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April 7, 2010

Potent new district court opinion assailing mandatory minimum sentencing

Thanks to this post at the Second Circuit Sentencing Blog, I just learned about the potent opinion issued last week by US District Judge John Gleeson in United States v. Vasquez, No. 09-CR-259 (E.D.N.Y. March 30, 2010) (available for download below).  The opinion is a must-read for various reasons, as these opening and closing paragraphs suggest:

When people think about miscarriages of justice, they generally think big, especially in this era of DNA exonerations, in which wholly innocent people have been released from jail in significant numbers after long periods in prison.  As disturbing as those case are, the truth is that most of the time miscarriages of justice occur in small doses, in cases involving guilty defendants.  This makes them easier to overlook.  But when they are multiplied by the thousands of cases in which they occur, they have a greater impact on our criminal justice system than the cases you read about in the newspapers or hear about on 60 Minutes.  This case is a good example....

As a result of the decision to insist on the five-year mandatory minimum, there was no judging going on at Vasquez’s sentencing. Though in theory I could have considered a sentence of greater than 60 months, even the prosecutor recognized how ludicrous that would be, and asked for a 60-month sentence.  But the prosecutor’s refusal to permit consideration of a lesser sentence ended the matter, rendering irrelevant all the other factors that should have been considered to arrive at a just sentence.  The defendant’s difficult childhood and lifelong struggle with mental illness were out of bounds, as were the circumstances giving rise to his minor role in his brother’s drug business (i.e., it was to support an addiction, not to become a narcotics entrepreneur with a proprietary stake in the drugs), the fact that he tried to cooperate but was not involved enough in the drug trade to be of assistance, the effect of his incarceration on his three-year-old daughter and the eight-year-old child of Caraballo he is raising as his own, the fact that he has been a good father to them for nearly five years, the fact that his prior convictions all arose out of his ex-wife’s refusal to permit him to see their three children.  Sentencing is not a science, and I don’t pretend to be better than anyone else at assimilating these and the numerous other factors, both aggravating and mitigating, that legitimately bear on an appropriate sentence.  But I try my best to do just that, and by doing so to do justice for the individual before me and for our community.  In this case, those efforts would have resulted in a prison term of 24 months, followed by a five-year period of supervision with conditions including both other forms of punishment (home detention and community service) and efforts to assist Vasquez with the mental health, substance abuse, and anger management problems that have plagued him, in some respects for his entire life.  If he had failed to avail himself of those efforts, or if, for example, he intentionally had contact with Melendez without the prior authorization of his supervising probation officer, he would have gone back to jail on this case.

The mandatory minimum sentence in this case supplanted any effort to do justice, leaving in its place the heavy wooden club that was explicitly meant only for mid-level managers of drug operations.  The absence of fit between the crude method of punishment and the particular set of circumstances before me was conspicuous; when I imposed sentence on the weak and sobbing Vasquez on March 5, everyone present, including the prosecutor, could feel the injustice.

In sum, though I am obligated by law to provide a statement of "reasons" for each sentence I impose, in this case there was but one: I was forced by a law that should not have been invoked to impose a five-year prison term.

Download Vasquez opinion by Judge Gleeson

April 7, 2010 at 02:49 PM | Permalink


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First of all, the judge does not help his cause by pinning this on his ex. Ya know, the guy did do some pretty bad things to her--should he get to be in her life now? Not sure she's the bad guy.

Second of all, it's hard not to have some sympathy here. But this doesn't look like a horrendous miscarriage of justice. It's somewhat unfair that because this guy didn't have more info that he doesn't get more of a downward departure--but criminals cannot demand absolute fairness in sentencing. Sammy Gravano murdered a lot of people and became a free man.

And how do you tweak the law so that these low-level guys don't get ensnared (if that truly is the intent of Congress).

This guy's a sad sack, and screwed up his life. Let's hope when he gets out, he makes a continuing change for the better.

Posted by: federalist | Apr 7, 2010 3:31:01 PM

Dear Judge Gleason:

Thank you for your stirring campaign speech. The First Amendment we adopted provides ample room for you to give it. Whether it is appropriate to give it from your official position on the bench is another matter. We look forward, however, to your spirited run for Congress. In the meantime, please consider leaving controversial political questions to politicians.

You were of course free, within the parameters of the judicial function, to find that the mandatory minimum was a violation of the Eighth Amendment, something you did not do, and wisely so, what with the Second Circuit sitting across the river. That renders your remarks obiter dictum, with the emphasis on the "obiter."


