By Andrew Cohen
Mark Feeser ’07 and Van Swearingen ’08, each of whom gained pivotal training at Berkeley Law’s Death Penalty Clinic (DPC), recently achieved major court victories with far-reaching implications. Their success comes as no surprise to DPC Director and Clinical Law Professor Elisabeth Semel, who worked closely with both of them as law students.
“Mark’s career is grounded in defending clients in criminal appellate cases, and the tenacity he brought to this latest appeal is characteristic of his approach to legal representation,” Semel said. “Van wasted no time taking on pro bono matters when he entered practice at a large law firm, including an Alabama capital case. He continues to look for opportunities to be a champion for equal justice through civil rights litigation.”
Feeser represented on appeal one of two defendants sentenced to life without the possibility of parole for a juvenile offense committed in the 1990s. His client, Raul Lopez, spent nearly 25 years in prison until the U.S. Supreme Court ruled in Graham v. Florida that a life without parole sentence was unconstitutional for juveniles convicted of a non-homicide offense.
In response to that decision, Lopez was resentenced to life with the possibility of parole. After he was resentenced, however, the California State Legislature passed a statute that permits broader resentencing for juvenile life without parole defendants—and allows courts to take into account subsequent rehabilitation.
The prosecution, however, argued that Lopez did not qualify for relief under the new statute because he no longer had a life without parole sentence. It also argued that even if Lopez did qualify, the court could not resentence him and place him on probation. The trial judge disagreed, the state appealed and Lopez—free for more than two years while the appeal unfolded—faced the threat of returning to prison.
“It is not difficult to appreciate the stress of his situation,” Feeser said. “Transitioning from prison to the streets is a challenge for anyone, especially for someone who has spent more than half their life in prison. Managing those challenges in addition to the uncertainty of a pending criminal appeal requires an inspiring amount of inner strength.”
Feeser’s argument focused on the legislative intent behind the new statute, which was largely silent as to how it would apply to defendants whose sentence had already been modified after Graham. He emphasized the plain meaning of the statutory language, and “the injustice that would result from denying Mr. Lopez resentencing under the statute solely because he had exercised his uncontested constitutional rights.”
An aspiring tax attorney when he came to Berkeley Law, Feeser began thinking otherwise during his time with the Death Penalty Clinic—more than half of whose alumni practice public interest law. “It had an enormous impact on my professional path,” he said. “I got a ton of real-world experience and training, which has continued to pay dividends in my practice.”
Feeser did practice tax law for a year before joining the San Francisco civil rights firm Rosen, Bein, Galvan and Grunfeld (RBGG). There, he worked on several major prisoners’ rights matters, including a U.S. Supreme Court case that ordered California to reduce its prison population. Feeser now runs his own criminal appellate practice in San Luis Obispo.
He credits Graham and other Supreme Court sentencing rulings for raising awareness about defendants’ capacity to rehabilitate. As the trial judge in his cased noted, Graham and the new state statute “were based on the same rationale that juveniles grow up; they change; they mature, and they should not be denied the opportunity at some point to demonstrate that they can be productive citizens of society.”
Equal rights advocate
For Van Swearingen ’08, transforming prisoners into productive citizens fuels much of his work—and recently earned him a 2016 California Lawyer Attorney of the Year award. Swearingen and two other RBGG lawyers, including Blake Thompson ’07, successfully challenged California’s Alternative Custody Program under the 14th Amendment’s Equal Protection Clause.
The program allows certain inmates convicted of low-level, non-violent crimes to spend the last portion of their sentences in their home communities rather than state prison. Anxious to rebuild his professional life, connect with his children, and care for his terminally ill mother, prisoner William Sassman sought to join the program—which the state promoted as a family reunification initiative.
After Sassman was told only female prisoners were eligible, Swearingen and his colleagues filed a federal lawsuit. It asserted that admitting qualified male inmates into the program is not only required by the Fourteenth Amendment, but would also benefit children and families, reduce recidivism, save the state money and enhance public safety. The district court agreed and ordered the California Department of Corrections and Rehabilitation to accept all eligible prisoners, regardless of their sex.
“As the case progressed, Mr. Sassman’s possible time to participate in the program became shorter and shorter,” Swearingen said. “We litigated the case as quickly as possible, fast-tracking discovery and pinning our hopes on a summary judgment victory.”
Sassman’s mother died during the litigation, but Swearingen secured a 24-hour release from prison so that Sassman could visit with her just days before her death. Soon after, Sassman won the case on cross motions for summary judgment—and joined the program for the last months of his sentence.
Protecting human rights
Swearingen is also part of a legal team that sued Monterey County and its private medical provider, challenging dangerous and unconstitutional conditions in the county’s jail such as severe overcrowding, outdated facilities and chronic understaffing. The case settled, and Swearingen is monitoring the jail as part of a federal court-approved plan.
“At the outset of the lawsuit, the conditions shocked the conscience,” he said. “The jail routinely failed to provide accommodations to prisoners with mobility, hearing, vision, speech and other impairments. Defendants placed prisoners experiencing mental health crises in filthy rubber rooms that were at times covered in feces and lacked sufficient staffing to address prisoners’ medical and mental health needs in a timely way. Violence between prisoners was common at the overcrowded and understaffed jail.”
At the end of 2016, Swearingen also obtained a substantial settlement for a civilly committed man who was transferred to Contra Costa County jail for a court appearance—and subsequently spent nearly three years in punitive conditions of confinement in what jail staff called “the hole.”
As part of the settlement, Contra Costa County agreed to consider recommendations to improve conditions at the jail, including by limiting its use of solitary confinement. In drafting the recommendations, Swearingen relied in part on an op-ed piece by President Barack Obama, who pronounced that the practice of solitary confinement is “an affront to our common humanity.”
In 2004, while earning his Master’s at the Goldman School of Public Policy, Swearingen co-authored a law review article with Berkeley Law Professor Malcolm Feeley about the history of cases on prison conditions. Like Feeser, he credits the Death Penalty Clinic for stoking his interest in prisoner advocacy.
“My year there was the best experience I had at law school and it profoundly shaped the course of my career,” Swearingen said. “A substantial portion of my litigation practice is now dedicated to prisoner rights.”