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November 9, 2011

Notable comments on judging (and sentencing) from a member of my "Sentencing Judges hall of Fame"

Seven years ago, back when my main blog was just getting going, I did this (silly?) post in which I imagined a "Sentencing Judges Hall of Fame" — an institution like the Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system.  As I explained in the post, the "first inductee of the Sentencing Judges Hall of Fame would be easy: Judge Marvin Frankel, whose text Criminal Sentences: Law Without Order helped launch modern sentencing reforms."

I then went on to ask these tough (and silly) follow-up questions: "Should there be separate capital and non-capital wings, state and federal wings, trial and appellate wings?  Would Supreme Court Justices and judges who serve on sentencing commissions have an unfair advantage because of the visibility of their sentencing work?  Would pre-guidelines judges be unfairly disadvantaged for sentencing during the 'dead law' era?"

I note these musing in part to encourage you to think about whether you think any particular Justices and judges ought to get special attention based on their sentencing work.  But I also share these comments to serve as a kind of introduction to my linking hereand presenting below video from one of the sure-fire members of this Sentencing Judges Hall of Fame, Judge Nancy Gertner.

Judge Gernter's professional career is too dynamic to summarize here, and I encourage you to check out all the interview videos on this HLS webpage.  And the video below includes some notable sentencing-specific comments starting just after the 3:00 mark.

November 9, 2011 in Who decides | Permalink


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My favorite comment from the interview is when she says that too much of the criminal justice system has been all about symbolism and not about reality. It is a good depiction of the idea that maybe the sentencing ranges and mandatory minimums that Congress provides for certain crimes are more about making it seem like we are tough on crime than about what punishment is actually effective and/or deserved.

Posted by: Ranya | Nov 9, 2011 9:09:20 PM

Ranya, the symbolism comment grabbed me too, as did her statements about taking the time to write an opinion. Gertner frames it in a sense of doing the right thing, that she wants to take the time to make sure she explains her decisions, but to me it also sounds like a strong argument for legitimacy. If judges more carefully explain their sentencing decisions, they come off as more legitimate. This is lessened by the sentencing guidelines' restriction on discretion, but I think it's commendable to try to make the process more transparent. Doing so helps defendants and lawyers on both sides to make more effective arguments and better understand the law.

Posted by: Colin | Nov 10, 2011 11:13:08 AM

I thought her words at the very end were very telling. She recommends that judges “spend as much time on sentencing a human being as you would on a patent case. We just don’t see it that way. But we should.” It seems like a reflection on norms, that judges/society/whomever really don't see criminals as worthy of a great deal of time once they are convicted. I think this is about legitimacy, but also about judicial guilt.

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