New Clinic Seeks Prison Sentence Reductions

Student, Client Share Story of Compassionate Release
Gerald Smith and family

Gerald Smith, center, a Federal Criminal Sentence Reduction Clinic client, greeted family members after a judge granted him compassionate release in December. Contributed photo

February 24, 2021

Seventeen years into his 25-year felony prison sentence, Gerald Smith was facing a looming health crisis. The COVID-19 pandemic disrupted his regular treatments for cancer, a preexisting condition that made him more susceptible to dying from the coronavirus in prison.

With help from the University of Virginia School of Law’s new Federal Criminal Sentence Reduction Clinic, Smith was both granted a release and freed on Dec. 17.

“I was a little bit skeptical because when you file a petition to the federal judges, the U.S. prosecutor has the rebuttal to it, you know?” said Smith, 73. “And it’s really hard to get a reversal, or compassionate release. I saw a lot of inmates that didn’t get it.”

Through the clinic, students are working directly with clients to file motions in U.S. District Courts to reduce both the prison time and supervised release portions of their clients’ sentences. So far, the clinic has won immediate release for four clients, reductions in incarcerations for two and early release from community supervision for seven.

Each student has four clients assigned to them, and students work independently for those clients, while sharing drafts and workshopping the cases with the entire class. The fall clinic was comprised of third-year students Linden Atelsek, Eleanor Coates, Mark Duda, Dominique Fenton, Cody Fisher, Catherine Guerrier, Maria Luevano, Matthew Nicholls, Jonah Panikar and Jake Sillyman.

Dominique Fenton
Dominique Fenton ’21

Fenton was the student in charge of Smith’s case, which involved felony drug and firearm convictions. Before law school, Fenton served as a Youth and Family Court judge in Oglala Sioux Tribal Court, as well as a legal advocate in Tribal Court and a court-appointed defense investigator in federal criminal cases on Indian reservations. He previously participated in the Innocence Project Clinic and Civil Rights Clinic.

“We all bounced ideas off one another,” he said about the sentencing clinic. “It felt like I worked in a very collaborative public defender’s office in law school.”

Lisa Lorish ’08, an assistant federal public defender for the Western District of Virginia, directs the clinic and supervises the students’ efforts. She has represented indigent defendants at the trial level and has argued numerous appeals before the Fourth Circuit. [Note: Lorish assumed office as a judge on the Virginia Court of Appeals on Sept. 1, 2021.]

Under the First Step Act of 2018, an incarcerated person may file a motion for a reduction in sentence, also known as compassionate release, directly with the court 30 days after making a request to the Bureau of Prisons or after exhausting administrative remedies. The clinic is also taking advantage of a U.S. Court of Appeals for the Fourth Circuit ruling in December allowing compassionate release over disparities in the harshness of past drug sentencing compared to today, she said.

The sentencing reduction process begins with making sure a client qualifies and can obtain relief under the law and as established in courtroom precedent, Fenton said.  Attorneys then present motions for why a client should be released, and try to assuage any concerns that the court might have if that person is released.

“I am of the view that our justice system must make extra efforts to ensure that the indigent and the incarcerated are given meaningful opportunities to be heard, and that’s why I’ve loved this clinic so much,” Fenton said. “While not every clinic client won relief, I can guarantee you that each one of us zealously represented our clients’ interests and made sure courts and prosecutors took notice.”

Leery of his chances in court after two failed attempts, Smith said he originally pursued his freedom from his North Carolina prison cell through a different law before the clinic stepped in to represent him for compassionate release, citing his age and health problems.

“I don’t think even a noted federal attorney, or any other attorney, could have put in a better petition to the federal court in Southwest Virginia than Dominique and his students that helped him,” said Smith, who also credits his release to the federal defense attorneys who referred his case to the clinic.

He added, “A lot of people in this world today think attorneys won’t do nothing for you, whether they be state or federal attorneys, without money. Well, they proved them wrong, as well as me.”

Lorish had planned to teach her usual Criminal Defense Clinic again, but the pandemic put in-person court appearances and one-on-one client meetings on hold, giving her an opportunity to launch the new clinic last fall. The clinic has helped free four people, including Smith, who faced coronavirus-related health concerns in prison. They include a second client that Fenton also helped free.

“In each of those instances, the individual was at a facility where there were a number of COVID cases and had conditions that really placed them at risk, according to the Centers for Disease Control and Prevention list of medical conditions that place someone at high risk,” Lorish said. “The government, typically, will agree that someone is at least eligible to be considered for release if they have one of those conditions.”

Other clinic clients include incarcerated individuals affected by prior disparate sentencing between crack and powder cocaine, and people who had already been released from their custodial sentences but were still under a term of community supervision until the clinic students were able to successfully petition the court for early release.

After graduation, Fenton, who hopes to become a public defender, will complete an appellate fellowship at the Federal Public Defender’s Office for the Northern District of California and then clerk for U.S. District Judge Martha Vázquez of the District of New Mexico. He said clinics have been a highlight of his law school experience.

“I think, if anything, my success says a little less about me and maybe more about a moment of reckoning our courts find themselves in that has only, obviously, been accelerated by both contemporary movements for racial justice and the pandemic,” he said.

Lorish said freeing people is the best part of her day job, as well as her work with the new clinic.

“Just getting to make those kinds of joyous reunions more possible is really satisfying,” she said.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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