undermines the support they can offer.
The FCJC quickly identified that this public trial issue would present litigation challenges. Raising a public trial challenge in any individual case risks a judge remedying the violation by returning everyone to in-person court. Especially during the pandemic, such a “solution” would be worse than the problem. The FCJC overcame this challenge by representing independent journalist Aaron Cantú in a petition that asked the Chief Judge to modify the Eastern District of Virginia’s public trial procedure to comply with the First Amendment. Mr. Cantú covers the criminal system and the courts, with a special focus on prosecutorial accountability.
FCJC students spent months researching and investigating not only the substantive legal questions but also the best procedural vehicle for raising this issue without putting defendants at risk. The resulting petition masterfully applies pre-“Zoom era” case law to the novel situation of widespread online hearings. The challenge argues that audio-only access is not an adequate substitute for watching a video hearing and actually seeing what the judge and parties can see. Audio-only access violates the historic openness of the courts to the press and public and likewise violates the very purpose of that openness, namely, public accountability. Without video, the press and public cannot observe things like the demeanor of the judge, lawyers or defendant; the visible demographic characteristics of a criminal defendant, prosecutor, or judge; the “architecture” of the online courtroom; or even to spot defects in the videoconference technology—any of which could affect the fairness of the proceedings. The petition concludes the First Amendment right of access to criminal proceedings guarantees the public a right to access video of the hearings, and that the Court’s order violates that right.