THt
SQUARE ONE
PROJrCT
REIMAGINE JUSTICE

EXECUTIVE SESSION
ON THE FUTURE OF
JUSTICE POLICY
JANUARY 2021
Nancy Gertner
Harvard Law School

REIMAGINING
JUDGING

The Square One Project aims to incubate
new thinking on our response to crime,
promote more effective strategies, and
contribute to a new narrative of justice
in America.
Learn more about the Square One
Project at squareonejustice.org

The Executive Session was created with support from
the John D. and Catherine T. MacArthur Foundation as
part of the Safety and Justice Challenge, which seeks
to reduce over-incarceration by changing the way
America thinks about and uses jails.

~ SAFETY+JUSTICE

I.EL CHALLENGE

Supported by the John D. and Catherine T. MacArthur Foundation

11

18

26

JUDICIAL RESISTANCE
TO REFORM

IMPEDIMENTS TO
REIMAGINING JUDGING

REIMAGINING
JUDGING

33

38

42

CONCLUSION

REFERENCES

ACKNOWLEDGEMENTS

42

43

AUTHOR NOTE

MEMBERS OF THE
EXECUTIVE SESSION
ON THE FUTURE
OF JUSTICE POLICY

■
04

Reimagining Judging

I have been a participant—a very enthusiastic
participant—in Columbia University’s recent
three-year Executive Session on the Future
of Justice Policy, part of the Justice Lab’s
Square One Project. Square One’s goal is
to bring together a diverse and engaged
group of thinkers and advocates to literally
reimagine the criminal legal system from
square one.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
05

Reimagining Judging

I thought about how this rich dialogue fit
within the role I had for seventeen years,
that of a federal trial judge. I was struck
by the distance between the Square One
discussions and those in which I had
participated when I was on the bench.
In the Executive Session, we talked about
reckoning and accountability—a reckoning
in which participants come to grips with
the historical role the criminal legal system
played in racial injustice, a reckoning with
its role in the more recent past, the decades
of mass incarceration and community
disruption, a reckoning with over-policing,
over-prosecuting, and over-punishing.
Judges rarely address issues like this;
and if they do, their likely reaction would
be: “What does this have to do with me?”
The answer is, on reflection, a great deal.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

I left the bench in 2011 to teach and to
write. One book project in particular made
the Square One conversations resonate.
I am writing a judicial memoir (entitled
“Incomplete Sentences”), but not the usual
kind. Many—not all—judicial memoirs are
about how the judge got to be on the bench,
their career path and their obstacles,
rather than the job of judging itself. And
when judges do talk about what they do, it
is often in general terms—abstract notions
of balancing justice and fairness—not the
concrete—how to treat the human being
before you.

■
06

Reimagining Judging

I am telling my story through the stories of
the men that I had sentenced. I write about
who they were when I sentenced them,
who they are now (I met many of them after
I retired), how I made painful decisions about
their punishment, and how they should have
been treated in a humane system. It was
my small effort to be accountable, to take
responsibility—in effect, to reckon—for my
role in mass incarceration. But that effort
is backward-looking, assessing what I had
done in my 17-year judicial career. This
essay is the beginning of a conversation
about looking forward: What do the Square
One discussions have to do with the work
of judging going forward? Put otherwise:
How can we reimagine judging?

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

The conversations in Square One that
focused my attention about the role of
judges were often those in which Executive
Session members addressed violent crime.
In his book Homeward, Bruce Western
described the problem as follows:
Where violence is contextual and
offenders are also likely to be victims
and witnesses, justice is not achieved
through the punishment of the offender
but through the abatement of violent
contexts (Western 2018:81–82).
Fellow Executive Session member Chief
Judge Elizabeth Trosch and I talked about
how a sentencing judge might consider the
“violent contexts” about which Western
writes. A judge is supposed to individualize,
focus on the person before her—what he
was convicted of doing, his background, the
circumstances of the crime—as well as on
considerations of public safety. The very

■
07

Reimagining Judging

ubiquity of the social and economic issues
which Western describes makes these
factors difficult to titrate in an individual
case. How could I compare the experiences
of the men I sentenced for drug crimes who
attended a neighborhood school with no
water fountains or guidance counselors; or
those who started using alcohol and drugs
at age 8, or 10, or 12; or those whose bodies
bore the scars of violence, like the man with
a bullet still lodged in his skull from being
shot in the head; or the experiences of the
man who dealt drugs to support his family
because the government disability benefits
for which he qualified had been delayed?
Are there degrees of trauma or adversity or
impoverishment that individual dispositions
should reflect? Or are we looking at it the
wrong way by using the criminal legal system
to punish criminogenic environments of
poverty and deprivation? The questions
could not be more critical today, given the
paroxysms of the past year—the growing
public awareness of mass incarceration
and its human costs, the Black Lives Matter
movement and the systemic injustice it

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

catalogues, the resurgence of hate crimes
and white nationalism, and then, a pandemic.
To individualize surely does not mean to
ignore the broader issues, to function
as if the only world is the one in the
four corners of the courtroom, the only
audience an appeals court or other judges.
Clearly there is a wider world, a broader
audience. Written judicial opinions can
try to change the retributive narrative
about who the defendants are and how
they got to court. They can reflect the
dignity of all the participants, rather than
treating them as “cases” or “numbers.”
(One of the men I sentenced told me that
he carried my opinion with him in prison;
it was not a particularly flattering account
of him—it talked about his offense and his
chaotic family background—but it showed
more of his humanity than his rap sheet
or presentence report.) Judicial opinions
offer the prospect of describing both the
trajectory of the person who offended
and the pain of the people affected,
reflecting the community’s interest in

■
08

Reimagining Judging

A JUDGE CAN MAKE ACCESS TO JUSTICE EASIER OR IMPEDE IT, EQUALIZE
THE RESOURCES BETWEEN THE GOVERNMENT AND THE DEFENSE, ENACT
RULES THAT LEVEL THE PLAYING FIELD BETWEEN PROSECUTOR AND
DEFENDER, AND MORE

both. But written opinions are not the only
way a judge can consider broader issues.
A judge can effect change through her
role in the governance of her own session
and the functioning of the court at large.
She can make access to justice easier or
impede it, equalize the resources between
the government and the defense, enact
rules that level the playing field between
prosecutor and defender, and more. A judge
is the gatekeeper to resources for the
defense, determining what experts the
state should pay for to support a criminal
defense lawyer, what witnesses to allow,
how much time to give the defense to
put its case together; the government’s
resources—the time it spends, the experts
it uses—are not monitored. There are big
decisions and small: I recall asking an
interpreter to give the electronic headsets
through which he communicated with
the Spanish-speaking defendant to all
of the defendant’s family members who
were sitting in the back of the courtroom,
perplexed. While the proceeding was
frightening, at least they then understood
what was going on and why. And surely in

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

a judge’s speeches and writings outside the
courtroom—such as in my forthcoming book,
Incomplete Sentences—she can give witness
to the disarray of the criminal legal system
and how it should change.
Political change does not happen quickly;
when it does finally happen, when laws
are passed or regulations promulgated,
they do not enforce themselves. Even in
a reimagined U.S. criminal legal system,
there will be judges.1 Even in a system in
which the roles of all the usual players have
been fundamentally reconceptualized,
there will be judges taking up the slack
when communities are unable to do the
job of judging their members. No matter
how the system is reframed to be about
reckoning and accountability, however
much legal principles are refashioned to
reflect parsimony and proportionality rather
than our current system—punishment
without end—judges will be called upon
to enforce them.

