Narrating Context and Rehabilitating Rehabilitation - Federal Sentencing Work in Yale Law School's Challenging Mass Incarceration Clinic
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\\jciprod01\productn\N\NYC\27-1\NYC101.txt unknown Seq: 1 20-OCT-20 7:49 NARRATING CONTEXT AND REHABILITATING REHABILITATION: FEDERAL SENTENCING WORK IN YALE LAW SCHOOL’S CHALLENGING MASS INCARCERATION CLINIC MIRIAM GOHARA 1 ABSTRACT The Challenging Mass Incarceration Clinic (CMIC) at Yale Law School has been representing clients in federal sentencing and state postconviction cases since 2016. Drawing on a blueprint I set forth in a 2013 article, the clinic teaches a model of noncapital sentencing practice that builds on the best capital defense sentencing practices and seeks to transform judges’ and prosecutors’ assumptions about criminal sentencing. In this article, I set forth CMIC’s theoretical underpinnings and detail our interdisciplinary, trauma-informed approach to sentencing advocacy and clinical practice. I then describe CMIC’s case outcomes, including variances which have reduced each of our clients’ prison time an average of five years below the United States Sentencing Guidelines range and more than 18 months below prosecutors’ recommended sentences. CMIC’s work has also produced innovations to traditional client-centered, holistic lawyering; enhanced approaches to working with experts; and yielded insights into the incorporation of defense-based victim outreach in appropriate cases. Our experiences in CMIC raise several areas for future research, including whether the model will produce the kind of fundamental sentencing reform I predicted in my earlier work, and questions about fairness, risks, data, and scalability. I am publishing this article with the hope and intention that other law school clinics will borrow from and improve on CMIC’s model. 1 Clinical Associate Professor of Law, Yale Law School. Many thanks to Matt Kellner for invaluable research assistance, to Olivia Layug Balbarin and Kate Levien for careful edits, and to Muneer Ahmed, Tracey Meares, Jeff Selbin, Fiona Doherty, Oona Hathaway, and Claire Priest as well as to members of the Fall 2019 NYU Clinical Writers’ Workshop for essential feedback and excellent suggestions. Special thanks to First Assistant Federal Defender Kelly Barrett, with whom I co-teach CMIC and who has been an essential thought partner to me and cherished role model and mentor to our students. Finally, enormous thanks to Brett Dignam, who introduced me to the wonders of clinical teaching and on whose shoulders I stand. 39 Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 40 unknown CLINICAL LAW REVIEW Seq: 2 20-OCT-20 7:49 [Vol. 27:39 INTRODUCTION The Challenging Mass Incarceration Clinic (CMIC) at Yale Law School has been representing clients in federal sentencing and state postconviction cases since 2016. The clinic’s practice follows the blueprint I set forth in a 2013 article, Grace Notes: A Case for Making Mitigation the Heart of Noncapital Sentencing.2 Grace Notes called on public defenders and law school clinics to adopt an interdisciplinary, mitigation-rich approach to sentencing advocacy in order to present courts with the salience of defendants’ life histories to their sentences.3 In a second article, In Defense of the Injured: How Trauma-Informed Criminal Defense Can Reform Sentencing, I deepened Grace Notes’ examination of trauma as a potent basis for sentencing mitigation.4 Both Grace Notes and In Defense of the Injured prescribed a model of noncapital sentencing practice that draws from the best capital defense sentencing practices. CMIC teaches students how to advocate zealously on behalf of individual clients and to transform judges’ and prosecutors’ assumptions about criminal sentencing. This article describes how CMIC students learn to provide their clients with gold standard representation. It also explains how the students’ innovative federal sentencing practice provides judges with a basis for reconsidering the role of incarceration in punishment and rehabilitation. The CMIC students’ work is especially important at a time when public consciousness about mass incarceration’s impact on millions of people has reached heights unimaginable even a decade ago and has produced bipartisan federal criminal justice reform.5 2 Miriam S. Gohara, Grace Notes: A Case for Making Mitigation the Heart of Noncapital Sentencing, 41 AM. J. CRIM. L. 41, 72-73 (2013). 3 Id. at 45, 48-49, 73. 4 Miriam S. Gohara, In Defense of the Injured: How Trauma-Informed Criminal Defense Can Reform Sentencing, 45 AM. J. CRIM. L. 1 (2018). 5 See Shon Hopwood, The Effort to Reform the Federal Criminal Justice System, 128 YALE L.J.F. 791, 796 (2019); Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 HARV. L. REV. 811, 820-21 (2017); Natalie Andrews, Senate Passes Landmark Criminal-Justice Overhaul Bill in Bipartisan Vote, WALL ST. J. (Dec. 18, 2018), https://www.wsj.com/articles/senate-passes-landmark-criminal-justice-overhaul-bill-in-bipartisan-vote-11545185430 (discussing passage of the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018)); Memorandum from Robert Blizzard, Pub. Op. Strategies, to Interested Parties re: National Poll Results 1 (Jan. 25, 2018), https://www.politico.com/f/?id=000 00161-2ccc-da2c-a963-efff82be0001 (“By a 76%-21% margin, voters believe the country’s criminal justice system needs significant improvements versus it’s working pretty well as it is. Fully two-thirds of Republicans (68%), and substantial majorities of both Independents (78%) and Democrats (80%) believe the system needs significant improvements. An overwhelming number of women (80%) want changes to the system.”). CMIC’s practice also capitalizes on Supreme Court precedent retreating from decades of determinate sentencing. See Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); United States v. Booker, 543 U.S. 220, 264-65 (2005); see also Gohara, supra note 2, at 56 Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 3 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 41 The article proceeds in several parts. Part I summarizes Grace Notes’ framework and claims, and it deepens the explanation of the clinic’s theoretical underpinnings. Part II details CMIC’s interdisciplinary, trauma-informed approach to sentencing advocacy and clinical practice, and Part III describes clinic case outcomes. Although this is not a quantitative study, the clinic has obtained variances to nine clients’ sentences that have saved them a combined 46.5 years in prison time below the prescribed range in the United States Sentencing Guidelines, or an average reduction of more than five years each.6 Part IV examines new insights that have emerged from putting the theory into practice and identifies unanswered questions and avenues for future research. The new insights from the clinic’s work include: innovations to traditional client-centered, holistic lawyering; enhanced approaches to working with experts; and incorporation of defense-based victim outreach in appropriate cases. Areas for future research include whether the clinic’s model will produce the fundamental sentencing reform I predicted in Grace Notes,7 and questions about fairness, risks, data, and scalability. I am publishing this article with the hope and intention that other law school clinics will borrow from and improve on CMIC’s model. I. CLAIMS AND THEORIES A. Claims In Grace Notes, I argued that interdisciplinary mitigation practice based on noncapital clients’ social histories would ameliorate individual sentences by recalibrating judges’ and prosecutors’ estimation of blameworthiness.8 Courts’ shift in focus away from individual defendants’ poor choices to interdisciplinary social-history context for crime would in turn promote rehabilitative, rather than strictly punitive, sentencing.9 At a systemic level, capital-style mitigation advocacy in noncapital cases would turn sentencing hearings into fact-finding tribunals establishing a record of the social conditions that give rise to clients’ (“The Miller/Jackson cases, the first to extend the requirement of individualized sentencing to noncapital cases, have provided a limited opening for investigation and presentation of robust noncapital mitigation.”). 6 CMIC has represented clients in nine federal sentencing hearings, which is too small a sample from which to derive generalizable findings. Initial sentencing outcomes suggest that the clinic’s social history mitigation has produced promising results. However, as I describe in the final section of the piece, a larger sample size and carefully designed regression analysis would be necessary to test whether the clinic’s practice model consistently achieves lower sentences than traditional noncapital sentencing advocacy. 7 Gohara, supra note 2, at 49. 8 Id. at 48, 65. 9 Id. at 77; Gohara, supra note 4, at 48-49. Electronic copy available at: https://ssrn.com/abstract=3737616 R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 42 unknown CLINICAL LAW REVIEW Seq: 4 20-OCT-20 7:49 [Vol. 27:39 involvement in crime.10 Exposing social harms as contributing factors to clients’ criminal wrongdoing would point experts, policymakers, and practitioners to the need for resources to redress those social harms.11 I also proposed that social-history-focused mitigation stood to benefit defendants across cases, not only individually.12 Once a court considers the social science explaining the concrete behavioral impacts of trauma, any defendant presenting trauma-related mitigation would gain the benefit of that court’s understanding, even if the later defendant’s own attorney did not present such social science data. Grace Notes projected cross-case impact of social-science-informed mitigation as a long-term goal of mitigation-centered defense advocacy.13 As described below, CMIC’s six semesters show that the crosscutting benefit of the clinic’s approach on courts’ understanding of the salience of social history mitigation need not take long at all. Finally, I recommended partnership between law school clinics and public defense offices as a means of promoting robust noncapital mitigation practice in the broader criminal defense community.14 Toward this end, CMIC partners with the District of Connecticut Federal Defender’s Office (FDO). This collaboration also provides students the benefit of co-supervision by me as their clinical professor and fulltime public defenders with expertise in local practice. The District of Connecticut’s First Assistant Federal Defender, Kelly Barrett, coteaches the clinic. Our collaboration has informed both the FDO’s sentencing practice and its private bar training, thereby changing the norms of local practice. B. Theories CMIC’s theoretical underpinnings are faithful to the twin pillars I set forth in Grace Notes: context and rehabilitation.15 1. Context In CMIC’s seminar and in casework supervision sessions, stu10 Gohara, supra note 2, at 69. Id. at 46 n.17, 48, 69. 12 Id. at 77. 13 Id. Gary Bellow described and prescribed the benefits of “focused case strategy” in the civil legal aid context in Turning Solutions into Problems: The Legal Aid Experience, 34 NAT’L LEGAL AID & DEFENDER ASS’N BRIEFCASE 106, 121-22 (1977). 14 Gohara, supra note 2, at 72-73 (“The proposal here, instead, is that public defender offices and other attorneys with available resources take the lead in devoting time and funding to meaningful investigation into mitigating circumstances relevant to their client’s blameworthiness and capacity for rehabilitation.”); see also Gohara, supra note 4, at 5-7. 15 Gohara, supra note 2, at 65. R 11 Electronic copy available at: https://ssrn.com/abstract=3737616 R R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 5 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 43 dents engage deeply with questions concerning the legitimacy of punishing people who have committed crimes and whom the state has failed in various respects to protect. Students develop their own ideas for how to use social history mitigation and develop case theories that put arguments about the salience of social context before sentencing courts. They learn to think meaningfully about why and how courts ought to consider clients’ entire life histories before sentencing them. CMIC’s core, underlying principle is that just and proportionate sentences depend on courts’ consideration of defendants’ social histories.16 This principle stems from two mitigation theories: “whole life” and “societal standing to punish.” The “whole life” theory posits that a sentencer must consider the totality of the suffering that a convicted person has suffered in his whole life before determining how much more suffering to impose on him when punishing his criminal wrongdoing.17 A subset of “whole life” theory is one in which a sentencer considers whether a defendant’s suffering has diminished his capacity. For example, behavioral science shows that childhood abuse and neglect and extreme poverty impact the ability to control impulses, regulate emotions, as well as form lasting prosocial relationships.18 Childhood exposure to violence also impacts working memory and executive functions, such as the ability to plan ahead and delay gratification.19 As Emad Atiq and Erin Miller explain in their argument for unlimited consideration of these “severe environmental deprivations” as capital mitigation, courts should not hold defendants with these diminished capacities fully responsible and therefore deserving of maximum punishment.20 In CMIC students’ casework, the same logic applies to noncapital mitigation, with evidence of clients’ rehabilita16 Emad H. Atiq & Erin L. Miller, The Limits of Law in the Evaluation of Mitigating Evidence, 45 AM. J. CRIM. L. 167, 171 (2018) (“We argue that Lockett [v. Ohio, 438 U.S. 586 (1976)], Eddings [v. Oklahoma, 455 U.S. 104 (1982)], and Tennard [v. Dretke, 542 U.S. 274 (2004)], together, stand for the proposition that a practice of restrictive consideration of mitigating evidence where the restrictions are imposed because judges feel bound by the law (in a sense to be made precise) is unconstitutional.”); id. at 184-85 (“But the sentencing question is not whether the defendant should be altogether excused. The question is whether he deserves to be held fully responsible and maximally punished.”); Gohara, supra note 4, at 12-13; Gohara, supra note 2, at 57-58 (“[J]ustice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (emphasis added))). 17 Atiq & Miller, supra note 16, at 185; Victor Tadros, Poverty and Criminal Responsibility, 43 J. VALUE INQUIRY 391, 393 (2009) (“By perpetrating distributive injustice against the poor, we lose standing to hold them responsible for what they have done.”). 18 BESSEL VAN DER KOLK, THE BODY KEEPS THE SCORE: BRAIN, MIND, AND BODY IN THE HEALING OF TRAUMA 58-63, 68-70 (2014). 19 Id. 20 Atiq & Miller, supra note 16, at 181. Electronic copy available at: https://ssrn.com/abstract=3737616 R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 44 unknown CLINICAL LAW REVIEW Seq: 6 20-OCT-20 7:49 [Vol. 27:39 tion as an additional antidote to long prison terms. The “societal standing to punish” mitigation theory considers as the central moral question sentencers’ standing to punish in the context of social harms and institutional failure. Proponents of “societal standing to punish” as a basis for mitigation advance various justifications.21 As Tommie Shelby puts it, “When a society falls below the threshold for tolerable injustice and its governing institutions are responsible for the injustices (for either perpetrating them or not preventing them), the state’s right to punish crime is compromised.”22 One reason that the state generally has authority to punish is that the person who commits crime violates the social compact. By that compact, one who benefits from the state’s protection of fundamental liberties and equitable distribution of benefits and burdens is subject to the state’s punishment if he transgresses the compact.23 However, some philosophers have argued that the state loses the authority to punish people whom it fails to protect, even when they violate the social compact. In Victor Tadros’s view, the state loses its authority to punish if it is complicit in proliferating the social conditions that give rise to crime.24 In this version of the theory, the state contributes to wrongdoing and shares in its responsibility by failing to prevent social conditions such as poverty which it can foresee result in crime and which it has the power to ameliorate.25 Yet, according to Shelby, even when the state lacks moral authority to punish, it retains enforcement rights if its criminal justice system operates in a reasonably fair and impartial manner.26 This is permissible so that the state may intervene to protect other vulnerable people from unjustified harm.27 That enforcement, however, should not depend exclusively on punishment. Rather, it should include political enfranchisement of people convicted of crime, voluntary rehabilitation programs for them, and social reforms that establish and maintain a just and equitable basic structure.28 Courts are unlikely to harbor doubt about their legitimacy to impose punishment. Clinic students’ work therefore aims to direct judges’ attention to the ways the state has transgressed the social com21 TOMMIE SHELBY, DARK GHETTOS: INJUSTICE, DISSENT, AND REFORM 244 (2016). Id. 23 Id. 24 Tadros, supra note 17. 25 Id. at 408. R. A. Duff’s variation on this philosophy asserts that the state lacks standing to punish crimes that it commits itself, such as theft, deceit, or unjustified violence. See R. A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 186-88 (2001). 26 SHELBY, supra note 21, at 246. 27 Id. at 248. 28 Id. at 250-51. 22 Electronic copy available at: https://ssrn.com/abstract=3737616 R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 7 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 45 pact by failing to protect the impoverished communities in which clients and often many generations of their families have lived. The students’ pleadings point courts to the social conditions, including poverty, addiction, lack of basic educational and employment opportunities, and inadequate health care, which the state permits to proliferate in clients’ communities, and which give rise to crime.29 Students’ written and oral advocacy then points to alternatives to prison (punishment) that would remedy (through rehabilitation) some of the direct impacts on our clients of the state’s failures to protect them or to ensure even adequate distribution of basic services to their communities. In CMIC, students introduce facts and argument that draw on “whole life” and “societal standing to punish” mitigation. To operationalize both principles, students present the social milieu of clinic clients’ lives at widening circles of influence: individual, family, neighborhood, city, economic, historical, and geographical. They do so to show that a web of decisions, only the most proximate of which were our clients’, proliferated the conditions that gave rise to their crimes.30 The textual analysis of CMIC sentencing hearing transcripts in later sections of this article shows how judges in CMIC cases have drawn implicitly on these mitigation theories in ameliorating punishment. 2. Rehabilitation The second tenet of CMIC’s model is our emphasis on rehabilitation.31 In capital mitigation, when the options are most often death or life without parole, the defense team’s task is often oriented toward proving that the client is capable of living peacefully behind bars. In noncapital mitigation, the defense team must establish the client’s prospects for, or demonstrated record of, rehabilitation in order to make the case for reduced prison time or alternatives to incarceration.32 At the same time that CMIC students learn to establish the 29 This advocacy is in keeping with Shelby’s assertion that punishment imposed by a society complicit in the social harms that perpetuate crime must include rehabilitative opportunities for those convicted of crime. 30 Gohara, supra note 4, at 13, 49-50. 31 In addition to the federal sentencing work, in order to deepen the clinic’s examination of models of rehabilitation, CMIC has begun to learn from and represent men incarcerated in an innovative unit of a Connecticut prison which was modeled on a German program for 18- to 25-year-old prisoners. See Miriam Gohara, A Prison Program in Connecticut Seeks to Find out What Happens When Prisoners Are Treated as Victims, CONVERSATION (Mar. 7, 2019), https://theconversation.com/a-prison-program-in-connecticut-seeksto-find-out-what-happens-when-prisoners-are-treated-as-victims-111809. This work has profoundly informed the clinic’s advocacy and the rehabilitative possibilities it recommends in sentencing and in postconviction applications. 