Can Judges Do More Than Punish?

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Photo by North Charleston via Flickr

Persuading judges to wean themselves from the “habit of mass incarceration” is a critical step in transforming the American justice system, says former federal judge Nancy Gertner.

Much of the focus on justice reform has been on changing the behavior of prosecutors and police, with judges often assumed to be above the fray, according to Gertner, former senior judge at the U.S. District Court for the District of Massachusetts, and now a professor of practice at Harvard Law School.

But in fact little headway is possible without the active engagement of judges willing to overcome deeply engrained resistance to changes in sentencing practices, Gertner wrote in a paper commissioned for the Executive Session on the Future of Justice Policy, part of the Columbia University Justice Lab’s Square One Project on reimagining justice.

“The goal is to invite judges to reimagine what community safety really looks like, not with police, prosecutors, and exorbitant mandatory minimums—and the role that judges can play in facilitating it,” Gertner wrote in the paper released Tuesday.

During the 17 years she spent on the federal bench, Gertner emerged as a major critic of the “tough-on-crime” approach to sentencing.

Nancy Gertner is a former U.S. federal judge who built her career around standing up for womenís rights, civil liberties and justice for all. She retired from the bench in 2011 to teach at Harvard Law School. Stephanie Mitchell/Harvard Staff Photographer

Her perspective is now shared by a growing number of players in the justice system—most notably so-called “progressive prosecutors” who have radically reduced or eliminated charges for nonviolent offenses.

But it is still a minority point of view in the bulk of the justice machinery at federal, state and local levels—and has come under greater threat this year with the surge in crime and calls in some jurisdictions for reversing reforms that have already been enacted, such as eliminating money bail.

According to Gertner, judges―especially federal judges―could play a major role in fighting these headwinds.

She noted that judges have been major players in the movement to develop problem-solving courts, pretrial diversion and reentry strategies, and restorative justice problems. But while these programs have achieved a great deal, they “exist in the interstices of an otherwise punitive system.”

She continued: “They have not led to a fundamental reexamination of ordinary sentencing—the day-to-day treatment of the majority of people not lucky enough to be included in these specialized programs.

“It is as if we found out that the COVID-19 vaccine worked well on one group but then did not bother to try it out on anyone else.”

Judges, who once resisted federal mandatory-minimum guidelines for on the grounds that they curbed judicial discretion, should know better, Gertner said.

But in fact many of them have opted for taking a rigid, formalist approach which normalized mandatory minimum sentences ”that would have been obscene years before,” primarily as a safer way to avoid critical scrutiny from the public, legislators and the press sensitive to any blip in the crime rate, Gertner contended.

“Judges—indeed all of the participants in the criminal legal system—had come to view imprisonment as the appropriate punishment for all crimes, with the only question being, “how much imprisonment?”

 A New Backlash Looms

That approach may have made it easier to slow the momentum of reform, now that violent crime is again stoking new anxieties across the country, Gertner suggested.

“The old narratives persist—not just with the press, the police, the prosecutors, but also crucially with judges—that the recent increase in violent crime is attributable to COVID releases and bail reform, rather than to the deterioration of whatever social supports existed in the communities hardest hit by the pandemic (after school programs, drug programs, jobs),” she wrote.

“And that the only answer to the uptick is to flood the streets with police, as we have been doing for decades, and attempt to imprison our way out—again.”

Gertner acknowledged it would be an uphilll battle to overcome judicial resistance to “changing the habits of mass incarceration.”

But she said some meaningful change could be accomplished by addressing the institutional assumptions that have propped up the system until now.

That could include:

    • Widening how federal judges are selected. The majority of federal judges today are white and male; just as significantly, most come from corporate law or prosecutorial backgrounds. Gertner, who spent nearly two decades as a defense lawyer and civil rights activist, said judges with different life experiences would create a less narrowly oriented federal bench;.
    • Expand training of judges to include courses that help them understand the effect of trauma and exposure to violence and poverty on the communities from which many defendants come from;
    • Employ “sentinel event” audits that allow judges, in collaboration with other justice players to review mistakes and improve deliberative processes;
    • Encourage judges to actively engage in the communities they serve, rather than stand apart and above the fray behind a veil of judicial neutrality.

Gertner acknowledged that many of her ideas were borne out of frustration caused by the failure of the criminal legal system to reckon with the role it has played in racial injustice and, more recently, with the pattern of “over-policing, over-prosecuting, and over-punishing” ion recent decades.

“Judges rarely address issues like this; and if they do, their likely reaction would be: ‘What does this have to do with me’? Gertner wrote.

“The answer is, on reflection, a great deal.”

For additional reading and resources, please see TCR’s page for the Nov. 3-4, 2021 conference on “Rethinking the American Way of Punishment.”

The complete paper is available for downloading here.

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