For the past five weeks, students and staff at Fordham Law School’s Federal Litigation Clinic and Criminal Defense Clinic have been working to secure the release of inmates whose medical conditions make them vulnerable to the COVID-19 virus, as well as those whose sentences are almost complete and those who are being held while awaiting trial. They are arguing that all inmates are at risk of contracting COVID-19 because of how quickly it spreads in spaces where people are in close proximity to each other.

Two Recent Victories

The Federal Litigation Clinic, which is supervised by Michael W. Martin, associate dean for experiential learning, Ian Weinstein, former associate dean of clinical & experiential programs, and Jennifer Louis-Jeune LAW ’08, scored two victories in recent weeks. In the first case, they worked with prosecutors to secure the release of a man convicted of financial fraud whose sentencing date had been delayed due to the pandemic-related slowdown in court proceedings. Waiting for his sentencing in a federal detention center, they argued, made him vulnerable to contracting COVID-19.

By the time his sentencing date would have happened, he would have served more time waiting in prison than he was required to. An added wrinkle in the case was the fact that man is not a U.S. citizen, and has few ties to the country.

“Part of this process was finding an adequate place for him to stay and making sure he has adequate resources to survive in the interim. It takes some creative thinking and hard work, and the students were able to do that creative thinking and hard work to land this person in a compatriot’s home who had not known him before, and has been very generous to him,” Martin said.

In the second case, the clinic won a federal habeas petition on a faulty gun conviction that enabled a client facing deportation to win his immigration case, and thus release him from ICE custody. The students’ work not only assisted in releasing their client from custody, where their client was at risk for contracting COVID-19 every day he was still incarcerated, but also allowed him to remain in the country and return to his 8-year-old son. This reunion was particularly poignant as the son’s mother (the client’s fianceé) had died during the client’s incarceration.

“This is a client I’ve had for five years who really believed he had no chance of being reunited with his family, and today he’s with them, lying in his own bed, taking care of his son, which is really great news. The students knew it was important to get him out,” Martin said.

“Every lawyer should know what it is like to hear a released client tell him that the air never smelled so sweet.”

Meeting a Threshold for Freedom

The clinic, which is staffed by 12 law students, has up to 15 clients at any given time. Martin said roughly a third of its current clients potentially meet the COVID-19 threshold the Department of Justice has put in place to determine if they’re eligible for early release. Those conditions include inmates who have only a few months left on their sentence; those whose crimes did not include physical violence; those with ailments that make them especially vulnerable to COVID-19, such as serious breathing or immunological conditions; and the elderly. His students have taken to the job with extraordinary zeal, he said.

“Their clients are literally in life-and-death situations at this very moment. There’s a certain level of exigency if your client is far more vulnerable to the pandemic than others, and frankly they are going to be far more vulnerable just because of where they’re placed,” he said.

Opposing Sides Working Toward a Similar Goal

Sophia Porotsky, a second-year student at the Law School, said working for the clinic has energized her and strengthened her desire to do civil rights work after she graduates. She said it became very apparent early on that the legal landscape in which they’d be working had shifted dramatically with the COVID-19 outbreak, as the federal authorities realized they couldn’t protect all inmates from harm.

“We were able to see on listservs that other lawyers were getting bail applications, and they were relying less on established law and more on the conditions we’re in right now,” she said.

“At first, it started out as, this is kind of a wild shot, but we have to try. But as we started to communicate more with the U.S. Attorney’s office, we started to see that actually both sides are working to try to reach the same goal.”

That shift in the government’s posture is far from uniform, she said, but it did contribute to the clinic’s two recent successes, which she said had surprised her.

“Every step of the process, there was a new hoop that we had to jump through or a new problem to solve, and every time we hit a wall, we found a way around it, or the U.S. Attorney’s office responded in a way that we didn’t expect,” she said.

“I’ve been surprised at how resourceful people in the clinic are, and how we’ve been able to put our heads together to solve problems, and not hesitate to reach out to the other side to help problem-solve.”

Martin agreed that the pandemic has illustrated the folly of assuming that one side of the criminal justice debate is strictly in favor of incarceration, while another is against it.

“Our criminal justice system has a lot of flaws and this pandemic is actually revealing some of them. But there’s no question that there are people within the system on all sides who at some level are trying to help,” he said.

Helping Those Who Have Served Their Time

Cheryl Bader and Martha Rayner, associate clinical professors of law who co-supervise the Criminal Defense Clinic, faced a different challenge.

They supervise a cohort of pro-bono scholars who have recently taken the New York State Bar exam and are now spending their final months in law school providing full time representation to clients who have either been accused of misdemeanors in New York City courts or are serving long sentences in state prisons for felonies.

