Judge Gleeson Has Left The Building

It’s hard to imagine, 30 years ago, that a criminal defense lawyer would be offering an homage to John Gleeson.  It’s not that he was a bad prosecutor. He wasn’t. As Assistant United States Attorneys went, he was fine.

But John Gleeson, the former prosecutor, turned out to be a remarkable United States District Court judge.  And, as Jesse Wegman notes, he has now left the courthouse. But not without a parting shot.

In 2003, John Gleeson, a federal district judge in Brooklyn, presided over the trial of a woman charged for her role in faking a car accident for the insurance payments. After a jury found her guilty, Judge Gleeson sentenced the woman to 15 months in prison.

In case you’re wondering, 15 months is a long time, but there were guidelines back then, and that’s what the guidelines called for. So that’s the sentence she got. Some will think she deserved such a lengthy sentence for her small role in the crime, despite her circumstances of living in poverty, having children to feed, and getting nothing for it. But regardless, her kids had to live without their mother for 15 months because that’s the sentence Judge Gleeson imposed.

Many judges might leave it at that, but in an extraordinary 31-page opinion released on March 7, Judge Gleeson stepped back into the case. Finding that this one conviction continued to scare off employers and make it impossible for the woman, identified in court records only as Jane Doe, to get hired as a nurse, Judge Gleeson gave her what amounted to a voucher of good character — he called it a “federal certificate of rehabilitation.”

No such certificate exists under federal law, so the judge designed one himself and attached it to his opinion.

While he believed the original punishment he gave Jane Doe was fair, Judge Gleeson wrote, “I had no intention to sentence her to the unending hardship she has endured in the job market.”

While I can’t help but picture the certificate issued by Judge Gleeson as drawn in crayon, or the sort of thing some certificate-maker app on the internets can create for third-graders who ate their spinach, that’s just my weird view of the system. The fact is that Judge Gleeson sought to create something that was needed and didn’t exist, to counter the extension of his sentence into a world that it never belonged, that he never intended it to belong.

The defendant paid her debt to society.

But to society, that’s not good enough.  She might have done her time, but that’s just where the punishment starts these days.  Except that was not the sentence Judge Gleeson imposed, a life of shame and unemployment, a social pariah.

Buried in 18 U.S.C. §3553(a) is subsection (2)(D), which says that the court should consider, in fashioning its sentence, the duty “to provide the defendant with needed educational or vocational training…”  It’s an odd consideration, as it presumes the defendant lacked education, which is why she engaged in crime.  It further presumes that if given the education or vocational training she needs, she won’t engage in any further crime. Recidivism is a terrible thing.

What this reflects is that rehabilitation is a legitimate goal of sentencing.  And what this means is that once a person has completed their sentence, they should be entitled, indeed helped, to move forward to a productive life as a law-abiding citizen.  Except society refuses to let that happen.  The sentence of imprisonment may be over, but their misery goes on forever.

Judge Gleeson wasn’t good with that.  First, there was his expungement decision, where he determined that despite the absence of any express authorization for a federal judge to remove a conviction from a defendant’s record, he was going to do so anyway.

This time, he concluded that expungement wasn’t warranted.

But Judge Gleeson declined her request, saying expungement was reserved for “unusual or extreme” cases. Instead, he opted for forgiveness over forgetting, as he put it. While the certificate has no legal effect, when Jane Doe shows it to a prospective employer or landlord, it should, the judge wrote, send “a powerful signal that the same system that found a person deserving of punishment has now found that individual fit to fully rejoin the community.”

It’s not entirely clear what makes a case so “unusual or extreme” that it warrants expungement when another does not, but apparently Judge Gleeson decided that this case didn’t meet the bar. Still, he refused to accept the premise that there was nothing he could do, that there was nothing he should do, because it was never his intention to sentence her to a lifetime of unemployment. So he did something.

Jane Doe earned the certificate, Judge Gleeson wrote, in part because she has never been convicted of another crime. It also mattered to him that at the time of the crime, she was raising two children alone on less than $15,000 a year. She received no money from the scheme, and after her conviction she was evicted from her apartment and had her nursing license suspended.

“If we want formerly incarcerated people to become upstanding citizens, we should not litter their paths to re-entry with stumbling blocks,” he wrote.

Does he have the authority to issue such a certificate?  If he did, he wouldn’t have had to make one up himself.  But what’s the use of having life tenure if you can’t use it for a worthwhile purpose?  Judge Gleeson may have felt constrained to impose a sentence of 15 months on this defendant, but he wasn’t about to let some dumbasses deny her employment for the rest of her life because of their misapprehension of the significance of his order.

Except life tenure is a funny thing. They can’t stop you from being a judge, except on bad behavior which doesn’t include making up your own certificates.  On the other hand, they can’t make you put on a robe every day for the rest of your life either.