The Framers

Posted by: Bill Otis | Apr 7, 2010 4:15:12 PM

A district judge's assessment of problems that attend mandatory minimum sentencing are just the sort of facts on the ground I'd like to have to hand if I were on the legislature. Or in the Circuit across the river.

Posted by: Michael Drake | Apr 7, 2010 4:22:07 PM

Or a pardon attorney at DOJ; if they still have those.

Posted by: Mark # 1 | Apr 7, 2010 4:59:08 PM

Michael Drake --

Then he can write them a letter. Dictum is still dictum. The district court's job is to decide cases based on existing law, not lecture the legislature on why the law stinks.

As an ordinary citizen, fine, have at it. But when you sit behind the bench, you have constraints ordinary citizens don't.

Posted by: Bill Otis | Apr 7, 2010 5:06:09 PM

Bill, actually I didn't have a huge problem with the judge's actions. He followed the law, and he was clear that the DOJ didn't have to listen to him. Personally, I don't think there are issues with judges commenting on a particularly harsh result. As I said, I don't agree wholeheartedly with the judge, but I think am a more informed after reading his opinion.

Posted by: federalist | Apr 7, 2010 5:18:37 PM

The judge did not act outside of any of his judicial "constraints." His "statement of reasons" for the sentence imposed was entirely appropriate. As a sentencing court, expressing regret about a sentence one must impose is within the scope of a judicial function.

Posted by: DEJ | Apr 7, 2010 5:40:30 PM

The decision serves another function: to shine some much needed light onto the charging decisions of prosecutors. It's quite telling how little these "supervisors" working under the Dept. of Justice actually cared about Justice.

Posted by: DEJ | Apr 7, 2010 5:45:36 PM

federalist --

Remarks like his are well-suited to an op-ed, which is what his statements most closely resemble. Or to a classroom. A number of judges are adjunct law professors (as am I, starting the fall semester at Georgetown (I think I'm the token red-meat conservative, but better that than zilch)). It's good fodder for a classroom debate.

This is far from the worst thing judges do, that's for sure. My problem with it is that judges hijack their prestige to make personal or political statements, and that is not what they should be doing.

Example: There are going to be constitutional challenges to this healthcare bill. I suspect they'll fail, although I don't know of course. But it would strike me as unseeming if a judge, while upholding the bill, then goes on to argue why Congress should repeal it as too expensive, likely to result in rationing, etc. He might be right about all of that, and his analysis could be informative to boot. But it's just too political, and better suited for promulgation elsewhere.

Posted by: Bill Otis | Apr 7, 2010 6:03:40 PM

Dear Bill,

If you believe Judge Gleason has violated an ethical rule, state law, federal law, or one of your presumably infinite "constraints ordinary citizens don't [have]," kindly write a letter to the New York State disciplinary authority and they will be glad to investigate his actions.

Otherwise, the judge can do what he wants.

Hugs and kisses,

Posted by: Praga | Apr 7, 2010 6:16:43 PM

Bill, there is clearly a line--this one just doesn't strike me as crossing it. First, I think the sentencing function is a different duck from the civil context. Second, on the theme of the criminal law, as Alexander Hamilton noted, the criminal law can work overly harsh results in particular cases, and I think the judge was noting that. Third, I think judges, where they make rational critiques of law help advance it.

The problem, of course, as you identify, is when they go too far. If done sparingly, then it seems ok by me.

Posted by: federalist | Apr 7, 2010 6:20:40 PM

Praga --

Should I cc to Alcee Hastings?

Posted by: Bill Otis | Apr 7, 2010 6:41:17 PM

"Should I cc to Alcee Hastings?"

Seriously? You're going to equate a judge's honest opinion regarding the shortcomings of the law to bribery?

Posted by: JC | Apr 7, 2010 7:40:24 PM

"First of all, the judge does not help his cause by pinning this on his ex. Ya know, the guy did do some pretty bad things to her--should he get to be in her life now? Not sure she's the bad guy. "

And you don't help your cause by deliberately misrepresenting what the opinion actually says. Pointing out that the guy had a bad relationship and a subsequent custody dispute is not "pinning it on his ex."

Posted by: JC | Apr 7, 2010 8:01:16 PM

JC --

She gave a smartalec reply and got one back. Incidentally, Hastings was never convicted in criminal court of accepting bribes. Indeed he was ACQUITTED in said criminal court. Under the DPIC understanding of things, that means he was "exonerated."

Of course he was guilty as sin, as Congress determined when it booted him.

