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I know you have never lost a case. In our world, if that is true, it is all about semantics. What does “lost” mean?
Some defenders have had one loss, and others have had some losses. For many defenders, however, semantics or euphemisms just will not help — because they have handled cases that have really been “lost.” Their clients have initially received far too much time or, given their extraordinary postsentence rehabilitation and reformation, must now be considered serving sentences that if not clearly unfair at the time of imposition, are certainly unfair now. The sentences are so unfair that they are deserving of shouts, screams, and the turning over of tables.
Whatever the horrible facts of each case, one thing remains constant: a decades-long sentence has been imposed and a human being has been removed from family, friends, and society when (1) there is no present need for the protection of the community, and (2) certain significant punishment has already been administered without the slightest reasonable concern that immediate release would diminish the seriousness of the offense. Yet there is no realistic opportunity for a second chance, or is there?
What role, if any, should federal judges or state judges play when confronted with a defendant they sentenced (or inherited when the sentencing judge is no longer on the bench)? Should they do nothing? What role, if any, should prosecutors play under these circumstances? And finally, what role should defense attorneys play?
At least one federal judge knew exactly what to do, and so did the prosecutor and defense counsel.
In United States v. Holloway,1 the Hon. John Gleeson of the Eastern District of New York had such a case. He previously sentenced Francois Holloway to 57 years,2 which was in large part due to multiple stacking of 18 U.S.C. § 924(c)’s laid upon a multiple carjacking mandatory minimum. In the 20 years Holloway served, he significantly rehabilitated himself. Holloway, pro se, filed a postconviction attack, but the postconviction filing lacked substantive or procedural merit. It could not even be characterized as a “Hail Mary.” Even a “Hail Mary” has hope.
Judge Gleeson recognized that the power to seek justice remains even after all appeals and collateral attacks have been lost and neither a claim of innocence nor a defect in the conviction or sentence exists.
Understanding the inherent legal impediments, Judge Gleeson wrote to the prosecutor with the clear suggestion that the prosecutor re-evaluate her position in order to permit him to resentence the defendant. Judge Gleeson asked the U.S. Attorney to “reconsider exercising her discretion to agree to an order vacating two or more of Holloway’s § 924(c) convictions so that he could face a more just resentencing.”3 The U.S. Attorney responded and declined.
At a later date, the court appointed counsel4 and scheduled a status conference. The judge directed the U.S. Attorney to ensure the presence of Holloway for the hearing, again to ask the U.S. Attorney to exercise her discretion to permit him to reopen the sentence in Holloway’s case to do justice.
Judge Gleeson pointed out that “such an agreement does not require a defect in the conviction or sentence,” and he cited two cases in which that in fact happened.5 He stated that should the government fail to agree to permit resentencing, he might have to revisit issues that he had previously denied, such as ineffective assistance, for “closer inspection.”
In a subsequent Holloway opinion, while Judge Gleeson noted that “there are injustices in our criminal justice system … and they often result from the misuse of prosecutorial power,” he applauded the U.S. Attorney’s reasonableness and fearlessness in Francois Holloway’s case:
But prosecutors also use their powers to remedy injustices. In the spirit of fairness — and with the hope of inspiring other U.S. Attorneys to show similar wisdom and courage — I write to applaud the admirable use of prosecutorial power in this case.
The power U.S. Attorney Loretta Lynch has put to use in Francois Holloway’s case inheres in our adversarial system. It is the power to seek justice even after all appeals and collateral attacks have been exhausted and there is neither a claim of innocence nor any defect in the conviction or sentence. … After careful consideration of Holloway’s crimes, the views of his victims, and his conduct during the two decades he has been imprisoned as a result of this case, the government has decided that it need not stand by silently while Holloway serves three more decades of an unjust sentence. Specifically, it has agreed to an order vacating two of Holloway’s counts of conviction and to a resentencing of him on the remaining counts. Even people who are indisputably guilty of violent crimes deserve justice, and now Holloway will get it.6
Holloway was rendered on July 28, 2014. It is still fresh and not fully publicized.
As remarkable as the opinion might be, it is a testament to the fairness and willingness of the U.S. Attorney to re-examine, re-evaluate, and permit a redetermination of a sentence to provide a “second chance” even when there was no substantive or procedural error requiring such a relief. The court recognized and commended the substantial time the prosecutors devoted to investigate and review Holloway’s rehabilitation, his prison conduct, and the full advantage of educational opportunities he took while in custody to arrive at the belief that he deserved a “second chance.”
The government did not oppose the granting of the pending 28 U.S.C. § 2255 and Rule 60(b) motions and vacating two of the 924(c) convictions, without taking a position on the merits of either the Rule 60(b) motion or habeas petition.
Judge Gleeson noted the significance of the case and the power the government wields. It did not matter to him that the issue of prosecutorial fairness and the exercise of discretion came after sentence, even 20 years later, rather than before trial:
This is a significant case, and not just for Francois Holloway. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government’s representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices.7
He also dispatched quickly the oft-interposed issue of “finality”:
The use of this power poses no threat to the rule of finality, which serves important purposes in our system of justice. There are no floodgates to worry about; the authority exercised in this case will be used only as often as the Department of Justice itself chooses to exercise it, which will no doubt be sparingly. …
The U.S. Attorney has shown here that justice is possible in those cases. A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.8
The Holloway case shows that justice and fairness do not evaporate after sentencing or even 10 or 20 years later. Justice and fairness do not fade away as some removable marker. Rather, as time passes, issues of fairness and justice should remain as bright and as important as the next case on the trial docket for the prosecution, the defense, and the court.