■
09

Reimagining Judging

My focus in this short essay is only on
sentencing. A judge’s role is different at
sentencing than her role at other points
in a criminal trial, or in other contexts.
The stakes are the highest; it is when
state power confronts a person’s liberty.
And I write for the most part about what
I know best, which is federal sentencing.
Federal sentencing has changed over the
past forty years and with it the judge’s role.
It has seesawed from a period when the
purpose of sentencing was rehabilitation,
and a judge had virtually unlimited discretion
to sentence (Gertner 2010). It then moved to
a more recent period when a judge’s power
was more strictly cabined by mandatory
minimum sentences, and mandatory Federal
Sentencing Guidelines. Finally, it has shifted
to the present which is—at least on the
surface—some combination of both. Today,
there is space for more judicial discretion.
On the surface, that change—increasing
judicial discretion—looks promising. More
judicial discretion might well be an antidote
to treating people as Guideline categories

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

or cogs in a three-strikes machine.
Reformers sometimes assume that when
judges focus on an individual, they will
necessarily consider their humanity and
the social context of the crime, all factors
that have largely been ignored during the
past thirty years. But there are reasons
to be skeptical.
“More discretion” standing alone is not at all
a criminal legal policy. It announces where
the decision-making authority lies but says
nothing about how that authority should
be exercised. Countless papers have been
written about the perils of unstructured
discretion—discrimination and bias chief
among them (Frankel 1973). But I want to
raise another issue: The unique problem of
giving judges discretion in sentencing at this
moment in time, after a decades long love
affair with prison. How can judges who have
been schooled in the extraordinarily punitive
system that produced mass incarceration

■
10

Reimagining Judging

for the past thirty years suddenly operate
in a system that—one hopes—will reflect
wholly different premises? How can a judicial
system based on one set of assumptions
suddenly enact or apply a wholly different
approach? These are precisely the same
questions we have asked of police,
correctional officers, and prosecutors in
a changed criminal legal system. Is change
possible in juvenile correctional facilities
that reflected hard-nosed punishment,
too often accompanied by physical and
sexual abuse scandals? Is change possible
with police schooled to be warriors, not
guardians? Although surprising at first blush,
assuming that law-following judges will
enforce such institutional changes—much
like with these other actors—is not enough.
In this paper, I touch first on judicial
resistance to recent modest criminal
law reforms, one example of what I have
described elsewhere as the phenomenon
of “the habits of mass incarceration”
(Gertner 2020). Then I sketch out—very

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

briefly—the factors that make judges
resistant to change: constraints that
apparently limit a judge’s horizons, cognitive
influences that they ignore, and political
pressures that are unexamined. Finally,
I propose a way to effect change—a very
preliminary suggestion.
Several caveats: I am generalizing from
my experiences from 17 years in the federal
system. This is not an empirical paper. Not
all judges fit these descriptions. Nor is this
paper about what needs to be changed in the
broader criminal legal system; others are
dealing with those profound and overarching
questions. Finally, the message here is not
that judicial change is impossible, only that
it is difficult. Any “reimagining project” must
take judicial impediments to change into
account; this paper considers how to revamp
the criminal legal system through the lens of
those who must apply that system’s rules.

■
11

Reimagining Judging

JUDICIAL RESISTANCE
TO REFORM

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
12

Reimagining Judging

For over a decade, some—not all—judges have
resisted even modest criminal law reforms.
At the federal level, these reforms have

Cabranes 1998). Right after the passage of

included the Second Chance Act, passed

the Federal Sentencing Reform Act (which

in 2007 and renewed in 2015, which sought

created the Federal Sentencing Guidelines),

to address the problems of prisoner

200 judges declared them unconstitutional

reentry; the 2010 Fair Sentencing Act,

(Stith and Cabranes 1998). But once the

which reduced but failed to eliminate

Supreme Court rejected those constitutional

the racially discriminatory disparity in

challenges, and signaled to the lower

sentencing between those convicted of

courts that mandatory guidelines meant

crack and powder cocaine distribution; and

mandatory, sentencing changed. More than

the 2019 First Step Act, which broadened

just legal change—the formal rulings of the

a judge’s authority to release prisoners

Supreme Court and the courts of appeals—

under compassionate release provisions,

the socialization of judges changed: how

gave judges more discretion to go below

they were reviewed (by higher courts) and

a mandatory sentence, and also reduced

what they were criticized for (i.e., for not

some mandatory drug sentences.

following guidelines), how they were taught
when they first went on the bench and in

We have seen the resistance of some

successive trainings, and how they were

federal judges to use their new sentencing

valued (for not getting reversed by appellate

discretion under these statutes, as well as

courts, for not getting lambasted in the

under the now advisory Federal Sentencing

press and even by Congress for being too

Guideline regime (Gertner 2016; Roth 2017).

soft, for being efficient in the way that rigid

And that resistance is especially surprising

Guideline-following enabled).

given the overwhelming judicial opposition
to mandatory guidelines and mandatory
minimum sentencing decades ago. Numbers
of federal judges testified against mandatory
sentencing legislation in the 1980s and 1990s.
Many more criticized mandatory sentencing
guidelines in articles and opinions (Stith and

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
13

Reimagining Judging

The result was that most federal judges—

And judges’ commitment—both federal and

especially those who became judges after

state—to punitive sentencing is nowhere

the Guidelines regime began—began to

clearer than in judicial resistance to the

enforce the sentencing rules with a rigor

policies of elected progressive prosecutors.

that none of the legislators who enacted the

For decades, judges have deferred to

law, or even the scholars who recommended

the decisions of prosecutors—no matter

it had anticipated. Scholars noted that

how problematic those decisions have

the judges had become “passive,” allowing

been. Constitutional separation of powers

themselves to be “marginalized,” in the

demanded that deference; judges are

sentencing process, ceding all authority to

in the judicial branch; prosecutors, the

the Sentencing Commission (Berman 1999).

executive. But with respect to elected

The job of sentencing became mechanical—

progressive prosecutors, there has been

mastering the 800-page Guideline book

pushback. Judges have second-guessed

and virtually nothing more. But the new

the decisions of prosecutors who have

sentencing ideology and socialization went

declined to prosecute minor crimes that

deeper. More and more federal judges came

are more a product of aggressive policing

to believe in the Sentencing Commission

in communities of color than threats

and the rationality of the Guidelines it

to public safety, as well as prosecutors

promulgated (U.S. Sentencing Commission

that have rejected the death penalty

2002; U.S. Sentencing Commission 2015).

(DeCosta-Klipa 2016; Smith 2019; Ricono

This was especially true if they had never

and Fahrlander 2020).

been criminal defense lawyers; most had
not. They had no framework with which to

Judges are not alone in resisting reform—

criticize them. And criticism was critical.

some prosecutors, police, politicians,

The Guidelines were not a rational, carefully

and even the media share responsibility.

conceived set of rules. They were unmoored

But in many ways judicial resistance to

from evidence, framed in a political process,

change is more difficult to address, clothed

“just back of envelope calculations and

as it is in citations to precedent, as well

collective intuitive judgments.” 2 Federal

as real concerns about neutrality and

judges were not alone. Skyrocketing

judicial independence.

imprisonment rates were also reflected in
state sentencing, even without mandatory
minimum statutes, rising to levels unheard
of in the 1980s.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
14

Reimagining Judging

To be sure, there are obvious exceptions to

far he had come since his release from

judicial resistance to change. Judges have

prison, and how much his life had improved

led the movement toward problem-solving

as a result of the court’s reentry program.

courts, restorative justice, pretrial diversion,

There were many questions I wanted to

and reentry programs (Denis 2019). These

ask—what happened to his family after he

programs are important, but they exist in

left for a far-off federal prison, what it felt

the interstices of an otherwise punitive

like to pick up the pieces after so long—but

system. They have not led to a fundamental

I settled on one: Did he think he needed

reexamination of ordinary sentencing—the

a fifteen-year sentence to get to the point

day-to-day treatment of the majority of

where the reentry program would help?

people not lucky enough to be included in

He paused. I wondered whether he hesitated

these specialized programs. It is as if we

because he feared the consequences of

found out that the COVID-19 vaccine worked

the “wrong” answer, a lesson he had learned

well on one group but then did not bother to

after years in “the system.” He finally said,

try it out on anyone else.

“Of course not.”

The issue was especially clear to me when

He was describing the disconnect between

I was invited to attend the graduation from

the sentence he received for his drug

a reentry program of a man I had sentenced

offense—wildly punitive, disproportionate—

to a substantial mandatory minimum

and his treatment when he was out of prison

term. Although I made sure that I publicly

on supervised release, at least in that

announced my objection to mandatory

reentry program. He was describing two

sentencing, I had no choice in the matter.

different worlds, different rules, different

At the program, the man talked about how

purposes. The lessons all the players in the
criminal legal system might have learned
from diversion or reentry programs do not

□

JUDICIAL RESISTANCE TO CHANGE
IS MORE DIFFICULT TO ADDRESS,
CLOTHED AS IT IS IN CITATIONS
TO PRECEDENT, AS WELL AS REAL
CONCERNS ABOUT NEUTRALITY
AND JUDICIAL INDEPENDENCE

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

appear to have bled over into the rest of the
system at least on any scale. Significantly,
the success of some drug courts has not
thus far led to a fundamental reexamining
of all the drug laws. Federal sentencing law
continues to treat drug addiction as “not
ordinarily relevant” to reducing a defendant’s

