Barriers to Rights Protections and Collateral Consequences

The following is a transcript of a panel at “State Constitutions and the Limits of Criminal Punishments,” which took place at Rutgers Law School in Camden, New Jersey, on October 24, 2024. The transcript is edited for clarity.

Speakers:

• Eli Savit, Prosecuting Attorney, Washtenaw County, Michigan
• Rebecca Uwakwe, Senior Staff Attorney, ACLU of New Jersey
• Marcus Gadson, Assistant Professor of Law, Campbell University

Moderator:

• Hernandez D. Stroud, Senior Counsel, Justice Program, Brennan Center

Hernandez Stroud: Alright, we are going to bring you home. Sort of. There’s still one more thing, I think, after this, closing remarks. So welcome and good afternoon. I’m Hernandez Stroud, as was just mentioned. And before I proceed, I want to say thanks to all of the hard working people who’ve helped make this happen, from the State Law Research Initiative to my own fabulous colleagues at the Brennan Center through State Court Report, and finally, to the Rutgers Center for State Constitutional Studies and members of the Rutgers University Law Review. You all have made this an important, vital dialog about state courts.

So, I’m thrilled to moderate the final panel of this convening, which will be covering, broadly speaking, access to justice in the state courts. By access to justice, I mean the ability of people to seek and obtain a just resolution of legal problems through a wide range of legal and justice services. So, we are talking about the phraseology, all courts shall be open. This exists in many state constitutions, and which is also understood to be part of the scheme of the federal constitution and common law, this notion that all litigants, regardless of their station, their clout, their influence, are treated equally as their opponent, another person, a corporation or the government itself.

So this is a vital conversation. Despite what your favorite law school case book tells you, unless it’s a case book about state courts, state courts really do matter. State courts, not the federal courts, resolve most of our nation’s legal disputes. So it’s a vital conversation for more than 95 percent of all court cases filed in the U.S., which are filed in state courts. It’s a vital conversation for the millions of people then, in the criminal context; specifically, defendants who may be lawyerless, who may be under educated, who may be challenging grotesqueries proliferating behind bars and who are pitted against the powerful machinery of government, not to mention possibly the prospect of a hefty criminal sanction. And of course, it’s a vital conversation on the civil side for the millions of people annually, again, many of them on their own, who sue another or multiple others, and who might be dealing with domestic violence protections, employment rights, consumer debt, housing conditions and so much more.

At bottom, this is a conversation, a vital conversation for democracy, for human dignity, for our country, and for the direction in which it’s headed. And so for this panel to help us think through this vital topic, we will discuss some of the barriers that people entangled in our legal system confront. We will identify particular kinds of state law claims or areas of the law that have boasted some promise, where we’ve seen some successes, as well as associated challenges, where we’ve seen some struggles. And we will talk normatively about the future of state constitutionalism and how best to improve access to justice, be it through legislative or executive channels.

So I’m going to introduce my esteemed, brilliant panelists. Directly to my left is Marcus Gadson, an assistant professor of law at the Norman Adrian Wiggins School of Law at Campbell University, a prolific thinker of state constitutionalism and civil procedure. His scholarship has appeared in many top ranked journals, like the Michigan Law Review, the UCLA Law Review, and The Georgetown Law Journal. His students — I hope I’m not embarrassing you by saying this — but, I think people should know, his students have voted him 1L Professor of the Year, not once. Oh, wait, wait, hold on, not once, not twice, but three times. And he also has received the Dean’s Award for Excellence in Teaching for one of those years. I should also mention all of these awards. He’s only been on the faculty since 2019 — so a prolific scholar and educator.

And to his left is Eli Savit, the elected prosecuting attorney for Washtenaw County — I practiced that, that’s why I said it like that — Michigan. He began his four-year term in January 2021, a former eighth grade history teacher. He’s a lecturer at Michigan Law School and clerked for Justices Sandra Day O’Connor and Ruth Bader Ginsburg during October term 2014. Rather than accept one of those myriad lucrative opportunities that former clerks of the court often receive, he decided instead to return home to Michigan to serve as the city of Detroit, senior legal counsel, where he led criminal justice reform until his election as prosecuting attorney in 2020.

Finally, Rebecca Uwakwe is senior senior staff attorney at the ACLU of New Jersey, where she engages in multi-faceted advocacy to challenge unjust laws and policies that contribute to mass incarceration and racial disparities plaguing the criminal legal system. Recently, the ACLU of New Jersey launched The Clemency Project, which we’ll hear a bit more about soon, which Rebecca leads. And I actually, before I knew Rebecca, a few weeks ago, I assigned one of her writings on clemency to my students, and they loved it. Prior to the ACLU, for over a decade, Rebecca fought in the trenches as a public defender, providing zealous and compassionate representation for her clients facing misdemeanor and felony charges as supervising attorney at Brooklyn Defender Services. So please join me in welcoming these esteemed panelists.

I will save some time at the end for questions. I have the CLE announcement that I’ll make around that time. So please get your questions ready, and I hope you make them challenging ones. So let’s get started. So this is a panel about barriers, legal barriers, and we’ve talked some about lock stepping, but there’s also lock stepping in the legislative sense, where Kasia mentioned earlier, a number of states have enacted their own versions of the Prison Litigation Reform Act. And so, for example, if you go on the Pennsylvania Department of Corrections (DOC) website, they provide the federal PLRA, but then they provide their own PLRA.

States that have done this don’t mirror the federal PLRA exactly; they take parts of the PLRA. It is a multifaceted law, and so those might factor into some of the barriers you’ve heard about, some of the lack of Section 1983 equivalents that people might use as vehicles to assert claims. And often, state courts will look to the federal system to decide their own sense of immunities, rather than state immunities.

