I recently received a kind offer from Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, for an update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house. In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," on this topic. Alison's update is so detailed and interesting, I will need three posts to report all she has to report. This first one covers what she calls "sentencing Victories":
The Federal Criminal Justice Clinic that I founded and direct at the University of Chicago Law School has engaged in systemic litigation against fake stash house robbery cases in Chicago. Our litigation has resulted in dramatically lower sentences for scores of clients and is changing the law around the country.
Sentencing Victories
Several years ago, the Federal Criminal Justice Clinic (FCJC) filed pretrial Motions to Dismiss for Racially Selective Law Enforcement on behalf of 43 defendants charged in the 12 pending fake stash house cases in Chicago, alleging that the ATF had unconstitutionally discriminated on the basis of race in targeting people of color. The FCJC approached the legal issue of racially selective law enforcement in an innovative fashion by coordinating across cases and bringing empirical evidence to bear. See ATF Sting Operation Accused of Using Racial Bias in Finding Targets—the Majority of Them Being Minorities, Chicago Tribune (Mar. 3, 2017). Last December, the 9 federal judges presiding over these cases held a joint evidentiary hearing on our motions, an unprecedented occurrence. See Was Racial Profiling Behind ATF Stash House Stings? Chicago Judges to Take Up Landmark Case Today, Chicago Tribune (Dec. 13, 2017); Court Decision Could Force Changes to ATF’s Undercover Operations, NPR: Morning Edition (Dec. 15, 2017).
When the FCJC began this litigation, our clients were facing 15-to-25-year mandatory minimums and far higher sentences under the federal Sentencing Guidelines. In the wake of the hearing, the U.S. Attorney’s Office in Chicago made highly unusual plea offers in all of the cases, offering to dismiss all of the remaining mandatory-minimum gun and drug charges. See Under Pressure by Judges, Prosecutors to Offer Plea Deals in Controversial Drug Stash House Cases, Chicago Tribune (Feb. 21, 2018).
Of the 43 clients who participated in our selective enforcement challenge, 34 have now been sentenced. Fully 27 of the 34 received sentences of “time served,” despite requests by the government for within-Guidelines sentences that ranged as high as 12 years. The remaining clients received significantly below-Guidelines sentences. The chart linked here depicts these incredible outcomes and is being filed publicly with the judges to show that time-served sentences are now the norm in these cases. As a result of the plea offers and time-served sentences, clients on bond were allowed to remain in the community, clients in custody were promptly released, and our clients collectively were spared hundreds of years in prison. These remarkable results are attributable to the tremendous efforts of everyone in the FCJC: Professor Erica Zunkel (the Associate Director of the FCJC), Professor Judith Miller, and the many students who worked on the litigation.
These extraordinary sentencing outcomes show the power of litigating creatively and demonstrate that sometimes the fight alone can bring about systemic change, regardless of the legal outcome. The FCJC did not win the motions to dismiss, but the U.S. Attorney’s Office and the ATF have entirely stopped bringing fake stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere. The FCJC’s litigation also changed the judges’ perspective on these cases. Although Chief Judge Castillo “reluctantly denied” the FCJC’s Motion to Dismiss in his two stash house cases, he wrote: “Our criminal justice system should not tolerate false stash house cases in 2018.” United States v. Brown, 299 F. Supp. 3d 976, 984 (N.D. Ill 2018). In particular, he said, “The inherent problems of this District’s false stash house cases must be seen through the lens of our country’s sad history of racism,” id. at 985, and implored the government to “relegat[e]” them to “the dark corridors of our past,” id. at 984; see also Editorial: Even Fighting Capone, Feds Knew Better Than to Resort to Cheap Tricks, Chicago Sun Times (Mar. 13, 2018). In another FCJC case, Judge Gettleman issued a sentencing opinion “express[ing] this court’s disgust with the ATF’s conduct in this case.” United States v. Paxton, 2018 WL 4504160, at *2 (N.D. Ill. Sept. 20, 2018).
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