A Case for Mercy and Discretion in Criminal Justice

“I have always found that mercy bears richer fruits than strict justice.”

– Abraham Lincoln

So-called tough-on-crime policies in the United States over several decades have resulted in unanticipated changes in the criminal justice system that most Americans probably do not fully realize. Mandatory sentencing, policies such as “three strikes,” and increasing use of plea bargaining as opposed to jury trials have prompted an explosion in the prison population and unprecedented prosecutorial authority. With all due respect to those prosecutors who serve us well, we now know that increased power and immunity from abuses have enabled prosecutorial misconduct, a significant contributor to wrongful convictions.

While the Innocence Project and other organizations work to correct miscarriages and prevent others, and new models such as conviction integrity units seek to address the failure of the appeal process to correct conviction errors, a recent case demonstrated the appropriate use of an intact but rarely used remedy: mercy and discretion by public officials.

These capacities once broadly utilized by judges in sentencing may be the most efficient way to cure injustices whether wrongful convictions or unfair sentencing. In a recent illustration, no one questioned the guilt of Francois Holloway. The New York Times reported (here) and (here) that he was charged in 1995 with three counts of carjacking and using a weapon during a violent crime (he did not carry a gun but his accomplice did).

When the government prosecutor offered Holloway a plea deal with a prison term of 11 years, he declined. Holloway’s lawyer assured him that he would win at trial.

His attorney was wrong.

Judge John Gleeson of Federal District Court in Brooklyn was forced to follow mandatory sentencing laws. Instead of the 11 years offered in the plea deal, Holloway was sentenced to 57 years — more than twice the average sentence for murder in the district at the time. Holloway’s co-defendants who took plea deals served no more than six years.

In addition to 12 years for the carjackings, the judge had to add a mandatory five years for the first charge, twenty years for the second charge, and twenty years for the third charge, to be served consecutively. The add-on of 45 years is called “stacking.” While certain mandatory sentencing laws were intended to be a deterrent to recidivism, in this case the prosecutor’s charges carried this sentencing obligation in one trial.

Judge Gleeson explained, “The difference between the sentencing outcome if a defendant accepts the government’s offer of a plea bargain and the outcome if he insists on his right to trial by jury is sometimes referred to as the ‘trial penalty.’

(The fact that even innocent people plead guilty in fear of “trial penalty” is a reality unknown to many Americans.)

Holloway’s trial penalty was 42 years. The judge noted, “Black defendants like Holloway have been disproportionately subjected to the ‘stacking’ of counts.”

Over the next twenty years, Holloway filed many unsuccessful motions for reconsideration. He’s now 57 with five adult children and eight grandchildren waiting for him, but no legal avenues for releasing him remain.

Judge Gleeson, who couldn’t live with the sentence he was forced to give Holloway, issued an unusual order requesting the U.S. Attorney to exercise her discretion to vacate two of Holloway’s convictions to reduce the sentence.

Loretta E. Lynch, the United States Attorney for the Eastern District of New York, declined, suggesting that Holloway might be eligible for Presidential clemency. Judge Gleeson responded, indicating that Holloway would likely be ineligible.

Lynch gave more consideration to the judge’s request, including tracking down three of the carjacking victims. They acknowledged that twenty years was “an awfully long time, and people deserve another chance…”

She agreed to not oppose the vacating of the convictions, enabling the judge to resentence Holloway. Judge Gleeson wrote, “…the significance of the government’s agreement is already clear: it has authorized me to give Holloway back more than 30 years of his life…

He added:

“It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying, there’s nothing we can do”… Doing justice can be much harder.

“…This… 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.

“… 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.”

With gratitude to two officials who chose to show mercy and utilize their discretional authority, Francois Holloway is expected to be released from prison next year.

In the face of increasing revelation of wrongful convictions, inequities in sentencing, and official misconduct, the American people should encourage judges and prosecutors to be our true ministers of justice, which is their charge. To do so, they must have the courage and wisdom to utilize the discretion and authority vested in them. A measure of mercy where appropriate is a proper antidote to the callousness that has contributed to injustices.

Thank you, Judge Gleeson and U.S. Attorney Lynch, for utilizing discretion and demonstrating mercy in order to truly do justice.