And just speaking about the PLRA, I don’t know if people know, but the Supreme Court, not long ago, the U.S. Supreme Court granted cert on a PLRA case out of the Sixth Circuit involving a Michigan prisoner. And the question is basically whether a federal district judge should have had either a trial or an evidentiary hearing when there are factual disputes about exhaustion, where those disputes are also wrapped up in the merits of the claim. And so the district judge in that case had resolved those disputes via evidentiary hearing. And so that’s what the case is about. We’ll see what happens. And so there are also economic and financial barriers to justice, which could be the difference between having counsel or not having counsel. So my first question is for Rebecca. As someone who has spent more than a decade as a public defender, can you tell us about the sort of barriers you’ve seen that prevent state courts from playing a more active role in rights protection.

Rebecca Uwakwe: Absolutely and hello everyone, thank you for having me. So, yes, I was a public defender for over a decade at Brooklyn Defender Services, and I really want to shift our discussion a little bit to what we heard from the panel of judges earlier this afternoon, and that’s talking about what happens at the trial level. Because oftentimes when we get to appellate court and when we get to Supreme Court, it’s too late. And there are a lot of barriers. Of course, there are a lot of time bars. And so I really want to take us back to what occurs in the trial level.

And so, of course, one of the main barriers is the actual Sixth Amendment right to trial that you just don’t really see exercised as much. Right now, only three percent of people charged with offenses actually go to trial. There’s a 97 percent rate of people taking pleas, and that’s for a number of reasons. Currently, the way the criminal legal system is — I’ll use a quote that’s pretty common, I would say, in the world of criminal defense attorneys, where you have a client that rejected a prosecutor’s offer and they want to exercise their Sixth Amendment right to go to trial. Because that’s really their only opportunity to tell their side of the story. As we know as litigators, when a client is going through the process, they’re being arraigned, they’re going to court appearances, they don’t get to say anything to the judge. It’s usually through their attorney, and oftentimes clients, they express: “I want to go to trial. I want to share my side of the story. I want to tell the court, I want to speak to the jury. I want to tell them what happened.”

Before we get to that point, before we get to trial, there’s usually a conference. There’s usually a discussion with the prosecution and with the judge. And oftentimes, you will hear some judges say, “Well, before trial, if you take a plea, I will give you mercy, but if you go to trial, I will give you justice.” And that is considered a threat. I’ve had clients that initially, they wanted to exercise their Sixth Amendment right to go to trial. But after seeing the extreme and excessive sentences that were being handed down in court, they immediately said, “You know what, no, I don’t, I don’t want to go to trial. I don’t.”

And that’s really the effect of the trial penalty, which I will speak about a little bit later on today, because there’s a category in our clemency project, and so that’s something that, it is coercive in nature. And so oftentimes that’s really what clients are facing. And to the extent that judges can remove that barrier. I mean, for one, don’t make a threat, right? That’s pretty easy. And in terms of prosecutors, of course, there’s the issue of overcharging. And there’s the issue of escalating plea offers. We’re talking about reducing and addressing excessive sentencing, but before we even get to the sentencing stage, as we know, most convictions are a result of, pleas. If we know that, what kind of pleas are we taking? And when is it going to be available?

Usually, sometimes actually people are penalized for wanting to get discovery. Initially, let’s say there’s a pre-indictment offer, if you don’t take the plea then, then that offer is gone, and it immediately goes up once it’s indicted. Once the case is indicted, let’s say someone wants a hearing. There’s a great suppression issue. If they want to exercise their rights there’s that constant punishment for exercising their rights. And so often, you have the prosecutor rescind an offer. Sometimes there are judges. Sometimes, I don’t want to put all the blame on one party here, but sometimes you’ll see that there are even judges that will not take certain offers that are agreed upon at a certain stage.

I know that we’re talking a lot about appellate practice, but to the extent that we can address some of these barriers, we can do that today, and it’s definitely, I know another judge from a panel earlier mentioned having this independent thought, which is very crucial. Because oftentimes I think judges are afraid of deviating from doing something that other judges haven’t done before. And so yes, right now, we have treatment court, we have mental health court. There are other ways, alternatives to incarceration. There’s diversionary programs. So there are certain things in place now that we did not have in the past, which is great. However, those are not the only means for trying to address mass incarceration or excessive sentencing.

I think that it’s important to be creative as advocates, to consider community service, consider religious organizations, bring communities and organizations inside the court so they can advocate for your client. In Brooklyn, we had a very holistic defense model, and so a lot of judges heard from community members. They would adjust their offer based on an organization vouching for a client, saying, “I will put this client in programming. I will oversee the progress of this client.” It’s a matter of reaching out, seeing what services are available, and bringing that into court. Not every program has to be through the DA’s office. And so I think a huge part of it is, are we really being creative? Are we thinking outside of the box? Although we do have certain systems in place, there are still a lot of barriers with the systems that we do have in place.

I think the last thing I’ll say in regards to barriers, regarding speedy trial, is the fact that we have to fight for discovery. In New York, in 2019, they changed their discovery laws, and so now there’s automatic discovery, which is a huge victory, but it’s not like that in most states. Usually you have to write an omnibus motion. You have to fight for certain hearings, suppression hearings and things like that. And to the extent that state courts, and prosecutors, and judges could actually come together and say, okay, discovery is important. We all believe in the Sixth Amendment, the right to speedy trial. In Brooklyn, even before we had the discovery reform, what we did was, there was an agreement between the defense bar and the district attorney, and we agreed upon an actual adjournment date for discovery. And so there are just other ways that we could work collaboratively to ensure that we are upholding constitutional rights.

