Making their way through law school, James Burnham (J.D. ’09) and a group of his peers weren’t just studying federal cases—they were winning them.
Working under the Federal Criminal Justice Project (FCJP)—a program which allows University law students to participate in the litigation of federal crimes—that group won their first case last month. The win represents years of work on several cases, all centering around punishing illegal re-entry into the United States.
“I didn’t think it was a slam dunk,” Burnham said. “I thought there was a good chance we might lose the case.”
Burnham and his peers acted as co-counsel, though they first approached lawyers with existing cases, offering to act as free co-counsel. They drafted briefs and argued before hearings. “It’s very unusual that law students would be participating as directly as we were,” Burnham said. He argued the case and responded to questions at three separate hearings.
All of the students working with the legal clinic during the 2008–2009 academic year were involved with litigation on the issue. Tom Gorman (’10), Emma Burnham (’09), and James Burnham led this particular case.
“The students participated at every step of the way,” Project Director Alison Siegler said, from drafting an initial sentencing motion to writing briefs for the court of appeals.
The FCJP was established in 2008 as an operation under the Mandel Legal Aid Clinic at the Law School. Like only a handful of legal clinics, it allows students to take the lead in litigating federal cases.
The ruling has granted judges the “discretion to equalize the sentences of illegal re-entry defendants arrested here with the sentences given to those same defendants elsewhere in order to avoid creating geographic sentencing disparity,” Siegler said.
For committing illegal re-entry—the act of re-entering the U.S. after deportation—defendants in Chicago can receive six-and-a-half to eight years in prison. “If those same defendants were arrested in Oregon, they would receive two-and-a-half years in prison for the same crime,” Siegler said.
“There is a lot of criticizing for this particular sentencing guideline [in Chicago]. It’s considered extremely harsh.”
But that was before the District Court judges made their ruling. “This unties [the judges’] hands and gives them an opportunity to give what they believe to be fair sentences,” she said.
The group of students working on the case saw the ruling as a victory. “They were ecstatic. They were thrilled beyond belief,” Siegler said. “When it came down our way, they were really so excited.”
In addition to focusing on a group of cases centered around one issue, the FCJP exposes students to a random assortment of cases, representing any defendant that seeks free legal representation on a particular day.
“We’ve represented clients in bank robbery cases and clients in mortgage fraud cases. It’s really very varied,” Siegler said. Students at the clinic take cases for new arrests through trial.
For the law students involved, the October ruling is another step in their ongoing focus on illegal re-entry and geographic discrimination cases. Four courts have sided with the Seventh Circuit Court of Appeals while three circuit courts have come down against the ruling—creating a huge disagreement in the U.S. Court of Appeals, according to Siegler.
The Supreme Court often steps in to resolve such divisions, Siegler said. Should the Supreme Court take up the issue, Siegler said, “there is a really good chance that they would take the [recently decided] case and the [Mandel] clinic would go to the Supreme Court on the issue.”
The continuation of the case requires the losing side, the U.S. government, to request that the Supreme Court consider the case. The chances of such an action are unlikely, according to Burnham.