President Obama has claimed that he wants to make criminal justice reform a priority during his second term. However, he has failed to implement the one criminal justice reform he has the sole authority and power to accomplish unilaterally, without the cooperation of Congress.
It is a reform that has been urged frequently and publicly by John Gleeson, a prominent U.S. District Court judge. Gleeson has argued that criminal defendants in the U.S. justice system are being coerced into pleading guilty by federal prosecutors who threaten them with draconian prison sentences if they insist on going to trial. This so‐called “trial penalty,” Gleeson insists, has deprived defendants of their constitutional rights to trial by jury and due process of law. It has also filled the federal prisons with people who don’t need to be there.
John Gleeson is no soft‐on‐crime, bleeding‐heart liberal. He is one of the most experienced federal prosecutors ever to become a U.S. judge in the Eastern District of New York. At the time of his appointment in 1994, Gleeson had worked for a decade in the Eastern District’s U.S. Attorney’s Office. There, he served as Chief of Appeals, Chief of Special Prosecutions, Chief of Organized Crime and Chief of the Criminal Division. He directed the FBI investigation into the elusive mobster John Gotti, and helped lead the trial team that handed the “Teflon Don” a conviction and life sentence on federal racketeering charges.
When Gleeson started work as an assistant U.S. Attorney in 1985, approximately 74 percent of criminal cases in the federal system were resolved through a plea bargain, a process where a defendant agrees to plead guilty in exchange for an upper limit on his prison sentence. That means that 26 percent of criminal defendants charged with a crime elected to have their guilt or innocence determined in a jury trial. By the end of President Obama’s first term in office, 97 percent — we repeat, 97 percent — of cases charged in federal courts were resolved in plea bargains.
Gleeson concluded that the U.S. criminal justice system was broken, and he was persistent in telling the Department of Justice (DOJ) what to do about it. Gleeson urged the DOJ to end its policy of requiring low‐level drug offenders to plead to mandatory minimum sentences that far outweighed the severity of their crimes. Gleeson also urged the DOJ to stop charging the most serious offenses available as a means of forcing defendants to agree to plea bargains.
Defendants who rejected plea bargains, and were convicted after going to trial, are receiving decades‐long mandatory prison sentences. Meanwhile, co‐defendants who were charged with the same offense but accepted a plea agreement often received just a few years in prison.
Everyone who was serious about criminal justice reform recognized that when Gleeson started sounding alarms about the abuses of prosecutorial discretion, he knew what he was talking about. Everyone, that is, except Obama and his former attorney general, Eric Holder.
Obama had an opportunity during his first term in office to enact meaningful criminal justice reforms by abandoning a Bush administration policy that required federal prosecutors to charge criminal defendants with the most serious provable charge available. In 2010, the DOJ announced that federal prosecutors would continue to be subject to a charging policy, which “maintains the presumption that prosecutors will charge the most serious readily provable crime.”
By contrast, the DOJ charging policy in force under the Clinton administration instructed federal prosecutors to select charges based on “individualized assessment of the extent to which particular charges fit the specific circumstances of the case.”
The result was a continuing increase in the number of defendants pleading guilty to offenses that required them to serve mandatory prison time. By the end of Obama’s first term, the federal prison population was rising while state prison populations were declining.
The charging policies that federal prosecutors are forced to follow are the one area of criminal justice reform that the president of the United States has the authority to impose unilaterally. By agreeing to follow Gleeson’s recommendations, Obama has the power to transform the U.S. criminal justice system overnight.
Obama continues to pay lip service to criminal justice reform by enacting half‐hearted half‐measures. Yet he refuses to remedy a culture of prosecutorial bullying and abuse that is ruining the U.S. criminal justice system.