■
15

Reimagining Judging

culpability (United States Sentencing

These patterns are especially clear with

Guidelines 2012). This was so when in my

respect to people accused of violent

court, and others around the country,

crimes, as our Square One discussions have

a large proportion of the men and women

reflected. Pre- and post-trial diversion

sentenced for drug offenses have substance

programs cherry-pick defendants, excluding

abuse issues; dealers one day, users the

those convicted of violent crimes, a category

next. Reentry programs have worked to

that is often too broadly defined (Patterson

make certain that some defendants have

2020). This leaves the so-called “nonviolent

jobs and homes upon their release, jobs and

drug offenders,” a label that resonates

homes that could have enabled them to avoid

with paternalistic—even racist—efforts

imprisonment in the first instance. Both

to separate the “deserving” from the

surely would have made a difference to the

“undeserving” poor that dates from Tudor

unhoused 14-year-old who started dealing

England (Tihelkova 2015). The vast majority

crack to provide him and his siblings with

of the men I sentenced were victims,

school supplies; by the time he was before

witnesses, or perpetrators of violence,

me, he had a lengthy record, qualifying

as Bruce Western’s quote suggests. Their

him for a mandatory minimum sentence.

pre-sentence reports and bodily scars

While judges in the diversion courts may

reflected the violence they experienced.

work mightily to keep the defendant from

Reducing imprisonment for “nonviolent

returning to prison, they may well be less

offenders,” or eliminating it entirely, is

attentive to the harm that imprisonment

good—but not good enough.

had affected in the first instance. And
as I mentioned before, neither process—

The judicial habits that enabled mass

sentencing in the first instance or reentry

incarceration—that ignored the impact

decisions—is remotely nuanced. The initial

of mass incarceration or that passively

crime was the sole “fault” of the individual

accepted new definitions of what was a fair

defendant, as is a drug relapse. Neither

sentence—are nowhere clearer than in the

stage considers the family and community

pool of defendants affected by the Supreme

that must support the individual; the

Court’s decision in Miller v. Alabama (2012),

carceral state cannot and more importantly,

in which the Court held that the imposition

should not, serve as a stand-in for families

of a mandatory life without parole sentence

and communities.

on a juvenile violated the Constitution’s
prohibition against cruel and unusual
punishment. But rather than effecting
a sea change in the treatment of juveniles,

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
16

Reimagining Judging

the decision led to the resentencing of

Finally, while the COVID-19 pandemic has

juveniles around the country—this time to

accelerated the pace of decarceration,

“virtual” life sentences, like thirty or forty

it is striking how many judges remain

years (Miller v. Alabama 2012). Given the

resistant to releasing defendants at risk

chance to reconsider the culpability of

for the disease (Blakinger and Neff 2020;

defendants who were under 18 at the time

Finkle 2021). Some have even punished

of the crimes, the courts hardly budged.

defendants who did not physically appear

Some had become immune to sentencing

in court because the defendant feared

men to longer and longer periods of

infection (Brelis 2020). Some of the

imprisonment; a multiple decade sentence

judicial resistance is grounded in real

did not shock in the early 21st century in the

issues about the absence of community

way it had shocked in the early 20th. And

supports to ensure successful reentry

just nine years later, in Jones v. Mississippi

in a time of crisis, but much of it is not

(2021), the Supreme Court added fuel to

(Decarcerating Correctional Facilities

the fire, gutting Miller’s (2012) presumption

2020). Some resistance is grounded in

against life without parole for juveniles and

judicial risk aversion embedded in thirty

its core conclusion that the vast majority

years of mass incarceration, of not wanting

of adolescents do not deserve life even

to be that judge whose release decision,

if their crime reflects “unfortunate yet

however well-grounded, leads to a violent

transient immaturity.” As long as the judge

crime and press attacks (Hulse 2016).

knew they had discretion to reject a life

This is so even for judges with life tenure.

sentence, Justice Kavanaugh found, that

Perhaps as a way to cover that fear—that

was all that mattered. Justice Kavanaugh’s

the releasees will reoffend—judges will

idea of discretion, in short, is all about form

say that the men and women before them,

and not remotely about substance.

as well as the community are somehow
“better off” with them in prison. But “better
off” never means much. It rarely figures in
the likely impact of imprisonment and its
collateral consequences on a defendant
and his community.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
17

Reimagining Judging

Sadly, the usual calculus did not change

I want to understand why the bench has

much for some judges even in a pandemic.

resisted even the modest reforms that have

The lessons that might have been learned

been enacted and whether those patterns

from releases under COVID-19, drug

will persist with new judges. As one scholar

programs, and reentry courts—that it was

put it most starkly: “Will newly appointed

not remotely necessary for public safety

judges and justices fully understand what,

to imprison at the rates we have—are

in human terms, is at stake? Or will they

not getting through. The old narratives

decide incredibly important cases purely

persist—not just with the press, the police,

in light of their favorite hundred-year-

the prosecutors, but also crucially with

old precedent?” (Delgado and Stefancic

judges—that the recent increase in violent

2019:25). □

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); 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.3

□

WHILE THE COVID-19 PANDEMIC HAS ACCELERATED
THE PACE OF DECARCERATION, IT IS STRIKING HOW
MANY JUDGES REMAIN RESISTANT TO RELEASING
DEFENDANTS AT RISK FOR THE DISEASE

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
18

Reimagining Judging

IMPEDIMENTS TO
REIMAGINING JUDGING

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
19

Reimagining Judging

Many have written about what influences
judicial decision making, and in particular, why
judges seem so counter to change particularly
in the criminal legal system (Liptak 2015).
To understand how to change judicial

spoken of the rage she has felt about the

attitudes requires understanding why they

criminal legal system, and the importance

are imbedded as they are, what inheres

of not describing it in antiseptic terms.

in the institution, what does not. I only

But those are the very terms that judges

touch on those factors here, mainly as

are taught to use—words that distance, that

I experienced them.

are emotionless. One scholar referred to this
as “the cultural script of judicial dispassion,”

In Just Mercy, Bryan Stevenson repeats

the idea that judging must be as “insulated

his grandmother’s admonition long before

from human life and emotion as possible”

he embarked on his storied civil rights

(Maroney 2011:631). The disciplinary rules

career. “You can’t understand most of the

and judicial training even encourage judges

important things from a distance. You have

to avoid social situations in which their

to get close” (Stevenson 2014:14). “Getting

neutrality can be compromised, or that

proximate,” is how he describes it, proximate

raise even that appearance.

to the condemned and those unfairly judged.
State court judges (and obviously elected
Judges are socialized not to be proximate

judges) are different; they work in the

in the way that Stevenson describes.

communities they serve. That is where

They are supposed to be removed from

their courthouses are, where they

the parties and the lawyers, on a pedestal,

must park their cars, eat their meals.

in a costume—the robe. Their information
sources are limited—primarily the arguments
of the lawyers, legal research. They are
supposed to be an “other.” Reverend,
advocate, and scholar Vivian Nixon has

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
20

Reimagining Judging

□

JUDGES ARE SUPPOSED TO BE REMOVED
FROM THE PARTIES AND THE LAWYERS,
ON A PEDESTAL, IN A COSTUME—THE ROBE

Federal judges in large urban communities

This distance and “otherness” derive in

are often at some distance from the

part from an ideology of judging, legal

communities whose members regularly

formalism, an ideology largely rejected

appear before them. And that distance,

by the legal academy and most judges,

literal and figurative, made a substantial

but still alive and well in the media and the

difference when legislation passed in the

judicial selection process. It was reflected

1980s federalized street crime; federal

in Justice John G. Roberts’ testimony

courts began to prosecute low-level drug

before the Judiciary Committee in 2005.

offenses, their jurisdiction overlapping that

“It’s my job to call balls and strikes,” said

of the state courts and their separation

Roberts at his successful confirmation

from the communities they served even

hearing to be chief justice of the United

more significant.

States (2005). It was the theme of
Justice Clarence Thomas’ remarks that

I felt that distance the moment I became

he would be “stripped down like a runner,”

a federal judge. When I had been a civil

and would “shed the baggage of ideology”

rights and criminal defense lawyer, I had

(Greenhouse 1991).

represented people accused of crimes from
all of Boston’s communities; I had visited

Judicial selection—at least up until

homes, spoken at churches and schools,

recently—mirrored this view (Southworth

bailed out defendants in police stations

2018). It is not too much of an exaggeration

across the City often in the middle of the

to say that federal judges were selected

night. But now a federal judge, I drove to

in direct proportion to how little they had

the courthouse from a Boston suburb,

said publicly about controversial issues

on the Massachusetts turnpike that went

(Gertner 2016). They assured the Senate

under the city, and landed in the federal

that they were ready to be those “umpires”

court garage. If I had not purposely reached

or “stripped down” runners. In addition,

out, I would have missed all the communities

their backgrounds were homogenous; most

the turnpike steered me underneath.

were white, male, from large law firms, or
with prosecutorial experience (Shepherd
2021).4 And if you were not stripped down like
a runner, or the proverbial umpire, you were
an “activist.” (I was one of the exceptions;
I had been an outspoken civil rights and
criminal defense lawyer for 24 years before
I became a judge.)

