The Square One Project-Reimagining Judging, Jan 2021
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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. 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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