We remain hopeful that DOJ’s clemency project is successful, and perhaps before the end of my term I will be writing about the historic release of deserving inmates, served in the noblest of ways by volunteer defense lawyers. It holds the promise of one of the bar’s finest moments. Judge Gleeson pointed out that all requests should receive diligent review:
Some will satisfy the criteria for Department of Justice support, while others will not. In any event, there’s no good reason why all of them must end up in the clemency bottleneck. Some inmates will ask U.S. Attorneys for the kind of justice made possible in this case, that is, justice administered not by the president but by a judge, on the consent of the Department of Justice, in the same courtroom in which the inmate was sentenced. Whatever the outcome of those requests, I respectfully suggest that they should get the same careful consideration that Ms. Lynch and her assistants gave to Francois Holloway.
Perhaps at some point state legislatures and lawmakers in Washington, D.C., should consider passing statutes giving the right to defendants who have served 10 years to request a reconsideration of their sentences in light of their performance in prison and their achievements after being sentenced. The statutes would allow review of whether release would be just and proper under all of the circumstances, upon notice to the government and adversarial hearings, if necessary.
Just as in Holloway, the continual evaluation by judges, prosecutors, and defense lawyers of what is fair and just should not end with the imposition of sentence, and it should certainly not end after decades of incarceration when individuals have proven themselves worthy of consideration. I hope that judges, defense lawyers, and prosecutors give renewed thought to defendants like Francois Holloway, often long forgotten, who have been rehabilitated and reformed. They deserve a second look and a second chance.
- United States v. Holloway, No. 01–CV–1017, 2014 WL 1942923 (E.D.N.Y. May 14, 2014); United States v. Holloway, Nos. 95–CR–78 (JG), 01–CV–1017 (JG), 2014 WL 3734269 (E.D.N.Y. July 25, 2014).
- The court was forced, after trial and conviction, to sentence Holloway to 57 years in prison — 45 years on the “stacked” firearm counts, which by operation of law had to run consecutively to the 12 years meted out by the then-mandatory Guidelines for robbing three cars.
- See Order dated February 25, 2013, ECF No. 36. See also United States v. Holloway, No. 01–CV–1017 (E.D.N.Y.), Order, May 14, 2014, ECF No. 54.
- The court appointed NACDL member Harlan Protass, who in turned found other cases, including United States v. Hungerford (D. Mont.), in which the prosecutor consented to relief in the absence of error. Marion Hungerford was convicted of a robbery spree targeting casinos and convenience stores. She was convicted of conspiracy, seven counts of Hobbs Act robbery and seven § 924(c) counts, and was sentenced to 159+ years (not months) imprisonment. Several years after she was sentenced, Hungerford and the government entered into a “Settlement Agreement” pursuant to which (among other things) (a) the parties agreed to file a joint motion to reopen Hungerford’s criminal case; (b) the government agreed to move to dismiss all but two counts of conviction (including convictions on six of Hungerford’s seven § 924(c) convictions); and (c) the parties agreed that the court would impose a total sentence of 93 months (33 months for one of the underlying offenses followed by 60 months for one of the § 924(c) convictions). As a result, Hungerford’s sentence was reduced from 159+ years to 93 months.
- United States v. Holloway, No. 01–CV–1017, 2014 WL 1942923, at *3 n.2 (E.D.N.Y. May 14, 2014). In United States v. Mayo, the government agreed to an order vacating the sentence of a defendant whom no one (not even the defendant herself) knew was pregnant at the original sentencing. The government’s agreement allowed the court to resentence the defendant to a shorter prison term so that the baby would not be placed in foster care. United States v. Mayo, No. 05-CR-43 (E.D.N.Y.), Order, April 11, 2007, at 1, ECF No. 304. In another case, based solely on the consent of the government, the court vacated the sentence of a defendant who had cooperated with the government. Adjustments in the prison term and fine on resentencing mitigated the immigration consequences that resulted from the original sentence. United States v. Anandani, No. 11-CR-763 (E.D.N.Y.), Tr. Oct. 25, 2013, at 2-3. In both of those cases, the government refused to allow procedural impediments it had the authority to waive stand in the way of a more just sentencing.
- United States v. Holloway, Nos. 95–CR–78 (JG), 01–CV–1017 (JG), 2014 WL 3734269, *1 (E.D.N.Y. July 25, 2014).
- Id. at *5.
About the Author
Theodore “Ted” Simon is an attorney in private practice in Philadelphia, Pa., where he has based a local, national, state, federal, and international trial and appellate practice representing individuals and corporations. Simon has obtained reversals in the U.S. Supreme Court and in the Pennsylvania Supreme Court. He is a leading authority on the representation of Americans abroad, extradition, and international prisoner transfer. Simon is a Trustee of the Foundation for Criminal Justice. He is also a member of the Board of Directors of Philadelphia’s Jenkins Law Library, America’s first law library.
Law Offices of Theodore Simon
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