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
21

Reimagining Judging

I recall after I issued an opinion refusing

It was an extraordinary comment.

to consider traffic offenses to enhance the

Sentencing, after all, is about results—what

sentence of a Black man when those charges

outcomes make sense, what alternatives

appeared to reflect “driving while Black”

are possible that do the least harm

(driving an unregistered car, unaccompanied

(18 U.S.C. §3553(a)). Even in a mandatory

by any other offense, in the white suburbs

regime, hedged about by rules, judging

of Boston), a colleague asked whether

is an interpretive process, informed by

I was afraid I would be labeled an “activist”

considerations of justice and equity,

(United States v. Leviner 1998). I was not.

empathy and compassion, a view far more

The decision was a fair interpretation of

complex than Roberts or Thomas would

the law, a fair application of the law to the

suggest. Judge Denny Chin (2020:1561,

facts at hand. It applied the formal rules

1563–1564) of the U.S. Court of Appeals

to a real life context; it looked at the rules

for the Second Circuit made it clear that

not as abstractions but as having real

although empathy “should play no role in

consequences, reflecting real biases. More

a judge’s determination of what the law is,”

recently, a scholar commented on a story

empathy is “essential … in the real-world,

I related about one of the men I sentenced,

day-to-day administration of justice.”

a young man with a bullet in his brain,
whose trauma was largely ignored by the

Judges’ experiences necessarily figure

prosecutors. I did what I could to mitigate

into the equation. At least until recently,

the harsh effects of the law, giving him

we selected judges almost exclusively in

a sentence as low as I could lawfully go.

their late 40s and older, after a life lived

Wrong, this scholar suggested. I was being

in the legal profession and the world, with

“results-oriented” (Kolber 2020).

their attitudes and their experiences,
expressed and unexpressed. The question
is how to deal with their experiences, not
whether. For many judges, the failure to
acknowledge those experiences and how
they figure into judging too often means not
reflecting on their biases and the way their
experiences skew their viewpoints.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
22

Reimagining Judging

Experiences and the assumptions about the

Experience (and thus bench diversity)

world they engender affect all decisions,

obviously matters. If you have never seen

big and small —the time you give to the

a police officer lie on the stand, you may well

case, whether you see it as a complex issue

believe—as a judicial colleague once told

or open and shut. One judge told me that

me—that the officer witness is not likely to do

if he did what I did at sentencing, it would

so. That colleague’s threshold for evaluating

require him to spend the same amount of

a police officer’s credibility was different—

time for a criminal sentencing as he spends

higher—than the threshold of someone

on complex patent cases; he did not think

who had had that experience of seeing

sentencing required that. He privileged

a police officer lie. If you have never been

efficiency over all—except in his commercial

in communities of color when a policeman

cases. But learning more and more about

stops a Black teenager, you may well believe

a defendant may get a judge as proximate as

that he must be guilty of the crime when he

they can be. When you decide affects what

runs, rather than that he feared arbitrary

you decide, whether in a deliberative pretrial

violence at the hands of the police. If you

setting, after a hearing, or in the midst of

have never selected jurors when a Black

a trial with a jury impatiently waiting. Judicial

defendant is on trial, you would not have

shortcuts affect not just the speed of justice,

rejected the elderly white woman from one

but the quality. Efficiency is not neutral—you

of Boston’s suburbs, who when asked if there

choose it over access to justice and a more

is any reason why she should not serve, told

complete understanding of the case.

me that she was “afraid” to come into Boston.
While I excused her, it may have been just
as likely that a judge in another courtroom
would believe that her comments were not

□

EFFICIENCY IS NOT NEUTRAL—
YOU CHOOSE IT OVER ACCESS TO
JUSTICE AND A MORE COMPLETE
UNDERSTANDING OF THE CASE

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

problematic, or worse, true. While we screen
jurors for their biases, we assume judges’
neutrality once they are confirmed and on
the bench.

■
23

Reimagining Judging

□

WRITING OPINIONS IS IMPORTANT NOT SIMPLY FOR ITS
IMPACT ON THE PUBLIC AND THE MEDIA NARRATIVE
BUT ALSO BECAUSE IT CHANGES THE DECISION-MAKING
PROCESS, THE WAY A JUDGE SEES THE CASE
Sociocultural factors determine the issues

And apart from the experiences judges bring

judges identify as problematic. Judges did

to the bench, there are additional influences

not have to learn much about the groups to

that derive simply from their judicial service.

which they belong; given the makeup of the

The longer one is on the bench, the more

bench, they know all about the middle-class

likely embedded assumptions about the

or upper-class white male defendants. As to

criminal legal system remain unexamined:

that group, judges were not really “others.”

the judge believes that they have “no choice”

This was not so with respect to the Black

but to follow them. Robert Cover, speaking

or Latinx defendants who made up the bulk

of the antislavery judges who enforced the

of most urban dockets. When 30 Black

Fugitive Slave Act more rigorously than they

defendants were brought into my courtroom

had to, described this as the “judicial can’t”

and described as members of a violent street

(as distinguished from “judicial cant”) (Minow

gang, I wanted to scrutinize this label “gang.”

1990:8). The habits of mass incarceration

For someone who knew the communities in

have framed sentencing for over thirty years.

which the defendants lived, the “Castlegate

As one scholar described it:

gang” was simply a group of men who lived
on one street, grew up together, or, as one

Tough on crime policies have

mother in a different case described, were

dominated the country for decades,

in Pampers together. What the government

and judges have been at the frontline

described as their “aliases” were names

of enforcing these policies. As public

they gave each other as children. They may

sentiment changes and legislatures

have been dealing drugs, but to caricature

pursue reforms, judges are likely to

them as if they were MS-13—or worse, the

lag behind. For a judge, being less

“superpredators” of the Clinton era—was

punitive means reversing course on

absurd to me (Moriearty 2010).5

a career of judicial decision-making.
Ideologically motivated or not, many
judges have grown comfortable in
their practices, trust the wisdom and
experience they have gathered from
years on the bench, and will not be
eager to change how they collect fines
and fees or impose bail (Brett, Doyle,
and Nagrecha 2020:10).

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
24

Reimagining Judging

Caseload pressures, real and imagined,

Writing opinions—as I describe—is important

have their own dynamic. I was encouraged

not simply for its impact on the public and

not to write opinions unless I had to. Opinion

the media narrative but also because it

writing, the trainers cautioned, slowed down

changes the decision-making process,

case management. It meant I could not get to

the way a judge sees the case. The legal

as many cases as other judges who chose not

literature suggested that “writing opinions

to write as much. Sentencing memoranda,

could induce deliberation that otherwise

explaining why I sentenced someone as

would not occur” (Guthrie, Rachlinski, and

I did, were especially unnecessary to the

Wistrich 2007). In contrast, using “scripts,

trainers. An open court recitation was

checklists, and multifactor tests” decreases

adequate, indeed the norm. That meant

judges’ reliance on their own experiences

that only the parties in the room were likely

and memories (Guthrie, Rachlinski, and

to hear the explanation of the sentence,

Wistrich 2007). There is no more pernicious

not the media (unless they happened to

checklist than the Federal Sentencing

be there at the time), or the judge in the

Guidelines, which, though advisory, exerted

courtroom next door, or the one across

a gravitational pull on what judges do,

the country. That meant that no other

a gravitational pull that necessarily led to

judge would be able to use my sentence or

higher sentences. Judges felt anchored

my analysis as precedent for theirs unless

to the Guideline ranges, even when they had

I was appealed to the higher court. And if

discretion to reject them, imposing harsher

I were appealed, then the court of appeals’

sentences than they would otherwise have

analysis in their written opinions– antiseptic,

given (Guthrie, Rachlinski, and Wistrich

out of context, too often reversing a more

2001; Bennet 2014). The power of precedent

lenient sentence I imposed– would supplant

normalized Guideline sentences, and even

mine. So, the precedent was shaped—rarely

mandatory minimum sentences, that

reexamining the tropes that underpinned

would have been obscene years before.

mass incarceration, and even those that

Judges—indeed all of the participants in

facilitated racial caricatures.

the criminal legal system—had come to
view imprisonment as the appropriate
punishment for all crimes with the only
question being, “how much imprisonment?”
(Gertner 2016).

