While most complaints focus on disparities in sentencing as the primary evil to be cured in the difference between judges in the system, there is a huge, gaping hole that has received little scholarly attention but affects the lives of just as many people. To spell it out bluntly, most judges confuse their role as neutral magistrate with the job of prosecutor.
When it comes to people being appointed to the federal bench, there are far more who move from the United States Attorney’s office to the bench than from trench. They still get to work in the same building. They suddenly find defense lawyers laughing at their lame jokes. Their lack of charm as prosecutors are suddenly replace by their smiles and amusing demeanor as judges. But their exercise of discretion hasn’t changed at all.
Their efforts are spent coming up with explanations for why the defendant loses. Over and over, regardless of law or evidence, because they are empowered to exercise discretion. They exercise discretion in favor of the government every time. No agent has ever been found incredible. No defendant’s testimony has ever prevailed. The reason sentencing is so easily discussed is that so many get sentenced. The defendant is always guilty to these judges, so the only question is how guilty.
Sure, there are the occasional stories of a federal judge confronting an outrageous abuse, but these remain the outliers. Don’t think that the rare win, the Ted Stevens fiasco, has done anything to stop the tide from coming it. The reason we talk about it is because it’s so rare. So very, very rare.
John Gleeson was a big time prosecutor, which landed him a robe and bench. No one, but no one, can question his dedication to putting bad guys away in his prosecutor days. He was a player. But when he put on his robe, he hung up his prosecutor suit. I’ve written about Judge Gleeson a few times already because he’s demonstrated over and over that some former prosecutors can rise above partisanship to both fulfill their oaths and overcome the expedience of defaulting to the government.
Judge Gleeson has done so again. Via Doug Berman, his decision in United States v. Dossie which is worth quoting at length:
This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. In the substantial percentage of cases in which they apply, they produce a sentencing regime that is worse than the one the Sentencing Reform Act of 1984 was enacted to replace. They make opaque what that law was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie “lose their claim to a future” — to borrow a phrase from Attorney General Eric H. Holder, Jr. — because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.
There is no need for new legislation to remedy this state of affairs. The Attorney General himself has it within his power to remedy it. He can do so by
- citing to the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role that warrants a four-level upward adjustment under U.S.S.G. § 3B1.1(a);
- citing to the five-year mandatory minimum only when the government intends to prove a managerial role worthy of a three- or two-level upward adjustment under § 3B1.1(b) or (c); and
- withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.
I respectfully urge the Attorney General to implement such a policy. It is a modest request. It asks only that the Department of Justice (“DOJ”) refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted. By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair. The reform would promote transparency and accountability in sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one. Finally, it would be consistent with the Attorney General’s public statements about how our criminal justice system ought to treat defendants like Dossie.
Imagine how different it is for a defendant who has the good fortune to be wheeled out to a judge like John Gleeson as opposed to some other judge who will shut down any argument, find against any fact, ignore anything remotely resembling reason and exercise discretion in such a way as to facilitate the flow of human beings from the street to the prison as quickly and cleanly as possible.
And yet there is no shortage of concern about how many months are imposed at sentence for similar offenses? Maybe, just maybe, if more judges were more concerned about being judges than about moving cattle to the slaughterhouse, we would be less concerned about the sentence imposed. Maybe, just maybe, every defendant wouldn’t have a sentenced imposed at all.
Yeah, I can hear you laughing. But then we have a Judge like John Gleeson. If only we had more.