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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.

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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

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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.

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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.

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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.

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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.
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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.

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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.

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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

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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).

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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).

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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

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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).

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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).

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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

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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

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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.

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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

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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

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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.

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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.”).

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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.

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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.

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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).

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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).

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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

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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.

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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).

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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).

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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.

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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

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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).

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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

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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

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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.

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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).

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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.

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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.

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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).

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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).

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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.

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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-

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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).

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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

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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.

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