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
25

Reimagining Judging

Legal doctrine, or precedent, whatever

errors in case after case leads to a bench

its initial rationale, has a life of its own.

unable to ever see police or prosecutor

For example, standards have evolved

errors even when they are clear, even when

that excuse police misconduct or justify

they should be recognized in the law. Judges

otherwise illegal searches—qualified

lose the ability to envision what error even

immunity in the former case, good faith

looks like (Gertner 2012). And if they never

defenses in the latter. These doctrines

had any personal experience in the criminal

may have made sense at the outset, but

legal system—especially as a defense

their meaning is lost in the repetition,

lawyer—they may well never have had that

in their application to contexts far afield

ability in the first place. □

of the original one. Worse, those doctrines
have cognitive consequences. Just one
example: the habit of excusing police

□

THE POWER OF PRECEDENT NORMALIZED GUIDELINE
SENTENCES, AND EVEN MANDATORY MINIMUM SENTENCES,
THAT WOULD HAVE BEEN OBSCENE YEARS BEFORE

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
26

Reimagining Judging

REIMAGINING
JUDGING

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
27

Reimagining Judging

What does it take to turn this system, with
these pressures and influences, around?
Given judicial resistance to changing the habits
of mass incarceration, how can we provide
institutional support for meaningful change?
A few suggestions follow.

INSTITUTIONAL CHANGES
JUDICIAL SELECTION

lawyers. Eighty-five percent of former
President Obama’s appointees were in either

An important first step is to change whom

category (The New York Times 2014). And

we select for the bench. It is not simply

recent selections have also done little to

a question of racial, ethnic, or even gender

change the gender or racial makeup of the

diversity. A bench can be racially diverse,

bench. They may well be extraordinary legal

diverse in terms of gender and sexual

thinkers, they may well have the appropriate

preference, and still come from the same

temperament, but they represent a narrow

socio-cultural background as most judges

swath of attitudes and experiences—and that

have for decades. The issue is diversity

matters to the thousand decisions, big and

of experience, not just demographic

small, that they must make on the bench.

diversity. The vast majority of judges
are former prosecutors and government
civil attorneys, rather than defense or civil
rights attorneys (Woods 2020). And if they
are not prosecutors, they are corporate

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
28

Reimagining Judging

JUDICIAL TRAINING

likely a part of the world view of the majority
of judges—informs how a judge sees a case,

Judicial training, at least in the federal

how carefully they will question the parties,

courts, is largely about rules, as if the only

how deeply they will delve into the issues,

measure of a fair sentence is whether

and how much time they will give to it, as well

it is lawful, within statutory limits. While

as what he or she may do in the final decision.

the Federal Sentencing Guidelines are
now supposed to be advisory, judges

That discussion needs to be paired with

are primarily trained in their application.

a sophisticated understanding of the risk

The slide deck used by the United States

of pathologizing defendants from Black

Sentencing Commission is almost completely

and Latinx communities, the danger that

about the Guidelines, their application, and

the problems appear so complex that they

their interpretation, save for the last slide

are beyond a judge’s consideration at all.

which announces that the Guidelines are

One of the many factors that ushered in

advisory. There is no analysis of how to deal

mandatory sentencing in the 1980s was an

with that new discretion, or what programs

article by sociologist Robert Martinson which

and considerations might be relevant.

seemed to suggest that nothing worked to

It is no small wonder federal judges continue

rehabilitate people who have committed

to default to the guideline analysis; there

harm.6 We know that “nothing works” is

is no framework for anything else.

wrong in many contexts related to crime,
violence, and harm. The papers generated

We need a “Square One” program for

by Square One make that clear (Hawks,

all judges if changes in a reimagined

Lopoo, Puglisi, and Wang 2021; Alexander

criminal legal system are to be reflected

and Sered 2021; Jones-Tapia 2021; Austin,

in court. Training about the impact of

Schiraldi, Western, and Dwivedi 2019).

trauma, exposure to violence, poverty,
and lack of access to schools, healthcare,
employment, etc., should be required.
They should hear from scientists about
the neuroscience of trauma, addiction,
and adolescent neurodevelopment; from
sociologists about the social and cultural
contexts of men and women they are
sentencing; from health professionals
about the social determinants of health.
As I have described, this information—not

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
29

Reimagining Judging

We need training programs that include

What about accountability for wrongful

information about other countries’ criminal

or disproportionate sentences? What if

legal systems in order to enable judges to

judges were obliged to review case studies

envision approaches other than the usual

of what has happened to the defendants

ones, and other than the assumptions of

sentenced to lengthy retributive sentences,

thirty years of judging. Judges often believe

reexamining them, critiquing them, and

that what they are doing is the only way

considering alternatives? 8 Did a thirty-year

criminal legal work can be done, as if U.S.

sentence, or twenty years, or ten, make

penal practices reflect the natural order

sense in this case, in a humane, or even

of things. They do not.

rational, sentencing system? How much
did it disrupt the defendant’s life course?

SENTINEL EVENT AUDITS
In medicine, doctors hold “sentinel event”
reviews whenever there is a death or serious

Was it justified? What else could have—
or should have—been done?

STATISTICAL REVIEWS

physical or psychological injury to a patient
or patients.7 Too often, the only outcome that

One way to address racial bias in policing

matters to judges is a reversal by a higher

is an after the fact, thorough statistical

court or press criticism. For the police, we

analysis of arrests to examine the extent

have discussed changing incentives from

to which they correlate with the race of

arrests and convictions to more substantial

the defendant. To be sure, this requires

measures of a community’s health and safety

a commitment to accurate data collection

(Pearl 2019). Likewise, we need to change

and periodic reviews. Judicial decisions are

the incentives for judges, and in so doing

rarely subject to that kind of analysis, except

change their deliberative processes. Judges

by scholars; even then, the analysis happens

(and other players in the system) could

on a group, not an individual level. Fearful

hold a retrospective review when there

of public criticism, judges are reluctant to

is a wrongful conviction, when there is

allow scrutiny of their sentencing decisions

recidivism, or when there is an unexpected

(Gertner 2012).9 The fear is well-founded in

tragic event. What happened? What could

a world in which press coverage of criminal

be changed? What did we miss? What

matters is more parody than fact. Still, there

program worked or did not work? Should

is no other way to address unexamined bias.

recidivism even be the measure of success
or some other criterion—family, job,
reintegration into a supportive community?

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
30

Reimagining Judging

I am working to submit my seventeen-year

criticized the government, when the U.S.

record to a statistical analysis to identify

Attorney decided to seek the death penalty

my racial bias. When I proposed such

in a case before me involving the murder

a program while I was still on the bench,

of a man, allegedly by a local gang.

there was considerable resistance; judges
feared that the analyses would become

Concerns about judicial neutrality should not

public, that they would be criticized in the

impede meaningful, unfiltered engagement

media, that Congress would swoop in with

with the community, an understanding of its

additional mandatory minimums. But without

needs and resources, what it takes to make

a statistical examination of sentencing, even

a community flourish, and the role that courts

if only for the internal review of the courts and

play in doing so. That engagement should

individual judges, there is a risk that a judge

count as important—indeed more important—

will see racial bias as an abstraction; it applies

than the usual engagement with bar

to other judge’s decisions, not their own.

associations or law schools.

10

And for the public, such reports could well
enhance the court’s legitimacy, suggesting

Judges are rarely held accountable in

“we have nothing to hide,” even “we are trying.”

a meaningful way for their criminal legal
decisions. They may be appealed, but

COMMUNITY ENGAGEMENT

that is not real accountability. That is
only about conformance with rules and
procedures, not necessarily justice. Judges

Federal judges are too often removed

may be criticized in the press, but that is

from the communities they serve.

rarely a dispassionate review and is often

The community’s voice is filtered through

discounted. In fact, judges are likely to be

the prosecutor and occasionally the victims,

criticized for sentencing too little, never

who pass on only the information that

too much; held responsible when someone

is most advantageous to seeking harsh

they sentenced commits another crime,

sentences. The Black community had

no matter what the cause, and not when

broadly supported police-driven efforts

someone they sentenced succeeds in

to deal with crime in their communities,

reconstructing (or constructing) a good life.

but their attitudes began to change

It results in a one-way ratchet, rewarded

as more and more young men were

for over-punishing, for adopting whatever

sentenced to extraordinarily long sentences

sentence the prosecutor requests, but rarely

and as police practices in stopping and

for their humanity and compassion.

frisking young Black men were exposed.
That support dissipated, and they sharply

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
31

Reimagining Judging

NARRATIVE CHANGE
The Square One discussions, channeling the

Black”) (Delgado and Stefancic 2019:51, 50,).

movement for Black lives and the pushback

Other examples might include my opinion

against mass incarceration, addressed

in United States v. Haynes (2008:19) (courts

not only criminal law reform, but also the

should consider the ways in which the

importance of creating a new narrative about

failed experiment in mass incarceration

crime, justice, and equity. The questions

has disrupted families and communities)

