The modern U.S. criminal legal system has made it all too easy to send people to prison. And once many of those incarcerated people finish their sentence and start community supervision or get released on parole, the system often seems designed to set them up for failure—and a return engagement behind bars.

This aspect of criminal law does not always get the attention it warrants. Yet reforming the parole, probation, and supervision systems could go a long way toward easing prison crowding, as well as helping formerly incarcerated people achieve success in society.

On the front lines, Professor Alison Guernsey (08JD) directs the law school’s Federal Criminal Defense Clinic, supervising students as they represent indigent people charged with federal crimes in both the pre- and post-conviction spheres.

Professor Ryan Sakoda conducts empirical research on “community supervision”—the systems of probation and parole that often trip up people as they try to make their way after incarceration. Sakoda’s data helps inform advocates and, he hopes, lawmakers, as they seek to make the system run more equitably.

Sana Naqvi (20JD), a special projects attorney with the Roderick and Solange MacArthur Justice Center’s National Parole Transformation Project, files “impact litigation”—often class-action lawsuits aimed at enforcing the right to an attorney for people facing parole violation hearings.

Guernsey, Sakoda, and Naqvi don’t often collaborate directly. But by attacking the problem from different directions, their work can have a cumulative effect of bringing about change over time.

Rising to the Challenge

When Alison Guernsey started at Iowa Law, she never dreamed she would become a criminal defense attorney.

“I fancied myself to be an appellate lawyer where I would think about interesting problems. The intellectual puzzle of the law was what really motivated me.”

But things started to change when she enrolled in Professor John Allen’s poverty-law clinic and saw the direct impact she could have on someone’s life as a trial-level lawyer. “When I had my first client, I said, ‘This is what motivates me—the human element.’ ”

After clerking for two federal appellate judges and working as a federal public defender, Guernsey returned to Iowa Law to launch the law school’s Federal Criminal Defense Clinic. The clinic handles two types of cases: trial-level matters, in which students represent people charged with federal crimes; and “decarceration” cases, which she described as helping clients get relief from excessive sentences.

Those can be extremely long sentences or also what Guernsey called “unconscionable or difficult conditions of confinement.” For instance, at the federal women’s prison in Dublin, California, guards and prison officials sexually abused and raped many women prisoners. Seven officials have been sentenced, and the prison has been closed.

Guernsey and her students are seeking compassionate release for some of those inmates.

Revisiting Racist Laws

Many laws mandating lengthy sentences date to tough-on-crime initiatives and are now understood to have racist underpinnings.

“The classic example is crack cocaine,” Guernsey said. “Based partly on racist notions of criminality, we used to punish crack cocaine 100 times more severely than powder cocaine. We now recognize that that was wrong.” According to the Leadership Council on Human and Civil Rights, more than three-quarters of the people sentenced under crack cocaine laws were Black. According to the Council, the Anti-Drug Abuse Act of 1986 “established a racially discriminatory 100:1 sentencing disparity between crack and powder cocaine … [under which] possession of 5 grams of crack cocaine, which was disproportionately consumed by African Americans, triggered an automatic five-year jail sentence—whereas 500 grams of powder cocaine, which was mostly consumed by richer, white demographics, merited the same punishment.”

While those guidelines have changed, “there are still people who are serving sentences for drug and other offenses that are much more severe than they otherwise would have received today,” Guernsey said.

Guernsey said federal sentencing needs further reform, but both the executive branch, in the form of the Biden administration, and the legislative branch are “resistant to large-scale reform, in large part because they are afraid of recidivism,” she said. “And the data doesn’t support that.”

She notes that federal prisons released 11,000 people on electronic home detention during the pandemic, and only 17—an incredibly tiny percentage—were arrested for new crimes, one for aggravated assault, and the rest on drugs and other nonviolent charges.

“There is this weird tension between recognizing that a lot of our sentencing policies are antiquated and rooted in racist notions—and we need to revisit them as a matter of equity and mercy—and this other side that’s pushing back and saying this makes the community less safe, even though the data shows otherwise,” she said.

Digging into the Data

Professor Sakoda delights in digging into the data, especially if it can shine a light on trends and inform discussions about legal policy.

His work represents the convergence of several major developments in the past decade or two, starting with the explosion of digital data and the tremendous growth in computing power.

In addition, Sakoda said, economists have taken an interest in criminal law, particularly in studying what works.

Sakoda seems made for the moment. He not only has worked as a public defender, but he also has a master’s from the London School of Economics and a PhD in economics from Harvard University.

“I was always interested in social justice issues—issues of inequality and racial justice in the United States,” he said. “I knew that I wanted to work on those broad issues.”

