Neuroscience and Sentencing

This symposium comes at a propitious time for me. I am reviewing the sentences I was obliged to give to hundreds of men—mostly African American men—over the course of a seventeen-year federal judicial career. As I have written elsewhere, I believe that 80 percent of the sentences that I imposedwereunfair,unjust,anddisproportionate. EverythingthatIthought was important—that neuroscientists, for example, have found to be salient in affecting behavior—was irrelevant to the analysis I was supposed to conduct. My goal—for which this symposium plays an important part—is to reevaluate those sentences now under a more rational and humane system, this time at least informed by the insights of science. The question is how to do that: How can neuroscience contribute to the enterprise and what are the pitfalls? This Article represents a few of my preliminary conclusions, but my retrospective analysis is not complete

From "Rites" to "Rights": The Decline of the Criminal Jury Trial

In Representing Justice, Judith Resnik and Dennis Curtis highlight - indeed, speak movingly - of the shift from the "pageantry and spectacle ('rites') entailed in Renaissance adjudication," to the "entitlements ('rights') to processes of a certain kinds that entailed making courts open to anyone who wanted to watch." The transformation from "rites" to "rights" is a process rightly celebrated, but, as the authors caution, in the modem American legal environment, it is at risk of backsliding. My talk illustrates one aspect of this phenomenon, from the modest colonial courthouses, in which American jurors enforced (or not infrequently, rejected) English law, to the modern federal courthouses, where the jury deliberation rooms stand empty. Colonial criminal jury trials involved far more than rituals that reflected the administration of power, although they were surely that. On the one hand, they made transparent the acts of the state in imposing its ultimate authority over the individual, the authority to punish, to take away an individual's liberty, even their life. On the other hand, the colonial citizenry was invited in not merely to be passive observers. They - at least the white men with property among them - were decisionmakers, members of a twelve-person lay jury. Courthouses had to be configured not only to make trials open, but also to permit space for the deliberating jury

The Lower Federal Courts: Judging in a Time of Trump

To be sure, I offer only preliminary thoughts in this Essay. The Trump presidency is young. There are multiple challenges to multiple executive decisions and orders in courts across the country. A full treatment would take the reader into the robust literature on judicial decision making about context and pragmatism, with historical comparisons to other epochs where the challenges were comparable, even to empirical analyses of judging at different periods of time. I start with judging in “ordinary” times, the period during which I served. I then describe the challenges of judging in a time of Trump, and I conclude by illuminating the implications of those challenges perhaps for judicial education, law schools, and advocacy. The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy

University of Baltimore School of Law Center on Applied Feminism\u27s 9th Annual Feminist Legal Theory Conference on Applied Feminism Today: Keynote Speaker Judge Nancy Gertner, Former United States Federal Judge for the United States District Court for the District of Massachusetts

Below is a transcription of the keynote speech from the University of Baltimore School of Law Center on Applied Feminism’s 9th Annual Feminist Legal Theory Conference: Applied Feminism Today. Judge Nancy Gertner, former United States Federal Judge for the United States District Court for the District of Massachusetts, gave the keynote speech on March 4, 2016. I was on the bench for seventeen years, and I intend to write about that experience. The problem is that while my memoir was funny, this book—on judging—is not. In my memoir, I describe the fact that the only way I could face the discrimination I was facing was to crack jokes about it, to find the humor in horrific situations. I started writing about judging literally the minute I joined the federal bench. I recorded everything I did and why—the palpable change from who I had been on April 26, 1994, when I was an employment discrimination, civil rights, and criminal defense lawyer, and who I was supposed to be on April 27, 1994, when I was sworn in as a judge

Distinguished Jurist-in-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly

Sentencing is different from almost all functions of the government and surely different from the other functions of the judiciary. It is the moment when state power meets an individual directly. It necessarily involves issues that are distinct from those in other areas of the law. It requires a court to focus on the defendant, to craft a punishment proportionate to the offense and to the offender. It should come as no surprise that in countries across the world, common law and civil code, totalitarian and free, judges have been given great discretion in sentencing. To be sure, that power had a different resonance in the countries of the former Soviet Union, or in China, than it did in the United States. In China and in the countries of the former Soviet Union, the judicial sentencing power involved maximizing the ability of the judge to bend to the will of the Party or the Party leadership. In the United States, in contrast, it was part and parcel of a progressive penological movement, linked to the goal of rehabilitating offenders. At the same time, a sentencing system is in fact a system, impacting all of the institutions of government, not merely the judiciary, but also the legislative and executive branches, and, in the United States, the jury. It would be wrong to look only at what is essentially the “end” of the story, when the judge pronounces the sentence, and not all of the stages that precede it. Likewise, it would be wrong to assume that one can change the behavior of one player in the system without that change having an impact on all of the others. Discretion is hydraulic; you take it away from one and it flows to another. United States v. Booker could well herald a new era in American sentencing practices. But before I address what that era may look like, it is important to identify two other time periods and describe how each failed to provide meaningful sentencing reform—the era of indeterminate sentencing and the era of “mandatory” guidelines (which is, perhaps, at an end). In each case, the major institutional players—including my own institution, the courts— failed to live up to the expectations of reformers. The challenge for today is how to avoid the mistakes of the past