32 Gohara, supra note 2, at 51. Electronic copy available at: https://ssrn.com/abstract=3737616 R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 46 unknown CLINICAL LAW REVIEW Seq: 8 20-OCT-20 7:49 [Vol. 27:39 context of clinic clients’ law-breaking, they learn to make a case for rehabilitation. Students build a record that points to clients’ healing and treatment, rather than their bare incapacitation, as the most effective means of deterring them from future crime and promoting lasting public safety.33 In order to persuade courts to impose nonprison sentences, CMIC students assemble effective rehabilitation plans and comprehensive documentation of clients’ hard work at rebuilding their lives after convictions. Our work on clients’ rehabilitation plans has also provided clients with the support that they lacked before their federal arrests. For some clients, that has included successful participation in addiction treatment plans, educational programs, and employment in trades such as carpentry, food service, and commercial truck driving. In sharp contrast to the rehabilitation rubric that translated into indeterminate sentencing and unbridled judicial and parole-board discretion that inspired the adoption of the mandatory Federal Sentencing Guidelines, CMIC students design rehabilitation plans to keep our clients out of prison or to limit their prison time to a clearly defined term.34 Clinic students advocate for rehabilitation plans that lay out an achievable framework with clear benchmarks. For example, they may present evidence of clients’ engagement with particular mental health or addiction treatment, or point to clients’ specific educational and vocational accomplishments. In other words, our rehabilitation proposals are a far cry from the “lofty goals of rehabilitation . . . with no directions or means of achievement” that led federal sentencing away from unguided discretion to mandatory and determinate sentences under the Guidelines regime.35 Rather, clinic students prepare rehabilitation strategies for courts that chart a middle path, identifying clear mitigating factors that would benefit from treatment, social services, or other interventions. Clinic students have argued in some cases that the federal sentencing statute’s directive to impose sentences that provide treatment “in the most effective manner” presents a justification for rehabilita33 See Mirko Bagaric, Gabrielle Wolf & William Rininger, Mitigating America’s Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Mitigation in Sentencing, 22 LEWIS & CLARK L. REV. 1, 40-41 (2019) (citing empirical sources); Gohara, supra note 4, at 53. 34 See MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 12-25, 8990, 93, 95 (1972); KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 34 (1998) (describing Andrew Von Hirsch’s rejection of rehabilitation philosophy that supported indeterminate sentencing). 35 FRANKEL, supra note 34, at 95. The elimination of federal parole and unguided discretion defused much of the pre-Guidelines concern about prioritizing rehabilitation as a sentencing theory. See STITH & CABRANES, supra note 34, at 2, 37. Electronic copy available at: https://ssrn.com/abstract=3737616 R R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 9 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 47 tion.36 As the argument goes, noncustodial rehabilitation-oriented sentences are the principally effective means of achieving the other purposes of punishment: “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”37 (retribution); deterrence;38 public protection;39 and “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”40 In the alternative, clinic students have argued that judges should impose prison terms below the advisory guidelines, which remain available to guide judges’ sentencing discretion.41 To demonstrate to courts that rehabilitation is effective, a major component of CMIC students’ work involves facilitating clients’ presentencing involvement in employment, educational, and therapeutic opportunities. The students’ advocacy in this regard has demonstrated that a community-based sentence is available and effective to deter clients from breaking the law. The clinic’s proposed sentences also often include a period of supervision and community service to meet the court’s interest in accountability and public protection.42 Clients’ 36 18 U.S.C. § 3553(a)(2)(D); see Erica Zunkel, 18 U.S. Code § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment “In the Most Effective Manner,” 9 N.D. J. INT’L & COMP. L. 49, 52-53 (2019); Michael Tonry, Making American Sentencing Just, Humane, and Effective 15-17 (Minn. Legal Studies Research Paper No. 16-32, 2016). 37 18 U.S.C. § 3553(a)(2)(A). 38 Id. § 3553(a)(2)(B). 39 Id. § 3553(a)(2)(C). 40 Id. § 3553(a)(2)(D); see Zunkel, supra note 36, at 57-60, 72-75. 41 See 18 U.S.C. § 3553(a)(3). 42 See Michael Tonry, Community Punishments in a Rational Society 12-13 (Minn. Legal Studies Research Paper No. 17-05, 2017) (explaining why community-based programs are more likely to reduce recidivism than prison). Fiona Doherty has written extensively and persuasively about the deleterious impacts of noncarceral supervision. See, e.g., Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 GEO. L.J. 291, 295 (2016) [hereinafter Doherty, Obey All Laws] (“[T]he state seeks to regulate many aspects of a probationer’s behavior—far beyond what is covered by the criminal law—as a consequence of being on probation. Because standard conditions reach beyond the criminal law, they necessarily also broaden the behavior that constitutes recidivism.”); id. at 346-48 (“The language of probation conditions propels the probation officer into lawmaker status. . . . Even more than the prosecutor, the probation officer is a hidden and unaccountable lawmaker. . . . These role dynamics are particularly important, because the violation need only be proven by a preponderance of the evidence.”); id. at 348 (describing how “reduced due process rights,” lower burden of proof, and the probationer’s prior criminal conviction leave the probationer with “little leverage at revocation” hearings, which may disproportionately impact the poor and marginalized); Fiona Doherty, Testing Periods and Outcome Determination in Criminal Cases, 103 MINN. L. REV. 1699, 1704 (2019) [hereinafter Doherty, Testing Periods] (“[F]or defendants facing addiction, mental health issues, or disadvantaged social circumstances, [plea bargains offering various conditions as an alternative to incarceration] may be stacked against them from the beginning.”). Her arguments and the extent to which the clinic should curtail its dependence on Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 48 unknown CLINICAL LAW REVIEW Seq: 10 20-OCT-20 7:49 [Vol. 27:39 direct statements of remorse and concrete efforts to make their victims or communities whole have also been crucial to demonstrating that the sentence will adequately reflect the clients’ understanding of the seriousness of the offense and respect for the law. For clients who are in prison before sentencing, emphasizing their participation in available programs has been an important factor that judges have accounted for when sentencing them below the Guidelines. Clinic students’ sentencing memoranda have also cited studies showing the scarcity of effective mental health, educational, vocational, or addiction treatment in federal prisons. This authority demonstrates that prison is unlikely to meet 18 U.S.C. § 3553(a)(2)(D)’s requirement that the sentence meet the defendant’s treatment needs in the most effective manner.43 CMIC students argue that prisons are violent, and violence breeds crime.44 Gambling, drugs, and alcohol are readily accessible in prisons.45 Prisons isolate people from their families and other networks of support. For traumatized people suffering from addiction, prisons are not effective sites of treatment and healing. In contrast, they are likely to compound the conditions that lead people into prisons in the first place. Moreover, the paucity of educaprobation in lieu of prison or as part of a reduced prison term deserve full examination but are not the focus of this article. 43 See Zunkel, supra note 36, 57-60, 72-75 (proposing that defense counsel should argue and provide corroborative data that out-of-custody sentences meet the purposes of punishment and will provide defendants treatment “in the most effective manner,” while in-custody sentences will not; also arguing that courts should abide by § 3553(a)’s directive to provide treatment “in the most effective manner” by imposing noncustodial sentences when the most effective treatment is available in the community). 44 ALLEN J. BECK, MARCUS BERZOFSKY, RACHEL CASPAR & CHRISTOPHER KREBS, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SEXUAL VICTIMIZATION IN PRISONS AND JAILS REPORTED BY INMATES, 2011-12—UPDATE 13, 17, 27-8 (2014); Nancy Wolff & Jing Shi, Childhood and Adult Trauma Experiences of Incarcerated Persons and Their Relationship to Adult Behavioral Health Problems and Treatment, 9 INT’L J. ENVTL. RES. PUB. HEALTH 1908, 1909 (2012); Nancy Wolff & Jing Shi, Contextualization of Physical and Sexual Assault in Male Prisons: Incidents and Their Aftermath, 15 J. CORRECTIONAL HEALTHCARE 58 (2009). 45 U.S. DEP’T OF JUST., OFFICE OF THE INSPECTOR GEN., REVIEW OF THE FEDERAL BUREAU OF PRISONS’ CONTRABAND INTERDICTION EFFORTS 3 (2016), https://oig.justice .gov/reports/2016/e1605.pdf (reporting 3,713 instances of narcotics discoveries, “including marijuana, heroin, and cocaine,” in BOP facilities between fiscal years 2012 and 2014); Maroya S. Walters, Nandini Sreenivasan, Bobbie Person, Mark Shew, Daniel Wheeler, Julia Hall, Linda Bogdanow, Karyn Leniek & Agam Rao, A Qualitative Inquiry About Pruno, an Illicit Alcoholic Beverage Linked to Botulism Outbreaks in United States Prisons, 105 AM. J. PUB. HEALTH 2256, 2258 (2015) (noting that in a survey of prisoners and staff in federal prison and in a community correctional center, respondents “reported that pruno [an alcoholic drink] was made and consumed throughout all security levels. Several inmates mentioned drinking pruno in other state and federal prisons; a few inmates knew of pruno made in county jails.”); Robert J. Williams, Jennifer Royston & Brad F. Hagen, Gambling and Problem Gambling Within Forensic Populations: A Review of the Literature, 32 CRIM. JUST. & BEHAV. 665 (2005). Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 11 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 49 tional and employment opportunities in prisons deprives incarcerated people of the ability to advance their learning or gain vocational skills that allow them to earn money and support themselves upon their release.46 CMIC students contrast our clients’ opportunities outside of prison with these barriers to rehabilitation in prison by documenting and presenting witnesses to our clients’ engagement with addiction treatment, employment, educational and training programs, and prosocial family and community supports. The students’ work thereby demonstrates that prison is far from the most effective manner of either rehabilitating our clients or deterring them from future crime. In arguing for rehabilitation, students therefore aim to show courts, prosecutors, and other justice stakeholders that investing in health and safety for our clients and their communities will promote better health and safety for all communities. Given the likelihood that judges are concerned with rehabilitation, both for the sake of individual defendants and for the sake of the community to which they return, this argument is another means by which to reframe judges’ thinking about the rehabilitative, or criminogenic, impact of prisons. By contextualizing their lifetime adversity and demonstrating rehabilitation’s effectiveness, our advocacy points to the implications of redressing the social harms that so often underlie our clients’ crimes. As Danielle Sered emphasizes: Safety and community well-being are supported by efforts and structures that prevent harm from occurring in the first place. Because violence is contextual, most effective prevention efforts include the broad distribution of the social supports that make violence unlikely and healing accessible, including quality schools, housing, jobs, health care, mental health and substance abuse treatment, and after-school programs.47 True and lasting public safety depends on investing in community resources that heal people who break the law. A great deal of the clinic’s mitigation investigation shows that our clients awaiting punishment have suffered serious harms, that those harms may diminish their capacity, or that the state bears responsibility for failing to pro46 Kanyakrit Vongkiatkajorn, Why Prisoners Across the Country Have Gone on Strike, MOTHER JONES (Sept. 19, 2016), https://www.motherjones.com/politics/2016/09/prisonstrike-inmate-labor-work/ (citing ALICIA BANNON, MITALI NAGRECHA & REBEKAH DILLER, BRENNAN CTR. FOR JUSTICE, CRIMINAL JUSTICE DEBT: A BARRIER TO REENTRY (2010)); see also U.S. COMM’N ON CIVIL RIGHTS, TARGETED FINES AND FEES AGAINST LOW-INCOME COMMUNITIES OF COLOR: CIVIL RIGHTS AND CONSTITUTIONAL IMPLICATIONS 90 (2017). 47 DANIELLE SERED, UNTIL WE RECKON: VIOLENCE, MASS INCARCERATION, AND A ROAD TO REPAIR 179 (2019). Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 50 unknown CLINICAL LAW REVIEW Seq: 12 20-OCT-20 7:49 [Vol. 27:39 tect them from, or contributing to, social conditions that proliferate crime. In such cases, the clinic students argue that rehabilitation-focused sentencing is a proportionate and effective response to clients’ offenses. CMIC’s investigation and presentation of our clients’ life histories, described in later sections of this article, bears this truth. II. METHODS FOR OPERATIONALIZING GRACE NOTES’ BLUEPRINT Philip N. Meyer defines legal narrative as “factual and truthful storytelling meticulously built upon a record.”48 This definition aptly describes what CMIC teaches students in practice. This section describes the methods CMIC students employ to assemble the mitigation record, to develop the narrative tools that imbue the events in clients’ lives with meaning relevant to their criminal cases, and to telegraph the story to prosecutors, probation officers, and judges, all of whom play central roles in sentencing. CMIC students are the lead advocates on clinic cases. They maintain the primary relationships with clients and witnesses, gather facts, assemble the evidentiary record, analyze the law, author briefs, and devise and carry out victim-outreach strategies. They also lead efforts to develop relationships with crucial stakeholders, such as correctional staff and law enforcement officers who have interacted with clinic clients, as well as prospective employers, prosecutors, and retained experts. They prepare for and accompany clients to meetings with federal probation officers who write the presentence reports that factor heavily in federal judges’ sentencing decisions. They draft the letters objecting to and supplementing probation officers’ draft presentence reports, which is, in practice, the beginning of mitigation advocacy at the sentencing phase of a federal case.49 Students also pre48 Philip N. Meyer, Are the Characters in a Death Penalty Brief Like the Characters in a Movie?, 32 VT. L. REV. 877, 877-78 (2008). 49 United States v. Booker, 543 U.S. 220, 251 (2005) (“Federal judges have long relied upon a presentence report, prepared by a probation officer, for information . . . relevant to the manner in which the convicted offender committed the crime of conviction.”); id. at 252 (A judge may “reject a plea-bargained sentence if he determines, after reviewing the presentence report, that the sentence does not adequately reflect the seriousness of the defendant’s actual conduct.”); Sharon M. Bunzel, The Probation Officer and the Federal Sentencing Guidelines: Strange Philosophical Bedfellows, 104 YALE L.J. 933, 957-58 (1995) (“[T]he Guidelines have co-opted the PSR, ironically transforming what was once a tool of rehabilitative sentencing into an integral component of determinate sentencing.”). The presentence report is also critical to post-sentencing advocacy and treatment of incarcerated people. See U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 5-6 (1988) (After sentencing, the presentence report is transferred to the Bureau of Prisons, “where it may be used in determining a defendant’s classification as an inmate, . . . choosing an appropriate treatment program, or deciding eligibility for various privileges.”); U.S. DEP’T OF JUSTICE, U.S. PAROLE COMM’N, RULES AND PROCEDURES MANUAL § 2.19-04 (2010) (“[T]he presentence report traditionally, and appropriately, has been given a great deal of weight Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 13 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 51 sent oral arguments in court. They shoulder this responsibility step-bystep while learning a complex method of legal practice that draws heavily on nonlegal disciplines. Interdisciplinary teamwork, which has included collaboration with social workers, mitigation specialists, and mental health experts is essential.50 Capital mitigation techniques based on interdisciplinary, traumainformed fact-gathering form the crux of CMIC’s methods.51 In particular, borrowing from the medical theory of biopsychosocial practice, CMIC students learn to be attentive to multi-layered factors, from the molecular to the social, that influence clients’ behavior and experiences.52 Students learn that in law, as in medicine, successful practice depends on collecting an accurate history of the client’s life, building a trusting alliance with the client, exercising attentive observation and nonjudgmental curiosity, and examining practitioners’ bias, including its influence on their intuitions.53 The clinic’s curriculum therefore begins with lessons on approaching conversations with (often traumatized) clients and witnesses and the critical role of social history records. Once students begin to learn about their clients’ backgrounds, in clinic seminar we turn to contextualizing the clients’ experiences within their families, neighborhoods, schools, previous encounters with the criminal legal system, and their cultural, racial, socio-economic, gender, and other social contexts. Social workers describe this approach as investigating and describing clients’ micro (self/individual), mezzo (families, neighborhoods, schools, other proximate social environments), and macro (cultural, racial, socio-economic, gender) environments or ecosystems.54 Through intensive fact investigation, students assemble the invariably incomplete record of our clients’ pasts. This incomplete record has permitted the dominant narrative upon which clients’ convictions have been based. Conventional crime narratives have deep roots in by the Commission in making fact findings” in parole hearings, though the Commission cannot, under guiding statutes and regulations, treat the presentence report as “an unassailable source of factual information.”). 50 See Susan Bryant, Collaboration in Law Practice: A Satisfying and Productive Process for a Diverse Profession, 17 VT. L. REV. 459 (1993). 51 Richard G. Dudley, Jr. & Pamela Blume Leonard, Getting It Right: Life History Investigation as the Foundation for a Reliable Mental Health Assessment, 36 HOFSTRA L. REV. 963, 966-67 (2008). 52 Francesc Borrell-Carrió, Anthony L. Suchman & Richard M. Epstein, The Biopsychosocial Model 25 Years Later: Principles, Practice, and Scientific Inquiry, 2 ANNALS FAM. MED. 576, 576 (2004). 53 Id. at 579-80. 54 Carolyn Copps Hartley & Carrie J. Petrucci, Practicing Culturally Competent Therapeutic Jurisprudence: A Collaboration Between Social Work and Law, J.L. & POL’Y 133, 140 (2004). Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 52 unknown CLINICAL LAW REVIEW Seq: 14 20-OCT-20 7:49 [Vol. 27:39 American storytelling.55 They include depictions of criminals who are endemically evil, two-dimensional, inscrutable, and therefore irredeemable.56 These conventional narratives create emotional distance between the defendant and the decisionmaker bearing the responsibility to set his punishment.57 In the absence of specific, humanizing information about a defendant’s formative experiences, sentencers are left to defer to traditional schema, or narratives, about crime and criminals.58 In contrast, mitigation narratives, like the ones CMIC students learn to assemble, provide sentencers with a basis for empathy and a stake in providing the defendant with better options than were available before his arrest or that would await him absent positive interventions.59 They provide decisionmakers with tools to correct faulty assumptions about mental illness, exposure to trauma, racial stereotypes, and the cause-and-effect of crime.60 Lack of mitigation, or incomplete “mitigation” records that consist of bare lists of risk factors or good character traits without explanation and storytelling that provide a basis for empathy, leave decisionmakers to rely on cognitive shortcuts that work against mercy.61 CMIC teaches students that shifting the sentencing paradigm away from individual wrongdoing and retributive deserts to “whole life” and “societal standing to punish” theories requires reshaping case narratives. New narratives that displace conventional characterization of our clients’ motivations and culpability recalibrate decisionmakers’ understanding of what constitutes proportionate punishment.62 CMIC students use the intensive fact investigation of clients’ life 55 Craig Haney, The Social Context of Capital Murder: Social Histories and the Logic of Mitigation, 35 SANTA CLARA L. REV. 547, 559 (1995). 56 PHILIP N. MEYER, STORYTELLING FOR LAWYERS 75-76 (2014). 57 Sean D. O’Brien & Kathleen Wayland, Implicit Bias and Capital Decision-Making: Using Narrative to Counter Prejudicial Psychiatric Labels, 43 HOFSTRA L. REV. 751, 752 (2015). 58 Richard K. Sherwin, The Narrative Construction of Legal Reality, 18 VT. L. REV. 681, 700-01 (1994); Kathleen Wayland & Sean O’Brien, Deconstructing Antisocial Personality Disorder and Psychopathy: A Guidelines-Based Approach to Prejudicial Psychiatric Labels, 42 HOFSTRA L. REV. 519, 527 (2013). 59 Craig Haney, On Mitigation and Counternarrative: A Case Study of the Hidden Context of Prison Violence, 77 UMKC L. REV. 911, 918 (2009). 60 Sherwin, supra note 58, at 701-04. 61 ANTHONY G. AMSTERDAM & JEROME BRUNER, MINDING THE LAW 21 (2002); Russell Stetler, The Mystery of Mitigation: What Jurors Need to Make a Reasoned Moral Response in Capital Sentencing, 11 U. PA. J.L. & SOC. CHANGE 237, 253 (2007-08); Marshall Dayan, The Penalty Phase of the Capital Case: Good Character Evidence, CHAMPION, June 1991, at 15. 62 See ANTHONY G. AMSTERDAM & RANDY HERTZ, TRIAL MANUAL 6 FOR THE DEFENSE OF CRIMINAL CASES § 7.3 (6th ed. 2016) (The Role of Narrative Theory in Case Planning). Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 15 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 53 trajectories, described in the next section, to produce a renewed, comprehensive record of their clients’ social histories with which they displace the dominant narrative and explain the basis for mitigating punishment. Following best capital defense practices, CMIC students assemble a body of mitigation that includes lay witnesses, experts, and documents that will explain the roots of clients’ frailties, impairments, and failures, but also their hopes, accomplishments, aspirations for healing, and commitment to reform.63 The specific data and humanizing anecdotes that comprise and corroborate clients’ life trajectories provide an alternative to the default schema, which would otherwise be replete with information gaps that decisionmakers will fill with stereotypes to the detriment of clients.64 To create a robust, comprehensive mitigation case, CMIC students learn interviewing and mapping, described next. A. Interviewing The lifeblood of mitigation investigation is client and witness interviews, combined with the collection of social history records.65 Therefore, an essential feature of CMIC’s approach to representing clients is teaching students the techniques with which to interview clients and life-history witnesses. Teaching client interviewing presents rich pedagogical opportunities. For example, examination of interview goals, the impact of language and question formation on the attorneyclient rapport, and how to mitigate the power imbalance inherent in professional storytelling, are all areas that clinical scholarship has examined.66 Early CMIC seminars draw on this tradition and focus on client interviewing, case theory development, and storytelling. 63 See WELSH S. WHITE, LITIGATING IN THE SHADOW OF DEATH: DEFENSE ATTORCAPITAL CASES 105-07 (2006). 64 Craig Haney, Violence and the Capital Jury: Mechanisms of Moral Disengagement and the Impulse to Condemn to Death, 49 STAN. L. REV. 1447, 1461-62 (1997); Jennifer Sheppard, Once Upon a Time, Happily Ever After, and in a Galaxy Far, Far Away: Using Narrative to Fill the Cognitive Gap Left by Overreliance on Pure Logic in Appellate Briefs and Motion Memoranda, 46 WILLAMETTE L. REV. 255, 259 (2009). 65 Sean D. O’Brien, When Life Depends on It: Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 HOFSTRA L. REV. 693, 725-26 (2008) (“Competent life history investigations require interviewing the client and virtually everyone who has ever known the client, and finding every piece of paper regarding the client ever generated.”) (citation omitted); id. at 745-46 (discussing “[o]ne of the most important skills of the mitigation specialist is the ability to interview effectively”). 66 See Robert Dinerstein, Stephen Ellman, Isabelle Gunning & Ann Shalleck, Legal Interviewing and Counseling: An Introduction, 10 CLIN. L. REV. 281, 289-93 (2003); GAY GELHORN, LYNNE ROBINS & PAT ROTH, Law and Language: An Interdisciplinary Study of Client Interviews, 1 CLIN. L. REV. 245 (1994); Laurie Shanks, Whose Story Is It Anyway?: Guiding Students to Client-Centered Lawyering Through Storytelling, 14 CLIN. L. REV. 509 (2008) (comparing legal interviewing techniques with anthropological interviewing methods). NEYS IN Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 54 unknown CLINICAL LAW REVIEW Seq: 16 20-OCT-20 7:49 [Vol. 27:39 Early clinic classes also center on discussion of Rebecca Skloot’s The Immortal Life of Henrietta Lacks, a book that all CMIC students read before the semester begins.67 I assign Skloot’s book as one model of a social history investigated and recounted by an outsider to the community of the people whose story she tells. CMIC employs triedand-true clinic interviewing exercises as well. During the first seminar, students pair off, interview each other, and tell their partners’ stories to the class.68 This allows them to experience what it feels like to be responsible for telling another person’s story out loud and to have someone else tell their stories. In a later clinic seminar, students conduct a mock client interview with actors playing clients based on hypothetical scenarios that both the students and their “clients” have reviewed in advance.69 The actors’ scenarios contain much more detail than I reveal to the students, to approximate the relative ignorance (compared with the clients’ knowledge base) with which lawyers must approach real initial client interviews. Everyone in the class, including the actors, then provides feedback to the students on their interviews to tease out areas of reflection such as: how to identify and prepare for goals of a client interview; how to moderate tone, language, and pace of conversation; how much to self-disclose; and how to set realistic expectations for the scope of representation and immediate followup. In addition to these well-established clinical pedagogical approaches to client interviewing, CMIC students learn to conduct interviews using questions and interpersonal approaches that are sensitive to the impacts of trauma and have proven to be most effective at eliciting the most sensitive mitigation in our clients’ backgrounds.70 67 REBECCA SKLOOT, THE IMMORTAL LIFE OF HENRIETTA LACKS (2010). Skloot’s book is a biography of Henrietta Lacks, an African-American woman whose cancer cells researchers at Johns Hopkins harvested without her consent in the 1950s. The cancer cells were so aggressive that they remain alive in research laboratories around the world, over sixty years after they caused Mrs. Lacks’s death. Skloot is a white woman from the Pacific Northwest who assembled Mrs. Lacks’s multigenerational family biography by interviewing Mrs. Lacks’s family members, numerous collateral witnesses, and scientists, and by drawing on a wide range of records and contemporaneous media sources. She wove Mrs. Lacks’s individual story into the broader story of her family’s history from enslavement to the Jim Crow South, to modern-day Baltimore, in the context of the social and scientific forces at play when Johns Hopkins doctors exploited her. CMIC students study the book as an example of storytelling across difference, meticulously investigated social history, and tying personal narratives in with wider social and historical phenomena. For a critique of Skloot’s approach to the Lacks family’s story, see Vanessa Northington Gamble, The Immortal Life of Henrietta Lacks Reconsidered, 44 HASTINGS CTR. REP. 1 (2014). 68 Laurie Shanks describes this teaching tool in detail in Whose Story Is It Anyway? Guiding Students to Client-Centered Lawyering Through Storytelling. Shanks, supra note 66, at 516-22. 69 Shanks describes a variation on this interviewing exercise as well. Id. at 512-16. 70 See Sara E. Gold, Trauma: What Lurks Beneath, 24 CLIN. L. REV. 201, 229, 238 Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 17 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 55 CMIC students learn methods adapted from the best capital defense practices. I teach students to begin with the premise, borrowed from emergency room physician Dr. John Rich’s book on the trauma of young African-American men he treats at his medical clinics, Wrong Place, Wrong Time, that clients are “neither sick, nor bad, but injured.”71 I train students beginning in the seminar’s second meeting about how to recognize and respond to clients’ signs and symptoms of trauma and how traumatic experiences impact many clients’ engagement of the lawyer-client relationship.72 We emphasize that nonjudgmental awareness of all the information that students’ investigation yields will both enhance their attorney-client relationships and net the most promising mitigation record available.73 A student team might learn details about a client’s and his family’s experience of the condition of his childhood home through openended, nonjudgmental questions and day-in-the-life interviewing that begin broadly and then narrow to pinpoint anchoring facts.74 “Tell me about your house. Describe the entrance. What kind of door did the house have? What kind of lock was on the door? What color was the house? What was the outside of the house built from?” and so on, until the team reaches the interior of the house and asks about the layout, the furnishings, the floor coverings, and the composition and decoration of the walls. Day-in-the-life interviewing is a complementary approach that begins by asking the client or witness to describe a day in his life beginning from his earliest memory and at other particular periods of time. “Where did you sleep? How would you wake up in the morning? What would you do next? What happened after that?” and so on. This approach is in contrast to questions such as “Who did you share a room (or a bed) with?” or “Who woke you up in the morning?” or “How did you get to school?”—all of which presume facts that may not have already been established. Nonpresumptuous questions are essential. Our clients may not have had a room or a bed. They may not have had anyone to wake them up, and they may not have gone to school regularly. Students learn the implication of the difference be(2018); Kathleen Wayland, The Importance of Recognizing Trauma Throughout Capital Mitigation Investigations and Presentations, 36 HOFSTRA L. REV. 923, 958-61 (2008). 71 Gohara, supra note 4, at 1 n.1 (citing JOHN A. RICH, WRONG PLACE, WRONG TIME: TRAUMA AND VIOLENCE IN THE LIVES OF YOUNG BLACK MEN 66 (2009)). 72 Gold, supra note 70, at 13-21. 73 Susan Bryant’s “parallel universe thinking” exercise is essential and well-worn in CMIC supervision, seminar, and case rounds. See Susan Bryant, The Five Habits: Building Cross-Cultural Competence, 8 CLIN. L. REV. 33, 41-42 (2001). In this exercise, students brainstorm every possible explanation for a given client or case scenario, without jumping to conclusions or judging the value of any of the possibilities. Id. at 70-71. 74 See Dudley & Blume Leonard, supra note 51, at 968. Electronic copy available at: https://ssrn.com/abstract=3737616 R R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 56 unknown CLINICAL LAW REVIEW Seq: 18 20-OCT-20 7:49 [Vol. 27:39 tween “Where did you go to school?” which presumes that a client went to school, and “Where did you spend your days when you were six years old?” CMIC students learn that unless and until conversations with our client or records reviews have established those premises, day-in-the-life questions should remain as broad and open-ended as possible to avoid signaling unproductive presumptions. CMIC students also learn how closed-ended or presumptuous questions can damage the attorney-client relationship and shut down communication and avenues for investigating facts essential for advocacy.75 For example, asking a client whether they have been sexually abused is likely to be counterproductive.76 Instead, after establishing a strong rapport with a client over a period of time, a student might ask a client what they remember about their first kiss. This might reveal that the client’s first kiss was with a neighbor in their 20s when our client was a young adolescent. Our client might have perceived the relationship as consensual, or at least complicated, and would never have thought to mention it under the category of “sexual abuse.” That first kiss might nevertheless have been formative and relevant to the work of a mental health or other mitigation expert the team might engage to connect dots or explain aspects of our client’s behavior. Students document the information they learn from interviews in systematic and uniform work product templates that map clients’ lives. The next section describes that aspect of the practice. B. Mapping In her groundbreaking book Representing Children, Jean Koh Peters describes “Mapping the Child’s Universe,” using the metaphor of stellar cartography and “the twin suns of the theory of the case and the child-in-context.”77 Peters goes on to describe an iterative means by which the lawyer for the child is constantly mapping and revising her client’s universe, as she incorporates additional evidence and data about the case.78 Essential to this method is that as soon as the lawyer learns information, she maps it. This is the same principle competent capital defense teams deploy to gather and organize their clients’ social history data and on which CMIC students’ record-building is based. Students learn that mapping a client’s universe by presenting a detailed, interdisciplinary narrative of facts, social science, and expert 75 See Wayland, supra note 70, at 958-61. Gold, supra note 70, at 229-30 (citing sources). 77 JEAN KOH PETERS, REPRESENTING CHILDREN IN CHILD PROTECTIVE PROCEEDINGS: ETHICAL AND PRACTICAL DIMENSIONS 182 (3d ed. 2007). 78 Id. at 185. 76 Electronic copy available at: https://ssrn.com/abstract=3737616 R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 19 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 57 opinions provides them tools with which to persuade decisionmakers to mitigate punishment. As clinic case outcomes described below show, doing so benefits individual clients. In addition, mapping creates a record of social harms common to many defendants who appear in front of these same decisionmakers daily and who stand to benefit from the interdisciplinary, corroborative explanations the clinic provides on behalf of its clients. CMIC students have remarked that the clinic’s model teaches them that defense work need not always be defensive—it can and ought to be affirmative and have a system-wide impact. CMIC’s systemic impact arises from the clinic’s presentation of social science data on the effects of adversities and vulnerabilities many clinic clients face in the context of their individual cases. For example, every CMIC client has been exposed to significant familial or community violence. Many have experienced food insecurity or homelessness, and a substantial cohort has developed substance use or gambling disorder. CMIC students present these mitigating circumstances and their impacts in their clients’ individual cases with the aim of obtaining the least restrictive punishment. In doing so, they educate prosecutors, probation officers, and judges about the scientifically recognized effects of these adverse experiences, which benefits future defendants with common experiences. In other words, once these stakeholders learn about these impacts, they cannot unlearn them. As such, and perhaps differently from advocacy models where engaging in civil impact litigation may be in tension with individual clients’ interests,79 in CMIC’s model individual case representation and systemic reform are mutually reinforcing. CMIC students learn that this model of advocacy depends on building the evidentiary record, developing a persuasive case theory, and supporting both with legal authority. They also learn that meticulous case management is fundamental to ethical, competent lawyering. CMIC students therefore map their clients’ universes using uniform, consistent recording methods. We teach students to build the mitigation record by collecting, managing, and analyzing clients’ life history documents and recording life history interviews with the client and collateral witnesses.80 Organizing these mitigation building blocks re79 See, e.g., Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470, 490, 507, 512 (1976) (observing how, in context of school desegregation civil rights cases, “Black parents who prefer alternative remedies are poorly served by the routine” impact litigation strategies and “[t]he lawyers’ freedom to pursue their own ideas of right;” concluding that “[i]t is essential that lawyers ‘lawyer’ and not attempt to lead clients and class” in order to resolve “the apparent-and sometimes real-conflicts of interest between lawyer and client”). 80 CMIC students as a general rule do not audio- or video-record interviews, because Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 58 unknown CLINICAL LAW REVIEW Seq: 20 20-OCT-20 7:49 [Vol. 27:39 quires the students to create and maintain work product templates in which they enter the evidentiary record. In each case, student work product includes: memoranda recording all interviews; records logs, indexes, and digests; a client’s life history timeline; an investigation plan; and a case theory memo. Each week before case supervision, students send supervisors the complete and updated set of work product templates. This weekly review permits supervisors to provide feedback and all team members to see and reflect on the evidence as they collect it. It informs investigation strategy and encourages teams to stay open and flexible about case theory as they gather the evidence. This is fundamental to the nonjudgmental, curiosity-driven investigation of the client’s biopsychosocial context, modeled on related medical practice theory.81 Following each interview with clients or witnesses, students write their notes and impressions of the conversations. Memos of client meetings include descriptions of the client’s physical appearance, mood, hygiene, and conditions of the client visit. Documenting this information is essential to tracking the client’s mental and physical health and functioning and to remaining vigilant to signs or symptoms of illness.82 To provide another example, in a conversation with a client’s grandmother, a team might learn that our client grew up in an old home that was often in disrepair and about which the family frequently complained to the landlord about peeling paint and exposed insulation. These leads will go into the theory memo as an entry on our client’s possible exposure to household toxins. They will also go into the investigation plan as a to-do item to research environmental investigations, reports, or civil lawsuits arising in connection with our client’s address or neighborhood. It will become the subject of interviews with our client and witnesses to their household’s conditions. The facts and impressions gathered in these memoranda constitute recording can be a barrier to disclosure. Rather, they document their impressions and substantive content of the interviews in privileged memoranda that they draft after their meetings with clients and witnesses. 81 Borrell-Carrió et al., supra note 52, at 579-80. 82 Dudley & Blume Leonard, supra note 51, at 969 (By conducting a “series of in-depth interviews,” one can “observe, over time, the defendant’s gait, mental state, affect regulation, memory, comprehension of writing and speech, adaptation to incarceration, capacity to form interpersonal relationships, and remorse. Such insight is invaluable to the defense team, and it provides data that is significant to the assessments of the mental health experts.”); O’Brien, supra note 65, at 747 (discussing the importance of face-to-face interviews to detect nonverbal cues, noting that “[h]ygiene, grooming, and appropriateness of clothing can provide important clues about mood or mental health” and citing psychiatric texts BIANCA CODY MURPHY & CAROL DILLON, INTERVIEWING IN ACTION: PROCESS & PRACTICE 60 (1998), and BENJAMIN JAMES SADOCK & VIRGINIA ALCOTT SADOCK, KAPLAN & SADOCK’S SYNOPSIS OF PSYCHIATRY 8 (9th ed. 2003)); Wayland, supra note 70, at 955-56. Electronic copy available at: https://ssrn.com/abstract=3737616 R R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 21 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 59 one set of building blocks for the evidentiary record and case theory. Another building block essential to building a mitigation case is a comprehensive, discernible, and accessible set of a client’s life history records (such as medical, educational, military, social service, financial, and vital). Contemporaneous records documenting events bearing on a client’s development, health, functioning, and behavior are especially persuasive evidence. Agencies with no stake in the current proceedings generate them often long before clients were ever involved in crime.83 CMIC students create and maintain a records log outlining all the categories of records they need to collect, the particular institutions under each category, and the status of requests for records from each. Once institutions and agencies furnish records, CMIC teams set about learning what information they contain. They capture that information in various iterations. For example, a student looking to support the assertion that our client announced to his pre-school teacher a wish to burn his house down because it is a place where he gets hurt will easily be able to locate the record of this incident by searching a records digest and index. An annotated timeline of the client’s life is another means students use to chart information they obtain from records and interviews. Events include obvious ones such as the client’s birth, but also moves from home to home, births or deaths of family members, changes of schools, events comprising a client’s criminal record, relocation between prisons or cells within them, or tickets for prison infractions. The more detailed the timeline, the better the students’ ability to track events taking place in the same timeframe of our client’s life. For example, timeline entries might help students notice that around the time that our client went to school and announced that he would like to burn his house down, a child welfare worker went to his home to investigate a report of excessive corporal punishment. Or a client racked up five tickets in prison while he was incarcerated with a particular cell-mate in the state’s youth prison, notorious as a “gladiator school,” but once he was moved to a more secure facility and began taking vocational courses, he stopped receiving tickets. Timeline entries are often useful for creating other visual aids such as charts showing a sharp decline in prison infractions that might accompany 83 O’Brien, supra note 65, at 726 (“Such contemporaneous records are intrinsically credible and may document events which the client and other family members were too young to remember, too impaired to understand and record in memory, or too traumatized, ashamed, or biased to articulate.”) (citing Affidavit of Russell Stetler); Stetler, supra note 61, at 256 (“[J]urors also show skepticism toward defense experts, who appear to be ‘hired guns’ unless their opinions are supported by contemporaneous information from lay witnesses.”). Electronic copy available at: https://ssrn.com/abstract=3737616 R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 60 unknown Seq: 22 20-OCT-20 CLINICAL LAW REVIEW 7:49 [Vol. 27:39 briefing. As they develop the factual records, students conduct legal and social science research and strategize about the application of law, psychology, addiction science, and medical evidence to emergent issues. They also coalesce the strands of investigation into emerging theories into a document the clinic terms “the theory memo.” The theory memo is an annotated global document where students and supervisors add ideas, themes, and case theories.84 For example, an entry on the theory memo might be, “Client’s Mother’s Death When He Was Ten Years Old Ruptured His Loving Early Life.” Citation to any corroborating records or interview memos follows. This document becomes the basis of case theory and advocacy. Its annotated themes provide an ongoing basis for case brainstorming, creative strategizing, and follow-up investigation plans to address tensions or gaps in the record. The theory memo’s entries facilitate reference to the evidentiary record when students advocate with prosecutors, probation officers, and of course in their brief-writing. All ideas, no matter how seemingly tangential or unlikely, with any plausible relationship to the case are welcome in the theory memo. This maintains the clinic’s pedagogical principle of nonjudgmental awareness. The significance of particular events in the client’s life will reveal itself only as the case investigation evolves, facts coalesce in relation to one another, and the students research relevant social or medical science. The students develop narrative and legal argument from this foundation. III. METHODS IN OPERATION AND OUTCOMES Synthesis of the factual record and the case theory, implicating underlying clinic pillars of context (social history and social science) and rehabilitation, is critical to all of our advocacy. The clinic’s methods have resulted in sentences below the Federal Sentencing Guidelines and prosecutors’ recommendations at higher rates than the national and District of Connecticut averages. The following examples illustrate.85 84 All students are equally responsible for updating the work product, so all students’ ideas contribute to the evidentiary record and the case theory development. The fact that as much of the evidence and theory development takes place on paper in the work product templates as it does during supervision sessions and team meetings provides students who may be tentative or shy about sharing ideas orally, especially in a new group, plenty of opportunities for contribution. Bryant, supra note 50, at 505-10. 