Hernandez D. Stroud: Thank you. And so I want to zoom out a bit, Mark, as we’re going to come to the academy. As a scholar, you’ve written about hurdles to rights vindication, particularly in state courts, and I know you think a great deal about the development of the law within these institutions. So my question is, what are some barriers you’ve observed to rights vindication in state courts?

Marcus Gadson: Sure, and I’ll speak as much about the civil context as I will about the criminal context. And there’s several barriers. One of them I’m going to mention is going to seem really simple. It’s the fees that you have to pay. And so these come in a few flavors, some of which are relevant to Prisoner Litigation Reform Act issues, but things like paying for fees for transcripts, if you want to challenge a lower court proceeding.

For many of us, $80 or $100 wouldn’t seem like it’s that big of a barrier. But one of the things that actually has stuck out to me is a case where an inmate was challenging denial of parole in Tennessee. This person, first of all, was required to actually pay unpaid court costs in relation to a prior divorce proceeding and some other issues. And that wouldn’t seem cost prohibitive. It was 200 and something dollars. But you have to remember that prisoners, many times, actually are not being paid the same as people on the outside. And that’s actually relevant to Judith’s comments earlier, where she’s talking about dignity of prisoners and how we treat them. And a gentleman actually raised a 13th Amendment question about how they’re paid and how they’re treated. And so you have inmates who aren’t making enough money to pay these fees, and then they are bounced from court because they didn’t pay the fees. And so that’s one issue that they’re facing.

Another issue is obviously procedural complexity. So something you have to remember is many people, both inside and outside of prison, are trying to navigate the system pro se, and so the average person actually is dealing with all sorts of issues in state court, and they don’t have a lawyer. And I teach civil procedure, and I know that 1L law students aren’t yet ready to litigate claims on their own. So how much more is that true of people that may have a high school education and no legal education.

And so those are two things that are actually going to, when you think about it, shut off court access for a majority of American citizens in state court if they can’t afford a lawyer in their pro se, and they’re trying to deal with the complex code. And then another barrier is judges and their willingness to actually break down issues in layman’s terms. And so there’s actually been some really good research about this by Professor Steinberg, and there’s an article in the Columbia Law Review that you’d all probably find very interesting. But what she and her coauthors do is they look at how state court judges are explaining issues to lay people, to people without legal training, and in more cases than you would think, judges are actually failing to translate issues or concepts to pro se litigants, and in many cases, they exhibit impatience.

And I should say that’s not because they’re horrible people. Part of that is because, if you look at their caseloads, they’re just crushing. So of course, naturally, they’re impatient with an unrepresented person because they’re getting pressure. Get your docket under control, make sure that you’re managing this case load. And so then when we combine that with the lack of knowledge people have about state constitutional provisions, it really creates a just terrible bind. And then when you realize that it’s not only judges and lawyers that aren’t aware of the right to a remedy in court access, unrepresented people are also going to be aware of this.

And so the case I mentioned earlier out of Tennessee really is tragic to me, because this gentleman was challenging denial of parole, and maybe he shouldn’t have gotten out, maybe he should have. But I think he should have at least been able to go to court and argue that the parole board hadn’t been fair in his case, which is what he wanted to argue. And to not even be able to make the argument because of unpaid court costs, I think it is just really horrifying. And the thing that stuck out to me is he brings a 14th Amendment court access claim, which, as many of you know, is very narrow. It develops in the 1960s from a line of cases that descend from Boddie v. Connecticut, where women are seeking divorce, but federal courts have construed that very narrowly in part because of federalism concerns, where they’re concerned about managing a court access right in all 50 states.

But that doesn’t make any sense for a state court to have a narrow interpretation of a state constitutional provision, or, for that matter, a federal court access right based off of federalism concerns. The Tennessee Supreme Court doesn’t have to manage the right to court access in Alabama or Vermont, and yet, that’s what the court is doing. They apply the 14th Amendment court access jurisprudence, which is going to be very difficult for him. And this guy actually doesn’t raise Tennessee’s right to a remedy until his reply brief at the Tennessee Supreme Court.

And I think that’s a good argument. It just says you have the right to court access and the right to a remedy. And part of the concern behind that comes from the Magna Carta, where barons are actually cornering King John in England and saying, “We don’t like that the English legal system — in 1215, mind you — is pay-to-play, that you have to spend more money to purchase common law writs.” So I don’t see how that’s not a very compelling argument. And yet, because he doesn’t know, to raise this and the court doesn’t know to maybe ask for briefing on this before, and to Rebecca’s point, he doesn’t know to raise this at the trial court and bring this up. So the lack of state constitutional awareness, I think, really combines with some of these other factors to just make it very difficult for people to be able to actually be heard in court.

Hernandez D. Stroud: Thank you. I promise we’re going to get to some uplifting stuff, but before we do, I want to go to Michigan, where we’ve spent so much time today. I feel like this convening next time, Kyle, should be in Michigan. So as the federal courts have — this is for Eli — taken an increasingly stingy view on private rights of action against the government, state courts are often the last venue of last resort for those whose rights have been violated. Could you talk about the landscape in Michigan and where Michigan courts are moving with respect to remedies?

Eli Savit: Sure, and I think we’ll start the uplifting portion now, because Michigan courts have gotten a lot better over the past, I’d say decade, maybe decade plus with respect to these issues. By the way, I fully agree that this conference should be in Michigan next year. Ann Arbor is the best city in the world, so just keep that in mind.

