Clemency Project Clinic
University of Minnesota Law School
Prof. JaneAnne Murray
Fall 2021; Room Mondale 7 (subplaza of Law School); Wednesdays 3:35 p.m. to 5:35 p.m
It is one of the greatest stains on our justice system that we continue to incarcerate people long after everyone acknowledges their sentences are simply too long and would not be imposed today. Sadly, "second look" mechanisms to ameliorate this situation are few and rarely applied.
The Clemency Project Practicum is an experiential class that aims to harness these available mechanisms, with a view to expanding them and encouraging judges and executives to use them more liberally and with greater humanity.
To that end, the students in this class will each represent a long-term inmate seeking state or federal clemency, or a judicial “second look” at their sentence under an applicable statute or rule (First Step Act, compassionate release regulations, etc.). You will each have your own client, working singly or in teams of two. Your work will be conducted under Prof. Murray’s supervision and with Prof. Murray as the counsel of record. Your practical work will be complemented by a program of weekly class meetings in which we discuss each student’s case together and hear from relevant expert speakers.
Each class will involve a discussion of the assigned readings, and frequently, an opportunity to discuss the topic with an expert in the field. But the heart of this class is our collaborative work on real cases. As such, the class is modeled on a “teaching hospital” concept -- we will brainstorm each student’s case, critique the sentencing strategy, and learn from our successes and failures. Everyone in the class must execute a confidentiality agreement related to the individual representations assigned to you or your classmates. This allows us all to discuss the cases communally. These classes will not be recorded and will be conducted in a spirit of professionalism, seriousness, generosity and humility.
There is no required casebook - readings are posted on my web syllabus or provided by email. Recommended readings/videos are linked on the web syllabus. I have assigned approximately 40 to 50 pages of readings per week, and I do expect you to have read them prior to the class session and to come prepared to discuss them, even if the time we spend with our guest speaker precludes an actual discussion of the readings.
Our class is structured thematically, but the order may not necessarily flow intuitively, as it is subject to speakers’ availability. In addition, speaker availability may periodically require the syllabus to change.
Typically, I require every student in the class to visit a prison with me. Obviously, this semester, that will not be possible, but I will do what I can to set up virtual visits.
The class will be graded on an A to F basis, with 40% of the grade based on written work in the assigned case, 20% based on client interaction and case management and development, and 40% based on participation and performance in our class meetings. Note that because so much of your grade is based on class participation, poor or unexcused attendance will negatively impact your grade.
Class 1 - Intro to Sentencing Theory
Sentencing is the point where the heart of the law - and its human face - is most clearly revealed.
Judge Jack Weinstein
Sentencing does many things. First, most obviously, it punishes. It also protects society from the offender. It sends a message to potential lawbreakers. And, in its most enlightened form, it promotes rehabilitation. These competing purposes have produced what Law School Professor Michael Tonry has called the “crazy quilt of diverse and . . . irreconcilable elements” we see in U.S. sentencing systems: mandatory minimum sentencing statutes along side structured advisory guideline sentencing regimes, for example, or traditional trial-based criminal courts along side restorative and community justice initiatives. Indeed, as the U.S. Sentencing Commission acknowledged, in passing the Sentencing Reform Act of 1987, Congress did not -- perhaps because it could not -- elect to give precedence to any single purpose of sentencing. Rather, it was believed that “each of the four purposes of sentencing [retribution, incapacitation, deterrence and rehabilitation] should be considered” and individual case circumstances would dictate the paramount consideration. So what is a judge to do with several potential sentencing paths in a given case? And what theory or theories of punishment make sense today? This is what we will discuss in our first class, setting the stage for the potentially meaningful role the defense lawyer can play in framing their client as a human being capable of redemption.
- Joel Feinberg, The Classic Debate, in PHILOSOPHY OF LAW (Joel Feinberg & Hyman Gross eds., 1995)
- Michael Tonry, Sentencing in America: 1975-2025, 42 Crime & Just. 141 (2013), pages 141 - 169 (excluding footnotes) (pages 1-29 in the linked pdf)
- United States v. Rivera, 2017 WL 6210813 (E.D.N.Y. December 7, 2017), pages *10 - *18 (pages 19-33 in the linked pdf)
- Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811 (2017), pages 816 - 822
Class 2 - Telling Your Client’s Story
[The defense lawyer's job] in the sentencing process, as I see it, is to thwart the powerful convenience that encourages a laconic adherence to a thoughtless and passionless process.