But I digress. My point here, if you've been following the action, is not that Gleason's opinion is dishonest. Indeed, I haven't even said that it's substantively wrong. What I have said is that it is unbecoming for a trial judge, whose only constitutionally assigned task is to render judgment in cases and controversies, to appropriate the authority of his office to give his personal opinion of what the law should be. There are other at least equally accessible and more appropriate forums for doing that.

Posted by: Bill Otis | Apr 7, 2010 8:06:53 PM

I interpreted the opinion differently than Bill Otis did. The main point of the opinion was not to argue that the law should be something different. It was to castigate the prosecutor for not exercising an option that existing law already permits.

Admittedly, he also has some harsh words for the law itself, but he seems broadly in sympathy with what he takes to be the original intent of the legislation, namely, to ensure long mandatory minimums for kingpins and mid-level drug managers.

I think judges have a role to play in calling out excessively severe prosecution conduct. Obviously the defendant's family can go on TV or write a letter to the editor, but who will believe them? If the judge doesn't shine a light on the events of this case, which no other impartial arbiter was in a position to observe, then who will?

Posted by: Marc Shepherd | Apr 7, 2010 9:16:56 PM

"What I have said is that it is unbecoming for a trial judge, whose only constitutionally assigned task is to render judgment in cases and controversies, to appropriate the authority of his office to give his personal opinion of what the law should be."

Was it inappropriate for Justice Thomas to describe Texas' sodomy law as "uncommonly silly"?

Posted by: JC | Apr 7, 2010 9:49:04 PM

JC --

I didn't know that Justice Thomas was a trial judge. Nor was Thomas's statement a part of an opinion or judgment of the Court. Nor did it criticize a still-valid law. Nor did it originate with Thomas; it was from Potter Stewart's dissent in Griswold v. Connecticut.

Other than that, it's just the same.

Posted by: Bill Otis | Apr 7, 2010 10:55:37 PM

Tomatoes, tomatoes (I'll leave it to you to infer the inflection).

Posted by: JC | Apr 7, 2010 11:23:20 PM

Judge Gleeson at least admits he's no better than anyone else at determining an appropriate sentence. That's something most of his fellow judges would never admit, especially after the post-Booker disparity-o-rama they've presided over.

Mandatories are an imperfect blunt instrument that, due to the short-sightedness of the Booker court, are not going to go away. What are Congress' other options now? What has the Court left them? Rather than seek to remove mandatories from the code and curtail restrictive directives to the USSC, and rather than seek reform within a mandatory guideline system, like the repeal of the PROTECT Act, ivory tower thinkers like Gleeson and his fellow travelers worship "judicial discretion" as the end-all, be-all. Rather than seek a political solution, like the original SRA, they have the Court do their dirty work in a half-assed way. And the truth is, as Gleeson admits here, there is no framework at all to such sentencing. It's a tyranny of one. Instead of the public and deliberative process of the USSC and Congress we have individual know-it-all judges deciding sua sponte on each case. How wonderful. It's utter chaos and it doesn't serve many of the key purposes of sentencing policy (certainty, fairness, proportionality, deterrence) at all.

And this is the practical result of a system broken by sophomoric blathering and base territorialism from the Court and their supporters: http://www.ussc.gov/general/Multivariate_Regression_Analysis_Report_1.pdf

This multivariant study released from the USSC says it all: post-Booker it's rich whites that get most of the breaks and the blacker and poorer defendants get the stick. What irony. So much for your vaunted system of judicial discretion. I hope you Booker-lovers are proud of these results because you OWN them.

And I hope you like mandatories, because the ratios might get adjusted and there might be some tweaks, but they are not going anywhere.

Posted by: Ferris Bueller | Apr 8, 2010 10:55:04 AM

I like Judge Gleeson a lot. He's a good judge, in my opinion. He's certainly entitled to his opinion about the prosecutors' decision, and he's entitled to his opinion about the wisdom of Congress' statutory scheme.

Importantly, this episode appears to be a vindication of the Rule of Law. Congress made a decision regarding who should have the final say in the imposition of the minimum sentence here: the prosecutor or the judge. Congress chose the prosecutor. The judge didn't like Congress' decision, and the judge didn't like the prosecutor's decision, but the judge (being a good judge) remained bound by the law and imposed it. He had the honor to explain his concerns about the decisions of Congress and the DOJ with which he disagreed, but he nonetheless obeyed the Rule of Law. Much better than subterfuge.

I wish we had more judges like Judge Gleason.

