US District Judge John Gleeson (EDNY) (Wikimedia Commons public domain)

2014 CA3 judicial conference presenter Judge John Gleeson (EDNY) has been in the news this week for reducing the sentence of a defendant he himself had originally sentenced. Articles in the New York Times here and here. The original sentence was the product of the trial penalty and stacking.

I’m not normally one for long quotations, but I think they’re warranted here. This is how Gleeson’s memorandum in the case begins (I’ve omitted the footnotes):

There are injustices in our criminal justice system, including in this district,
and they often result from the misuse of prosecutorial power.  I have pointed some out in
recent years in the hope that doing so might help eradicate or reduce the number of such
abuses. But prosecutors also use their powers to remedy injustices.  In the spirit of fairness –
and with the hope of inspiring other United States Attorneys to show similar wisdom and
courage – I write to applaud the admirable use of prosecutorial power in this case.

The power United States Attorney Loretta Lynch has put to use in Francois
Holloway’s case inheres in our adversarial system. It is the power to seek justice even after
all appeals and collateral attacks have been exhausted and there is neither a claim of
innocence nor any defect in the conviction or sentence. Even in those circumstances, a
prosecutor can do justice by the simple act of going back into court and agreeing that justice
should be done. After careful consideration of Holloway’s crimes, the views of his victims,
and his conduct during the two decades he has been imprisoned as a result of this case, the
government has decided that it need not stand by silently while Holloway serves three more
decades of an unjust sentence. Specifically, it has agreed to an order vacating two of
Holloway’s counts of conviction and to a resentencing of him on the remaining counts. Even
people who are indisputably guilty of violent crimes deserve justice, and now Holloway will
get it.

And here is how it ends:

It is easy to be a tough prosecutor. Prosecutors are almost never criticized for
being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s
nothing we can do” about an excessive sentence after all avenues of judicial relief have been
exhausted. Doing justice can be much harder. It takes time and involves work, including
careful consideration of the circumstances of particular crimes, defendants, and victims – and
often the relevant events occurred in the distant past.  It requires a willingness to make hard
decisions, including some that will be criticized.

This case is a perfect example. Holloway was convicted of three armed
robberies. He deserved serious punishment. The judgment of conviction in his case was
affirmed on direct review by the Supreme Court, and his collateral attack on that judgment
failed long ago. His sentence was far more severe than necessary to reflect the seriousness of
his crimes and to adequately protect the community from him, but no one would criticize the
United States Attorney if she allowed it to stand by doing nothing.

By contrast, the decision she has made required considerable work. Assistant
United States Attorney Nitze had to retrieve and examine a very old case file. He had to track
down and interview the victims of Holloway’s crimes, which were committed 20 years ago.
His office no doubt considered the racial disparity in the use of § 924(c), and especially in the
“stacking” of § 924(c) counts. He requested and obtained an adjournment so his office could
have the time necessary to make an extremely important decision. United States Attorneys’
offices work with limited resources. The effort that went into deciding whether to agree to
vacate a couple of Holloway’s convictions could have been devoted to other cases.

Finally, the easy route – that is, the “there’s nothing we can do about your
sentence” response – would have eliminated any concern that Holloway might squander the
opportunity to make something of the rest of his life. The United States Attorney’s decision
here will be criticized if Holloway commits another crime upon his early release from prison.
She could have extinguished that risk by doing nothing. But she has the wisdom and courage
to confront it the right way – by asking me to ensure that Holloway gets the re-entry
assistance a prisoner who has spent decades in prison will need.

This is a significant case, and not just for Francois Holloway. It demonstrates
the difference between a Department of Prosecutions and a Department of Justice.  It shows
how the Department of Justice, as the government’s representative in every federal criminal
case, has the power to walk into courtrooms and ask judges to remedy injustices.

The use of this power poses no threat to the rule of finality, which serves
important purposes in our system of justice. There are no floodgates to worry about; the
authority exercised in this case will be used only as often as the Department of Justice itself
chooses to exercise it, which will no doubt be sparingly.  But the misuse of prosecutorial
power over the past 25 years has resulted in a significant number of federal inmates who are
serving grotesquely severe sentences, including many serving multiple decades and even life
without parole for narcotics offenses that involved no physical injury to others. Even
seasoned federal prosecutors will agree that many of those sentences were (and remain)
unjustly severe.

The United States Attorney has shown here that justice is possible in those
cases. A prosecutor who says nothing can be done about an unjust sentence because all
appeals and collateral challenges have been exhausted is actually choosing to do nothing
about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.

Numerous lawyers have been joining pro bono movements to prepare
clemency petitions for federal prisoners, and indeed the Department of Justice has
encouraged the bar to locate and try to help deserving inmates.

Those lawyers will find many inmates even more deserving of belated justice than Holloway. Some will satisfy the criteria for Department of Justice support, while others will not. In any event, there’s no good
reason why all of them must end up in the clemency bottleneck. Some inmates will ask
United States Attorneys for the kind of justice made possible in this case, that is, justice
administered not by the President but by a judge, on the consent of the Department of Justice,
in the same courtroom in which the inmate was sentenced. Whatever the outcome of those
requests, I respectfully suggest that they should get the same careful consideration that Ms.
Lynch and her assistants gave to Francois Holloway.

Remarkable stuff. Coming as it does from a 9-year federal prosecutor who got the Attorney General’s Distinguished Service Award, it packs a punch.