Justice Delayed: Fancois Holloway Resentenced Today

Decisions have consequences. As the theme song to the 1970s TV show Baretta, sung by Sammy Davis Jr., advised, “Don’t do the crime if you can’t do the time.” In 1995, Francois Holloway helped rob three cars. Although he was not armed, an accomplice was. The time the government deemed appropriate for those crimes, should Mr. Holloway plead guilty, was 11 years. Mr. Holloway did not plead guilty, and instead he exercised his Constitutional right to put the government to its proof. The consequence of that decision was an additional 46 years in prison.

In 1995, all of Mr. Holloway’s codefendants accepted plea deals and were sentenced to six years or less. But Mr. Holloway’s counsel assured him that he would win at trial “on a technicality.” Counsel chose to concede Mr. Holloway’s involvement in the crimes but argue that he could not be convicted because he lacked the mens rea of intent to cause death or serious bodily injury, since his actual intent was for the victims to surrender the cars without a fight. This interesting argument, which has probably been the subject of some blog posts in its own right, made it to the Supreme Court and failed in 1999.

Mr. Holloway has exhausted his appeals and remains in prison now, almost 20 years after his crimes. His sentence of 691 months is more than twice the average sentence for murder in fiscal year 2013. All of his victims either support a reduction in his sentence or are unopposed to it.

The extreme severity of Mr. Holloway’s sentence is due to the “stacking” of his 18 U.S.C. § 924(c) convictions (using a gun while committing a crime of violence).  The first conviction required a mandatory minimum sentence of five years, and the second two required mandatory minimums of 20 years each, all to be served consecutively to any other terms of imprisonment. The trial judge John Gleeson acknowledged the injustice of that result at sentencing, and the Sentencing Commission has since asked Congress to amend section 924(c) to make the stacking provisions only applicable to prior convictions.

With the consent of the U.S. Attorney for the Eastern District of New York, Loretta Lynch, two of Mr. Holloway’s section 924(c) convictions are being vacated today (July 29), and he is being resentenced, most likely to time served. (He still has another nine months on an unrelated state drug conviction from 1991.) At his latest hearing, the government insisted it was agreeing to vacate the convictions only because Mr. Holloway’s case is unique in that he has an excellent disciplinary record in prison and his victims are not opposed to his release.

As I have mentioned before, mandatory minimums are not applied consistently across demographic groups. According to the Sentencing Commission, in a 15 year study period, African-American males made up 48% of people eligible for 924(c) stacked charges, 56% of people charged under the statute, and 64% of people convicted under it. Given the disparities present in the system and the sheer number of people in federal prisons, one might question whether Mr. Holloway’s situation is really unique.

Certainly, though, one thing does distinguish Mr. Holloway from the vast majority of federal prison inmates: his trial judge became an advocate for him, urging the D.A. to vacate two or more of his 924(c) convictions. After initially refusing, she finally acquiesced. In a memorandum opinion issued yesterday (July 28), clearly written with an eye towards softening prosecutorial zeal, Judge Gleeson lauded Ms. Lynch’s courage in agreeing to vacate two of Mr. Holloway’s convictions.

As Judge Gleeson put it, it is easy for prosecutors to be “tough on crime” and let the petitions of prisoners and groups like Families Against Mandatory Minimums fall on deaf ears. No one faults them for saying, “there is nothing we can do about mandatory minimums.” But as Judge Gleeson points out, and as this case illustrates, were a prosecutor to say that, she would actually be choosing to do nothing.

Ms. Lynch, on the other hand, took the road less traveled and agreed to exercise her discretion and show some mercy to Mr. Holloway, who, no one disputes, has already been amply punished for his crimes. In doing so, she makes herself vulnerable to criticism, particularly if Mr. Holloway commits another crime after his release. But often the more difficult choice is the right one.

After all, as Judge Gleeson eloquently observed, it is supposed to be the Department of Justice, not the Department of Prosecutions.

The opinion, Holloway v. USA, can be found in Library > Sentencing in General