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Federal Criminal Justice Clinic—Significant Achievements for 2021-22

Federal Bailwatching Project’s Freedom Denied Report

The Federal Criminal Justice Clinic (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. Although there has been significant advocacy focused on cash bail in state courts, skyrocketing federal pretrial detention rates had gone largely unnoticed before 2018, when the FCJC began to investigate and identified a federal bail crisis. The Federal Bailwatching Project is attacking this crisis from all angles through legislative and policy advocacy, data-driven courtwatching, stakeholder engagement, and systemic litigation. The FCJC’s interventions have brought the federal bail crisis into the national consciousness.

In Fall 2022, Professor Siegler and FCJC students will publish Freedom Denied, a report detailing their national investigation of the federal pretrial detention system.

The FCJC’s other federal bail reform interventions in recent years have included:

  • Groundbreaking Federal Courtwatching Study: The forthcoming Freedom Denied report builds on Professors Siegler’s and Professor Zunkel’s pilot federal courtwatching study in Chicago in 2018–2019. See Rethinking Federal Bail Advocacy to Change the Culture of Detention, The Champion (July 2020).
  • Legislative Advocacy: In November 2019, Professor Siegler testified before the House Judiciary Committee about the need for reform in the federal bail system. Many of the reforms in Professor Siegler’s written testimony were embodied in the Federal Bail Reform Act of 2020, introduced by Chairman Nadler (D. NY.) as a replacement for the Bail Reform Act of 1984.
  • Executive Branch Advocacy: In December 2020, the FCJC submitted a memo to the Biden Administration entitled Federal Bail Priorities for the Biden-Harris Administration: Executive Branch Policies (Dec. 7, 2020), which discussed the need for federal bail reform, and met with members of the Biden Transition Team.
  • Public Advocacy: In February 2021, Professor Siegler and Kate Harris, a third-year law student in the FCJC, published an op-ed in the New York Times, How Did the “Worst of the Worst” Become Three Out of Four?, which urged the Biden Administration and AG Garland to “disrupt the culture of detention that pervades the ranks of federal prosecutors and, to some degree, the federal judiciary.”
  • Training federal judges, federal public defenders, and other stakeholders: Since 2018, Professor Siegler has given speeches and presented trainings for hundreds of federal judges, hundreds of probation officers, and thousands of federal public defenders.

Compassionate Release and Second Chances Work

The FCJC continued its advocacy for second chances in the federal system. Under the supervision of Professor Zunkel, this work took multiple forms: (1) litigating post-conviction compassionate release motions and appeals to advocate for the release of people in federal prisons, 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, clemency, and other second chances 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 an additional district court motion and two Seventh Circuit appeals. 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 pending motion, we argued that our stash house client should be released immediately for “extraordinary and compelling” reasons: his conviction and sentence are unjust, and he has rehabilitated. We will be filing our reply brief soon and expect a decision later this year. In our two appeals, 3L students presented oral argument before the Seventh Circuit. These students spent countless hours mooting and preparing for the arguments. While one of the appeals was pending on a related issue, the district court judge granted our stash house client’s compassionate release motion, cutting ten years off of our client’s original sentence and releasing him to freedom. This decision was the culmination of a year and a half of litigation.

In addition to representing clients, the FCJC advocated more broadly for second chances in the federal system. The centerpiece of this advocacy was a Second Chances Symposium in February 2022, in partnership with the Illinois Prison Project (IPP). We drew a large and diverse audience from across the country: 280 people attended on the first day of the symposium and 181 people attended the second day. In the lead-up to the symposium, Professor Zunkel and IPP’s Executive Director, Jenny Soble, published an op-ed in the Chicago Tribune on second chances, titled To End Mass Incarceration, We Should Embrace Second Chances. The symposium featured national experts including Georgetown Law Professors Shon Hopwood and Vida Johnson, University of St. Thomas Professor Mark Osler, former Federal Pardon Attorney Larry Kupers, and FAMM’s General Counsel Mary Price. During the symposium’s final panel, which highlighted people who have received a second chance, FCJC clients Leslie Mayfield and Dwayne White shared their powerful stories. Leslie and Dwayne were convicted in connection with the ATF’s stash house operation, which the FCJC has been litigating against for years; the second chances they described are a direct result of the FCJC’s advocacy. In addition to discussing the broader framework for second chances with national experts, the event also educated lawyers on best practices for advocating for second chances via compassionate release motions and clemency petitions.

Stash House Reform Update

This year, the New Yorker highlighted the FCJC’s involvement in challenging federal fake stash house operations as racially discriminatory. See Rachel Poser, Set Up and Sent Away, New Yorker (Oct. 18, 2021). The Law School Record also published a feature article about that litigation, which was a collaborative effort by the FCJC, the Chicago Federal Defender Program, and private attorneys. See Becky Beaupre Gillespie, “Power in Numbers,” University of Chicago Law School Record (June 30, 2021).