I grapple with are, how can that narrative be

or Judge Jack Weinstein’s decision in United

reflected in the work of judging, and perhaps

States v. Bannister (2011:63) (warning that

more critically, how do we incentivize judges

mandatory minimum sentencing “impose[s]

to do so?

grave costs not only on the punished but on
the moral credibility upon which our system

Opinion writing is the way for judges to

of criminal justice depends”).11 Or perhaps

reflect new narratives, to shine a light

the most compelling narrative was in United

on the humanity of the defendants, and

States v. Burudi Faison (2020:P2), which

the inhumanity of the criminal legal

begins a sentencing memorandum with

system. In Do Judges Cry? An Essay on

a quote from Shon Hopwood in Law Man:

Empathy and Fellow-Feeling, the authors

My Story of Robbing Banks, Winning Supreme

cite to the dissent of Justice John

Court Cases, and Finding Redemption

Harlan in Plessy v. Ferguson (1896), which

(2012:12–13): “As we neared the prison,

they describe as “lamenting the sterile

I saw its razor-wire fences, towers, and

formalism by which the majority found

lights…Our bus pulled up to the gate. Again,

nothing wrong with a railroad ordinance

we faced a reception line of guards with

that required separate seating for white

shotguns and automatic assault rifles.”

and black passengers,” the opinion of
Judge David Bazelon of the D.C. Circuit
in United States v. Alexander (1973), who
discussed the ways in which a “rotten social
background,” including child abuse, violence,
and maltreatment, should figure into the
court’s understanding of a defendant, and
my opinion in United States v. Leviner (1998)
(which rejected the consideration of prior
convictions that were for “driving while

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
32

Reimagining Judging

Even in situations in which a judge must

The goal is explicit: to speak not simply to the

impose a mandatory sentence, when the

litigants and possibly the appellate courts,

opinion is nothing but a cri de coeur, a judge

but to the public. Chief Justice Warren

should write if only to decry the unfairness

was clear that the majority decision in

of the result. In United States v. Vasquez

Brown v. Board of Education, reversing Plessy

(2010), Judge John Gleeson began:

should have the public in mind: “[The opinion
outlawing separate but equal education]

When people think about miscarriages

should be short, readable by the lay public,

of justice, they generally think

non-rhetorical, unemotional, and above

big, especially in this era of DNA

all, non-accusatory” (Guinier 2008). During

exonerations, in which wholly innocent

my time on the bench, I tried to make the

people have been released from jail

first three or four pages of any opinion

in significant numbers after long

the functional equivalent of a press release

periods in prison. As disturbing as

(Gertner 2016).12

those cases are, the truth is that most
of the time miscarriages of justice

Judges speak through their opinions—to

occur in small doses, in cases involving

the lawyers, to other judges, to the media,

guilty defendants. This makes them

to the people before them. They can speak

easier to overlook. But when they are

in the antiseptic language of the law, the

multiplied by the thousands of cases in

language of guidelines and rules. They can

which they occur, they have a greater

pretend that what they are doing is fair when

impact on our criminal justice system

it is not. Or they can change the narrative. □

than the cases you read about in
the newspapers or hear about on
60 Minutes.

□

OPINION WRITING IS THE WAY FOR
JUDGES TO REFLECT NEW NARRATIVES,
TO SHINE A LIGHT ON THE HUMANITY OF
THE DEFENDANTS, AND THE INHUMANITY
OF THE CRIMINAL LEGAL SYSTEM

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
33

Reimagining Judging

CONCLUSION

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
34

Reimagining Judging

The habits of mass incarceration die hard,

[N]obody has to take responsibility

helped by the insularity of the courts, by

for the outcome, because nobody

its composition, and by factors I have only

is responsible—at least not fully.

begun to address. But these habits are

This lack of responsibility is crucial

not impenetrable. The goal is to engage

to understanding why even reluctant

the courts in the wider discussion about

or conflicted crime warriors … become

the unfairness of the system, its impact

part of the machinery of mass

on poor communities and especially

incarceration and why the system

communities of color. The goal is to invite

continues to churn even to this day,

judges to reimagine what community

when its human toll has become

safety really looks like, not with police,

increasingly apparent (Forman 2017:14).

prosecutors, and exorbitant mandatory
minimums—and the role that judges can play

The way to change is to hold all of the

in facilitating it. James Forman put it best.

players in the criminal legal system

He describes the criminal justice system

accountable—including judges, to effect

as so disaggregated and uncoordinated,

a true reckoning. □

no single actor can take responsibility
for the growth of our carceral system.

□

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

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
35

Reimagining Judging

ENDNOTES
1 Though it is outside of the scope of

mandated purposes of sentencing,

3 Number of homicides increased

this paper, this author would also like to

they achieved them. Relative to those

by 16% during the first half of 2021

recognize the rich history of indigenous

formidable sentencing experts on

compared to the same time frame

customary judicial practices, which

the Commission, so the mythology

as 2020, and by 42% compared

often rely on the assistance of elders

goes courts were poorly suited

to the same time frame in 2019.

and community members to adjudicate

to decided sentencing. None of the

The aggravated assault rate was

disputes rather than formerly trained

Guidelines ideology was true (Gertner

9% higher in the first half of 2021

judges. See, e.g., Fletcher 2007.

2006). Ohio received a score of one

than during the same period in

on a scale of most voluntary to most

2020, and the gun assault rate was

mandatory state sentencing systems.

5% higher in the first half of 2021

Judges didn’t need written reasons

than the year before. Motor vehicle

to depart from sentencing guidelines,

theft rates were 21% higher in the

and sentencing departures weren’t

first half of 2021 than the year

subject to appeal (Kauder 2008).

before. Other major crimes declined.

Incarceration in Ohio state prisons

Robbery (-6%), residential burglary

has risen 184% since 1983; most of

(-9%), nonresidential burglary (-9%),

the increase occurred from 1983–2000

larceny (-6%), and drug offense (-12%)

(Vera Institute of Justice 2019).

rates dropped from the same period

2 Tonry, Michael. 2010. “The Questionable
Relevance of Previous Convictions
to Punishments for Later Crimes.”
Pp. 91–116 in Previous Convictions at
Sentencing; Theoretical and Applied
Perspectives. Robert Cover writes that
“(n)o set of legal institutions…exists
apart from the narratives that locate
it and give it meaning,” (The Supreme
Court 1982). The “narrative” of the
Commission was that it was an
“expert” agency, its Guidelines were
comprehensive, and that the Guidelines
not only reflected congressionally

in 2020. (German 2020); (Farivar 2020)
suggesting that bail reform is not
responsible; (Leslie and Wilson 2021)
domestic violence calls are up; CCJ
describes trends from 2020 through
July 2021 (Rosenfield and Lopez 2021);
(FBI 2021).

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
36

Reimagining Judging

4 Eighty percent of federal judges

7 This is also done for child fatalities

9 In a perfect world “[j]udges would

are white, and 73 percent are men

in most states. Intensive death reviews

look carefully at the statistics.

(Faleschini, Oyenubi, and Root 2019).

are conducted of children who die

They would be eager to go over the

within one year of the family having

data with a fine-tooth comb, discuss

contact with child welfare. The purpose

why their sentences were alike or

is not to lay blame, but to uncover

different, engage with their colleagues

systemic improvements that can

and perhaps persuade them of

prevent future similar deaths. This

the rightness of their approach or

is a structured confidential process

the opposite, change their minds.

that results in formal recommendations

They would analyze what worked and

6 Martinson, Robert. 1974. “What

to various community stakeholders—

what did not work. Their sentences

Works? Questions and Answers

not just child welfare. These death

would be more consistent because

about Prison Reform.” The Public

reviews are responsible for seat belt

they had the data to enable them to

Interest. He subsequently recanted

and bike helmet policy changes as

situate the case before them in the

some of his conclusions in “New

well as investments in safe sleep

context of larger sentencing patterns

Findings, New Views: A Note

campaigns. Just an example of how

in the district or in the country.

of Caution Regarding Sentencing

this interagency process can focus

They would behave, in short, like some

Reform,” (Martinson 1979).

on the system rather than individual

physicians who study medical outcome

decision-makers or actors.

in a systematic way, or who, at the very

5 This seemed to be the residue
of the “moral panic” of the 1990s,
when the media, politicians and even
judges, reflected the view there was
a new breed of adolescents, “godless,”
even “deviant.”

8 In effect, that is what the book
I am writing, Incomplete Sentences,
is about.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

least, compare therapies with their
colleagues in peer review procedures,”
(Gertner 2012). (Italics supplied.)

