Spotlight On: Emily Swanson

Please tell us a little about your background and how you came to work in criminal law.

I earned my bachelor’s degree in Sociology from Marquette University in Milwaukee, Wisconsin. Following graduation, I moved to Chicago, Illinois to work at Mercy Home for Boys and Girls, a residential treatment facility for youth. I worked directly with young men who had been impacted by trauma or dysfunction in their lives. This is really where I fell in love with social work. There’s a lot about the field I was drawn to, including its emphasis on social justice. One aspect that I really appreciate is that the practice of social work is really about walking with and supporting people on their own journey, not about “fixing” people.

I eventually moved back to Michigan to be closer to family. I began my graduate studies in social work at Wayne State University in 2019. While I knew I wanted to be a social worker, I hadn’t quite figured out what I wanted to do with that degree. I loved connecting with people on an individual level, but I also wanted to fight against systems that perpetuate injustice.

Soon after I started my graduate program, my sister, a federal public defender, asked if I had ever heard of mitigation, suggesting that it was “up my alley.” I hadn’t, but it sounded amazing. The stars really aligned for me when, a short time later, Wayne State announced the pilot year of the Holistic Defense program. The timing could not have been better–the program rolled out just in time for my second and final year of my program.

As part of this program, I spent the next year interning at the Federal Community Defender of the Eastern District of Michigan, while also taking related coursework. The more exposure I had to the field, the more confident I was that this was where I belonged. Mitigation is exactly what I was looking for when I was first considering how I wanted to use my degree. As a mitigation specialist, I am able to use my clinical and therapeutic skills to build strong relationships with clients, who graciously allow me to tell their story in a way that (hopefully) impacts change in the legal system.

In your answer above, you reference Holistic Defense. What is that, and how can attorneys incorporate it into their practices?

Holistic Defense is the recognition that individuals who are going through the criminal-legal system have needs in addition to just legal representation. Many times, this involves utilizing a multidisciplinary team, which in addition to an attorney, paralegal, and investigator, also includes a social worker, mitigation specialist, reentry coordinator, and/or immigration specialist, depending on the client’s needs.

While not everyone has the ability to hire a multidisciplinary team for each of their clients, there are still ways to incorporate the principles of holistic defense into every case. My biggest piece of advice for attorneys to accomplish this: allow your client to use their voice and listen to it. While you might not be able to help your client with most of their concerns, an empathetic ear can go a long way for your relationship.

For example, your client might tell you that they’re being harassed in prison. Some might be inclined to respond: “that’s outside of the scope of my appointment.” Although that’s probably true, that kind of response can hurt an attorney/client relationship. Don’t forget, you’re human and so is your client. It’s so important (and impactful) to connect on that human level. It takes about the same amount of effort to say instead, “wow, that must be really hard to go through that on your own.”  In both situations, the attorney might not be able to help or intervene, but just acknowledging your client’s humanity can leave them feeling hopeful about their representation.

Please tell us about the work you do at MAACS.

In January 2022, I joined the MAACS team as a mitigation specialist, which is a new role for the organization. The creation of this position meant that the 100+ MAACS roster attorneys now had access to mitigation services without having to go through the court system to request an expert.

I work with attorneys and their clients in a variety of ways, such as writing mitigation reports, helping track down and digest the clients’ records, coordinating support letters from loved ones, researching various social science issues, helping prepare the client for their allocution, or working with the attorney to build a strong, trusting relationship with their client.

Most often, I write mitigation reports for attorneys to use in their resentencing memos, in the hopes that the judge will consider our client as an entire person, not just a reflection of the facts of their case. My involvement in a case looks different each time and is catered to the specific client, based on what the attorney is looking for and what we think will influence the judge.

How do you think judges and prosecutors are responding to your work?

One consistent response to my mitigation reports that I’ve noticed is that many judges have been more prone to treat my clients like human beings at their resentencing. Many of my clients endured harsh and even cruel words at their original sentencings, from judges who, in reality, knew nothing about them. At re-sentencings where a mitigation report has been prepared, these same judges treated my clients with humanity and respect.

One particularly cool moment comes to mind. At a client’s original sentencing, the judge called him a “monster” before sentencing him to more time than either probation or the prosecution asked for. On appeal, the attorney and I worked together to craft a re-sentencing memo that was mitigation-heavy. At our client’s re-sentencing, the prosecutor urged the judge to focus on only the offense itself and our client’s previous record, not “peripheral things” about our client’s life history. In response, the judge stated: “it would be wonderful in every single criminal case to have the deep dive that the Court has had the opportunity to review contained within the re-sentencing memorandum. It would be wonderful to have all that information and be able to do that in every single case.” The judge proceeded to hand down a new sentence that was less than what probation and prosecutor asked for, resulting in a time cut of almost half for our client.

Ideally, every mitigation report would result in a sentence reduction. That’s not always the case. The more exposure we give to mitigation, though, the more practice judges will have seeing the layers of humanity in every person who stands before them.

What do you want lawyers to know about mitigation?

Mitigation is a great opportunity to help humanize your client. It is a way to contextualize a client’s behavior, backed up with records, research, and corroboration. It is a way to help understand clients. It is a way to make sure your clients feel heard and supported. It is a way for attorneys to share some of their workload.

The more people advocating for indigent clients, the better; the more people supporting a person through one of the most difficult times in their lives, the better; the more resources provided to clients and their families, the better; the more lawyers, social workers, and other professionals aligning themselves with a holistic defense model and pushing for a more just enforcement of the law, the better.

What changes would you make to the criminal legal system?

The criminal-legal system should be rehabilitative. Prison is not.

From birth, people are shaped and influenced by the people and systems around them. A lot of the work I do is looking at how things throughout someone’s life can impact their criminal-legal involvement. For instance, complex trauma in childhood increases a person’s likelihood that they’ll come into contact with the criminal system. As a society, we should be investing in quality social and supportive services, not prisons.

I would like to see a system that recognizes that people need support. Prison lacks any real form of supportive services. When someone goes to prison, they are locked in a cage for years on end, removed and disconnected from their loved ones, exploited for their labor, charged predatory prices for goods and phone calls, and are constantly dehumanized. How can anyone be expected to come out the other side better, rehabilitated? Don’t get me wrong, there are many people who are very successful returning home from prison. They are successful despite prison, not because of it.

Prison is designed to be a revolving door. It’s more profitable that way. We need to invest in strengthening our communities, not in a punitive system that is notoriously inhumane and ineffective.

Do you have any advice for defense attorneys who might not have worked with a mitigation specialist before?

Work with one. Mitigation is really an invaluable resource that can broaden the understanding of a client, not only for judges and prosecutors, but even for their defense attorney.

Most everyone going through the criminal-legal system can benefit from mitigation, as crimes don't happen in a vacuum. Having an increased understanding of one’s life environment and circumstances can make a crucial difference in sentencing outcomes.

If you have a mitigation specialist or social worker in your office (or are a MAACS roster attorney who has access to me), I’d encourage you to get them involved as early as you can with a client. Building trusting relationships takes time and is a key element in successful mitigation.

by Kathy Swedlow
CDRC Manager and Editor