So look, with respect to federal claims, there’s a bunch of barriers in federal court that you just don’t have in state court. And to start with the obvious one, it’s standing. Federal court standing is based on the Article Three case or controversy requirement, and that is applied stringently, including questions of ripeness and mootness, which can have a variety of applications in the prisoner rights litigation. But state courts can, and frequently are, more flexible, because very few state constitutions have an Article Three analog which requires a case or controversy. So those state courts still impose standing requirements. It’s more of a flexible requirement, and judges can basically say, “Yeah, you know, maybe this isn’t as ripe as it should be, or maybe it’s a little bit, but we’re going to hear it anyway, because it involves an important issue.”

The other thing that federal courts have been doing is really restricting where you have a private cause of action. I mean, Bivens is the obvious one for this context, and which is almost been read out of existence. But if you look at cases like Alexander v. Sandoval or Armstrong v. Exceptional Child Center, federal courts are really requiring a very explicit grant statutorily for there to be a private cause of action. And increasingly, they’re concluding that Congress, either through a very robust remedial scheme, or through a very scant remedial scheme, has implicitly foreclosed a private cause of action.

Now, what federal courts do have, or claims arising under the federal constitution do have is Section 1983, and you know that may be an advantage for why you — notwithstanding all of these issues — may wish to file in federal court seeking remedy for violation of constitutional rights, because Section 1983 of course, covers violations of federal constitutional rights. So that’s the one major advantage that the feds still have.

So that brings us to Michigan. Michigan, over the past, I’d say 10, 15, years, has really moved in the direction of allowing greater court access with respect to claims involving civil rights and individual rights, starting with standing. There was a period of time where the Michigan courts decided that even though we don’t have a case or controversy requirement in our constitution, we were just going to adopt the federal courts standing jurisprudence, because reasons, and it didn’t make any sense. It didn’t make any sense when that decision was issued, and indeed, the Michigan Supreme Court, I think, in the early 2010s, retreated from that. “This never made sense. We’re not doing that anymore, so we’re back to our flexible standing requirements.”

The other thing that the Michigan Supreme Court recently issued is a decision which allows for constitutional court tort claims involving damages to be brought against state officers, which is, effectively, though, and Kasia, I did review the “50 Shades of Government Immunity” on my phone just to make sure I was right about this. Though we don’t have a section 1983 analog in Michigan, allowing for damages claims for violations of state constitutional rights, the Supreme Court, our supreme court, has moved in that direction, in finding that there is an implicit cause of action and allowing for claims of damages involving violations of state constitutional rights.

And that’s really important, too, when you look at where the Michigan courts have been going substantively in reading our constitutional protections in a broader way than their federal analogs. You know you heard Maya, of course, earlier today talk about the cruel or unusual punishment jurisprudence. But we’ve also, in the Flint Water cases, the Michigan Supreme Court recognized as a substantive provision under our due process clause analog, the right to bodily integrity. That is a major hook that a whole host of claims for damages now can be tethered to, because you now can bring a private cause of action for violation of the Michigan Constitution, which is now broader, I think, than the federal constitution. I don’t think with the current makeup of the U.S. Supreme Court, that we’re going to be getting a lot of expansion with respect to substantive due process anytime soon.

So Michigan, I hope, is something of an uplifting story, as always. And I will end by just reminding people that we are still, despite our football team being horrible this year, the defending national champions,

Hernandez D. Stroud:Alright!

Eli Savit: Well, Big 10 school, I have to say that. [laughter]

Hernandez D. Stroud: I told you we’d bring you home. So, I do want to move a bit to the post conviction context and talk a bit about parole. It’s come up in some fits and starts today. Rebecca. obtaining parole, as you know, in many states, is challenging. I think the denial rate in New Jersey is over 90 percent. I know that there have been parole challenges in Connecticut and in my home state of Alabama. So this is something that’s a problem nationwide. Can you help us understand why it is so difficult for people to obtain? You’re smiling like you’re ready to answer this question. Why is it so difficult for people to obtain parole?

Rebecca Uwakwe: I think that’s the million dollar question, actually. So just to add a little bit more data to that, at least in terms of New Jersey state. So, yes, so for people on lifetime parole or for people facing life sentences, there is a 92 percent denial rate. Now, if you don’t have a life sentence, it does, it’s about 50 percent. But there’s still in our statute, there’s a presumption of release that the parole board clearly is not abiding by. And when you look at our statute, there are 24 factors that the parole board considers when determining whether or not someone’s going to be released. And they’ll go through the programming. They’ll go through community ties. They’ll go through their reflection, their rehabilitation; they’ll go through whether or not they have an institutional record.

So there’s a whole list of actual factors, and people think, as they should, that the parole board is going to base their decision on those factors. But the reality is that they do not, and in fact, they are kind of just basing their decisions on gut reactions, on politics. I think politics plays a huge role, as many parole boards are appointed by the governor. There’s obviously that huge dilemma, and here in New Jersey, instead of the 24 factors that they’re actually supposed to be relying on, they’ll use language such as, alright, we’re denying this person because of lack of insight or a lack of candor.

Just to give you an example of how that plays out. You’ll have someone who, there are a few cases there, Parole Board v. Acoli, Trantino v. Parole Board. In New Jersey state, the Eugene Berta v. New Jersey State Parole Board. So there are these cases and their challenges to the Parole Board’s decision. And the judiciary is actually — they have the standard of review, which is an abuse of discretion. So that is the argument that you’re making. So you’re saying that the Parole Board abused their discretion in failing to grant parole. That standard is very clear. The Parole Board, one, has to follow the law, which we know that they’re not doing. And two, they have to base their decision on what’s in the record. Then three is that they actually have to reasonably apply the law to the facts.