■
37

Reimagining Judging

10 In another context, a well-regarded

alleging reverse discrimination had

12 I had a way of referring to this

employment lawyer in Atlanta studied

a better success rate than Black

to my clerks. If the law required that

how judges in the Northern District

plaintiffs alleging discrimination

I do x, I would do x, even though I

of Georgia dealt with employment

(Farahany and McAdams 2013).

disagreed, but I would surely drop

discrimination cases. Of the 181 cases
in which the plaintiff had counsel, the
district courts dismissed 95 percent
of them in part and 81 percent in full.
Racial hostile work environment claims
were dismissed 100 percent of the time.
Data broken down per judge revealed
that some judges had dismissed
all—literally all—discrimination cases
in the two-year period studies. Data
also suggested that white plaintiffs

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

11 See generally, Roth, Jessica A. 2017.
“The “New” District Court Activism in
Criminal Justice Reform.” NYU Annual
Survey of American Law 72(2):277–363,
addressing the case for reform
made in the pages of their judicial
opinions, in articles and speeches.

a footnote—“Oy, is this unfair!” Some
decisions, I would tell them, are all “oy.”

■
38

Reimagining Judging

REFERENCES
Alexander, Amanda and Danielle

Brett, Sharon, Colin Doyle, and Mitali

Fair Sentencing Act. Public Law 111–220,

Sered. 2021. “What Makes a City Safe”,

Nagrecha. 2020. “Court Culture and

124 U.S. Statutes at Large 2372 (2010).

The Square One Project.

Criminal Law Reform.” Duke Law
Journal 69(84):84–113.

Austin, James, Vincent Schiraldi,

Faleschini, Jake, Grace Oyenubi, and
Danielle Root. 2019. “Building a More

Bruce Western, and Anamika Dwivedi.

Chin, Denny. 2012. “Sentencing: A Role

Inclusive Federal Judiciary.” Center

2021. “Reconsidering the Violent

for Empathy.” University of Pennsylvania

for American Progress, October 3.

Offender,” The Square One Project.

Law Review 160(6):1561–1584.

Bennet, Mark W. 2014. “Confronting

Confirmation Hearing on the

2013. “Analysis of Employment

Cognitive ‘Anchoring Effect’ and ‘Blind

Nomination of John G. Roberts, Jr.

Discrimination Claims for Cases

Spot’ Biases in Federal Sentencing:

to Be Chief Justice of the United

in Which an Order was Issued on

A Modest Solution for Reforming

States, Senate Hearing 109–158 (2005).

Defendant’s Motion for Summary

Farahany, Amanda and Tanya McAdams.

a Fundamental Flaw,” Journal

Judgment in 2011 and 2012 in the U.S.

of Criminal Law and Criminology

Cover, Robert. 1983. “The Supreme

District Court for the Northern

104(3):489–534.

Court 1982 Term-Foreword: Nomos and

District of Georgia,” Justice at Work,

Narrative,” Harvard Law Review 97:4–68.

September 16.

Law for this Age of Federal Sentencing:

DeCosta-Klipa, Nik. 2016. “Rachael

Farivar, Masood. 2020. “How COVID-19

The Opportunity and Need for Judicial

Rollins Blasts Judge for Refusing to

Jail Releases Are Impacting US Crime

Lawmaking.” Stanford Law and Policy

Dismiss Charges Against Nonviolent

Rate,” Voice of America, July 27.

Review 11(1):93–94.

‘straight Pride Parade’ Protestors,”

Berman, Douglas. 1999. “A Common

Boston Globe, September 4.
Blakinger, Keri and Joseph Neff. 2020.

FBI Press Office. (2021, September 27).
FBI Releases 2020 Crime Statistics

“Thousands of Sick Federal Prisoners

Delgado, Richard, and Jean Stefancic.

[Press release]. www.fbi.gov/news/

Sought Compassionate Release.

2019. “Do Judges Cry? An Essay

pressrel/press-releases/fbi-releases-

98 Percent Were Denied.” The Marshall

on Empathy and Fellow-Feeling.”

2020-crime-statistics.

Project, October 7.

Case Western Reserve Law Review
70(1):23–51.

Brelis, Matt. 2020. “DA Rachel Rollins

Finkle, Victoria. 2021. “How
Compassionate? Political

and Defendant Argue COVID-19

Denis, Matthew. 2019. “Reentry

Appointments and District Court

Standing Order was Violated and Arrest

Court Aspires to Give Released

Judge Responses to Compassionate

Warrant Was in Error,” Suffolk County

Prisoners a Chance to Succeed,”

Release during COVID-19,”

District Attorney’s Office, November 12.

The Register-Guard, April 10.

Georgetown University Law Center,
January 22.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
39

Reimagining Judging

First Step Act. Public Law 115–391 (2018).

Gertner, Nancy. 2016. “Judicial

Hawks, Laura, Evangeline Lopoo,

Discretion in Sentencing—Real

Lisa Puglisi, and Emily Wang. 2021.

Fletcher, Matthew L.M. 2007.

or Imagined?” Federal Sentencing

“Towards a New Framework for

“Rethinking Customary Law in Tribal

Reporter 28(3):165–166.

Achieving Decarceration: A Review

Court Jurisprudence,” Michigan Journal
of Race & Law 13:57–97.

of the Research on Social Investments,”
Gertner, Nancy. 2012. “Losers’

The Square One Project.

Rules.” The Yale Law Journal
Forman Jr., James. 2017. Locking

Online 122(109):109–124.

Up Our Own: Crime and Punishment

Hopwood, Shon, and Dennis Burke. 2012.
Law Man: My Story of Robbing Banks,

in Black America. New York, Farrar,

Gertner, Nancy. 2016. “Opinions I Should

Winning Supreme Court Cases, and

Straus and Giroux.

Have Written.” Northwestern University

Finding Redemption. New York City:

Law Review.

Crown Publishers.

Sentences: Law Without Order?

Greenhouse, Linda. 1991. “The Thomas

Hulse, Carl. 2016. “Bipartisan Criminal

New York: Hill and Wang.

Hearings: In Trying to Clarify What

Justice Overhaul Is Haunted by

He is Not, Thomas Opens Question

Willie Horton,” The New York Times,

Gertner, Nancy. 2010. “A Short History

of What He Is.” The New York Times.

January 16.

of American Sentencing: Too Little

September 13.

Frankel, Marvin E. 1973. Criminal

Law, Too Much Law, or Just Right.”

Imposition of a Sentence. 18 U.S. Code

The Journal of Criminal Law and

Guinier, Lani. 2008. “The Supreme

Criminology 100(3):691-708.

Court, 2007 Term-Foreward:

Gertner, Nancy. 2020. “Coronavirus

Demosprudence Through Dissent,”

Jones-Tapia, Nneka. 2021. “Harm

Harvard Law Review 122:4–138.

Reduction at the Center of

Can Mean a Death Sentence to
Prisoners,” Boston Globe, May 5.

Incarceration,” The Square One Project.
Guthrie, Chris, Jeffrey J. Rachlinski,
and Andrew Wistrich. 2007. “Blinking

Gertner, Nancy. 2006. “From

on the Bench: How Judges Decide

Omnipotence to Impotence: American

Cases,” Cornell Law Review 93(1):36–37.

Judges and Sentencing.” Ohio State
Journal of Criminal Law 4(2):523–539.

§ 3553 (1987).

Jones v. Mississippi, 593 U.S. ___ (2021).
Kauder, Neal. 2008. “State Sentencing
Guidelines: Profiles and Continuum.”

Guthrie, Chris, Jeffrey J. Rachlinski,

National Center for State Courts.

and Andrew Wistrich. 2001. “Inside
Gertner, Nancy. 2012. “Judge

the Judicial Mind,” Cornell Law Review

Kolber, Adam J. 2020. “How to Fix Legal

Identifiers, TRAC and a Perfect World,”

86(4):777–830.

Scholarmush.” Brooklyn Law School

Federal Sentencing Reporter 25(1):46–49.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

95(4):1191–1232.

■
40

Reimagining Judging

Leslie, Emily, and Riley Wilson. 2020.

Moriearty, Perry L. 2010. “Framing

Rosenfield, Richard and Ernesto Lopez.

“Sheltering in Place and Domestic

Justice: Media, Bias, and Legal

2021. Pandemic, Social Unrest, and

Violence: Evidence from calls for

Decisionmaking,” Maryland Law

Crime in U.S. Cities: June 2021 Update.

service during COVID-19.” Journal

Review 69: 849–909.

Council on Criminal Justice.

National Academies of Sciences,

Roth, Jessica A. 2017. “The “New”

Liptak, Adam. 2015. “Why Judges Tilt

Engineering, and Medicine. 2020.

District Court Activism in Criminal

to the Right,” The New York Times,

“Decarcerating Correctional Facilities

Justice Reform.” NYU Annual Survey

January 31.