Judge John Kane
However much our system may assign the sentencing process to statutes, guidelines and algorithms, at the heart of any sentencing is the client’s story: what personal circumstances and experiences, personality traits, choices and pure bad luck drove her to engage in the conduct at issue? And more importantly, what is her path to a productive life when sentence is pronounced? Psychologists tell us that we absorb and process information through stories, and these insights are as true for judges, probation officers and prosecutors, as they are for lay people. Moreover, well-developed stories can counter-act implicit biases and prejudices. In this class, we explore how we can most effectively tell our client’s story - by word, deed, or visual images. And who better than a veteran reporter with a journalist’s eye and capacity for capturing the essence of human stories on the page.
- Jonathan Gottschall, THE STORYTELLING ANIMAL: HOW STORIES MAKE US HUMAN (2013) (pages 95-108)
- Jonathan Haidt, The Emotional Dog and its Rational Tail: A Social Intuitionist Approach to Moral Judgment, 108 Psychological Review 814 (1995) (pages 814-823)
- Nancy Pennington and Reid Hastie, The Story Model of Juror Decisionmaking, in Reid Hastie, INSIDE THE JUROR (1994) (pages 192-203)
- Doug Passonal, Using Moving Pictures to Build the Bridge of Empathy at Sentencing, Champion June 2014
Past Guest Speakers: Sid Bedingfield, Hubbard School of Journalism and Mass Communication; James E. Shiffer, City Teams Leader and Editor at the Star Tribune; Stephen Montemayor, Politics and Government Reporter at the Star Tribune.
Class 3 - Developing Your Relationship With Your Client
Every life is in many days, day after day. We walk through ourselves, meeting robbers, ghosts, giants, old men, young men, wives, widows, brothers-in-love, but always meeting ourselves.
Encountering an incarcerated individual who has spent many years, even decades, in prison, is a humbling and daunting experience. Many of the students in this law school class will come from very different backgrounds than those of the clients we represent. The client's long period of incarceration is another layer that widens the gulf. Psychologists and criminologists have identified a phenomenon called "prisonization:" personality changes wrought by "chronic loss of free choice, lack of privacy, daily stigma, frequent fear, need to wear a constant mask of invulnerability and emotional flatness (to avoid exploitation by others), and the requirement, day after day, to follow externally imposed stringent rules and routines." Many of our clients have had few visitors over the years, and perhaps no visitor focused on advocating for them. This can be especially true with female clients, whose family and social ties are significantly frayed and often severed upon entry into the prison system. Building a relationship of mutual trust, openness and respect is key to an effective post-conviction litigation/clemency strategy, because much of what the advocate writes will be based solely on information provided by the client. In this class, we will get some pointers on building effective client relationships from two clemency grantees (represented by the University of Minnesota Law School Clemency Project).
- Gay Gelhorn, Law and Language: An Empirically-Based Model for Opening Moments of Client Interviews, 4 Clinical L. Rev. 321 (1998)
- Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 Clinical L. Rev. 33 (2001)
- Chapter 10 (Mitigation) from Just Mercy by Bryan Stevenson
Guests: Clemency recipients; family members of incarcerated individuals
Class 4 - The Pre-Sentence Process
Who in the world am I? Ah, that's the great puzzle.
An inmate’s “presentence report” - a detailed portrait of the client's personal and criminal history prepared by a probation officer during a “presentence investigation” - is a critical document that can impact whether or how long an individual is sentenced custody, and the kind of custody or probation conditions they will experience. From the prison’s perspective, it is akin to an academic transcript and is used to make critical determinations like designation, medical treatment, program eligibility, visitation lists, dietary restrictions and appropriate work assignments. Given its importance, it is critical that a defense advocate play an active role in ensuring the accuracy and comprehensiveness of the information in the final report, and its fidelity to the plea agreement negotiated with the prosecutor. Moreover, in many jurisdictions, as well as the federal one, probation officers make sentencing recommendations, which the sentencing judges often follow. An antagonistic presentence interview, or one where the client reveals additional misconduct or disavows any responsibility, can have an adverse impact on the sentence to be imposed. We will explore these issues and more with the senior probation officer in the District of Minnesota in charge of presentence report writing.
- Nancy Glass, The Social Workers of Sentencing? Probation Officers, Discretion, and the Accuracy of Presentence Reports Under the Federal Sentencing Guidelines, 46 Crim. L. Bull. 1 (2010)
- JaneAnne Murray, Easing Your Client’s Experience of Federal Prison, NYLJ, Dec. 7, 2006
- Felicia Sarner, “Fact Bargaining” Under the Sentencing Guidelines: The Role of the Probation Department, 8 Fed. Sent’g Rep. 328 (1996)
- United States v. Lee, 653 F.3d 170 (2d Cir. 2011)
Past Guest Speakers: Leah Heino, Senior U.S. Probation Officer; Kelly Lyn Mitchell, Director of the Robina Institute
Class 5 - Specific Mitigation Issues - Addiction
All sins tend to be addictive, and the terminal point of addiction is damnation.