Over more than two decades on the bench, Judge Gleeson has often challenged  Congress, the White House and other judges to think more sensibly about harsh criminal laws. His latest effort, unfortunately, was his last: Two days after giving Jane Doe her certificate, Judge Gleeson retired from the bench.

Will any other judge have the guts to make up his own certificate so that his order doesn’t destroy any chance of a defendant’s future when that was never the purpose of his sentence?  John Gleeson will be missed.

13 thoughts on “Judge Gleeson Has Left The Building

  1. Turk

    First, there was his expungement decision, where he determined that despite the absence of any express authorization for a federal judge to remove a conviction from a defendant’s record, he was going to do so anyway.

    This time, he concluded that expungement wasn’t warranted.

    A brilliant thing. Create some precedent, but the gov’t can’t appeal.

    Right from the pages of Marbury v. Madison. Court says it has the power to review, and then proceeds to deny on other grounds.

  2. Alex Bunin

    Not only was he great on the bench, but those of us who worked with him on public defense issues will remember him as the best best Chair of the Defender Services Committee of the Administrative Office of the U.S. Courts … ever.

  3. Joe McDermott

    You can never trust anyone that’s ever stolen anything or ever committed any fraud, no matter how minor. Dishonest is dishonest. People don’t change.

    1. Roberto Bellini

      Okay. Well, we can’t trust most USAs/AUSAs/DAs/ADAs offices or the FBI or local police. Nearly every office has had a bad apple or two.

    2. Dragoness Eclectic

      Trust no one, then. If you can find someone that never took a toy or treat that didn’t belong to them as a child, and who has never told a lie, then you’ve found someone that was so terrorized by their upbringing that they can’t be trusted to do the right thing if an authority figure tells them not to. Or they’ve turned into a serial killer.

      Humans aren’t robots; they make mistakes and do dumb stuff. If they do resemble robots, then something is very wrong. If you expect them to be robots, something is wrong with you.

      1. SHG Post author

        What are the chances someone as myopic and simplistic as Joe will be capable of grasping the error of his ways? It’s not such a hard concept that it requires an explanation. If he can’t figure it out on his own, then there’s no hope.

  4. Marc not-R

    Thank you for highlighting the issues with collateral consequences of convictions. My practice deals with these consequences often and it is hard to explain to people that the “deal” (often a deferred adjudication agreement, sometimes even a pre-trial diversion agreement) their CDL bargained for in the criminal case to keep them out of jail is going to come back and destroy their career and life because they have a professional license. It seems that many CDL’s do not consider the collateral consequences (and their clients don’t have a clue, either) when negotiating pleas. Keeps me in business, though.

    By his actions, Judge Gleeson is now on my list of judicial heroes. I can see he has a very soft landing planned for his retirement.

    1. SHG Post author

      In fairness, the CDL alternative to the deal with collateral consequences is prison (or more prison) and worse collateral consequences. That’s often missed in the calculus, that there isn’t a no-bad-consequences option beyond dismissal or acquittal, and those aren’t necessarily available options.

      1. Marc not-R

        You are correct that this is calculus and not simple arithmetic, but there are often various levels of bad consequences which make a huge difference. There are often quirks in the administrative rules that favor convictions of certain crimes that may have longer terms of probation, but don’t have the same collateral consequence – ex. in Texas, Agg. Assault and Assault/Family Violence are equivalent felonies, but the agency where I practice the most deals with the Agg. Assault more harshly, I can often save the license in the second case (though admittedly with bad consequences) while the Agg. Assault conviction carries a statutorily mandatory revocation with no ability to reinstate for 5 years AFTER probation is complete (and if successful reinstating, the client will still be saddled with the bad consequences).

        Back to the point of the post, though – New York has lost a jurist that doesn’t believe a conviction should mean prison plus a life of abject poverty. I wish more judges had that foresight.

  5. Osama bin Pimpin

    I interned for Gleeson’s chambers summer after 1L shortly after his appointment. Dude always was a stud. Nickname at US Atty: Clark Kent.

  6. SJE

    You can understand why its hard to get a job. Since insurance companies are the ones who pay the bills most of the time, nurses (and doctors) spend a lot of time effectively working for the insurance companies. Too much time, I’d say. Anyway, the insurers are very very sensitive about healthcare fraud. If you defrauded the auto company, I can understand why the medical insurers would balk.

    At the same time, there needs to be some process to show rehabilitation. The system is broken in that regard, and I am glad the judge did the right thing.

    1. SHG Post author

      The insurers aren’t involved in medical provider hiring decisions. That said, a felon can’t get a job doing much of anything, including working for a med provider, because they’re a felon and there are few people who want (or need in this economy) to take a chance on a felon.

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