So those are the three prongs right under the abuse of discretion, and so what we’re finding is like just through litigating these cases, is that the Parole Board, to give you an example, you’ll have someone with a perfect institutional record, and they’ll go before the Board, and the Board will deny them because, let’s say they don’t admit guilt to the offense. So if you are innocent, you basically will find a very difficult time being released onto parole.

Another example is, if there happens to be one factor that they don’t like, they will hyper focus on that factor and use that as a basis for denial. And the courts have said that they cannot do that. But unfortunately, these are cases, there aren’t many that are litigated because, as we were just discussing, as Marcus mentioned, there aren’t many people that have the ability to hire counsel to go ahead and litigate these cases. Even though the courts are coming down with actually really good law for people, the Parole Board, they’re still not following the law.

And so for many reasons, a part of our practice is actually to go ahead and challenge some of these decisions. I’m talking about parole release, but this is not something that is just pertaining to parole release. So there’s parole revocation, where, thankfully, there’s counsel, and the public defenders offices are actually representing people in parole revocation proceedings. But then there’s also parole discharge. So there’s three areas of parole under the parole umbrella, the parole discharge, parole revocation, and parole release.

And so in all of those stages, there’s still the same issue. Of course, it’s the same Parole Board. And so the remedy here is, to the extent possible, to try to challenge these decisions, but it remains very difficult because of the sheer discretion that they have. And the issue is, really, judges are afraid to actually reverse a decision. Sometimes they don’t remand it, and if they do, sometimes they will remand it, they will have a good ruling, and then the Parole Board still will deny someone. They call it a revolving door, because you just keep on going, around in circles and circles. There are many issues, and I think one of the resolutions is to increase due process, procedural due process protections, and so one of the things that we’re advocating for is a right to counsel for parole release hearings.

 

There’s actually good case law in New Jersey. I don’t have the cite here, but basically they’re saying that if the Parole Board denies someone based on a confidential record that you have to disclose that one, because before they weren’t doing that, they were just denying people. So you would have to disclose it — and then there could be, and this would be through litigation, through the appellate process — there would be an in camera review of the actual record and to see the basis of the denial.

Because before they were just denying people, and they’re still doing it, just denying people. And another issue is that someone, let’s say, a parolee is just looking, and they’re wondering, well, I did everything right? I don’t understand why I’m being denied. And they don’t have access to any of the records. There’s a lot of records that are deemed confidential, and that’s another problem as well, and so that’s a huge barrier, is the lack of due process.

I had a parole discharge case where I had a client who served 32 years inside, and he was on parole, he was out, and he served 18 years on parole. And, there’s a statute, parole discharge statute, that says after seven years, you can apply for discharge and, of course, he was well over the statutory eligibility criteria. And so we went in front of the Parole Board, and they denied him, even though he had recommendations from his parole officer, he had recommendations from the sergeant, he had recommendations from the director of parole.

This is not just about individual people this is — they’re disregarding even people that are within their system, who are actually armed with the knowledge that can say this person is rehabilitated, this person deserves to be discharged. I’ve been monitoring this person for the past 18 years. I am recommending this person for discharge. The statute actually lays out a provision where you can give discretion. You can actually allow the recommendation to stand, even though, of course, it’s still subject to review. But it doesn’t go under the same scrutiny as someone that doesn’t have a recommendation.

But despite that, he had four recommendations from every single level, they still denied him because they didn’t like that he essentially didn’t admit guilt. There were contested facts, and he was remorseful and even apologized for the offense, but he said it didn’t really happen the way that the prosecution said it did. And because there was that difference in facts and his recitation of the facts, they denied him. They said he lacked candor.

It’s those decisions that we see all the time. And of course, we brought this up. We went to the appellate division and argued, and unfortunately, the court said, look, they have discretion. I am so sorry for bringing us down from the positive note from Michigan. But I say all of this to say there’s a lot of room to try to make these arguments, because it is so glaringly unconstitutional what they’re doing. You really see it when you speak to parolees and hear about the amount of times that they’ve gone up to the Parole Board, and they’ve been denied.

So another thing in New Jersey that happens is people, when they go up to the Parole Board, there is a time period that you have to wait before you go back to the Parole Board. They call that a presumptive term, and so they have within their code, for a certain offense. For every charge, there’s pretty much a presumptive term. So let’s say for murder, the presumptive term would be three years or so. Okay, so even within their own code, they’re rejecting the presumptive term, and they’re hitting people with future eligibility terms called FETs (Future Eligibility Term), for short, with 10, 20, or even 30 years. They’re rejecting the presumptive term, and then they’re arbitrarily throwing out numbers and saying, “Well, we’re not going to see them, we’re not going to hear them in front of the Parole Board for another ten years or so.” So there’s that issue. And lastly, I will talk about actual technical violations when it comes to parole.

Hernandez D. Stroud: Sorry. I just want to get to Eli. I want to talk about expungement. I’m sorry. So your office has a Conviction Integrity and Expungement Unit. I’m wondering if you can tell us about this, because it relates so much to what Rebecca is talking about and trying to correct a lot of these injustices, especially when parole boards and courts might not, through these typical channels, see eye to eye. So I’m wondering, what’s your mandate? Is there anything within your mandate that allows you to address unjust sentences, excessive sentences, the sort of sentences that Rebecca is referring to?

