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.
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.