But because the pandemic severely curtailed court operations, the clinic has had to think creatively about ways to make sure its four clients awaiting trial in criminal court are zealously represented. Their rights to a speedy trial, for instance, are at risk at the moment, as the normal efforts to locate and interview witnesses have been severely limited. In contrast to the holding pattern for criminal court cases, there has been added urgency for some of the clinic’s six clients who are currently incarcerated. This includes a woman who has only a few months left in a 25-year minimum sentence for a felony she committed, and whose release they are working to secure.

“She is really in the crosshairs of COVID based on her age and her underlying conditions, so the students have been working hard to try to secure her release earlier than her minimum sentence, which has proved to be challenging,” Bader said.

“This is somebody who has used her time in prison to better her life, and she came before the parole board, who found that she should be released back into society, and she will be reentering society in a few months. So, for her to be incarcerated during a time when it’s dangerous to be in prison, when she can’t socially distance herself, and she has underlying conditions that increase her risk of dying, makes no sense.”

Providing Life-Saving Information

While advocating on behalf of their incarcerated clients, it became clear to the students that a major source of stress for their clients was the lack of any official communication about the impact of the virus on the incarcerated population and on their loved ones on the outside. In response, students in the Criminal Defense Clinic are producing a weekly newsletter for their clients to keep them up to date on pandemic-related news. News is tightly controlled in prisons under even the best times, and accurate information has become even harder to come by now. Bader dubbed it an “abyss of the unknown.”

“It’s much worse for those in prison, because even though there are a lot of things about the pandemic we don’t know, we’ll eat up any news and any information that comes across our desks or screens and we at least know what we don’t know. There, they don’t even know whether there’s information that people on the outside know that they don’t have access to, and so rumors abound in prison” she said.
“Clients have been extremely appreciative about the information the newsletter provides and we know they have been sharing widely with other incarcerated individuals the four newsletters that we have sent so far.”

Martin agreed that it’s been very challenging to communicate with clients. In one case, he needed to tell a client whose release he was trying to secure that once he was out of federal custody, immigration authorities might come looking for him, and some would prefer to be in federal custody in New York City than in ICE custody in Pennsylvania or Mississippi.

Working from the Kitchen Table

Emma Lee Clinger, a third-year student and a Stein Scholar, said she’s been preparing to do the kind of work she’s doing in the Criminal Defense Clinic since she was an undergraduate. She didn’t expect to do it from Fort Myers, Florida, though.

“I never thought I’d be sitting at my parent’s kitchen table every day, taking calls from corrections facilities in New York. Sometimes they just stand in the kitchen and watch me talk to a Department of Corrections employee and they’re like, ‘Who are you?’” she said.

In fact, she said, her situation grounds her further in the work of the clinic. Communication is the bare minimum of what’s needed to survive this pandemic, and it’s something her clients—unlike her and her family—lack.

The teamwork that the members of the clinic have displayed has also inspired her, as members have continued to put their clients’ needs first, even when they face challenges of their own.

“It fuels me to continue to do the work. When something is going on in one of our lives, we just pick up their work and keep moving and keep fighting, because we know whatever’s going on with us is just amplified in our client’s lives,” she said.

This spring, a group of 10 Fordham faculty members traveled there to see it for themselves. From March 17 to 22, they visited the Kino Border Initiative, a consortium of six Catholic organizations in the border city of Nogales—both on the Arizona side and the Sonora, Mexico side. Kino aims to promote border and immigration policies that affirm the dignity of the human person and a spirit of binational solidarity.

The trip was funded by Fordham’s Office of Mission Integration and Planning and featured faculty from arts and sciences, the Graduate School of Social Service, the Graduate School of Education, the Gabelli School of Business, and the Law School. The group raised $13,000 to purchase toiletries and necessities for the migrants and documented their time on a blog.

Big Changes in Just One Year

Jacqueline Reich, Ph.D., professor of communications and chair of the Department of Communications and Media Studies, co-led the trip along with Associate Professor of Theology and Acting Associate Provost James McCartin, Ph.D. It was Reich’s second time in Nogales, having worked with Kino in January 2018. Although only 14 months had passed since her last visit, the experience was very different, she said. As before, the group stayed overnight in Arizona and crossed the border to work in a comedor, or cafeteria, in Mexico, that provided meals to people waiting for asylum claims to be heard in the United States.

In 2018, she said, they would typically have one seating of 40 to 50 people—mostly men, a few women, and very few unaccompanied minors. This time, there were multiple seatings with 300 people per meal.

“We spent a lot of time holding babies while people could eat, or entertaining children, or sitting and talking to groups of families that had left Honduras, Guatemala, or regions of Mexico that were affected by gang violence and poverty,” she said.

In addition to serving meals, the group hosted a party at a women’s shelter, met with border patrol agents, and hiked along the border to understand the conditions there. They also attended an “Operation Streamline” hearing in Tuscon, Arizona, where immigrants appear in a group before a judge, who often deported them for being here illegally after two quick questions.