85 This section describes anonymously and in the aggregate clinic students’ work on behalf of CMIC clients. Two clients graciously provided their permission for me to disclose more specific narratives, which I have in the cases of Clients C and F. Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 23 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 61 A. Case Examples 1. The Drug Epidemic in Some Clients’ Communities CMIC students have researched and reported on the devastating intergenerational impact of drugs on some clients’ communities. For example, on behalf of a client who had experienced the intergenerational impact of the crack cocaine epidemic in the South Bronx, one student drafted the following: From the mid-1980s through the 1990s, use of crack cocaine increased sharply, “particularly within Black and Hispanic communities.” In 1989, the New York Times reported that “among New York’s poor . . . crack has become the drug of choice.” Michael Marriott, After 3 Years, Crack Plague in New York Only Gets Worse, N.Y. TIMES (Feb. 20, 1989), http://www.nytimes.com/1989/02/20/ nyregion/after-3-years-crack-plague-in-new-york-only-getsworse.html. The same year, the Federal Drug Enforcement Administration concluded that “there is no question that the past three years of crack trafficking and abuse have had a more deleterious effect on the quality of life in New York than any other drug episode in history.” Id. From 1986 to 1989, widespread availability of crack cocaine contributed to a tripling of both the number of cocaine users in New York and of cases in which parents under the influence of drugs abused or neglected their children. Id. In the South Bronx . . . the Crack Epidemic was particularly devastating. John Kifner, In South Bronx, Drugs Already Claim Victory, N.Y. TIMES (Sep. 8, 1989), http://www.nytimes.com/1989/09/08/ nyregion/in-south-bronx-drugs-already-claim-victory.html. In 1989, the New York Times characterized South Bronx streets as a “battlefield” on which “the war on drugs was still being lost.” Id. [A lay historian] recalls the introduction of crack cocaine as a turning point in his community. As he recollects, “friends, families, and neighbors no longer trusted one another.” Ex. I, Letter to the Court from [Lay Historian]. Further, children “did not have the protection they were so accustomed to [because their] parents were drug addicted, and eventually the cohesiveness of the family was destroyed.” Id. 86 This vignette exhibits how CMIC students learn to weave the macro-level crack epidemic, with the epidemic’s mezzo-level neighborhood impact, and the micro-level family consequences, which of course, encircled our client’s own upbringing. It also demonstrates the manner in which the students link the fruits of their investigation—in this instance interviews with a central lay historian (our client’s uncle) familiar with a client’s family and neighborhood, someone who had grown up in the South Bronx in the relevant timeframe—to contem86 Student research on file with the author. Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 62 unknown CLINICAL LAW REVIEW Seq: 24 20-OCT-20 7:49 [Vol. 27:39 poraneous journalistic reporting, a technique which corroborates some clients’ families’ experiences and underscores the multi-layered context of addiction-related offenses. This approach supports both the “whole life” and “diminished societal standing to punish” mitigation philosophies. 2. The Relationship Between Addiction and Childhood Exposure to Violence In a number of pleadings, CMIC students have cited the landmark Adverse Childhood Experiences, or “ACEs” study, which identified the lifelong impact of exposure to various types of adverse childhood experiences, such as abuse, neglect, or addicted parents.87 Nearly all of our clients have been victims of or witnessed shootings, some of them fatal and some of them striking close friends. An example of how students incorporate social science into a sentencing memo to explain the salience of exposure to violence on crime-related behavior follows: Exposure to childhood trauma affects brain development and leads to difficulty controlling impulses and delaying gratification. In fact, studies show that children who experience four or more traumatic events are four to twelve times more likely than the general population to suffer from alcoholism. This research suggests that adults who experienced trauma during childhood often use alcohol and drugs to self-medicate and cope. Scientists have also discovered a link between childhood trauma and gambling disorder. A recent twin cohort study found that witnessing another individual badly hurt or killed increased the risk of becoming a pathological gambler by 183 percent, and experiencing a physical attack increased the risk of becoming a pathological gambler by 239 percent. Other research has revealed a dramatic link between alcoholism and gambling disorder, finding that people diagnosed with problem gambling were 23 times more likely to be diagnosed as alcohol dependent than those who were not problem gamblers. The connection between alcoholism and gambling disorder is profound.88 The students’ practice of combining detailed, corroborated social history, social science, and evidence of rehabilitation has impacted federal courts’ perceptions of the circumstances giving rise to our cli87 Vincent J. Felitti, Robert F. Anda, Dale Nordenberg, David F. Williamson, Alison M. Spitz, Valerie Edwards, Mary P. Koss & James S. Marks, Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults (The Adverse Childhood Experiences (ACE) Study), 14 J. AM. PREVENTATIVE MED. 245 (1998). See also Adverse Childhood Experiences (ACEs), CTR. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/violenceprevention/childabuseandneglect/acestudy/index.html (last visited June 26, 2020). 88 Client H Sentencing Memo at 21-22 (filed under seal). Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 25 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 63 ents’ crimes and their views of what sentences our clients deserve. As later case summaries show, the clinic’s cases involve serious crimes, two-thirds of them violent or involving the sale or illegal possession of firearms. The point of the work is to show that even when people commit terrible harms, perhaps especially when people commit terrible harms, courts should calibrate their punishments to account for the context of their lives and their prospects for rehabilitation.89 3. The Rise of Economic Distress and Gambling Addiction Simultaneously with Connecticut’s Burgeoning Casino Industry On behalf of clients charged with gambling addiction-related offenses, CMIC students have also described the simultaneous rise of Connecticut’s casino industry and economic crimes in the state: The impact of the Foxwoods and Mohegan Sun casinos on Connecticut and its residents has been well documented. See SPECTRUM GAMING GROUP, Gambling in Connecticut: Analyzing the Economic and Social Impacts (2009), http://www.ct.gov/dosr/lib/dosr/ june_24_2009_spectrum_final_final_report_to_the_state_of_connecticut.pdf [hereinafter “Spectrum Report”]. While the casinos have considerably boosted the economy and lowered the unemployment rate, they have also exacted a significant toll on many nearby residents and communities. This toll has manifested in myriad ways. However, none of these manifestations has been more notable than the resulting increase in economic crime. In 1992, the year Foxwoods opened, state and federal law enforcement officials made fifty-one embezzlement arrests. Crime in Connecticut: 1992 Annual Report, Dep’t of Pub. Safety Division of State Police 30-31 (1992), http://www.dpsdata.ct.gov/dps/ucr/data/1992/Crime%20in%20Connecticut%201992.pdf. By 2007, the number had increased to 244, a nearly 500 percent increase in Connecticut over that fifteen-year period. Crime in Connecticut 2007: Connecticut Summary Statistics, DEP’T OF PUB. SAFETY DIVISION OF STATE POLICE 27 (2007), http:// www.dpsdata.ct.gov/dps/ucr/data/2007/Connecticut%20Summary %20Statistics%202007.pdf. During the same period nationwide, the increase was thirty-eight percent. Spectrum Report at 14. Moreover, there is evidence that many of those who stole from their employers used either part or all of those funds to gamble at Foxwoods or Mohegan Sun. Id. at 143. From 1998 to 2008, there were at least thirty89 Indeed, the federal sentencing statute says so. 18 U.S.C. § 3553 (requiring the sentencing court to consider the history and characteristics of the offender as well as the nature and circumstances of the offense, and the purposes of punishment, including rehabilitation); Mark Osler & Mark W. Bennett, A “Holocaust in Slow Motion?”: America’s Mass Incarceration and the Role of Discretion, 7 DEPAUL J. FOR SOC. JUST. 117, 149 (2014). Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 64 unknown Seq: 26 20-OCT-20 CLINICAL LAW REVIEW 7:49 [Vol. 27:39 one newspaper articles involving separate incidents that reported that funds embezzled from Connecticut businesses and organizations were used to gamble at Connecticut casinos. Id. at 14. One columnist even went so far as to label southeastern Connecticut “the embezzlement capital of the world.” David Collins, Counting Up Casino Impacts, THE DAY (July 29, 2009).90 The history that the students researched, assembled, and reported has provided a basis for arguing that gambling addiction-related offenses are part of a larger set of social forces that have impacted people living in proximity to the casinos. The rise of the casinos correlated with a rise in economic crimes, a significant number of whose proceeds went to support gambling habits. B. Outcomes In Grace Notes, I proposed that individualized, intensive socialhistory-focused sentencing advocacy would ameliorate noncapital punishment.91 As of the end of 2019, CMIC had litigated nine federal sentencing cases, so the sample size at the time of this article’s publication is small. However, case outcomes suggested that CMIC’s work had influenced local judicial expectations and understanding of social history mitigation and significantly reduced our clients’ sentences relative to federal guidelines and prosecutors’ recommendations. 1. Sentences Imposed Compared to Federal Guidelines and Prosecutors’ Recommendations Although they are no longer mandatory,92 the Federal Sentencing Guidelines retain a powerful advisory and anchoring effect on district court judges. Judges must, by law, consider the Guidelines in imposing sentences, and they begin sentencing considerations with federal probation officers’ presentence reports, a substantial section of which include Guidelines calculations.93 Appellate courts also subject wider deviations from the Guidelines to greater scrutiny.94 Notwithstanding 90 Client A Sentencing Memo at 2-3. Gohara, supra note 2, at 41, 48, 85. 92 United States v. Booker, 543 U.S. 220, 244-45 (2005). 93 See Mark W. Bennett, Addicted to Incarceration: A Federal Judge Reveals Shocking Truths About Federal Sentencing and Fleeting Hopes for Reform, 87 UMKC L. REV. 3, 18 n.89 (2018). 94 See Recent Cases: United States v. Ortiz, 621 F.3d 82, 124 HARV. L. REV. 2091, 2095 (2011) (reviewing the Second Circuit case and saying “[m]ost district courts that have addressed the question candidly admit that they are heavily influenced—though not bound— by the Guidelines” (citing cases) and “appellate courts subject greater ‘deviations’ to more exacting scrutiny than lesser ones and afford more deference to deviations in cases ‘outside the “heartland”’ of the Guidelines than to deviations based on policy disagreements that apply ‘even in a mine-run case’”). 91 Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 27 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 65 the continued force of the Guidelines, CMIC’s advocacy has saved nine clients 558 months in prison below the Guidelines (46.5 years, or an average of more than five years per client) and 180 months in prison below prosecutors’ recommendations (15 years, or an average of 20 months per client).95 CMIC’s percentage of below-Guidelines sentences is also significantly higher than the national and District of Connecticut averages. Data from the United States Sentencing Commission show that since the beginning of Fiscal Year 2016, 47.4% of cases nationwide resulted in a sentence below the Guidelines range for any reason.96 In the District of Connecticut during that same period, 64.5% of defendants received a sentence below the guidelines range.97 Since the clinic began 95 Data on file with the author. See infra Table 1 (CMIC Outcomes, by Client, Measured in Prison Terms (in months)). It is important to note the distinction between Guidelines departures and Guidelines variances. A departure from the Guidelines requires proof of specific legal errors, while a variance may be based on consideration of any of the sentencing factors in the federal sentencing statute, 18 U.S.C. § 3553. See OFFICE OF GEN. COUNSEL, U.S. SENTENCING COMM’N, DEPARTURE AND VARIANCE PRIMER (2014), https:// www.ussc.gov/sites/default/files/pdf/training/primers/2014_Primer_Departure_Variance.pdf. As I have written previously, restrictions on defense presentation of evidence of childhood disadvantage has attached to both departures and variances. See Gohara, supra note 4, at 25-26. However, this prohibition is in tension with 18 U.S.C. § 3553’s requirement that judges be permitted to consider any history or characteristics of the offender. Federal defenders around the country are provided ongoing training and resources in how to investigate and present evidence of childhood maltreatment in light of the post-Booker ascent of judicial discretion. See The Law of Sentencing Under Booker and Its Progeny, DEFENDER SERVICES OFFICE TRAINING DIVISION, https://www.fd.org/sentencing-resources/law-sentencing-under-booker-and-its-progeny (last visited July 9, 2020). The clinic’s below-Guidelines sentences are achieved through judges’ application of variances rather than departures and offer one model for how defenders might go about social history mitigation pursuant to 18 U.S.C. § 3553’s “History and Characteristics of the Defendant” provision. 96 Data on file with the author (obtained from U.S. SENTENCING COMM’N, STATISTICAL INFORMATION PACKET, FISCAL YEAR 2019, DISTRICT OF CONNECTICUT 12 tbl.8 (2019) [hereinafter 2019 D. CONN. STAT.], https://www.ussc.gov/sites/default/files/pdf/researchand-publications/federal-sentencing-statistics/state-district-circuit/2019/ct19.pdf; U.S. SENTENCING COMM’N, STATISTICAL INFORMATION PACKET, FISCAL YEAR 2018, DISTRICT OF CONNECTICUT 12 tbl.8 (2018) [hereinafter 2018 D. CONN. STAT.], https://www.ussc.gov/ sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/state-districtcircuit/2018/ct18.pdf; U.S. SENTENCING COMM’N, STATISTICAL INFORMATION PACKET, FISCAL YEAR 2017, DISTRICT OF CONNECTICUT 11 tbl.8 (2017) [hereinafter 2017 D. CONN. STAT.], https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/state-district-circuit/2017/ct17.pdf; U.S. SENTENCING COMM’N, STATISTICAL INFORMATION PACKET, FISCAL YEAR 2016, DISTRICT OF CONNECTICUT 11 tbl.8 (2016) [hereinafter 2016 D. CONN. STAT.], https://www.ussc.gov/sites/default/files/pdf/researchand-publications/federal-sentencing-statistics/state-district-circuit/2016/ct16.pdf). 97 Approximately one-third (34.8%) of those below-Guidelines sentences in the District of Connecticut were the result of government-sponsored departures based on substantial cooperation, under USSG 5k1.1, or an early disposition, under USSG 5k3.1. Nationally, at least half (51.3%) of the below-Guidelines sentences during this period resulted from government-sponsored departures. Id. Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 66 unknown CLINICAL LAW REVIEW Seq: 28 20-OCT-20 7:49 [Vol. 27:39 in September 2016 through the present, as the table below shows, CMIC has achieved sentences below the Federal Sentencing Guidelines and the prosecutors’ recommended sentences in eight of its nine cases (88.9%).98 In every case in which the prosecution recommended a prison sentence, courts sentenced CMIC clients to sentences below those recommendations.99 This latter metric is especially salient, given that prosecutors are experienced, repeat actors in federal sentencing litigation, who are well-versed in recommending sentences that they believe defendants deserve in proportion to their crimes and that they are likely to believe courts will deliver.100 In the clinic’s cases involving firearms offenses, the below-Guidelines and below-prosecution variances are even more pronounced. All four of CMIC’s firearms cases between the clinic’s inception in September 2016 and September 2019 received below-Guidelines sentences (100%), compared with 43.3% of firearms cases nationwide and 56.5% of firearms defendants who appeared before the District of Connecticut.101 As data from the U.S. Sentencing Commission show, during the period between 2011 and 2017, the District of Connecticut imposed nongovernment sponsored below-Guidelines sentences at rates that largely reflect the national average.102 Notably, two of CMIC’s four firearms clients (50%) received no prison time as part of their sentences. Nationally, since the clinic’s inception, only 4.8% of federal firearms defendants received a sentence that did not include 98 See infra Table 1 (CMIC Outcomes, by Client, Measured in Prison Terms (in months)). 99 Id. 100 BRUCE FREDERICK & DON STEMEN, VERA INST. OF JUSTICE, THE ANATOMY OF DISCRETION: AN ANALYSIS OF PROSECUTORIAL DECISION MAKING 100, 275-76 (2012), https://www.ncjrs.gov/pdffiles1/nij/grants/240334.pdf (according to a survey of two moderately large prosecutors’ offices, “[p]rosecutors know what the extremes are in judges’ sentencing decisions and shoot for the middle. Basically, there is a sense of what the going rate is among the collective of judges in the district and prosecutors tailor decisions to what the going rate or norm is.”); Ronald F. Wright, Jenny Roberts & Betina Cutaia Wilkinson, The Shadow Bargainers, CARDOZO L. REV. (forthcoming 2020) (manuscript at 14 n.50) (SSRN), https://ssrn.com/abstract=3577322; Arlen Specter, Book Review, Conviction: The Determination of Guilt or Innocence Without Trial, 76 YALE L.J. 604, 607 (1967) (A prosecutor’s “distilled experience enables . . . bargain[ing] on the middle ground of what experience has shown to be ‘justice.’”). 101 2019 D. CONN. STAT., supra note 96, at 16 tbl.10; 2018 D. CONN. STAT., supra note 96, at 16 tbl.10; 2017 D. CONN. STAT., supra note 96, at 18-19 tbl.10; 2016 D. CONN. STAT., supra note 96, at 18-19 tbl.10. 102 U.S. SENTENCING COMM’N, INTER-DISTRICT DIFFERENCES IN FEDERAL SENTENCING PRACTICES: SENTENCING PRACTICES ACROSS DISTRICTS FROM 2005-2007, at 57 (2020), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20200122_Inter-District-Report.pdf (reporting that the rate of nongovernment sponsored below-Guidelines firearms sentences imposed in the District of Connecticut was within 5.1% of the overall national average between 2011 and 2017). Electronic copy available at: https://ssrn.com/abstract=3737616 R R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 29 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 67 prison time.103 Within the District of Connecticut, only 3.6% of firearms cases resulted in a nonprison sentence.104 This trend of lower sentences for CMIC clients holds within certain other categories of offenses, as well. For example, in two of the clinic’s three fraud cases, the clients received sentences below the Guidelines range (66.7%). In the third fraud case, the court still sentenced the client to a prison term twelve months shorter than the sentence the prosecution had requested. Nationally, 53.4% of individuals charged with fraud received a variance or a downward departure since FY 2016.105 Those rates were higher within the District of Connecticut, where the Court imposed a sentence below the Guidelines range in 73.2% of fraud cases.106 However, a recent report from the U.S. Sentencing Commission indicates that, between 2011 and 2017, the District of Connecticut’s sentencing practices in fraud cases were largely representative of the national average.107 TABLE 1: CMIC OUTCOMES, BY CLIENT, MEASURED PRISON TERMS (IN MONTHS) A B C D E F G H I Guidelines 21 33 240 210 78 57 360 41 18 Prosecution --240 -120 ---0 Defense 0 --120 60 0 -0 0 IN Judgment 0 18 72 146 108 12 140 0 0 103 2019 D. CONN. STAT., supra note 96, at 8 tbl.4; 2018 D. CONN. STAT., supra note 96, at 8 tbl.4; 2017 D. CONN. STAT., supra note 96, at 7 tbl.4; 2016 D. CONN. STAT., supra note 96, at 7 tbl.4. 