Sakoda focuses on two areas of the criminal justice system that don’t attract a lot of attention: solitary confinement and community supervision.

He began looking for places that could provide data that might lead to insights, and he found it in one of Iowa’s neighbors: Kansas. Like much of the rest of the country, Kansas began imprisoning more people during the 1980s and ’90s and then building more prisons, so Sakoda viewed the state as a good example to study.

“Kansas is a microcosm of the broader criminal legal system,” he said. “They built new prison capacity during the early 1990s and quickly filled it.”

Sakoda added that society now needs to reckon with the prison-building boom, which went hand-in-hand with longer sentences. “The policies of the ’80s and ’90s not only led to rapidly rising prison populations across the

country, but to more individuals spending time in solitary confinement as well. Research shows the harmful effects of solitary confinement, so the fact that such large populations are subject to solitary confinement is a major area of concern.”

Rethinking Probation and Parole

Mass incarceration also plays a part in Sakoda’s other major focus: community supervision. The term essentially refers to probation sentences as well as the main channels through which incarcerated people are released into society: post-release supervision and parole.

“It is something that has not gotten a ton of attention by a lot of researchers in the scope of the criminal legal system,” Sakoda said. Yet it is incredibly important.

“There are a lot of aspects of community supervision that are very punitive,” Sakoda said. “As a public defender, when I had clients facing probation violation hearings, I got a really good sense of how punitive the system of probation is, and how much it is part of this cycle of people moving in and out of incarceration, and how much it contributes to mass incarceration.”

The system sets people up to fail, he said. People with felony convictions often have a hard time finding work; they tend to have lower incomes and inadequate access to transportation. Yet they may need to travel long distances to meet with their probation officer, or they may have to comply with an order to drug test on short notice, on a day when they don’t have time, money, or transportation.

Sakoda said there is a long list of standard conditions, including check-ins, restrictions on travel, maintaining residency, prohibitions on owning weapons or associating with others convicted of criminal activity, maintaining or seeking employment, paying restitution, and participating in certain drug and alcohol treatment programs.

“It would be hard for the most organized person who has resources to comply with all of those things,” Sakoda said.

If people don’t do as ordered, it does not necessarily mean they have broken a law, but they can be returned to prison.

Kansas provided Sakoda with another policy he could use to study community supervision. In 2000, wrestling with prison crowding, the legislature knew that many people on post-release supervision ended up back in prison because of violations. So lawmakers eliminated post-release supervision for a segment of the prison population convicted of less serious offenses.

That decision created two groups: one with supervision and one without. “The law change created a natural experiment to study the effect of post-release supervision,” he said. “After this law change, reimprisonment decreased by 80 percent for the group no longer required to serve post-release supervision.”

Sakoda used several other measures to study whether the group without supervision was committing new crimes and could find no evidence that they were.

In 2013, Kansas lawmakers reversed the 2000 reform as part of a criminal justice reform bill. Sakoda studied this 2013 reinstatement of post-release supervision and found, predictably, the rates of reincarceration went back up—not as high as they were before 2000, but almost.

“There are so many people on supervision, but there is not really evidence that it’s doing anything to protect public safety, and instead it’s contributing to mass incarceration,” Sakoda explained. “The big policy question has to be asked: Do we really need to have so many people on community supervision?”

Impact Litigation

Sana Naqvi (20JD) was struggling at law school when Alison Guernsey took her under wing. The professor and student formed a bond that continues to this day.

Naqvi worked in Guernsey’s Federal Criminal Defense Clinic, and then took a summer internship with the federal public defender in Yakima, Washington, where Guernsey had worked. She spent another summer at the Southern Center for Human Rights in Atlanta. Upon graduation, she worked as a public defender in West Palm Beach, Florida.

“I loved being a public defender,” Naqvi said. “It’s a great job, but it was also devastating, because there is only so much you can do to help someone. If my client has a better outcome, that does not mean the next person in that court will have a good outcome. It is just so arbitrary.”

Naqvi reflected on her experience at the human rights center, which engaged in what she called “impact litigation,” and decided that was what she wanted to do in her career.

“That is why I went into impact litigation, so it could hopefully lead to more systemic change,” she said. “We are trying to get more widespread change through the courts.”

Naqvi now works as a special projects attorney in the National Parole Transformation Project at the MacArthur Justice Center in Chicago. Her work focuses on reducing mass incarceration by challenging post-conviction supervision practices across the U.S.

As a public defender, she had a front-row seat to the perils of the probation system.

“That’s where I saw this post-release world of having clients get out of jail, but then probation and any sort of supervision is a trap,” she said. “It is very difficult to comply with [all the rules], and then you are just brought back to prison.”