Glenn Hendler, Ph.D., a professor of English and American studies and acting chair of the English department, said he knew a little about the crisis at the border before heading there, but learned a lot from the trip. He was surprised to learn, for instance, that a wall was constructed through the middle of the Nogales in 1994, long before President Donald Trump made building a border wall his signature campaign promise.

‘Never Got to Say Goodbye’

Although he does not speak Spanish, he was able to connect with a 6-year old girl at the comedor whose father was washing dishes nearby.

“It was an incredible joy to make a child who was going through a horrific experience laugh,” he said.

“The next day, we were serving a meal, and I heard a little girl yelling ‘hola, hola,’ and it was the same little girl again. She was happy to see me, and I was happy to see her. But there were so many people there, that they just got rushed out. So, I never got to say goodbye to this little girl. For some reason, that just broke my heart.”

Speaking with the border patrol complicated the picture for Hendler because it showed how difficult the job is, but it did not change his mind about the moral implications of the situation. In fact, he said he now felt more emotionally connected to what had previously been an abstract concept. He also said that the bonding experience he had with the other nine faculty was “very powerful.”

Accompany, Humanize, Complicate

Carey Kasten, Ph.D., associate professor of Spanish, echoed this, saying she was moved by the possibility of future projects at Fordham. Her scholarship touches on issues related to the border, so she was familiar with the situation. But she was moved to learn things like why black water bottles are a must for those crossing the border at night. (They don’t reflect moonlight).

“We were told to accompany, humanize, and complicate. To see those real items that our guide had collected on hikes through the desert, and also to see people get out of a van who’d been deported and go into the soup kitchen we were working in, was something that really stood out,” she said.

She was also shocked at the level of needless suffering taking place. When people are deported to Mexico for instance, they are given back any cash they had on them when they were apprehended in the form of a check. But the checks are only cashable in the United States, so once a week, a nonprofit group called No More Deaths visits the comedor to help people cash them. She also wasn’t impressed with the judge who spoke to them after presiding over the deportation proceedings.

“He said, ‘I’m just carrying out my marching orders.’ And I thought, ‘You’re a lawyer. You could leave and get a different job.’”

She felt more empathy toward border patrol agents. “They have fewer choices, and their job sounds really hard,” she said. “I found it really complicated to parse it all.”

McCartin said the goal of the trip was to give faculty members an experience different from their everyday work life that would also then affect their work life. The group will reunite soon for debriefing and discussion of possible future plans.

One conversation that will always stay with him happened when a man from Honduras asked him if Americans all thought they were criminals.

“I said ‘Oh gosh, no, I have no problem with you.’ This guy was like, ‘Really? I can’t believe that.’ I said ‘No, I can see how you have a sense that that’s how Americans talk about you, and there are plenty of them that do, but there are also a lot of us that don’t really begrudge you trying to have a better life,’” he said.

“This moment of his being surprised that we’re not unified in our attitudes toward people at the border—a lightbulb went on for this guy, and I’ll remember that.”

Carrying Their Stories Back Home

Michael C. McCarthy, S.J., vice president and presidential assistant for planning in the Office of Mission Integration and Planning, said the trip was a necessity, given how immigration is now a major global challenge.

“Because this is such a major social issue and it impacts questions of justice, what we want to be as a society, and how a place like Fordham, as a Jesuit university, tries to develop students, we decided the border would be a great site for this immersion experience for a diverse group of faculty members,” he said.

Reich is making sure the issue lives on, having structured the syllabus of one of her spring classes, Films of Moral Struggle, to include representations of borders and migration. The class is also sending Easter cards to people in detention at the border to bring a little color and humanity into their lives, she said.

Above all, she said she’ll hold onto memories of conversations with the migrants she met, like one with a man at the comedor who was sporting a University of Michigan hat. He’d lived in the U.S. for 22 years before being deported after being stopped for a traffic violation.

“I will always carry their stories with me,” Reich said.

Photos courtesy of Fordham faculty.

The idea for his project, which is still being developed, comes in large part from his work supervising Fordham Law students in the clinical program in Manhattan Criminal Court.

“In lower courts, there is a vast number of cases that are resolved through litigation focused almost entirely on procedural questions,” Weinstein said. “In very, very few of the cases is there really any examination of what happened, who might have been harmed and how that harm should be redressed.”

While some say this is because of the sheer volume of cases in the system, Weinstein said he has observed ways in which the courts are resistant to greater efficiency and in which players in the system continually revert back to procedural issues and shy away from factual issues.

“This permits the system to function with very little input from law enforcement and a variety of witnesses,” he said. “In one light, there’s a kind of efficiency in that, but in another light, it means that really important voices and interests are simply ignored.

“So our lower criminal courts end up resolving many, many cases for ease and convenience and self-identity of the particular players in the system with almost no reference to what those affected by the original transgression might want.”