Posted by: Mark Pickrell | Apr 8, 2010 11:45:48 AM

Why, just the other day, a federal district judge told me to "have a nice day." In federal court! Doesn't she know that her "only constitutionally assigned task is to render judgment in cases and controversies"?

Whether or not such friendly greetings are otherwise authorized, judges certainly are authorized by statute to provide reasons for the sentences they impose. Sometimes a judge will be uncommonly well-placed to articulate how a given mandatory sentencing provision as applied in a particular case is in tension with the § 3553 factors and the goals of sentencing set out in various legislation. Such judges are obviously permitted, and arguably are duty-bound, to incorporate discussion about those tensions into their judicial opinions, which are after all among the primary data required for studies by the Sentencing Commission and other sentencing-research bodies.

Posted by: Michael Drake | Apr 8, 2010 3:02:56 PM

Judge Gleeson's opinion is cogent in multiple ways:

1. It illustrates the sentencing issues involved in granting leniency to someone because they can implicate otherwise, while not granting leniency to someone whose involvement is tangential affording them no leverage by cooperating with authorities.

2. It illustrates the strategic behavior that managerial level prosecutors undertake. The rank and file prosecutor agreed with the judge that the case was overcharged. Judge Gleeson doesn't say why a more lenient deal was struck, but the inference is that the managerial level prosecutor wants to develop a departmental reputation for not compromising more than is necessary to obtain a conviction.

3. It illustrates that the laws in question are overbroad to fit the goal of matching appropriate sentences to conduct.

4. It illustrates that even a partial solution, like reducing mandatory minimums that are now five years to three years, could have a major effect on incarceration rates and the ability of judges to tailor sentences starting from the framework of the sentencing guidelines. It would be interesting to see a study of the percentage of mandatory minimum cases where the guideline sentence is shorter than the applicable mandatory minimum. I suspect that this is quite substantial given the current five year minimum for many offenses could be reduced greatly by reducing the mandatory minimum by just a couple of years and increasing the threshold for mandatory minimums as the proposed crack-powder cocaine discrepency compromised would.

Posted by: ohwilleke | Apr 8, 2010 3:09:50 PM

Michael Drake and ohwileke --

Let's just lay it out like it is. It's about results. If Gleeson had given the same speech arguing that the mandatory minimum should be RAISED, would you be gushing the same praise?

One suspects not.

I agree with Mark Pickrell that Gleeson was being honest and that subterfuge is a bad thing. I disagree, however, that this reflects any particular credit on Gleeson; the avoidance of subterfuge should be expected in a district judge as a matter of course, not singled out for praise.

I don't know Gleeson and never met him. He was an AUSA under administrations of both parties, so I assume he's a capable and balanced person. His view is reasonable, whether correct or not. I just wish he'd held forth in a different setting.

Posted by: Bill Otis | Apr 8, 2010 10:52:56 PM

Ferris Bueller.

That is one hilarious post! A tyranny of one? That is exactly the result dictated by a belief in a monotheistic God. What is it now, five or six of the courts members are Catholic. The fundamental nature of the Pope is a tyranny of one.

Own those results? Of course we own them. It's what we have worked long and hard for.

Posted by: Daniel | Apr 9, 2010 10:37:16 AM


I guess I'm a bit of a cynic. I have come to expect subterfuge by many judges -- from both the left and the right. When a judge who doesn't like a legal outcome doesn't engage in subterfuge, I must admit that I'm a little surprised, as well as gladdened. Heck, I'm surprised if a judge does more than just go through the motions. It would have been easy for Judge Gleeson to just sentence the guy to five years under the mandatory minimum, say that he must under the statutory scheme, and call it a day. Judge Gleeson at least tried to improve the system by taking a little extra time to voice a critical opinion.

I'm still enough of a cynic to think that it won't matter.

Posted by: Mark Pickrell | Apr 9, 2010 11:46:01 AM

Great work Daniel. Average sentences are UP, not down, and racial disparity is the highest it's been since before the SRA. Wonderful job.

Posted by: Ferris Bueller | Apr 12, 2010 9:08:28 AM

Bill would have had a problem with a judge making on-the-record criticisms of Jim Crow laws as he was doing his duty and sentencing a defendant for violating them.

Ferris's angst over disparate federal sentences would not exist if the Booker Court had decided on the more appropriate remedy for the constitutional violation: beyond-a-reasonable-doubt jury findings on offense-related sentencing factors.

Posted by: I'm just sayin' | Apr 12, 2010 1:31:00 PM

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