COVID Courts Comment on Proposed Federal Rule of Criminal Procedure 62

Building on last year’s work, Professor Miller and her COVID Courts team continued to advocate for public access to the courts during emergencies like the COVID-19 pandemic. This year, the team successfully persuaded the Federal Rules Committee to revise a proposed Federal Rule governing court access during future emergencies to avoid some constitutional problems. In addition, the team continued to develop innovative materials to educate defense attorneys about how to most effectively advocate for their clients’ rights in the pandemic era.

Last year, the COVID Courts team filed a challenge arguing that COVID-era courts had violated the First Amendment by denying the public video access to video hearings and instead limiting the public to audio-only feeds. This practice effectively left the press and public listening outside the virtual courthouse door, in violation of the First and Sixth Amendments. The FCJC’s intervention appears to have been the first case of its kind. The case ultimately became moot when the district at issue changed its practices. In a later case, the Ninth Circuit agreed with the legal arguments the COVID Courts team was the first to make.

This year, the COVID Courts team also filed an official Comment with the Federal Rules Committee suggesting revisions to its proposed new Federal Rule of Criminal Procedure 62, which would govern court access during emergencies such as the pandemic. The COVID Courts team was concerned that the proposed Rule did not protect the bedrock principle of public access to the criminal legal system, and did not adequately account for lessons learned from the recent pandemic. On an individual level, it is critically important for friends and families to be able to attend court. Moreover, on a systemic level, meaningful change in the criminal system is possible only when the public can see what happens.

To provide the best feedback to the Committee on its proposed Rule, the team undertook an exhaustive study examining the effects of COVID-19 on public access to public criminal proceedings in federal court. The team reviewed and documented all 94 districts’ orders relating to public access to public proceedings; surveyed newspaper articles, scholarly literature, and publications; researched the experiences of courtwatchers both before and during the pandemic to understand how emergency restrictions affected their ability to observe court and hold officials accountable; and interviewed leaders of prominent courtwatching organizations, criminal defense attorneys, reporters and editors, and family of defendants.

After doing this research, the team filed a Comment that proposed revising the Rule to provide more meaningful guidance for future emergencies, and to make clear that normal First and Sixth Amendment standards must govern during emergencies, though their applications may vary. For example, the public should have video access to video hearings; limiting the public to listening via audio-only feeds must be justified under well-established constitutional standards. Ultimately, the team proposed re-centering the First and Sixth Amendment public access and public trial rights to ensure the open access that has been a hallmark of our criminal system since the Founding.

After detailed discussion of the team’s suggested changes, the Committee revised the proposed Rule consistent with the core of the FCJC’s Comment. The revised proposed Rule now expressly invokes the First and Sixth Amendment as the floor for court access during emergencies. The Committee also accepted the FCJC proposal to avoid implying that friends and family of a defendant—whose rights of access are protected by the Sixth Amendment—should have lesser access to proceedings. This latter success was especially remarkable as the Committee considered the FCJC’s arguments along with the Department of Justice’s direct opposition on the same point.

Congressional Testimony & Publication

In spring 2021, Professor Siegler was asked to submit legislative testimony for a House hearing on federal drug policy. She led the clinic in drafting extensive legislative testimony proposing comprehensive changes to the federal criminal system. See Statement of Alison Siegler, Erica Zunkel, & Judith P. Miller, in Congressional Record for the House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security’s Hearing on Controlled Substances: Federal Policies and Enforcement (Mar. 11, 2021). This year, a revised version of that testimony was published by the University of Iowa Law School’s Journal of Gender, Race & Justice. See Alison Siegler, Judith P. Miller & Erica K. Zunkel, Reforming the Federal Criminal System: Lessons from Litigation, 25 J. Gender, Race & Just. 99 (2022).

The FCJC’s testimony explained that, today, people of color account for nearly eighty percent of those convicted of federal crimes, and systemic change is needed. Through the lens of the FCJC’s stash house litigation, the testimony called for Congress to rectify many systemic problems related to drug policy, law enforcement, and privacy, including: Mandatory minimum penalties and recidivist enhancements fuel mass incarceration; federal drug laws disproportionately impact men of color; non-retroactive legal reforms unjustly leave many behind bars; the federal pretrial detention system casts too wide a net and over-detains people of color; the absence of comprehensive and accessible back-end sentencing relief leaves very limited avenues for people like our stash house clients to avoid an excessive sentence; the trial tax unfairly imposes staggeringly high sentences on people simply because they exercise their constitutional right to trial; prosecutorial discretion is overbroad; racial disparities pervade law enforcement and prosecution; discovery restrictions prevent people like our stash house clients from obtaining information about potential racial discrimination by law enforcement or prosecutors; restrictions on litigating claims of racial discrimination against law enforcement and prosecutors limit the ability of our clients and others to succeed in court; and harsh criminal discovery rules trammel the rights of people accused of crimes.