104 2019 D. CONN. STAT., supra note 96, at 9 tbl.5; 2018 D. CONN. STAT., supra note 96, at 9 tbl.5; 2017 D. CONN. STAT., supra note 96, at 8 tbl.5; 2016 D. CONN. STAT., supra note 96, at 8 tbl.5. 105 2019 D. CONN. STAT., supra note 96, at 16 tbl.10; 2018 D. CONN. STAT., supra note 96, at 16 tbl.10; 2017 D. CONN. STAT., supra note 96, at 18-19 tbl.10; 2016 D. CONN. STAT., supra note 96, at 18-19 tbl.10. 106 2019 D. CONN. STAT., supra note 96, at 16 tbl.10; 2018 D. CONN. STAT., supra note 96, at 16 tbl.10; 2017 D. CONN. STAT., supra note 96, at 18-19 tbl.10; 2016 D. CONN. STAT., supra note 96, at 18-19 tbl.10. 107 See U.S. SENTENCING COMM’N, supra note 102, at 49 (reporting that the rate of nongovernment sponsored below-Guidelines fraud sentences imposed in the District of Connecticut was within 1.9% of the overall national average during that period). Electronic copy available at: https://ssrn.com/abstract=3737616 R R R R R R R R R R R R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 68 unknown CLINICAL LAW REVIEW Seq: 30 20-OCT-20 7:49 [Vol. 27:39 These data are preliminary. As I explain in Section IV.B, below, a much larger sample size and rigorous regression analysis would be necessary to isolate all the factors that might contribute to the clinic’s sentencing outcomes, which is beyond the scope of this article. However preliminary, though, the data suggest that even in cases involving serious offenses, when mitigation explains and contextualizes crime, judges are amenable to arguments for reduced or no prison time that account for the defendant’s own history of serious adversity and include evidence of and prospects for rehabilitation. 2. Strains of CMIC’s Philosophy in Federal Sentencing Hearings The following analysis of some of CMIC’s federal sentencing hearings demonstrates that in clinic cases, courts have relied on evidence of clients’ whole-life context, rehabilitation, and social and medical science in determining their sentences.108 As the transcripts show, judges’ stated reasons include their beliefs that defendants’ own histories of extreme adversity made them more deserving of reduced punishment. Sometimes judges seem to conclude so because defendants’ own trauma diminished their capacities. Other times they state that defendants have suffered enough or that social institutions that should have come to their aid failed to. In every case, the judge’s conclusion that the defendant has the capacity for rehabilitation, or has demonstrated exceptional rehabilitation presentencing, has been central. The following case examples also demonstrate the fruits of CMIC’s principal pedagogical goal to teach students the highest standards of defense sentencing advocacy. Each case shows how students learned to conduct client and witness interviews that reveal deeply sensitive but salient evidence of clients’ adversities, to identify and 108 The clinic’s use of medical paradigms in investigating and explaining the impact of clients’ exposure to trauma, addictions, and other factors that the clinic has argued influenced their involvement in crime must be distinguished from Tommie Shelby’s critique of what he has termed “the medical model.” In Shelby’s definition, the medical model is a constrained framework for improving the material conditions of people living in segregation and poverty. See SHELBY, supra note 21, at 2. He terms it a “medical” model because it assumes a permanent set of structures, like fixed human anatomy that physicians must work within when treating disease. This assumption of an immutable structure limits Shelby’s medical model’s proponents to remedying social disadvantage by “alleviating the burdens of the poor,” rather than dissembling and rebuilding the structures in which poverty and segregation have flourished. Id. To the contrary, the clinic’s importing of medical and other extra-legal disciplines into its exploration of clients’ life experiences and mitigation advocacy deconstructs the dominant punishment paradigm, which calibrates sentences based on an individual’s wrongdoing and an actuarial grid. In its place, the clinic presents medical and social science to argue for a discount for predictable medical and behavioral responses to extreme poverty, exposure to violence, and addiction, among the mitigating factors that tend to recur most frequently in clinic cases. Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 31 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 69 collect corroborating documents, and to assemble a detailed record of their clients’ whole lives. Each case shows how students learned to argue sophisticated, nuanced case theories that contextualized clients’ offenses and presented specific, achievable rehabilitation frameworks as alternatives to lengthy prison terms. The excerpts of hearing transcripts show judges’ incorporation of clinic case theories at sentencing. a. Trauma, Addiction, and Firearms Sales In clinic cases, CMIC students have developed case theories explaining why someone who has been the victim of gun violence might participate in the trade of illegal firearms. Students have studied and built case records showing the impact of trauma on clients’ addictions to substance use or gambling. Students have worked with an expert in problem gambling and with experts in substance use disorders. Those experts have explained that exposure to trauma can lead to emotional numbing that causes people to engage in addictive behavior and dissociate from the consequences of their actions.109 By way of rehabilitation, students have recorded clients’ successful participation in addiction treatment programs, problem-solving courts, and gainful employment such as construction and commercial truck driving. A key component of the students’ advocacy includes facilitating the attendance of family and other supporters at our clients’ sentencing hearing. At several of our sentencing hearings, the entire bank of benches behind the defense team has been full of clients’ supporters, such as relatives, past and present employers, former teachers, and treatment providers, to visibly demonstrate to the court our clients’ network of positive support. In one case, our clients’ deep bench had a tangible impact on the prosecutor, who turned to face our client’s family and other supporters as he spontaneously reconsidered his position during the hearing, from recommending prison time to agreeing to time served.110 Client F, who had pled to sale of firearm charges, was sentenced to prison time. Analysis of his case demonstrates the limits of mitigation when a court believes that prison time is necessary to hold a defendant retributively accountable for his crime. Client F’s offense conduct involved selling several high-magazine guns to people who told him they were convicted felons, which enhanced his sentencing liability.111 Videotapes of Client F boasting about his gun sales to un109 Client H Sentencing Tr. at 10-11. Id. at 36, 39-40. 111 Client F Sentencing Tr. at 35-36, 45-46, 49. At sentencing in the District of Connecticut, the court expressed particular concern about this offense in light of the Sandy Hook massacre that killed 26 people at an elementary school, mostly first graders and their edu110 Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 70 unknown CLINICAL LAW REVIEW Seq: 32 20-OCT-20 7:49 [Vol. 27:39 dercover agents also figured prominently at sentencing.112 In Client F’s case, the students argued for time served,113 and the prosecutor recommended an unspecified period of incarceration.114 Client F had several felony convictions for drug possession, drug sale, and larceny, before the crime on which we represented him, and was facing 57-71 months in prison under the Guidelines for possession of a firearm as a convicted felon.115 The students’ record of Client F’s social history, plus explanation of the health impacts, including addiction, of his violence-filled early years, disrupted the conventional sentencing narrative’s narrow focus on the crime. The new medico-legal narrative explained his addiction and his own exposure to violence as the root of his offense.116 The students’ framing also foregrounded the client’s exceptional rehabilitation.117 As this case’s outcome shows, however, even though the court accepted and carefully considered context and rehabilitation at sentencing,118 in the court’s estimation, they were insufficient to completely outweigh the need for prison.119 The students’ advocacy focused on Client F’s having grown up in a home with two addicted parents who subjected each other to extreme violence in front of him and his brother, as well as Client F’s early access to drugs and alcohol for his own consumption.120 At sentencing, the students’ advocacy focused on Client F’s sobriety—800 days until that point—and his devotion to his carpentry work and to his family, who were all there to support him in court.121 Client F had also graduated successfully from Support Court, a voluntary problemsolving court that connects federal defendants in the District of Connecticut with addiction treatment services and support groups.122 The students requested a sentence of no jail time, home confinement, sucators. Id. at 17; see Sandy Hook Shooting: What Happened?, CNN, http://www.cnn.com/ interactive/2012/12/us/sandy-hook-timeline/index.html (last visited Aug. 29, 2019). 112 See, e.g., Client F Sentencing Tr. at 45 (Prosecutor calling Client F’s demeanor and words on the tapes “chilling” and cavalier); see also id. at 35-37, 49. 113 Client F Sentencing Memo at 41, 48-51, 53-59. 114 Client F Sentencing Tr. at 46-47; Client F Government’s Sentencing Memo at 4-5. 115 Client F Presentence Report at 7-8. 116 Client F Sentencing Memo at 39-41. 117 See, e.g., Client F Sentencing Tr. at 18-20. 118 Id. at 40-41 (The Court to Client F: “I will just tell you, your rehabilitation effort I do think is extraordinary. . . . You deserve a lot of credit. I intend to recognize that in the sentence I impose, because it’s very hard.”). 119 Id. at 51 (expressing concern about “whether it would promote respect for the law if [the Court] were not to impose a sentence of imprisonment”). 120 Client F Presentence Report at 11-12, 14. 121 Client F Sentencing Tr. at 12, 18-19, 28. 122 Id. at 18. See Support Court, U.S. DISTRICT CT., DISTRICT CONN., http:// www.ctd.uscourts.gov/support-court (last visited Oct. 9, 2019). Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 33 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 71 pervision, and community service so that our client could continue his drug treatment in the community and maintain his employment.123 In the initial stages of the case, the prosecutors openly questioned whether Client F was an addict at all, or whether he sold guns simply because he was venal and greedy. The court’s acceptance as fact that Client F was a recovering drug addict was a direct result of the students’ advocacy strategy—to explain and prove, by interviewing life history witnesses who were able to provide credible, detailed accounts of our client’s childhood and his history of drug and alcohol dependence, that he suffered from addiction. The well-documented and corroborated social history mitigation case that students assembled displaced the narrative of Client F’s gun sales as driven by greed. The evidentiary record permitted the sentencing narrative to focus not on the question of Client F’s motives, which by the time of sentencing all parties and the court accepted to be addiction, but instead on the question of how much of a sentencing discount Client F should receive for his adverse childhood circumstances and the extraordinary rehabilitation from the addiction that fueled his gun sales.124 As in other cases, an important part of the rehabilitation record that the students presented included evidence of Client F’s supportive prosocial networks. At sentencing, the court emphasized Client F’s family’s dedication to him as he achieved his sobriety.125 The record included letters of support from Client F’s wife and daughters as well as his wife’s in-court attestation to the changes she had observed over their two-decade marriage, as her husband descended into addiction and then committed to sobriety and rehabilitation after his arrest.126 Given his success in Support Court and law-abiding life in the community since his arrest, students argued that a prison term was demonstrably unnecessary to deter him or to rehabilitate him. The students argued that prison was not necessary for general deterrence either, because the terms of federal supervision are strict, onerous, and violating them runs a high risk of detention.127 The central question remaining at Client F’s sentencing hearing was whether incarceration was necessary to punish him retributively for his crime.128 The court sentenced Client F to a year and a day in prison and three years of supervised release with mandated programs and 300 123 124 125 126 127 128 Client F Sentencing Tr. at 21. Id. at 43-44 (AUSA), 50-51 (Court). Id. at 51, 52. Client F Sentencing Memo, exs. B, F, G, H; id. at 25-32. Client F Tr. at 21. Id. Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 72 unknown CLINICAL LAW REVIEW Seq: 34 20-OCT-20 7:49 [Vol. 27:39 hours of community service.129 Notwithstanding the prison sentence, the court’s pronouncement of sentence made plain that the students’ presentation carried the day. The court cited Client F’s extraordinary rehabilitation and the students’ sentencing memorandum’s description of the violent, alcohol-filled environment in which Client F grew up, which explained his susceptibility to addiction.130 This sentence was well below the Guidelines, but still a substantial prison sentence well above the defense’s recommendation.131 The court’s sentencing statement demonstrates the tension the court, which had before it a robust mitigation record, nevertheless grappled with between holding Client F accountable for an offense that posed a serious threat to public safety and discounting his punishment according to his own frailties and strides toward rehabilitation: So, as I look at all sides here, I’m simply not able to agree with your counsel’s suggestion that I should not impose a term of imprisonment. I don’t think that’s appropriate here. I am concerned about the reasons of just punishment of the seriousness of what you did here over the period of at least several months. And I’m concerned whether it would promote respect for the law if I were not to impose a sentence of imprisonment on a felon who sells multiple guns, including the most dangerous kind, to other felons or people who he thinks are felons. On the other hand, I’m going to vary downward, well downward from what the Sentencing Guidelines would recommend here. I’m going to vary downward on grounds of the childhood challenges that you’ve had, on the grounds of the drug addiction that doubtlessly influenced what you did, on grounds of your extraordinary rehabilitation, on grounds of your community service, on grounds of the insight and contrition that I think you have, and on grounds of your family support. I’ll tell you, your wife . . . alone herself is independently a ground for the remarkable support she’s given you for a lesser sentence than I would otherwise impose.132 Here, the court was able to go most, but not all, of the way to the students’ recommended sentence of no additional prison time. Client 129 Fiona Doherty has written extensively about the “almost farcical level of control over people’s lives” that state and federal probation and supervised release systems exert. Doherty, Obey All Laws, supra note 42, at 294. For instance, “[b]ecause standard conditions reach beyond the criminal law, they necessarily also broaden the behavior that constitutes recidivism . . . that can result in a custodial sentence . . . .” Id. at 295. See also Fiona Doherty, Indeterminate Sentencing Returns: The Invention of Supervised Release, 88 N.Y.U. L. REV. 958, 1017 (2013) (arguing that federal supervised release sentences constitute indeterminate (i.e., indefinite) sentences). 130 Client F Sentencing Tr. at 49-52. The extra day on the prison sentence made our client eligible to earn good-time credits toward early release. 131 Id. at 52. 132 Id. at 51-52. Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 35 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 73 F’s sentencing proceeding demonstrates the limits of mitigation—in some cases, it will not entirely neutralize the retributivist strain of punishment and does not always persuade judges that prison is unnecessary to hold even rehabilitated defendants accountable for their crimes.133 However, proportionate sentencing is central to any just theory of retributive punishment, and in this case, the students’ work provided the court with justification for a prison term well below the Guidelines.134 b. Client C: Steady State, Trouble, Villains and Heroes, Coda In an early clinic case, students represented a client facing 235240 months under the Guidelines for two counts of possession of a stolen firearm.135 The relevant conduct, however, included holding hostage and serially assaulting a young woman with whom he lived. The crux of the mitigation case was evidence that our client had suffered extreme parental neglect and abuse. His brother sexually abused him.136 He was exposed to endemic community violence growing up in the Bronx in the 1970s. The details the students’ investigation uncovered included the following: Our client started using drugs when he was eight and left school at ten. He lived out of a taxicab in his sister’s neighborhood from the ages of 14-18.137 He was functionally illiterate and in the “borderline” range of intellectual functioning.138 Psychologists diagnosed him as suffering from the impacts of post-traumatic stress.139 Despite these challenges, during early adulthood, our client was able to maintain sobriety, be married, and work consistently as a carpenter.140 He had no history of violence against a person until this offense.141 The students’ memorandum pointed to these years of stability as evidence that despite his difficult life history, our client was capable of living a peaceful, productive life.142 The students also explained that in the years leading up to the offense, which involved repeated physical and sexual abuse of the woman with whom he was living, Client C began to suffer from serious lung disease, which de133 For examination of the historical role of retributivism or “just deserts” philosophies in federal sentencing, see STITH & CABRANES, supra note 34, at 34-35. 134 See Bagaric et al., supra note 33, at 35 (citing sources). 135 Client C Presentence Report at 3. 136 Id. at 14. 137 Id. 138 Client C Sentencing Memo at 15, 43. 139 Id. at 2. 140 Client C Presentence Report at 15, 17-18. 141 Id. at 4-11 (criminal history, which did include burglary). 142 Client C Sentencing Memo at 50, 58. Electronic copy available at: https://ssrn.com/abstract=3737616 R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 74 unknown CLINICAL LAW REVIEW Seq: 36 20-OCT-20 7:49 [Vol. 27:39 prived his brain of oxygen.143 His marriage fell apart when his wife began using alcohol again, and he was no longer able to work, which unmoored him.144 In this context, our client met the victim, a much younger woman with her own history of mental illness.145 After a series of conflicts, he began to physically abuse her and repeatedly sexually assaulted her over the course of three months, at times brandishing the gun that was the basis of his federal conviction.146 The students argued that prior to his arrest for this crime, Client C had never been diagnosed with or received treatment for his mental health conditions.147 The students’ case theory was that our client’s arrest was a turning point and opportunity for him to receive treatment according to a specific rehabilitation plan the students proposed, so that he could return to the stable, law-abiding life he had demonstrated he was capable of for many years.148 The students also argued that Client C had begun to receive psychiatric treatment for the first time in his life while incarcerated in a state medical prison pending sentencing and was responding well.149 In contrast, the Federal Bureau of Prisons (BOP) would not likely be able to provide the kind of therapeutic treatment Client C needed and that the psychologists who evaluated him recommended—to say nothing of the toll BOP incarceration would take on his fragile physical health.150 The victim addressed the court and our client to describe the impact of his physical, sexual, and psychological abuse of her, and she said that she would never forgive him.151 The prosecution requested a 20-year sentence.152 In clinic seminar, students learn that Anthony Amsterdam and Jerome Bruner describe the elements of plot as: (1) an initial steady state; (2) that gets disrupted by trouble attributable to human agency or susceptible to change by human intervention; (3) evoking efforts at redress or transformation, which succeed or fail; (4) so that the old steady state is restored or a new transformed steady state is formed; and (5) a coda or moral of the story that folds the then-and-there of 143 Client C Presentence Report at 4-5, 15, 17. Client C Sentencing Memo at 21, 24-25. 145 Id. at 25. 146 Client C Presentence Report at 4-5. 147 Client C Sentencing Memo at 42. 148 Id. at 56. 