Of our 2.3 million prisoners at a given moment in America's carceral system (keeping in mind the 10 million or so "churn" of prisoners annually), a majority have a substance abuse disorder (SUD) or their offense otherwise is drug-related. Some research shows that an estimated 65% percent of the United States prison population has an active SUD. Another 20% percent did not meet the official criteria for an SUD, but were under the influence of drugs or alcohol at the time of their crime. Despite lip service to the public health aspect of America's drug problem, for decades the primary focus of the war on drugs was criminalization and imprisonment. That is changing, but in the meantime, there are many in our incarcerated system serving outdated sentences because their drug addiction drove them into a criminal lifestyle to support their addictions - addictions, that in many cases developed because the incarcerated individual was trying to self-medicate undiagnosed and untreated trauma. Elucidating the role of addiction in their offense is key to an effective "second look" petition.
- U.S. Department of Health and Human Services (HHS), Office of the Surgeon General, Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health. Washington, DC: HHS, November 2016.
- United States v. Hendrickson, 25 F.Supp.3d 1166, 1176 (N.D. Iowa 2014)
- National Institute of Drug Abuse, Drugs, Brains, and Behavior: The Science of Addiction, Maryland 2010
- David M. Eagleman et al., Why Neuroscience Matters for Rational Drug Policy, 11 MINN. J.L. SCI. & TECH. 7 (2010)
Class 6 - Restorative Justice
- Daniel W. Van Ness, Karen Heetderks Strong, RESTORING JUSTICE, Routledge 2019 (Chapter 2)
Lara Bazelon, Redemption for Offenders and Victims, The American Prospect, January 17, 2018
- Lucy Lang: Prosecutors Need to Take the Lead in Reforming Prisons, The Atlantic Monthly, August 27, 2019
- Scott Pelley, Crime Victims Get Chance to Confront Perpetrators through Special Program, CBS 60 Minutes, May 12, 2019
Past Guest Speakers: Lisa Eager (Victim-Offender Dialogue Expert)
Class 7 - Specific Mitigation Issues - Mental Illness
- United States v. Dikiara, 50 F.Supp.3d 1029 (E.D. Wis. 2014) (for an article about the case, click here)
- United States v. Ferguson, 942 F.Supp.2d 1186 (M.D. Ala. 2013)
- KiDeuk et al., The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System, A Scan of Practice and Background Analysis (Urban Institute) April 7, 2015
- Schnittker, Massoglia and Uggen, Out and Down: Incarceration and Psychiatric Disorders, Journal of Health and Social Behavior 53:448-464 (2012)
- Michael L. Perlin, Representing Clients with Mental Health and/or Cognitive Impairments in Treatment Courts (American University, 2016)
Class 8 - The Challenges of Re-Entry
As a society, our decision to heap shame and contempt upon those who struggle and fail in a system designed to keep them locked up and locked out says far more about ourselves than it does about them.
When we think about sentencing, the first image is often of a prison. But custodial sentencing is only part of the picture of our mass punishment landscape. More than twice as many people as those in custody are on parole or probationary supervision, which is punishing in its own way, and can often lead to re-imprisonment. U of M Department of Sociology Professor Michelle Phelps calls this phenomenon “mass probation.” collateral consequences,
- Michelle Phelps, Mass Probation: Toward a More Robust Theory of State Variation in Punishment, 19 Punishment and Society 53 (2017)
- United States v. Nesbeth, 188 F.Supp.3d 179 (E.D.N.Y. 2016)
- Wayne Logan, Informal Collateral Consequences, 88 Wash. L. Rev. 1103 (2013)
Class 9 - Conversation with Sentencing Judges
- Hornby, D. Brock. “Speaking in Sentences” Green Bag 2d 14 (2011)
- Mark W. Bennett, The Implicit Racial Bias in Sentencing: The Next Frontier, 126 Yale L.J. Forum 391 (2017)
- Nancy Gertner, Neuroscience and Sentencing, 85 Fordham L. Rev. 533 (2016)
- Jack B. Weinstein, The Role of Judges in a Government of by, and for the People: Notes for the Fifty-Eighth Cardozo Lecture, 30 Cardozo L. Rev. 1 (2008)
- United States v. Singh, 2017 WL 6327823 (2d Cir., December 12, 2007
Class 10 - Specific Mitigation Issues: Family Circumstances
They f**k you up, your mum and dad. They may not mean to, but they do. They fill you with the faults they had And add some extra, just for you. - Philip Larkin
It is the rare sentencing where mitigating family circumstances are not present. Most commonly, we see it in the form of a plea for mercy because of the impact of incarceration on family members, especially minor children. In fact, there is deep and developing research on the devastating impact of parental incarceration on the estimated five million children affected. Described as “the invisible victims of mass incarceration,” these children are at a higher risk for poverty, instability, substance abuse, mental health problems, and incarceration themselves. Children of color are disproportionately affected.