During Covid-19: Advancing Health,

of American Law 72(2):277–363.

of Public Economics 189:1-7.

Equity, and Safety.” October 20.
Lopez, German. 2020. “The Rise in

Second Chance Act, Public Law

Murders in the US, Explained,” Vox,

Neily, Clark. 2021. “Are

December 2.

a Disproportionate Number of

Maroney, Terry A. 2011. “The Persistent

Federal Judges Former Government

Shepherd, Joanna. 2021. “Jobs, Judges,

Advocates?” Cato Institute, May 27.

and Justice: The Relationship between

Cultural Script of Judicial Dispassion.”
California Law Review 99(629):629–681.

110 (2008).

Professional Diversity and Judicial
Patterson, Russell. 2020. “Punishing

Decisions.” Demand Justice.

Violent Crime,” NYU Law Review
Martinson, Robert. 1979. “New

95(5):1521–1560.

Findings, New views: A Note of Caution

Smith, Jordan. 2019. “What Happens
When a Reform Prosecutor Stands Up

Regarding Sentencing Reform,” Hofstra

Pearl, Betsy. 2019. “NeighborhoodStat:

to the Death Penalty,” The Intercept,

Law Review 7:243.

Strengthening Public Safety Through

December 3.

Community Empowerment,” Center for
Martinson, Robert. 1974. “What Works?

American Progress, October 2.

Questions and Answers about Prison

Southworth, Ann. 2018. “Lawyers and
the Conservative Counterrevolution.”

Reform.” The Public Interest.

Plessy v. Ferguson. 163 U.S. 537 (1896).

Law and Social Inquiry 43(4):1698–1728.

Miller v. Alabama, 567 U.S. 460 (2012).

Ricono, Angie and Cyndi Fahrlander.

Stevenson, Bryan. 2014. Just Mercy:

2020. “Missouri Man Waits for Missouri

A Story of Justice and Redemption.

Minow, Martha L. 1990. “Judging Inside

Supreme Court Ruling, Has Already

New York, Spiegel & Grau.

Out,” University of Colorado Law Review

Spent 26 Years in Prison-called

61:795–800.

Innocent by Current Prosecutor,”
KCTV5, September 21.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
41

Reimagining Judging

Stith, Kate, and José A. Cabranes. 1998.

Tonry, Michael. 2010. “The Questionable

United States v. Faison, 679 F. 2d 292

Fear of Judging: Sentencing Guidelines

Relevance of Previous Convictions

(D. Md. 2020).

in the Federal Courts. Chicago, IL:

to Punishments for Later Crimes.”

The University of Chicago Press.

Pp. 91–116 in Previous Convictions

United States v. Haynes, 557 F. Supp.

at Sentencing; Theoretical and

2d 200, 207 (D. Mass. 2008).

Survey of Article III Judges,

Applied Perspectives.

2002. U.S. Sentencing Commission.

United States v. Leviner, 31 F. Supp.
United States Sentencing Commission.

The New York Times. 2014.

2015. Results of 2014 Survey of United

“The Homogenous Federal Bench.”

States District Judges.

February 6.

2d 23 (D. Mass. 1998).
United States v. Vasquez, No. 20-40332
(5th Cir. 2021).

United States Sentencing Guidelines.
“The Supreme Court 1982 Term—

Section 5H1.4 (2012).

Foreword: Nomos and Narrative.” 1982.
Harvard Law Review 4:4-5.

Vera Institute of Justice. 2019.
“Incarceration Trends in Ohio.”

United States v. Alexander, 471 F. 2d 923
(D.C. Cir. 1973).

Tihelkova, Alice. 2015. “Framing the

Western, Bruce. 2018. Homeward:
Life in the Year After Prison. New York:

‘Scroungers’: The Re-Emergence of the

United States v. Bannister, 786 F. Supp.

Stereotype of the Undeserving Poor

2d 617, 689 (E.D. N.Y. 2011).

Russell Sage Foundation.

and Its Reflection in the British Press.”

Woods, Andrea. 2020. “Federal Judges

Brno Studies in English 41(2):121–139.

are Failing Incarcerated People During
the Pandemic,” The American Civil
Liberties Union, September 2015.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
42

Reimagining Judging

ACKNOWLEDGEMENTS

AUTHOR NOTE

The author would like to thank
Andrew Ntim, Catherine Willett,
Camille Baptiste, and Rachel
Krul for their drafting, research,
and editorial support of this
paper. She would also like to
thank her Executive Session
Colleagues Vinny Schiraldi,
Matt Desmond, Elizabeth Trosch,
Vikrant Reddy, and Bruce Western
for their insightful comments
on earlier drafts of this paper.

Nancy Gertner is a Professor of
Practice at the Harvard Law School
and a retired federal judge for the
U.S. District Court for the District
of Massachusetts.

www.designbysoapbox.com

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

■
43

Reimagining Judging

MEMBERS OF THE EXECUTIVE SESSION
ON THE FUTURE OF JUSTICE POLICY
Abbey Stamp | Executive Director,

Emily Wang | Professor of Medicine,

Nancy Gertner | Professor, Harvard Law

Multnomah County Local Public Safety

Yale School of Medicine; Director,

School & Retired Senior Judge, United

Coordinating Council

SEICHE Center for Health and

States District Court for the District

Justice; & Co-Founder, Transitions

of Massachusetts

Amanda Alexander | Founding
Executive Director, Detroit Justice

Clinic Network

Nneka Jones Tapia | Managing Director

Center & Senior Research Scholar,

Greisa Martinez Rosas | Executive

University of Michigan School of Law

Director, United We Dream

Arthur Rizer | Vice President of

Jeremy Travis | Co-Founder, Square

Sociology and Public Affairs,

Technology, Criminal Justice and Civil

One Project; Executive Vice President

Princeton University & Founder,

Liberties, Lincoln Network

of Criminal Justice, Arnold Ventures;

AmericanViolence.org

Bruce Western | Co-Founder, Square
One Project; Co-Director, Justice Lab &

President Emeritus, John Jay College
of Criminal Justice

Bryce Professor of Sociology and Social

Katharine Huffman | Executive

Justice, Columbia University

Director, Square One Project, Justice

Danielle Sered | Executive Director,
Common Justice
Daryl Atkinson | Founder and
Co-Director, Forward Justice
Elizabeth Glazer | Former Director,

Lab, Columbia University & Founding
Principal, The Raben Group
Kevin Thom | Sheriff, Pennington
County, SD
Kris Steele | Executive Director, TEEM

New York City’s Mayor’s Office

Laurie Garduque | Director, Criminal

of Criminal Justice

Justice, John D. and Catherine T.

Elizabeth Trejos-Castillo | C. R.

MacArthur Foundation

Hutcheson Endowed Associate

Lynda Zeller | Senior Fellow

Professor, Human Development &

Behavioral Health, Michigan

Family Studies, Texas Tech University

Health Endowment Fund

Elizabeth Trosch | Chief District

Matthew Desmond | Professor

Court Judge, 26th Judicial District

of Sociology, Princeton University

of North Carolina

& Founder, The Eviction Lab
Melissa Nelson | State Attorney,
Florida’s 4th Judicial Circuit

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

of Justice Initiatives, Chicago Beyond
Patrick Sharkey | Professor of

Robert Rooks | Chief Executive Officer,
REFORM Alliance & Co-Founder of
Alliance for Safety & Justice
Sylvia Moir | Interim Police Chief, Napa,
CA & Former Chief of Police, Tempe, AZ
Thomas Harvey | Director, Justice
Project, Advancement Project
Tracey Meares | Walton Hale Hamilton
Professor, Yale Law School & Founding
Director, The Justice Collaboratory
Vikrant Reddy | Senior Fellow, Charles
Koch Institute
Vincent Schiraldi | Senior Research
Scientist, Columbia University School
of Social Work & Co-Director, Justice
Lab, Columbia University
Vivian Nixon | Executive Director,
College and Community Fellowship

THt
SQUARt ONt

PRDJrCT
REIMAGINE JUSTICE

The Executive Session on the
Future of Justice Policy, part
of the Square One Project, brings
together researchers, practitioners,
policy makers, advocates, and
community representatives to
generate and cultivate new ideas.
The group meets in an off-the-record setting
twice a year to examine research, discuss new
concepts, and refine proposals from group
members. The Session publishes a paper series
intended to catalyze thinking and propose
policies to reduce incarceration and develop
new responses to violence and the other social
problems that can emerge under conditions of
poverty and racial inequality. By bringing together
diverse perspectives, the Executive Session tests
and pushes its participants to challenge their
own thinking and consider new options.

~ COLUMBIA UNIVERSITY

I JUSTICE LAB