149 Id. 150 Id. at 45-47. The client had been pending sentencing for three years and had been incarcerated in state prison the whole time, during which his physical health had declined substantially from the time he committed the offense. Client C Sentencing Tr. at 21. 151 Client C Sentencing Tr. at 36. 152 Id. at 39. 144 Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 37 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 75 the tale into the here-and-now of the telling.153 In Client C’s case, the students’ theory was that our client had been in a steady state until his physical illnesses exacerbated his mental health conditions and cognitive limitations. The illness and the demise of his marriage were the trouble that disrupted his steady state. At issue was the identity of the villains. Clearly, our client’s behavior had been egregious and had caused the victim tremendous suffering. The prosecution counted him as the villain. That view comports neatly with traditional crime narratives. The students’ case theory offered an alternative villain: the unchecked poverty, violence, and addiction that our client survived. The implicit co-villains were the social actors that failed to ameliorate those conditions, to provide our client’s family with support and basic resources and to keep his neighborhood safe. In fact, one might argue that ignoring those villains results in a tragically constrained definition of a “steady state.” A transformative steady state would require social transformation. The transformative steady state would be one in which social institutions maintained safe and prosperous neighborhoods, adequately sheltered and fed families, and protected children from violence.154 In the students’ case theory, the court stood to be the changeagent or the hero. It faced the decision whether to impose the maximum punishment, which the prosecution had requested, notwithstanding our client’s own history of suffering, evidence of rehabilitative potential, and his present illness. In the alternative, the court could, as the students argued, set a punishment that acknowledged the serious harm our client caused his victim, but which also accounted for our client’s whole life and placed him in the setting in which he stood the best chance of healing. In setting Client C’s sentence, the court had an opportunity to shed light on the consequences of social institutions’ failure to protect: harm to the person the court was sentencing and his victim alike. In setting punishment, the judge said the following about the context: [C]’s conduct is awful. I don’t disagree with you and I need to consider it, but, you know, as horrific as the poor victim you say she’s not getting treatment . . . but why are we here [sic] likely because [C] was sexually assaulted as a child and didn’t get treatment . . . [and] he doesn’t have violence in his background.155 This vignette demonstrates the court’s acceptance of the students’ argument that it should discount Client C’s punishment on account of 153 154 155 AMSTERDAM & BRUNER, supra note 61, at 113-14. SERED, supra note 47, at 179. Client C Sentencing Tr. at 40. Electronic copy available at: https://ssrn.com/abstract=3737616 R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 76 unknown CLINICAL LAW REVIEW Seq: 38 20-OCT-20 7:49 [Vol. 27:39 his own history of suffering. Implicitly, the court blamed someone else’s failure to provide Client C with treatment for his own sexual abuse at least as much for the victim’s suffering as the court blamed our client’s actions. The court’s recognition that Client C had no history of violence also shows the judge’s adoption of the students’ case theory that although Client C had many risk factors for committing serious crime before the instant offense, he had not. He was capable of living a stable life with the right supports. He was capable of rehabilitation and of returning to that steady state, before the “trouble” of his physical and cognitive decline. Concerning rehabilitation, the judge said: He’s never had mental health treatment and he isn’t going to get it in the Bureau of Prisons. . . . [H]e won’t get the type of treatment he would get on supervised release in the community. He did do well. He kicked his substance abuse. That’s amazing to me. It is not seen very often. Somebody start [sic] drinking at eight or taking drugs sometime around then. It doesn’t excuse [the offense].156 Here, the court exercised its power to be the change-agent or hero. Instead of adopting the conventional retributive punishment narrative, the court imposed a sentence which the judge believed would be a catalyst to our client’s return to his steady state by facilitating access to the medical treatment he needed and which the court recognized the BOP was ill-equipped to provide. After a short recess, the court returned, addressed our client, and imposed his sentence. The court began by describing the seriousness of the crime: The sentence is meant to reflect the seriousness of what you did because if it doesn’t, then the punishment isn’t just. If that were the only thing I were considering today, your sentence would be as long as I could make it. What you did to the victim is indescribable.157 The court acknowledged the serious suffering our client had inflicted on the victim and prepared him for a sentence that would hold him accountable for that. Then the court went on to discuss our client’s background: What makes this sentencing so difficult, as I said, is that if that’s all I was considering, I would say then maximum is the right sentence. But that’s not all that I’m told to consider. And I need to consider your history and characteristics.158 The court considered significant evidence that the students presented that our client’s previous arrests had all been when he was 156 157 158 Id. at 45. Id. at 46. Id. at 48. Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 39 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 77 younger and were all drug-related. They had never involved violence. The students also persuaded the court that our client’s mental health condition, which the court surmised caused our client to commit the crimes, had never been treated. I’m not going to go into great detail about your childhood. I referenced it. You obviously suffered trauma and abuse and neglect. You have a long criminal history but as I said, no violence. You started using drugs at eight. For all of that and for no mental health treatment, [there was] a period of time when you finally got out from under the scourge of drug addiction. As you mentioned yourself, you started your own business, your life was good, you were connecting back with some of your family I think at that time.159 The court then referred to letters of support the students had gathered and put into the record, corroborating the period of stability in our client’s life and offering a counterbalance to the terrible violence to which he subjected the victim. [The letters] talk about you in a way that’s totally out of character to what your offense is here in terms of being someone who cares for people and has helped people, is a good worker. It is a real — it is really a conflict with your offense conduct here which is brutal and serious.160 Finally, accounting for our client’s physical condition, the court imposed an eight-year sentence, with two years’ credit for time served, which in the court’s view, adequately balanced the seriousness of the offense with our client’s history and present condition.161 The six years that our terminally ill client was sentenced to serve in prison may very well have amounted to a life sentence for him (in the end, he was released early due to the severity of his medical condition), but it was nevertheless a far cry from the twenty-year maximum the prosecution called for. The court’s reasoning for imposing this mitigated sentence provided the coda, Amsterdam and Bruner’s final plot element: when a person does all he can to overcome his own history of abuse and addiction and has made positive contributions to his community, the court possesses the authority to order treatment he should have received from the outset. The court also possesses the discretion to discount punishment to account for the defendant’s own victimization and society’s failure to protect or heal him before he harmed another. The students’ evidence and case theory provided the court with the basis for displacing the conventional retributive punishment narrative. 159 160 161 Id. Id. Id. at 49-50. Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 78 unknown Seq: 40 20-OCT-20 CLINICAL LAW REVIEW 7:49 [Vol. 27:39 That narrative would have prevailed had our client’s serious offenses dominated the record, without the counterbalance of context and evidence of rehabilitation. IV. NEW INSIGHTS AND QUESTIONS REMAINING FOR RESEARCH Operationalizing Grace Notes’ theory of noncapital mitigation advocacy has solidified some of my earlier claims, challenged others, and led to new insights. The previous sections of this article describe CMIC’s operationalization of Grace Notes. This section identifies new insights from CMIC’s practice as well as questions ripe for additional research that this early stage of the clinic leaves open. A. New Insights A number of insights have emerged from putting Grace Notes’ blueprint into practice. I discuss three here. The first is innovations to client-centered, holistic lawyering paradigms. The second is development of a new model for noncapital defense lawyers’ engagement with experts. The third is the potential of defense-based victim outreach (DVO). 1. Innovations to Client-Centered, Holistic Representation In Grace Notes, I envisioned holistic, client-centered representation as the backbone of enhanced noncapital sentencing advocacy.162 CMIC students have innovated this model of representation by deploying interdisciplinary teamwork and social science both as a means of navigating the attorney-client relationship and as a means of contextualizing clients’ “whole-life” histories in legal examination of their sentencing deserts.163 The marriage of science and law is the core of our approach. The clinic students’ practice draws from but also differs from traditional client-centered, interdisciplinary, holistic lawyering.164 Consistent with client-centered and holistic representation mod162 Gohara, supra note 2, at 48. Robin Steinberg, Heeding Gideon’s Call in the Twenty-First Century: Holistic Defense and the New Public Defense Paradigm, 70 WASH. & LEE L. REV. 961, 963-64 (2013) (defining the pillars of holistic defense as interdisciplinary team collaboration and community engagement). 164 Katherine Kruse has summarized client-centered lawyering, of which holistic lawyering is one strain, as follows, “(1) it draws attention to the critical importance of nonlegal aspects of a client’s situation; (2) it cabins the lawyer’s role in the representation within limitations set by a sharply circumscribed view of the lawyer’s professional expertise; (3) it insists on the primacy of client decision-making; and (4) it places a high value on lawyers’ understanding their clients’ perspectives, emotions and values.” Katherine R. Kruse, Fortress in the Sand: The Plural Values of Client-Centered Representation, 12 CLIN. L. REV. 369, 377 (2006); see also id. at 375-78, 420. 163 Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 41 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 79 els, CMIC students learn that as clients’ representatives, they must privilege clients’ interests, voices, and dignity, and they must pay close attention to nonlegal aspects of clients’ lives.165 Indeed, we teach students to “put the client as a whole person at the center of the representation.”166 In addition, our case theory emphasizes factors that contribute to crime to persuade courts to order sentences that achieve a transformative steady state. Convincing courts to apply sentences that improve a client’s health, rehabilitation, and safety, is especially consistent with holistic representation, which seeks to reach beyond a client’s legal case to expand his options in the world.167 The same goes for students’ facilitating clients’ work with addiction counselors, psychologists, or problem-solving courts to expand their options for rehabilitation.168 However, CMIC students’ advocacy differs from traditional client-centered, holistic defense models by externalizing the fruits of interdisciplinary teamwork. As noted previously, our interviewing techniques and data-gathering draw heavily on psychiatric, psychological, and social work paradigms. This aligns closely with client-centered, holistic lawyering.169 Students take this model a step further. They harness the information they learn by investigating clients’ extra-legal circumstances. They then apply medical, psychological, neuro-, and other scientific disciplines to provide courts and other justice stakeholders with a more complete sentencing framework than the Federal Sentencing Guidelines’ actuarial calculation of factors. In addition, although holistic defenders may screen for mitigating factors in a client’s background and present those at sentencing, our model depends on a particularly granular look at the incidents and impact of adversity in clients’ lives.170 The specificity and texture of the record builds credibility with judges, probation officers, and prosecutors. CMIC students learn that details win cases. Tropes lose them.171 In other words, CMIC students’ representation begins with a searching investigation of specific data and corroborating anecdotes. They build on that with interdisciplinary research. Students are then equipped to craft factual and legal arguments that use social science to 165 See Steinberg, supra note 163, at 976-77 (citing JONATHAN RAPPING, THE SOUTHERN PUBLIC DEFENDER TRAINING CENTER PHILOSOPHY 2-3). 166 Kruse, supra note 164, at 378, 420. 167 Id. at 421-22. 168 Id. at 421. 169 Id. at 383, 393. 170 See James M. Anderson, Maya Buenaventura & Paul Heaton, The Effects of Holistic Defense on Criminal Justice Outcomes, 132 HARV. L. REV. 819, 839 (2019). 171 Dennis N. Balske, The Penalty Phase Trial: A Practical Guide, CHAMPION, Mar. 1984, at 42. Electronic copy available at: https://ssrn.com/abstract=3737616 R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 80 unknown CLINICAL LAW REVIEW Seq: 42 20-OCT-20 7:49 [Vol. 27:39 explain that clients’ responses to wretched social conditions are adaptive, expected, and foreseeable. By presenting justice stakeholders with social and medical science in the context of individual cases, our students’ advocacy has offered judges, probation and parole officials, and prosecutors the opportunity to reset punishment norms, even where statutory frameworks remain anchored to lengthy sentences.172 By putting science into the record in individual cases, students have also provided judges, prosecutors, and probation officers with a lasting paradigm with which to understand responses to trauma, addiction, and other mitigating factors. That paradigm applies across cases. This scaling up of interdisciplinary representation is also an enhancement of the traditional holistic model. The sheer pervasiveness of overwhelming adverse experiences in our clients’ lives has been another insight that has emerged from CMIC’s work. We put trauma-informed representation and advocacy at the center of holistic lawyering.173 Social service providers and lawyers in fields such as domestic violence and child welfare have been engaging trauma-informed practices for some time.174 However, criminal defense lawyers have been later to recognize how necessary it is to competent, compassionate representation. Teaching law students trauma-informed criminal defense representation is therefore another innovation of traditional client-centered lawyering.175 Given the prevalence of trauma in our clients’ backgrounds, students learn to recognize that the impacts of trauma may affect every aspect of the lawyer-client relationship.176 Such recognition is necessary to competent mitigation lawyering.177 Preceding sections of this article have described the trauma-informed interview techniques that students learn. Students also learn the ways in which trauma affects many aspects of some clients’ behaviors and experiences, including how they recall memories, their ability to control certain impulses, their responses to threat, the impacts of emotional numbing or dissociation, and their perception of their own advocates and others in the legal system.178 In the clinic seminar, structured case-rounds exercises, and supervision sessions, we apply lessons, including Susan Bryant’s parallel 172 Tonry, supra note 36, at 17. Cf. Gohara, supra note 4, at 33. 174 Sarah Katz & Deeya Haldar, The Pedagogy of Trauma-Informed Lawyering, 22 CLIN. L. REV. 359, 370-71 (2016). 175 See Gold, supra note 70, at 217-25 (describing trauma’s impact on lawyer-client trust and communication). 176 Id. 177 Katz & Haldar, supra note 174, at 379; Wayland, supra note 70, at 949, 959-61. 178 Gold, supra note 70, at 216. 173 Electronic copy available at: https://ssrn.com/abstract=3737616 R R R R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 43 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 81 universe thinking, to train students to brainstorm possible reasons for traumatized clients’ approaches to the lawyer-client relationship.179 Doing so provides students an opportunity to make connections between concrete, case-specific challenges and the social science they learn about the behavioral impacts of trauma. These lessons in turn provide students occasion to reflect on the difficulties clients live with that might have contributed to their decisions to participate in crime. Students able to develop empathic responses to challenging interactions with clients will become all the more adept at explaining the basis for that empathy to prosecutors and judges.180 Finally, and critically, our students learn that vigilance about signs of vicarious traumatization is their ethical imperative. The intensive, trauma-informed representation that we teach students naturally requires attention to the impacts of vicarious traumatization on advocates themselves.181 Otherwise, vicarious traumatization that remains unaddressed will impede their advocacy.182 For this reason, Jean Koh Peters describes advocates’ meeting their own needs as an ethical imperative, so that those needs do not interfere with their competent representation of clients on clients’ terms.183 We teach students the signs and symptoms of vicarious traumatization and to brainstorm ways to guard against it before, and when, it inevitably seeps in. Our students learn that in order to remain open, compassionate, and excellent advocates, they must take care of themselves. This is another enhancement of holistic, client-centered representation, which, at least in the criminal defense context, has not traditionally included mindfulness of the advocate’s own need for restoration. 2. Enhanced Approaches to Working with Experts A crucial area in which CMIC students have incorporated best capital defense practices into noncapital sentencing advocacy is their work with non-legal experts. Many criminal defense lawyers are by now accustomed to working with and engaging experts at various stages of representation, and in Grace Notes, I recommended incorporating experts into noncapital mitigation practice.184 In practice, our students have found that preparing mitigation experts is a major component of their casework and that the methods for doing so require much more engagement than has been the norm for noncapital miti179 Bryant, supra note 73, at 65; Susan Bryant & Eliot Millstein, Rounds: A “Signature Pedagogy” for Clinical Education, 14 CLIN. L. REV. 195, 223-24 (2007). 180 Gold, supra note 70, at 207-08. 181 Katz & Haldar, supra note 174, at 361. 182 See PETERS, supra note 77, ch. 9. 183 Id. at 449. 184 Gohara, supra note 2, at 62, 72, 75. Electronic copy available at: https://ssrn.com/abstract=3737616 R R R R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 82 unknown CLINICAL LAW REVIEW Seq: 44 20-OCT-20 7:49 [Vol. 27:39 gation practice.185 Several aspects of our approach to engaging with mitigation experts differs from routine noncapital defense practice. First, our definition of “expert” is broad.186 Experts may be people with a rich and longstanding familiarity with community dynamics. They may be sociologists, traumatologists, historians, or addiction specialists with particular expertise in gambling, alcohol, or other drugs. At one sentencing hearing, one of the most powerful witnesses students recruited was a high school teacher, a lay historian who had borne witness to the violence and depleted schools in New Haven.187 This teacher had attended funerals of former students who had been shot to death.188 The CMIC students enlisted her to speak before the court. The teacher’s sentencing statement began by providing a glimpse of our client as a teenager, before he was ever involved in crime. She described him as “even then, a genuine soul, a great heart, and an amazing person.”189 A central aspect of successful mitigation is showing a sentencing judge that the person standing before her is worth saving, and contrary to conventional crime narratives, he is not endemically evil or pathological. The teacher was an essential surrogate for the upstanding public, whom the prosecution and the court consider it their duty to protect. Her statement went on: [H]aving taught in New Haven for several years, and going from an outsider to being embraced by the students, their families and the community, I was able to witness a world that was very different from my own upbringing and environment. Through the perspective of this new environment and culture, I was able to view growing up as an adolescent through a different lens. [Many of my students] ha[ve] not been afforded the luxury of growing up in a safe environment. [They were] not afforded the luxury of attending a school with adequate supplies, motivated teachers, or in a system that valued educating its students on their history, their culture and their identity. Instead, . . . [they] sat in classrooms where teachers called students “savages” and “animals.” [They] sat in classrooms where teachers had been checked out for years. [They] sat in classrooms where teachers regularly came in hung over. [They] rarely sat in classrooms where the material was made relevant to [them] and [their] lives, and [they] almost never sat in a classroom where [their] teachers looked like [them] or had an understanding or respect of where [they] came from. Representation does matter. The imprinting of learned behavior, morals and values is especially crucial dur185 186 187 188 189 See O’Brien & Wayland, supra note 57, at 756. O’Brien, supra note 65, at 730. Client H Sentencing Tr. at 27-28. Id. at 28. Id. at 26. Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 45 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 83 ing adolescence. [They were] not surrounded by positive role models; [were], instead, surrounded by violence, robbery, drugs and neighborhoods known less for their positive cultural contributions but their gang affiliations. [Their] school bordered two gang neighborhoods. And because it was a magnet school, was comprised of student demographic from multiple gang neighborhoods strife [sic] with tension. The low socioeconomics provided little rescue from their surroundings. I have had students involved in drug use and abuse, the sale of drugs and trafficking, robbery, and who have been physically and sexually abused and raped. I’ve also had students shot and killed.190 The teacher’s statement contrasted what every adult, including the judge and prosecutor, knows a child needs to thrive with what our client and his schoolmates received. In place of well-resourced schools staffed with caring educators and trusted adults were classes lacking basic supplies and teachers who dehumanized their students. This white teacher’s description of her peers’ racist labels of our client and his classmates reflected one view of the community in which our client had grown up and which the court and law enforcement were charged to protect. It also reflected a view, rooted in bias, of our client and others who had stood in his place before him and would stand in his place after him. The question hanging over the court and the prosecutor was whether to align with those who labeled black students in poor schools “savages” and “animals,” or with the teacher who condemned that distancing and replaced it with an understanding of the relentless disadvantage her students were forced to live with, some of whom it killed. The teacher’s statement underscored that our client and her other students were trapped. They lacked outlets from streets teeming with addiction, trafficking, and abuse. There was no rescue. Violence escalated until it culminated in murder. The teacher’s recounting supported the students’ sentencing theory that our client was endangered long before he posed a danger to others. The teacher’s words captured “whole life” and “societal standing to punish” mitigation. Our client had suffered enough: threats and violence in the very places where children are supposed to be safe; adults who abdicated their responsibility to create a safe environment where the children in their custody could learn and thrive; neighborhoods and schools impoverished and divested of basic resources and the protection that civilized society owes the vulnerable. The teacher’s window into our client’s formative context, along with her attestation to his character in his youth, left the court and the 190 Id. at 26-28. Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 84 unknown CLINICAL LAW REVIEW Seq: 46 20-OCT-20 7:49 [Vol. 27:39 prosecutor to consider who deserved the blame. This narrative of a traumatized, unprotected adolescent displaced the prosecution’s depiction of a heedless young man who sold the very weapons that terrorized his community. Later in the hearing, another lay witness the CMIC students located served as a ballast for the high school teacher’s appeal. The director of the tractor-trailer school where our client had post-arrest earned his commercial drivers’ license (CDL) spoke to our client’s sincere remorse, will to succeed, and motivation to build a successful, law-abiding career.191 This witness was a current teacher of our client who immediately noticed and nurtured his potential. The CDL director described the moment after he introduced himself and his program to our client’s class. Our client, with tears in his eyes, told him how moved he was by seeing the CDL director’s own pathway from a background similar to his to the director’s present-day success.192 The director attested that from that day forward, our client sought him out as a mentor, rose to the top of his class, assisted other students with their coursework, and showed exceptional ability in the field.193 The CMIC students’ witness preparation and plans for the hearing carried the day. The contrast between the CDL director and the former teacher’s description of the checked-out, hungover, and derisive educators our client had encountered as a teenager, provided the court and the prosecutor with the answer to the question of what our client was capable of when he was provided with access to genuine opportunity and personal support. This, not prison, was what he needed to rehabilitate and to support himself and his family. In ten months, he had demonstrated that with the right resources, he could kick his addiction, obtain a legal, gainful job, and pose no further risk to the public. At that point in the sentencing hearing, the prosecutor requested a brief recess to speak with our client and to consider his options. The prosecutor then addressed the court, noted our client’s exceptional courtroom showing of family and community support, and said that in his estimation our client had demonstrated extraordinary rehabilitation, positive future prospects and a very low risk of recidivism.194 The judge, in turn, citing the ACEs study as “very important” announced a sentence that she had not planned on imposing: nine days’ timeserved.195 191 192 193 194 195 Id. Id. Id. Id. Id. at at at at at 32-35. 33. 34-35. 36, 39-40. 52. Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 47 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 85 The vignette about the high school and CDL teachers demonstrates the power of lay historians. Experts may also be medical doctors, psychologists, or social workers trained to evaluate clients’ mental health. With that category of experts especially, our approach is capitally-informed. Rather than hiring an expert to conduct an evaluation of a client at the outset of representation, students begin the social history investigation, which throughout the representation, informs the scope of defense experts’ engagement. Experts trained in forensic evaluations may be important for particular legal questions such as competence or sanity. More often than not, however, therapeutic clinicians are better suited to conduct mitigation-oriented assessments.196 Second, CMIC’s mitigation model emphasizes clients’ experiences and the behavioral and emotional impacts (symptoms) of those experiences. Unless there is a clear strategic reason to do so, as in the case example offered below, students do not ask experts to render an opinion as to whether clients suffer from specific diagnoses.197 Diagnoses can be distracting and misleading in the context of sentencing mitigation. Instead, students ask experts to focus on the impact of life events on clients’ experiences, emotions, opportunities, bodies, minds, and behavior. To that end, the students’ social history investigation informs the mental health expert’s biopsychosocial evaluation of a client. That evaluation, in turn, explains to judges, probation officers, and prosecutors why the adverse life experiences the client survived matter to considerations of his blameworthiness and prospects for rehabilitation. Such evaluations also inform the type of sentence that is most likely to be effective in healing our clients and deterring them from future criminal justice involvement. This requires the students to craft careful referral questions and to engage experts in a mutually consultative relationship, wherein the students conducting the mitigation investigation and leading the sentencing advocacy discuss with the experts social history avenues to pursue.198 Clinic students work carefully on referral questions to tailor them strategically, while keeping them broad enough to account for the clients’ symptoms and behavioral manifestations of trauma, other situational stressors, or organic mental health conditions. One example of our mode of working with mental health experts already provided is that of Client C’s case in which a psychiatrist and a 196 Dudley & Blume Leonard, supra note 51, at 974-76; at 140-41. 197 Dudley & Blume Leonard, supra note 51, at 983-85; at 144-45. 198 Dudley & Blume Leonard, supra note 51, at 974. VAN DER KOLK, supra note 18, R VAN DER KOLK, supra note 18, R Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 86 unknown CLINICAL LAW REVIEW Seq: 48 20-OCT-20 7:49 [Vol. 27:39 psychologist the clinic team retained wrote a report explaining that the client’s pulmonary disease, background of extreme poverty, abuse and neglect, and several downturns in his life’s fortunes converged with a medical condition that caused cognitive decline. It would have been impossible for this expert to have reached her conclusion without the social history the clinic students assembled and explained. In the absence of this context, at best, experts conclude that clients exhibit particular behaviors and symptoms. Yet, without context and explanation, sentencing judges might view those (often adaptive) outward expressions of defendants’ internal responses to their life experiences as aggravating rather than mitigating. Examples of referral questions students have presented to experts opining on the impact of medical conditions on clients’ mental health and behavior include: 1) How does the client’s condition impact their cognitive age and functioning? 2) What impact does the client’s condition have with regards to the alleged crime? 3) What is the client’s prognosis for rehabilitation? 4) Given the client’s cognitive impairment, will the client be able to respond to treatment, and if so, what treatment would be most effective? The clinic has provided experts with school records, prison records, law enforcement reports, prior psychological assessments by other practitioners, and lay witness accounts to describe clients’ social histories. Experts may then conduct their own evaluation and assessment of clients. In one case in which students’ work with a medical doctor was central to their mitigation advocacy, our client was facing a sentence of ten years, with a Guidelines range of 210-262 months. The prosecutor recommended imprisonment at the top of the Guidelines. The judge imposed a sentence of 146 months, including time-served, which made our client eligible for release shortly after the mandatory minimum ten years. A decade in prison is without question a lengthy and severe penalty. Without adequate explanation of our client’s medical condition and its impact on his daily functioning and understanding of his behavior leading up to and during the offense, he might have been serving upwards of twenty years instead. The method we teach students for working with experts differs substantially from a conventional model, prevalent among some noncapital defense teams. In the conventional model, an attorney calls an expert with forensic expertise and asks them to conduct an evaluation of the client and conclude with a diagnosis, without offering referral Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 49 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 87 questions or the fruits of social history investigation.199 In some attorneys’ practices, the expert’s client interview doubles as the social history investigation. The expert then proffers an opinion, which may include a diagnosis, and then the attorney decides whether the evaluation is likely to be helpful or harmful to the defense. If the attorney decides that the evaluation is unhelpful, then that concludes the engagement of the expert. In such cases, the defense makes no trained professional available to the court to explain the impact and significance of particular life events on clients’ opportunities and behaviors. This cursory approach to working with experts thereby deprives clients of a pillar of competent mitigation representation.200 Best capital practices have shown in case after case that mental illness and impairments are only mitigating when presented, with the aid of suitable experts, in the context of a client’s entire life trajectory.201 The same is true in noncapital cases. 3. Defense-Based Victim Outreach New insights have also arisen from CMIC’s application to some cases of defense-based victim outreach, known in capital advocacy as DVO.202 DVO is a practice rooted in restorative justice principles which require the person who caused harm to take active steps to restore that harm to the victim.203 Such restoration will never undo the harm, and in cases of homicide, rape, and other violent crimes, can never fully restore. However, an expression of true remorse, plus whatever concrete steps are possible to offer restitution or repair, can aid a victim’s healing.204 In addition, defense teams have access to information that can provide answers to victims’ questions, which may help them move past initial stages of fear and shock toward a place of understanding aspects of the crime.205 Mitigation investigations also provide explanation for a defendant’s behavior, which may demystify the traumatic events surrounding the offense. In this sense, presenting mitigating information to 199 O’Brien & Wayland, supra note 57, at 756. Id. at 772. 201 Id. at 759, 779. 202 Mickell Branham & Richard Burr, Understanding Defense-Initiated Victim Outreach and Why It Is Essential in Defending a Capital Client, 36 HOFSTRA L. REV. 1019 (2008). 203 Richard Burr, Expanding the Horizons of Capital Defense: Why Defense Teams Should Be Concerned About Victims and Survivors, CHAMPION, Dec. 2016, at 44-48 (citing HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE 28-29 (2002)). 204 Id. 205 Tammy Krause, Reaching out to the Other Side: Defense-Based Victim Outreach in Capital Cases, in WOUNDS THAT DO NOT BIND: VICTIM-BASED PERSPECTIVES ON THE DEATH PENALTY 389 (Acker & Karp eds., 2006) (citing SANDRA L. BLOOM, CREATING SANCTUARY: TOWARD THE EVOLUTION OF SANE SOCIETIES 225 (1997)). 200 Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 88 unknown CLINICAL LAW REVIEW Seq: 50 20-OCT-20 7:49 [Vol. 27:39 victims may play the same humanizing role that presenting it to judges plays: it takes the defendant’s actions out of the terrifying, unexplained realm of the two-dimensional, inherently evil actor, into the world of a flawed human being who committed a grievous harm, but whose motivations and behavior may be explicable by his own history of victimization, impairment, or deprivation. None of this mitigation, of course, excuses our clients’ actions. It may, however, prove enlightening to victims who are interested in learning more about the people who harmed them. As Stephanie Frogge has written concerning the kinds of questions that DVO might answer about the defendant and the import of those answers to victims: Who is this person? What does he do for a living? Is he married or does he have a family? What does the family think of this? How was he raised? What was his childhood like? In the absence of information, the perpetrator becomes “larger than life” in the minds of victim survivors and takes on characteristics and traits that often are not congruent with reality. Other questions concern the crime and the defendant’s reaction to it. Why did he do it? Was I selected on purpose? Was alcohol or other drugs involved somehow? Did something trigger this? Did I trigger this somehow? Is the defendant sorry? Is he even capable of remorse? What does that mean to him?206 These are reasons why, in cases where victims are amenable, CMIC teams reach out directly to people our clients have harmed and offer them answers, an opportunity to express their feelings about our client or his crime, and, should the victims agree, provide our clients a chance to express their remorse directly to the people their actions hurt.207 When our clients have an opportunity to express remorse directly to their victims, it facilitates their own healing.208 DVO helps our clients face and come to terms with the damage they have caused and to understand how and why they committed their crimes and who they hurt as a result.209 It has also helped our clients commit to educating themselves, finding paths to productive lives, and doing service to others to help them avoid the paths that led our clients into the criminal justice system.210 In this sense, DVO presents an opportunity 206 Stephanie Frogge, Victim Outreach: An Ethical and Strategic Tool for the Defense, CHAMPION, Apr. 2014, at 35. 207 SERED, supra note 47, at 111-18 (describing accountability practice of “‘doing sorry’—taking actions to repair harm to the degree possible, and guided when feasible by the people harmed”). 208 Burr, supra note 203, at 46-47. 209 Id. 210 Id. at 47. Electronic copy available at: https://ssrn.com/abstract=3737616 R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 51 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 89 to identify defense-based sources of restoration that the adversarial criminal justice system, whose focus is on punishing “offenders” and not restoring victims, fails to do.211 DVO also provides the defense team a chance to offer victims information about what to expect from legal proceedings. In our DVO casework, students have kept victims abreast of the timeline and trajectory of sentencing proceedings and answered questions concerning the range of punishment our clients are facing. This ameliorates victims’ stress related to the uncertainty surrounding timing and possible outcomes of criminal cases. In addition, DVO has provided students with a window into the extent to which the victims’ wishes and the prosecution’s recommended sentences align or diverge from one another.212 CMIC’s DVO philosophy is consistent with that of organizations such as Common Justice and Crime Survivors for Safety and Justice, which premise their work on the recognition that victims of trauma are at greater risk of causing harm in the community.213 Our DVO work is tied inextricably to the recognition that our clients have, in all the clinic’s cases to date, survived serious crime themselves well before they harmed anyone else.214 Communities most impacted by crime are full of people who have been on both sides of the often blurry “offender-victim” line. Students’ mitigation advocacy, which focuses attention on the social conditions contributing to crime, works toward solutions that rehabilitate our clients and redirect resources to the depleted communities from which they all too often hail. Our advocacy is aimed at promoting solutions like those that Common Justice and Crime Survivors for Safety and Justice offer: alternatives to incarceration for victims of violence who later commit crimes; redistribution of funds away from prisons and into mental health programs, drug treatment, and victims’ services; and building trauma-treatment centers in high-crime neighborhoods.215 Finally, our DVO work arises from an understanding that while prisons certainly incapacitate and punish, they do little to hold imprisoned people actively accountable for their crimes. Incarcerated people 211 See Richard Burr, Litigating with Victim Impact Testimony: The Serendipity that Has Come from Payne v. Tennessee, 88 CORNELL L. REV. 517, 517 (2003); SERED, supra note 47, at 28, 30. 212 See Frogge, supra note 206, at 35. 213 See SERED, supra note 47, at 74; Sarah Stillman, Black Wounds Matter, NEW YORKER (Oct. 15, 2015), https://www.newyorker.com/news/daily-comment/black-woundsmatter (describing the organizations and their work). 214 SERED, supra note 47, at 4. 215 Gohara, supra note 4, at 50 (citing sources). Electronic copy available at: https://ssrn.com/abstract=3737616 R R R R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 90 unknown Seq: 52 CLINICAL LAW REVIEW 20-OCT-20 7:49 [Vol. 27:39 passively “do time.”216 DVO requires our clients to face and engage with victims, express genuine remorse, and repair (to the extent possible) the harm they caused.217 This may benefit clients at sentencing, but more fundamentally, it benefits them by counteracting the avoidance and shame that so often has led them to commit crime in the past.218 B. Questions for Future Research In this article, I have presented one example of how to operationalize noncapital mitigation principles through a law school clinic. Yale Law School’s Challenging Mass Incarceration Clinic is young, however, and plenty of questions for future scholarship, research, and practice remain. This section touches on a few. 1. Questions About the Potential for Fundamental Sentencing Reform Grace Notes’ prescription for shortening prison terms, even for serious offenses, is the premise of CMIC and of this article. Questions about whether that prescription is the most effective one are fair and worth examining. One such category of questions is whether focusing on defense practice norms is as important as focusing on prosecutorial and judicial discretion, or on statutory frameworks that still include mandatory minimum or inflated guidelines schemes. Grace Notes’ blueprint and our practice in CMIC are designed to start with defense lawyers because they have the immediate power to use their advocacy to influence prosecutorial and judicial decisions.219 As all justice stakeholders begin to reconsider the roots of crime and the deserts of people who break the law, they can use their power to shift public policy. CMIC’s practice has shown that comprehensive social history mitigation can, in fact, shift judicial and prosecutorial perceptions and sentencing decisions and recommendations. As happened with capital practice, our noncapital sentencing practice in individual cases has harnessed insights into the social science behind a great deal of crime.220 Clinic case outcomes and analysis of clinic case sentencing transcripts show that such insights have already begun to impact judges’ and prosecutors’ assumptions about criminal sentencing. 