Family issues also feature in the defendant’s path to crime. The “affluenza” defense was met by many with derision, but it originates from the less controversial point that a child raised poorly, or in an environment of neglect or abuse, is especially disadvantaged and more likely to replicate antisocial behaviors.
Finally, family circumstances resonate through the experience of incarceration, as well as post-release supervision. Incarcerated parents are far more likely to have their parental rights terminated. Visitation may be difficult or simply televisual because of prison location. Conditions of probationary supervision can further strain fragile familial bonds.
- United States v. Bannister, 786 F.Supp.2d 617 (E.D.N.Y. 2011), pp. 635-644, 653
- Rebecca Shlafer et al., Children with Incarcerated Parents: Considering Children's Outcomes in the Context of Family Experiences (University of Minnesota Extension, Children, Youth and Family Consortium, 2013)
- Murray, J., Farrington, D. P., & Sekol, I., Children’s antisocial behavior, mental health, drug use, and educational performance after parental incarceration: A systematic review and meta-analysis, 138(2) Psychological bulletin 175–210 (2012) (discussion section)
- Damir S. Utržan & Julianna Carlson, Parental Incarceration and Children: A Review of Recent Findings (Children of Incarcerated Caregivers, University of Minnesota, 2017)
Class 11 - Risk Assessment
Recent scientific advances unlocking the “black box” of the brain have yielded a wealth of insights into the foundations of people’s actions and the culpability of their intentions. A prime example is age. In a trio of decisions, the United States Supreme Court cited developmental psychological research to conclude that “children are constitutionally different from adults in their level of culpability." Another is drug addiction. In 2014, surveying the latest research on addiction, brain development and behavior, Iowa Judge Mark Bennett concluded that addicts, like juveniles, tend to make “impetuous and ill-considered” decisions and as such, are generally less culpable. On the other hand, in a recent high-profile case with competing amicus briefs from groups of neuroscientists, Massachusetts’ highest court rejected the argument that it is unconstitutional to incarcerate someone who violates probation by relapsing. Neuroscience also provides insights into the effects of post traumatic stress disorder, from experiences such as childhood trauma, abusive relationships and combat duty. In addition to enhancing understanding of the individual to be sentenced, neuroscience research reveals the implicit biases of the sentencer, and the mechanisms by which these biases can be identified and countered. Finally, and most controversially, neuroscience informs the burgeoning field of “risk assessment,” including predicting future violent behavior and quantifying potential for recidivism.
- Nancy Gertner, Neuroscience and Sentencing, 85 Fordham L. Rev. 533 (2016)
- United States v. Hendrickson, 25 F.Supp.3d 1166, 1176 (N.D. Iowa 2014)
- Poldrack et al., Predicting Violent Behavior: What Can Neuroscience Add?, Trends in Cognitive Sciences, February 2018, Vol. 22, No. 2
Guest Speaker: Melissa Hamilton, University of Surrey
Class 12 - Quality of Incarceration
Architecture sends a silent message to everyone walking into any place. It tells you what to expect and where the limits of behavior are. Prisons are the same. In my view, design is crucial to creating an environment in which prisoners can live and not become institutionalized. This means providing spaces for staying in contact with families, work, education, and playing sport.
Prison is punishing, especially in the United States where decades of punitive policies have starved our prison systems of much needed funding for programs and services, from adequate nutrition to medical and mental health care, from drug treatment programs to vocational and educational opportunities. But as the tide is turning on our sentencing policies, so too in the incarceration arena. The Obama administration, for example, phased out private prisons at the federal level, and adopted more humane disciplinary policies, among other reforms. Architects are beginning to look more closely at prison design, and our partner class with Professor Julia Robinson is exploring ways in which the prison environment can be restructured to promote programming, education and, ultimately, successful reintegration into society.
Typically, you will satisfy this session by attending one of the prison tours I will schedule throughout the semester.
- Norman Johnston, FORMS OF CONSTRAINT: HISTORY OF PRISON ARCHITECTURE (University of Illinois Press, 2000) (excerpt)
- D.Moran, Y. Yewkes, J. Turner, Prison Design and Carceral Space, HANDBOOK ON PRISONS, 2nd Ed. (Routlege 2016)
- Piper Kerman, ORANGE IS THE NEW BLACK (Spiegel & Grau 2010) (excerpt)
- THE SENTENCE, a documentary film by Rudy Valdez
- Jessica Benkomarch, The Radical Humaneness of Norway’s Halden Prison, New York Times Magazine, March 26, 2015