Eli Savit: Yeah. And so now I’m going to bring us down from Michigan a little bit, because the short answer — and then I’m going to explain a little bit more — is no, there’s no opportunity for sentence review in Michigan. Which, by the way, I’ll tell you a story from a different jurisdiction, which is wild to me. Folks may know the name Michael Thompson. This is a very highly publicized case involving a man who was convicted of a marijuana-based offense. And because he was habitualized and because there were firearms, including mostly antique firearms, that were locked in a safe, found as part of this marijuana transaction, he was sentenced to, I forget the exact term, but it was, I think it was between 35 and 60 some odd years in prison. He’s already served 30 something, and it was an effective life sentence for a marijuana-based offense. Which, by the way, if anybody has been to beautiful Michigan lately, it’s very legal there, and every billboard is talking about marijuana.

So this case gets national attention, and he’s still sitting in prison. And he’s not even eligible for parole yet. And the county prosecutor in Genesee County says, yeah, he should be out. We would never seek this sentence today. The state attorney general, who has concurrent jurisdiction, said the same thing. And to my mind, if the local prosecuting authority and the state one, by the way, also are like, “Yeah, this person should be home, that that sentence was unjust.” And you can get a judge to agree, which shouldn’t be too hard, in a case like that, there should be an opportunity, a procedure, to do so. But he sat in prison for another year as he went through the clemency process, and finally, the governor did commute his sentence, which is good, and he’s home now, and I’ve met him, and he’s a wonderful person. He started the Michael Thompson Clemency Project, so check that out. But he’s wonderful. But, incredibly unjust sentence, and there’s just no procedural way for undoing it in Michigan.

So I would like it. I would like to have a conviction integrity unit with a sentencing review function. But we don’t have it right now in Michigan, which is too bad. Now the unit that we have, you know, you’ll hear about conviction integrity units, and some of them are basically actual innocence units. And I view our mandate as broader than that. It’s called a conviction integrity unit, for a reason. If the conviction lacked integrity, then we’re going to seek to vacate it, or if there is some reason why the sentence lacked integrity, then we are going to move to vacate the sentence and get a different sentence. So we need to have a hook, right?

To date, and I’ll get to the expungement part in a second, but, but to date, we’ve had four cases in our Conviction Integrity Unit that have had some sort of vacature out of it. Two, the conviction was vacated entirely, one for just straight up actual innocence reasons, one for a Brady violation, which I think also he was actually innocent, but as soon as we found the Brady violation, that’s it. I’m not going to wait around and continue to investigate actual innocence, but two of them were sentence modifications, one of which involved a Lafler error. This was just a Lafler error, in which it was a murder case, the guy’s lawyer was doing his first criminal case in a murder case, and urged him to reject a favorable plea, sort of giving him a 20-year sentence or something like that. And by the way, was sleeping with his client’s wife as payment for the legal services that he was providing. So he had every incentive to keep the case going in order to continue to get this payment. That’s obnoxious to justice, right? And so we did the investigation. Everything was very credible. And we got the sentence vacated and got the original plea that he should have taken in the first place restored, and he was out. He’s home now.

And the other one was in Michigan, our felony murder rule was changed in the 1980s to require, under state law, an actual finding of malice. But it was expressly not made retroactive, which has presented a real issue for a number of people that are still serving sentences, life sentences, without the possibility of parole under our old felony murder law that is no longer in existence today. It was changed a long time ago by the court, and we had a case involving this, and we can’t go into court and say, “Well, I think this should have been retroactive, but the state supreme court said it wasn’t.” Because the judge is going to be like, “Well, but I answer to the state supreme court.” But we conceded on a Winship error, conceding that the jury had not been instructed properly on all the elements of the crime, and the federal due process clause, which is an issue that was left open in that case. So we got him resentenced, and he is home as well after serving 51 years in prison. That’s the kind of stuff that our Conviction Integrity Unit does. I had a friend on the other side that jokingly called it the Unit of the Dark Arts, because we try to find these ways around the fact that we don’t have resentencing authority in Michigan.

Now the expungement side of things is more direct services. Michigan actually has great expungement laws. They could be a little bit broader, but they passed really expansive expungement laws that went into effect in 2021, which allows up to three felonies to be expunged, unlimited misdemeanors. It’s really good. The problem is that you still have to, in a whole lot of cases, apply for an expungement, and a private lawyer — getting to your point — is going to charge you $2,000 on average to do it, which is a Catch-22, because typically you’re seeking expungement because you want to get a better job. If you don’t get that better job because you have a criminal record, you’re not going to be able to afford the money to pay a private lawyer to get the record expunged in the first place.

So working with a coalition of partners, we provide direct expungement services for free to any Washtenaw County resident. We’ve done over 1,000 of them so far during my tenure with the coalition. Our sheriff’s office does the free fingerprinting. The public defender’s office is involved. We have great legal services that provide direct advocacy for them in the court. Because, obviously the prosecutor’s office can’t do that.

But it’s been really successful. The great thing is, as prosecutors, we can also go into court and with the right judge all say if somebody falls just outside the scope of expungement eligibility, maybe they’ve got a fourth felony. But had they known 20 years ago that that would make it “unexpunge-able,” maybe they would have pleaded to something else. We’ve been able to go into court and basically not with any real statutory authority, I’ll be honest, and say, in the interest of justice, we’ve agreed to reopen this and allow a plea to a lesser thing. Some judges like it. Some are a little bit more skeptical of it. But that’s something that layering in the expungement piece with the conviction integrity piece allows us to do.

