Former EDNY Judge John Gleeson was an enigma. A hard-nosed federal prosecutor who did the undoable, took down the Teflon Don, he was rewarded by a bench and robe. But then, Judge Gleeson became one of the foremost critics of the United States Sentencing Guidelines, a voice of compassion and understanding toward defendants in a system that was as callous as society demanded it be. What happened?
In a letter to the editor, Judge Gleeson explains how the tough federal prosecutor became the voice of reason.
But at the time I took the bench, my perspective on the criminal justice system was based almost entirely on those experiences. That changed for me in 1999, when U.S. Supreme Court Chief Justice William Rehnquist asked me to serve on the Judiciary’s Defender Services Committee, which oversees the public defenders and other court-appointed lawyers in the federal system.
Over the next decade, I spent a great deal of time with those defenders, and learned about the challenges they and their clients face. I had not appreciated what it was like on their side when, for example, the government insists that a client face an excessive mandatory sentence no one could possibly defend, not because the client deserves it but solely because he refused to plead guilty, or to cooperate with the government.
Nor had I understood that the difference between a sentence of two years as opposed to three, which seems minor to a prosecutor, can mean the world to a defendant whose parents are aging, or whose daughter will graduate high school in 30 months. It was only in retrospect that I realized how much I gained from that experience. It didn’t just make me a better-informed and better-rounded person and lawyer. It made me a better judge. Judges vindicate interests different from those of prosecutors.
That his experience as a prosecutor left him without the depth and breadth of experience to be a good judge is unsurprising. This would seem too obvious a point to make, and yet it bore making over and over, that lawyers who only knew one side of the well lacked the appreciation of the other, even if they believed they knew it all, or at least knew what really mattered. As he calls it, “professional diversity” matters.
But Judge Gleeson tells his story for the purpose of supporting President Biden’s appointment of public defenders to the bench.
President Joseph Biden has nominated thirteen judges for positions on federal courts of appeals. Four have had experience as public defenders, including Eunice Lee, a former Assistant Federal Defender in New York who now occupies a seat on the U.S. Court of Appeals for the Second Circuit.
Our president has also nominated more than three dozen men and women for positions on the federal district courts around the country, and a handful of them also have prior experience as public defenders. This trend, long overdue, is a positive one.
And, indeed, it is a positive trend in the sense that decades of putting former prosecutors on the bench, but not public defenders, has taken its toll. But is this where the concern ends?
On the one hand, it’s notable that Judge Gleeson accurately notes that these are public defenders, not criminal defense lawyers. These are people who got a government paycheck every two weeks, not lawyers who had to earn their keep to get retained or they starved. These are people whose clientele had no other option. These are people for whom defense was more an abstraction than personal dedication. The cost of investigators didn’t come out of their pocket. A loss didn’t mean a client who would never refer another case. An officemate who could show up whenever a judge commanded, even when you were on trial in some other state.
But just as Judge Gleeson recognized in himself, they are judges whose breadth of experience spanned the side of the courtroom farthest away from the jury box. Just as his experience was inadequate to prepare him to be a good judge. Do they not suffer from the same one-sided experience?
And then there is the question no one wants to face: If the bench is split between judges who are defense-sided and prosecution-sided, what happens to the defendant who gets wheeled out to the “wrong” judge? What sort of wild disparities will arise when we turn the judiciary into advocates for one side or the other rather than neutral arbiters for whom impartiality was the goal, even if we too often fell far short of that goal?
*Tuesday talk rules apply
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