Judge decries America's "off the rails" punishment regime

Judge Nancy Gertner says sentencing people in an unjust system is "excruciating" and calls on other judges to lobby for change.

In October of 2020, Thomas Rosa Jr. was cleared in a 1985 murder thanks to DNA evidence and released after 34 years in prison.

The case sounded familiar to Judge Nancy Gertner, so she reached out to Rosa’s lawyers at the Innocence Project New England to ask which judge had previously overseen, and dismissed, his appeal.

“She writes back and says, “You.”

Gertner tells me she immediately dug up her old paperwork. “I wanted to know what I did. Had I missed something?” she says. “When there's an innocence case, people look to police error, prosecutor error—we never talk about the judges.”

Thankfully, her review determined that she hadn’t done anything wrong. The evidence that would end up helping exonerate Rosa was irrelevant to the appeal and not presented in her courtroom. But the incident highlights her philosophy: judges should be held accountable for the great power they wield. And they must work to change the system.

Judge Gertner, who oversaw criminal trials for 17 years and now teaches at Harvard Law School, also thinks judges should play an active role in fighting mass incarceration, harsh sentencing, and racism in the legal apparatus. She believes judicial selection and training should reflect diversity of identity and experience, and that judges should be trained in the effects of trauma and poverty. She wants mechanisms for accountability for judges (there are virtually none); retrospective reviews, or audits, of judicial decisions; statistical reviews to prevent racial bias; community engagement, and a responsibility to contribute to the public discourse to promote change.

Her upcoming book, “Incomplete Sentences,” grapples with the impact of her work. “I wanted to write for a lay audience about the actual work of sentencing the human beings who had appeared before me — what I knew of them, the decisions I made, how they should have been treated in a humane criminal legal system, and how they were not,” she writes in an essay. ‘Not even close.”

Gertner, who had previously worked as a defense attorney, described handing down the harsh sentences required by federal mandatory minimums as “excruciating.”

“I was a judge at a time when the American criminal justice system went off the rails,” she writes. “We became more punitive than we had ever been in our history, when we imposed punishments harsher than any other country in the Western world, when we were mired in what some have called our failed experiment in mass incarceration.”

I spoke with Gertner over zoom about her time on the bench and her ideas for how judges can lead the way on reform.

Tana Ganeva: Can you tell me a bit about your personal experience and what led you to conclude that judges have to fight mass incarceration?

Judge Nancy Gertner: While I’d been a defense lawyer, I’d never been a public defender so I’d never seen what public defenders had to deal with.

I was shocked by the defendants coming into my courtroom. They were poor, African-American, and there on really minor drug offenses. There was some violence. But most of the defendants I saw were kids from certain neighborhoods in Boston, who were deemed gang members just because of the street they grew up on.

These kids had been in pampers together. Crack hit the neighborhoods, which was bad, but the mandatory minimums … I never stopped believing that what I was doing was wrong.

Mandatory minimums force judges to not see individuals and individuals, but to treat everyone the same. The judge in the courtroom next to me had to do the same things as I did, with neither making any sense. Mandatory minimums drove incarceration rates up, and they did not help the communities they were supposed to help.

Is there any particular case that stuck with you?

One example: I decided to write a book about this case. There was a sweep of a neighborhood and Damien Perry, who had no adult criminal record, was arrested.

He was dealing crack, living with his grandmother. They ended up attributing a large amount of drugs to him—far more than what they found on him—to trigger a mandatory minimum. It was clear he was hardly responsible for the numbers they attributed to him. This guy was not looking to buy into a high-rise co-op or get a Porsche.

He’d roll out of bed in the morning, go to the stoop, deal crack. And he’d been a victim of a shooting—crossfire— and still had the bullet in his brain.

Theres no box in the guideline for ‘bullet stuck in brain’! The system had no space for what had obviously made a difference in his life. No space for trauma, substance abuse, any factors driving the choices he’d made. He’d started using drugs at 13, had scars from abuse. He’d experienced extraordinary violence. By failing to look at these factors, he was charged through the roof. And I was a part of that.

I was able to sentence him to four years, while the state wanted 11 years. Four was the lowest I could go without having the sentence overturned. But had it been up to me, I probably would have sentenced him to probation and a diversion program.

Have you had a sentence reversed?

Yes! It made me very angry. Not because of narcissistic injury but because I thought they were wrong. The court of appeals should care about fair outcomes.

Judges are often exempt from public pressure or the perception that they contribute to an inequitable system—unless they're deemed too lenient. Why do you think that is?

The seeds of mass incarceration have a number of sources. One is surely the press. The press, even when crime was declining before Covid … to read most local papers you’d get no sense of the decline. If it bleeds it leads. The public has a sense of danger. Whenever a judge doesn't accept a prosecutor’s sentence, in news coverage you get, “Prosecutor recommended 50 years, the judge gave 20” and it’s presented as wrong. 

This drives up sentences because judges care about how they're seen. And after 40 years of this punitive regime, it’s hard to pull the plug overnight because most people think a fair sentence is a tough sentence.

There's the tragic figure of the judge who doesn't want, but is forced to, hand down a long sentence due to mandatory minimums. Is there anything they can do in cases like these? 

In Massachusetts, another judge, John Gleason and I would say that a mandatory minimum sentence we had to hand down is bad. “I’m sentencing Mr. Smith to 10 years even though it makes no sense.”

I recall one man got a ten year mandatory minimum based on his record selling drugs to pay for school supplies for his siblings. He had been homeless and his previous convictions drove up the sentence. I could say, ‘That’s absurd.”" I did that, other judges did that.

What is the impact?

At least the media and at least lawmakers would see a sentence they’ve authorized and the human beings behind it. Otherwise, if it’s, “Mr. Wilkerson sold x amount of drugs and gets 10 years,” and I said nothing else, no one would know.

You call for diversity in judicial selection, including socio-cultural experience. How would the latter look?

One thing is, judges have to evaluate the credibility of police all of the time, when it comes to motions to suppress, etc. Once I talked to a colleague who said he doesn’t believe officers lie.

Based on his experience at work and in life, that’s what he concluded. But I’d been a criminal defense lawyer. My threshold for evaluating trustworthiness … if you don’t envision that someone could be lying, you’re not looking carefully enough.

Once as a defense attorney I was visiting a client in prison when the doors jammed. I wanted to remember that moment. It’s easier to say ‘10 years’ when you’ve never visited anyone on the inside. I did not want to forget and stop understanding the system’s unfairness.