Hernandez D. Stroud: Rebecca, I actually am infatuated with the clemency work that you are leading at the ACLU. I think it is the leading work in the country on clemency, and maybe the people at the White House should be calling you to talk about clemency in these final months of the administration. But I’m wondering if you can tell us about the clemency project and any limitations you think it might have. And I guess as a follow up, how you decide? Actually, I’m going to take that question back, but I think you know where I’m going. But really would love to hear about the clemency work, because I think everybody would be interested in it.

Rebecca Uwakwe: So well, one, I did want to make a final point on parole revocation before I get to clemency. I promise I will be short. If you’re interested in litigating this, I want to just point people to the Less is More Act, which is New York legislation that does not incarcerate anyone, pretty much, because of technical violations. So I just wanted to throw that out there. So that people can have that as a reference point.

But yes, at the ACLU, we are advocating for categorical clemency. And categorical clemency is really different, obviously, from case specific, case-by-case clemency, or where you’re looking, where normally people would think about clemency as a grant of mercy, they look at the individual and they say, Okay, well, what happened in this particular case, and why should we grant this particular person clemency? So categorical clemency, instead of looking solely at the individual, we look at categories of people.

The categories can be, someone that has a shared age, shared criminal conviction, shared injustice. We focus on two. So our first one is survivors of domestic violence who attack their abusers, and also sex trafficking survivors, or any type of survivor of domestic violence who was under duress or coercion while they committed an offense.

And the second category, which I mentioned earlier, is based on people impacted by extreme trial penalties. And so some of the reasons why we even began with this clemency project is, it’s really an extension from the national ACLU Redemption Campaign, where we’ve really tried to go into every state and see if there was just any viability for clemency initiatives.

Now New Jersey, historically, has had a very low clemency grant rate. So from 1995 up until actually 1994 until present day, we’ve only had 105 grants of clemency in the past 30 years. So it’s extremely low and we do have a second term Democratic governor, Governor Murphy. We initiated the project because we thought it was the right opportunity to do so. And on Juneteenth this past year, he initiated, he actually announced the executive order, which included our project, and it also expanded some other rights or expedited categories, I should say.

And so part of the reason why we even chose the categories is because there’s a lot of literature, and I’ll start with survivors of domestic violence. There’s a lot of literature out there that demonstrates that they have been overlooked in the criminal legal system, especially in self-defense claims, where there have been battered women experts testifying at trial, and yet they still get convictions. There’s also a gender bias at play as well.

The Sentencing Commission in New Jersey recommended this. And this is a commission that comprises judges, prosecutors, defense attorneys. They all agree that there should be a mitigating factor for survivors. And so there are ongoing discussions about this. So we thought that it would be appropriate, obviously, to have this category. And mainly because, I mean, some of the other states, they are looking at categorical clemency. And one of the categories could be marijuana convictions. We just don’t have that issue in New Jersey because of our automatic expungement law regarding marijuana. And so there are other states that might look at the elder population, or youth, or people convicted when they were under 18.

In New Jersey, we thought that we don’t have a lot of issues that some other states might have. And we really wanted to focus and pick categories that would be really impactful. And so as for extreme trial penalties, I kind of already explained the injustice that occurs there. But oftentimes, there really is a punitive aspect of sentencing, once someone decides to exercise their sixth amendment right to trial, and the purpose of this is not really, it’s not to upend the entire plea bargaining process. It’s really to look at the most compelling, extreme cases. And part of our criteria is where we look at the prosecution’s offer, and then we look at the sentence. And the sentence would need to be double, triple, or even quadruple the prosecution’s offer. We’re looking for excessive sentencing and extreme cases where it really does seem very punitive. And, as I mentioned the quote earlier, where it seems that because this person exercised their right, that’s why they’re getting this lengthy, excessive, disproportionate sentence.

And there are a lot of cases where that overlap with felony murder. There are a lot of cases that overlap with the three strikes law. There are a lot of cases where you can see where people are convicted of double homicide, triple homicide, and it’s really, really excessive. It shocks the conscious. And so those are the cases that we’re looking at. And really, our goal, by advocating for categorical clemency, is really to just one, there’s a piece of public education. We do have a lot of support from the general public. A lot of people do care about clemency, excessive sentencing, and we do have bipartisan support in that regard.

So that’s one big thing, but also, just to get to some of the limitations with clemency, is that, right now our project, we are focusing on two categories. So of course, there are many other categories where you can see an injustice, and you can, at least, raise, or create a category based on that. And so we can’t, right now, we’re not addressing every single category in every single case, but we are addressing cases and categories where there’s already this, a lot of literature, and there’s already discussions about these issues. There’s the End the Trial penalty coalition by the National Association of Criminal Defense Lawyers, and they have a lot of case studies where they’re saying, “My client has been penalized because we went to trial.”

There’s a lot of evidence to support that this is really a systemic issue that’s happening in courts. But to really discuss some other limitations, there is a lot of fear mongering when it comes to second chances, when it comes to granting clemency, of course. I mean, this is not the court of law, right? The governor in New Jersey does have plenary power, so there isn’t a gatekeeper at all. In some other states, the parole board or designated administrative board, they’re the ones that will give a recommendation to the governor. In New Jersey, it’s not like that. It’s more similar to the federal power, executive power, and the only limitation there is, just by statute, they would have to report to the legislator, just for the matter of transparency, who they’re commuting or pardoning.

Connecticut is a good example of some of the backlash and how clemency procedures can change. In Connecticut, they actually had a robust commutation practice and there were victims rights advocates that you know spoke up and found that to be problematic, and because of that, the governor changed the entire system, removed the chair of the board, and significantly stifled the commutation practice there.