216 SERED, supra note 47, at 93, 96-98. Id. 218 Id. at 67-68 (citing JAMES GILLIGAN, VIOLENCE: OUR DEADLY EPIDEMIC CAUSES (1996)). 219 Gohara, supra note 2, at 49. 220 Id. at 46-48, 85. R 217 AND Electronic copy available at: https://ssrn.com/abstract=3737616 ITS R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 53 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 91 A question remains whether and how that will translate into public policy changes. Study of legislative testimony, for example, by justice stakeholders in jurisdictions where defense counsel are practicing capital-style noncapital sentencing advocacy might shed light on whether the in-court practice will translate into widespread policy change. That project will require implementation of the capital-style practice norms and follow-up study of sentencing decisions and any related public policy advocacy. 2. Questions About Fairness Another set of questions relate to whether CMIC’s practice will result in fairer and more just sentencing.221 One particular concern is whether judicial discretion will result in more unwarranted sentencing disparities than existed under the mandatory guidelines regime. After all, the move from completely individualized sentencing to the mandatory guidelines system came about as a result of bipartisan concerns about sentencing disparities.222 For example, it is certainly true that while CMIC clients in three firearms cases have received no additional prison time or substantially below-Guidelines prison terms, 40.5% in the District of Connecticut received prison terms within the Guidelines.223 Depending on a host of other case factors, that statistic may indeed signal a disparity, which may be, in part, the result of differences in the quality of defense sentencing advocacy. (A related area worth additional study is the extent to which simply putting more mitigation resources—more lawyers and mitigation specialists on teams, additional funding for experts, enhanced mitigation training for public defenders, for example—into all cases, regardless of whether they apply the clinic’s methods, would result in reduced sentences akin to those that CMIC has achieved.) In CMIC’s practice, students learn that their duty is to represent their clients zealously in each case, regardless of concerns about systemic disparity. However, to answer the empirical question whether adoption by some defenders of intensive mitigation practice would result in widespread disparity requires study. If it turns out that there is 221 A related question is whether and to what extent the inherent idiosyncrasies of judicial discretion will always lead to sentencing disparities and what to do about judiciallycreated disparities. See, e.g., FRANKEL, supra note 34, at 12-25, 69-85; cf. STITH & CABRANES, supra note 34, at 104-42. 222 STITH & CABRANES, supra note 34, at 80-81. For an overview of the bipartisan Congressional concerns about disparities in individualized sentencing that led to adoption of the federal sentencing guidelines, see id. at 38-48. 223 2019 D. CONN. STAT., supra note 96, at 16 tbl.10; 2018 D. CONN. STAT., supra note 96, at 16 tbl.10; 2017 D. CONN. STAT., supra note 96, at 18-19 tbl.10; 2016 D. CONN. STAT., supra note 96, at 18-19 tbl.10. Electronic copy available at: https://ssrn.com/abstract=3737616 R R R R R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt 92 unknown CLINICAL LAW REVIEW Seq: 54 20-OCT-20 7:49 [Vol. 27:39 a disparity and, with all other factors being equal, it is a result of variations in the quality of defense advocacy, then additional questions arise. Which paradigm, individuation informed by a defendant’s “whole life,” or uniformity based on offense conduct and actuarial “offender characteristics,” fosters just and proportionate punishment? Does actuarial sentencing really eliminate disparity?224 Is maintaining the quality of noncapital defense sentencing advocacy to a baseline in pursuit of uniformity feasible, efficacious, or just? If so, whose practice should set that baseline? Those questions, as well, deserve close examination once data is available. With that said, CMIC teaches students excellent sentencing practice. The clinic aims to raise the level of noncapital sentencing advocacy nationally as our students practice in other jurisdictions and as sentencing judges come to expect their standards of practice. This is how national capital defense standards evolved. CMIC students are poised to lead the same evolution in noncapital sentencing representation.225 Another question is whether the clinic’s emphasis on rehabilitation will really serve clients in the long-term or simply subject them to judicial control in the community. The clinic’s rehabilitation plans have worked by offering problem-solving courts and additional supervision in exchange for reduced or no prison time. The matrix of rehabilitative services that students have presented in clinic clients’ cases has proved persuasive. Clients’ completion of Support Court, probation-supervised drug treatment, community service and vocational programs, plus terms of federal supervised release has demonstrated to judges that clients are amenable to and responding well to community-based treatment programs, working, and willing to submit to close monitoring in lieu of prison. However, as Fiona Doherty has written, supervisory sentences also ensnare and risk detention if probationers relapse or deviate from strict supervision requirements.226 Problem-solving courts also implicate complicated questions of procedural justice and what rights defendants bargain away in exchange for participation.227 Research into whether bargaining for reduced or no prison time results in lengthier terms of supervised release is worth 224 See STITH & CABRANES, supra note 34, at 126 (“Applying the same objective, mechanical system uniformly to all cases is simply an objective, mechanical way of dispensing the arbitrariness that is inherent in the system. An ex ante set of sentencing instructions can spread only a relatively coarse grid over the infinitely complex field of human behavior.”). 225 Gohara, supra note 2, at 55. 226 Doherty, Obey All Laws, supra note 42, at 295; Doherty, Testing Periods, supra note 42, at 1704; Doherty, supra note 129, at 1017. 227 See, e.g., Jane M. Spinak, Why Defenders Feel Defensive: The Defender’s Role in Problem-Solving Courts, 40 AM. CRIM. L. REV. 1617 (2004). Electronic copy available at: https://ssrn.com/abstract=3737616 R R R R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 55 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 93 pursuing. The efficacy of problem-solving courts in reducing prison sentences and recidivism in federal criminal cases, and at what cost to defendants, raises another important set of questions for a future project. 3. Questions About Risks A third set of concerns is the extent to which increased focus on defendants’ life histories may risk changes to sentencing that will undermine mitigation. One question is whether enhanced mitigation will provoke increased attention to victims’ plights, which may backfire against defendants. In federal court, and in nearly all the states, victims are entitled to certain procedural protections during litigation of criminal proceedings arising from crimes that impacted them, including the right to deliver victim impact statements at sentencing hearings.228 Moreover, law enforcement and prosecution case records already provide courts with documentation of all the harms defendants cause victims, though certainly without the emotional force of live in-court statements. In all the clinic cases where our clients have harmed other people directly (as opposed to harming the community broadly), victims have opted to speak. Whether those decisions were in response to the clinic’s enhanced mitigation work remains unknown. As noted, our DVO practice has been to engage with victims whenever they are amenable to defense outreach. Regardless, students prepare for victims’ participation in the sentencing process in all cases. Providing clinic clients with the opportunity to express remorse, and when they are permitted to, make amends directly to victims, has been foundational to our clients’ ability to heal and move past the shame and trauma that have contributed to their offenses. It has also demonstrated our clients’ remorse and responsibility for their crimes. If it turns out that presenting a record of our clients’ own histories of victimization inspires more victim impact testimony, then that presents all the more opportunity for clinic students, supervisors, and our clients to engage with victims’ perspectives and viewpoints as part of our advocacy. Moreover, mitigation-rich sentencing records have, even in cases with strong victim impact statements, resulted in reduced prison time for clinic clients. Therefore, eschewing the opportu228 Crime Victims’ Rights Act, 18 U.S.C. § 3771 (2018); Victims of Crime Act, 34 U.S.C.A. ch. 201 (West 2020); see also Victims’ Pretrial Release Rights and Protections, NAT’L CONF. ST. LEGISLATURES (May 12, 2015), http://www.ncsl.org/research/civil-andcriminal-justice/pretrial-release-victims-rights-and-protections.aspx (searchable database of crime victims’ rights laws). Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 94 unknown CLINICAL LAW REVIEW Seq: 56 20-OCT-20 7:49 [Vol. 27:39 nity to present courts with mitigation evidence that has proven effective in reducing sentences is not a worthy trade-off on the speculative chance that mitigation may provoke more robust victim participation. The impact on the victim will always be a part of sentencing in one form or another. The clinic’s philosophy is that facing that, accounting for it, and advocating zealously and compassionately in response is the best practice. Further, challenging the traditional bright line between victims and defendants reflects the truth of our clients’ own victimization and foregrounds the experiences that the people who live in communities most impacted by crime all too often share. As judges have recognized in our sentencing hearings, conditions in those clients’ homes and neighborhoods and their own untreated trauma have contributed to the harms they have inflicted on their communities. Finally, and as importantly, DVO has provided victims with a point of contact with the defense team and an invitation to demystify the person who harmed them. Courageous lawyering requires diving headlong into the most difficult, frightening, and righteous positions counter to one’s own. We teach defense-clinic students to approach victims with the same empathy and compassion with which we approach our own clients. The combination of DVO and whole-life mitigation thereby exposes the oversimplicity of the traditional and oppositional victimdefendant divide and replaces it with one that more accurately reflects the complicated reality of commonality and shared experience. Another risk is that the clinic’s medico-legal paradigm will appear to pathologize clients. In one sentencing hearing, the court wondered whether our client’s addiction and trauma-related symptoms were a pathologic adaptation from his having witnessed violence as a child in his neighborhood. The court’s characterization of the mitigation as pathological represented a departure from the clinic’s aims.229 Our mitigation method seeks, rather, to explain through medical and social science how and why symptoms such as addiction are often adaptive and expected responses to the types and levels of traumatic exposure our clients experience. This does not mean that our clients are whole and well. But neither does it mean that they are sick or pathological. It means that they are injured and need healing. This is a subtle distinction that requires careful thought and calibration of the clinic’s evidentiary submissions, expert reports, and narrative tacks. This is crucial work our students and supervisors will undertake as we continue to evolve and refine clinic practice. 229 Client H Sentencing Tr. at 50-51. Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 57 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 95 4. Questions About Data A third category of research arises from our sentencing outcomes and concerns rigorous analysis of how those outcomes compare to those in similar cases. The nine CMIC federal sentencing cases considered here present a small sample size. A brief description of CMIC’s case selection criteria may shed light here. The Federal Defender’s Office and I select CMIC cases based primarily on whether their expected case dockets will align suitably with the academic calendar. Severity or nature of charges or convictions only figures into our consideration to the extent that we believe that a particularly complicated case, or a client who is facing an especially lengthy or likely prison term, might benefit from the clinic’s enhanced resources. Clinic case outcomes demonstrate that CMIC’s methods have reduced punishment even in those high-stakes cases and on behalf of clients in particular jeopardy. It stands to reason that the clinic’s methods would also mitigate punishment in less complicated or aggravated cases, though we do not know at what level of severity, if any, the benefits of our approach would begin to wane. The statistics presented in Section III.B.1 show that CMIC’s clients are sentenced generally below guidelines at a rate that is higher than average for the District of Connecticut and as compared to cases within the same categories of conviction nationally. However, a thorough cross-case comparison isolating the impact of comprehensive social history mitigation requires a larger sample size, plus regression analysis isolating variables associated with each type of case, just a few of which would include: whether the defendant cooperated in the prosecution of others; what categories of mitigation the defense attorney argued; how many charges were in the defendant’s initial indictment compared to how many they actually pled to or were convicted of; what types of behavior counted as relevant offense conduct; whether the defendant was detained or out on bond presentencing; whether the defendant engaged in rehabilitation programs while awaiting sentencing; the prosecutor’s recommended sentence; and many more. An analysis of this sort might begin in the District of Connecticut and then look to another district for comparison. This is another area ripe for future research. Another set of data questions relates to the reasons that decisionmakers actually rely on when mitigating punishment. As of now, CMIC’s information is anecdotal and relies primarily on the type of sentencing transcript analysis in Section III of this article as well as on reports from the FDO about sentencing outcomes in other cases in which attorneys have employed CMIC’s methods. To plumb a more methodical exploration of how CMIC’s methods have impacted judi- Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 96 unknown CLINICAL LAW REVIEW Seq: 58 20-OCT-20 7:49 [Vol. 27:39 cial decisionmaking systemically, one might conduct qualitative interviews; sentencing judges could then shed specific light on which factors they found most persuasive or which particular aspects of mitigation they considered most compelling. Another method of approaching the question of what theoretical basis for mitigating punishment people rely on most, is to conduct an empirical study which provides a series of hypothetical case vignettes and facts such as child abuse in a defendant’s background, plus a range of sentences according to hypothetical guidelines.230 This experiment will permit analysis of first, whether, and if so, why, certain types of adverse experiences impact lay people’s estimation of appropriate punishment. If the experiment suggests that adverse experiences have a mitigating impact, then a future similar survey of judges could compare their responses and reasoning to that of lay people. This project also has the potential to tease out strains of reasoning behind outcomes like that of Client F, where the court accepted his extraordinary rehabilitation and the traumatic roots of his addiction but nevertheless believed that prison time was warranted because a nonprison sentence would fail to promote respect for the law.231 More specific understanding of why people believe that prison time is necessary, even when they accept mitigating arguments, will help the clinic refine its advocacy. 5. Questions About Scalability Finally, a perennial question for public defense clinics is whether they teach a model of practice that is replicable in “the real world,” particularly in a busy, high-volume public defender office, where clinic students may pursue careers. The answer to that question varies, depending on the model of the clinic in question and the resources and approach of the public defender office to which it is being compared. Many public defender organizations already engage in holistic, clientcentered representation that meets a range of clients’ legal and social work needs.232 For those offices with resources dedicated to thorough investigation, mitigation work, and services designed to support clients’ rehabilitation, the CMIC model is less of a stretch than for offices without social workers, investigators, or mitigation specialists. The work product templates, or master documents, would provide a 230 I am collaborating with Gideon Yaffe, a colleague at Yale Law School, and Dries Bostyn, of Ghent University in Belgium, on such a study. See Heather K. Gerken, Resisting the Theory/Practice Divide: Why the “Theory School” Is Ambitious About Practice, 132 HARV. L. REV. F. 134, 142 n.43 (2019). 231 Client F Sentencing Tr. at 35-37, 45, 50-51. 232 Anderson et al., supra note 170, at 819, 825-26 (describing the results of a RAND study of case outcomes comparing the Bronx Defenders, a holistic public defender’s office, and the Legal Aid Society’s Bronx Office, a traditional public defender’s office). Electronic copy available at: https://ssrn.com/abstract=3737616 R \\jciprod01\productn\N\NYC\27-1\NYC101.txt Fall 2020] unknown Seq: 59 20-OCT-20 Narrating Context and Rehabilitating Rehabilitation 7:49 97 framework for organizing and accessing work that the defense team in holistic offices is already collecting in many instances. The emphasis on social science and broad historical and socio-legal context is one that public defenders can begin to incorporate into their sentencing memoranda and hearing presentations. CMIC’s partnership with the Federal Defender’s Office in the District of Connecticut has proven as much. The challenge with replicating the model is more pronounced when the comparison is with solo contract attorneys and with public defender offices lacking resources for investigators, social workers, and mitigation specialists. High caseloads, which diminish the time a defender has to devote to any one client’s case, will remain a major constraint for some practitioners in these situations. However, our students learn a defense framework that is applicable to all cases, and they will have the perspective to decide when in higher volume practices to triage and apply it with varying degrees of thoroughness and completion to cases on their dockets. The lens for social context and rehabilitation-focused mitigation will remain with a CMIC-trained student, as will the methods for assembling the building blocks of the mitigation case. Our alums will know how to conceive of a thorough social history investigation, to conduct that investigation, and to organize its fruits. They will know to connect their clients as early as possible to rehabilitative treatment programs. They will know to build and develop a store of social science, medical, and historical resources that chronicle the social conditions common to many poor people prosecuted for crimes. They will know that if they obtain an expert’s teaching declaration describing the neurological, developmental, and behavioral impacts of trauma, they can use it in multiple clients’ cases to conserve resources. They will also know that engaging with victims has transformative potential for clients and the people they have harmed. CONCLUSION In this article, I have examined Yale Law School’s Challenging Mass Incarceration Clinic’s blueprint, theories, methods, and outcomes. The students’ work has demonstrated in a small sample of cases that when defense teams provide courts with a mitigation presentation that both explains clients’ involvement in crime in the context of their whole lives and demonstrates rehabilitation, judges are willing to reduce prison sentences or jettison incarceration altogether. By sentencing people to participation in community-based drug treatment or mental health programs instead of prison, courts point to the Electronic copy available at: https://ssrn.com/abstract=3737616 \\jciprod01\productn\N\NYC\27-1\NYC101.txt 98 unknown CLINICAL LAW REVIEW Seq: 60 20-OCT-20 7:49 [Vol. 27:39 need for more resources for rehabilitation services.233 These are the transformative results I aspired to in Grace Notes when I recommended capital-style mitigation advocacy in noncapital cases. The early lessons also point to plenty of room for refining and innovating the model and fruitful avenues of future research as CMIC and other clinics put these theories into practice. 233 The RAND study published in the Harvard Law Review comparing the Bronx Defender’s and Legal Aid Society’s case outcomes found that while there was little difference in the criminal adjudication results the two offices achieved, the Bronx Defender’s holistic model reduced the likelihood of a custodial sentence by 16% and reduced the expected sentence length by 24%. See Anderson et al., supra note 170, at 823. Electronic copy available at: https://ssrn.com/abstract=3737616 R