Supervision is supposed to help people reintegrate into society, she said, but instead it is often a fast track back to prison. As many as 40 percent of the people in Illinois prisons today, and more than a quarter of people in prison nationwide, are there on a parole or probation violation.

“It’s this endless cycle,” Naqvi said. “Instead of looking at it as a failure of the supervision system, which is supposed to help this person, it’s viewed more as a personal failure.”

The MacArthur Center has litigated two cases in Illinois and Missouri about due process violations in the parole revocation process. In her current role, Naqvi is working with people affected by parole laws to see how to best challenge the system. For instance, when people are initially charged with a crime, they have a right to a lawyer. But several states have no system for appointing lawyers for people charged with parole violations, even though there is a limited constitutional right to representation and even though the result is often the same: prison.

“A lot of these revocation hearings are done in secret,” Naqvi said. “There are instances where you should have an attorney. You should be advised of your rights. If you have violations, you should be able to disprove them or call your own witnesses. But state parole boards don’t honor your basic due process rights.”

She would also like to see people have the right to a meaningful appeal of a finding that they violated parole. “In many states, the appeal just goes to the same people who decided the violations.”

Intellect and Emotion

Guernsey said Naqvi taught her something important about practicing criminal law.

“I am not a particularly emotional person,” Guernsey said. “I tend to be pretty reserved, and I can maintain composure, even in circumstances that are objectively really difficult. It is a coping mechanism that a lot of public defenders develop over time.”

In contrast, she said, “Sana will wear her emotions on her sleeve. I loved having her as a student, because she would often question my demeanor and my approach to certain things because they were sterile. She would often say, ‘Doesn’t this upset you?’ ”

“She has a nice combination of the intellect and the emotion,” both of which are needed to practice law, Guernsey acknowledged. “It was a pleasure to teach her, because she would remind everyone around her that this was a very human endeavor and the law is not static. The law is not objective. The law is all about the people.”

Guernsey, Naqvi, and Sakoda are each fighting a different battle against a large, entrenched system. But as Naqvi reminded Guernsey, they are doing it for a common purpose: to help people.

Inside the Federal Defense Clinic: Students gain hands-on experiences with compassionate release cases

Iowa law is one of two law schools in the country to run a trial level, in-house federal criminal defense clinic, a distinction it shares only with the University of Chicago Law School.

Professor Alison Guernsey (08JD) started Iowa’s clinic in late 2017, returning to her alma mater after working as the supervising attorney at the Federal Defenders of Eastern Washington and Idaho.

In the clinic, students do everything a practicing attorney does, with close supervision from Guernsey. They represent indigent individuals charged with federal offenses in the U.S. District Courts for the Northern and Southern Districts of Iowa, and practice before the various U.S. Courts of Appeals across the country.

In a typical criminal law class, students read appellate opinions, Guernsey said. In the clinic, however, they acquire real-world skills. “There is a lot of client-facing work, investigative training, and case-theory brainstorming,” she said.

Guernsey said students immediately see the gravity of the situation when their clients are facing or serving long prison terms. “It is intimidating to have the stakes be so high,” she said. “But when you set the bar high, the students meet it.”

Not only do students get excellent experience, but the clients benefit as well. “Some cases are big and complex, but with the right collaboration and support, you can have robust, quality representation at a law school,” Guernsey said.

Jaycie Owens (23JD), who will start this year as a public defender in Minneapolis, said the clinic gave her valuable experience. For the past few years, in addition to trial work, the clinic has focused on compassionate release and sentence-reduction cases, and Owens had two such cases this year.

One was a woman who was sexually abused at a federal prison in Dublin, California, where guards and prison officials abused inmates in what became a national scandal. Owens’ other client was a man from St. Louis convicted of trafficking crack cocaine, who had received a 30-year sentence—far more time than today’s guidelines would have given him.

During spring break, Owens and her case partner traveled to California to meet her Dublin client, and to the client’s family home on a Native American reservation in Arizona. “We prepped our client for giving her victim impact statement at her abuser’s sentencing,” Owens said. “It was surreal going into Dublin after hearing all these horrific stories.”

Owens and her case partner also drove five hours from Iowa City to the federal prison in Greenville, Illinois, to meet her other client. “I spent my spring break traveling to see clients, and it was definitely worth it,” Owens said.

“When you see how the legal system impacts people, it makes you angry at the system and how it treats people, specifically people of lower economic status and people of color,” she said. “If I am going to contribute to that system, I want to help people at the same time.”

Guernsey can’t say enough about the job her students do.

“My students are nothing but phenomenal,” she said. “They show up and do the work. They understand the stakes. It’s been spectacular to watch.”