That has historically happened with a lot of state practices, state clemency practices, where you see, because of one case, it’s the Willie Horton effect too, the one case where you know something bad happens, or they just don’t, or they feel like releasing someone from prison infringes upon victims’ rights. That I would say really is the biggest challenge, I would say, in clemency. A part of what we’re doing is making sure that we’re educating the public and letting people know that this is not so much about the individual, it’s more about the injustice that occurred in their case. We’re looking at cases where people have served a significant amount of time, where they’re rehabilitated, but also there is a corrective nature that needs to be had, that we’re encouraging governors, and particularly Governor Murphy, to take a stand on and correct some of the injustices that occurred.

We know that with clemency, we can’t alone address mass incarceration. We can’t address all of the issues in the criminal legal system, but at least it would start a discussion and say, “Okay, well, I didn’t know that there were these cases, where there’s this excessive sentence and punishment, and I didn’t know that.” You know someone who said, I’m a battered woman in court that had an expert testify, and had laid out everything, her entire defense, and it was still shut down. And, she was still excessively sentenced. And so I think as people become more and more aware of actual case studies, and people’s individual cases, they can see that the problem is systemic. And this is something that we hope encourages legislators to actually address some of these issues, because we know clemency is the beginning of the discussion.

Hernandez D. Stroud: Thank you. We have maybe time for a question or two.

Question: I’m curious if there are state constitutional analogs to, sorry, that come out differently than the Bordenkircher v. Hayes case where the U.S. Supreme Court sort of allowed the trial penalty. Has that been challenged as a state, like under state constitutions, due process clauses can be r- look at plea bargaining. I’m just curious if that litigation is going on under state constitutions, and then I have a plug for challenging parole statutes as void for vagueness. But that’s not the question. [laughter]

Rebecca Uwakwe:  Well, yes, I’d like to hear that, but no, not to my knowledge, it hasn’t been litigated. I think that part of the problem is that people accept it and it’s just part of the system, and it’s just one of those things that people expect. It’s the reason why , most people, 97% of people, are taking pleas, and so maybe we need to start litigating it.

Marcus Gadson: I will suggest a couple of provisions that I think have an imperfect fit, but still could be useful. And you’re from Oregon, I think, so you were aware, I think of the former version of Article One, Section 15, where they explicitly used to focus on reformation, and then they added in other elements. There are several states that say something to the effect of, the penal code has to be based on reformation. That’s Indiana’s constitution. And then Oregon, you guys copied it and then deleted it later on. But some other states have provisions like that. And to me, if you have a constitutional provision that says that you have to focus on rehabilitation, then it seems odd to me that you would only care about that if a judge or a jury does the sentence, and you wouldn’t care about it if there’s a plea bargain.

So I think that that could be a potential vehicle, but I know Eli has brought us down. Rebecca has brought us down, so now I have to bring us down even further. These provisions, unfortunately, have a very mixed bag of success, and typically, judges are skeptical of reducing sentences on that basis. There have been some success stories, though, so one of them — I’m going to forget the name of the case, but there’s an organ case, actually from the mid 20th century, where somebody was able to get out of a habitual offender conviction that basically was kind of a very lengthy sentence because they had prior felonies. And what a lower court said was, well, if the basis of our laws for the punishment of crime have to be reformation, then you can’t put somebody away for 40 or 50 years just because they have some prior felonies. It was reversed by the Oregon Supreme Court, and these tend to fail, so that is a problem.

But now that I think I’ve demolished some hope, let me just give you a little bit of hope to go on. And that’s actually how we select judges. And judicial elections have their pluses and their minuses, and we could probably have a whole panel on it. But one thing I can say is it would be worth it to me to try to find people in the community to be judges who are open to thinking this way about state constitutions.

So in other words, think about going to a candidate forum and saying, have you thought about state constitutional provisions that are different from the federal constitution like this? And how would you think about a provision that says that you have to focus on rehabilitation? Make that part of the conversation, and I think that you might then be able to select judges who are friendly to this.

And here’s the thing about that, everybody wants the big prize of a state supreme court. You may not get that, but you might get something that’s just as helpful, which is, what if you get a reform minded superior court judge or trial court judge who is open to using the state constitution to scrutinize plea bargaining agreements more closely. That’s actually where the meat of this problem is. It’s at the trial court, and you may not have the same political backlash as you have in a statewide race. So think about going to, and I’m not sure how Oregon’s trial court system is set up, but think about introducing this issue in a trial court campaign.

Hernandez D. Stroud: I don’t know if we have time for another question?

Question: Okay, a question about the Conviction Integrity Unit. I’m pretty sure New Jersey has a conviction integrity unit housed within the public defender office. The same in Michigan.

Rebecca Uwakwe: I can respond to that. So it’s called the conviction review unit as part of the OPD (Office of Public Offender). However, it is not the actual true meaning of that. It’s really a PCR (post conviction release) practice. And so the actual Conviction Integrity Unit in New Jersey is under the AGs office.

Eli Savit: In Michigan, we’ve got four that are in county prosecutors offices, and then the attorney general has a statewide one that does all the other 79 counties, but it’s housed entirely in our office. I mean, there’s a conflict wall between our line prosecutors and the Conviction Integrity Unit for very obvious reasons, but the reason you want them housed in prosecutors offices is precisely because of some of those Brady issues. I mean, we are the ones that would have access to it, and making defense lawyers, innocence clinics, or whatever, jump through hoops to get it. It can really elongate an investigation where the prosecutor’s office — the Brady claim that I mentioned earlier, we started an investigation on the innocence piece, and we found Brady material within, like, a matter of a couple months. I mean, it was stunning.

Hernandez D. Stroud: All right. Thank you so much.