Judge Nancy Gertner - "Lawyers Should Effect Social Change"




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Sep 30, 2017
by Mirva Villa
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Judge Nancy Gertner - "Lawyers Should Effect Social Change"

Former U.S. federal judge reveals love of public policy issues and new details on her latest book Judge Nancy Gertner in conversation at the 15th symposium of the Salzburg Seminar American Studies Association (SSASA)

Known for her work in advancing civil rights, civil liberties, and human rights in the United States (U.S), Judge Nancy Gertner remains a trailblazer for women working in the legal profession. Her work, first as a criminal defense lawyer and later a federal judge, received many acknowledgements from her peers, not least the American Bar Association who awarded her the Thurgood Marshall Award in 2008.

Her appearance at the 15th symposium of the Salzburg Seminar American Studies Association was a perfect fit for the program’s topic – Life and Justice in America: Implications of the New Administration. Alongside others, the now retired Judge Gertner spent five days discussing issues of justice, discrimination, criminal law and legal rights. For Gertner, now a senior lecturer at Harvard Law School, the experience was “remarkable.”

“When I came, I had only read the biographies of the people who were invited – both the other participants and the seminar leaders – and I don’t think I fully understood how accomplished, cosmopolitan and interesting they were,” said Gertner. “So, the ability to talk to people and get a sense of the depth of their background was wonderful.”

Gertner has had an extensive career in the legal profession and has written widely about employment, criminal justice and procedural issues. But what was the original spark that inspired Gertner to enter the profession in the first place?

“Well, I think I wanted to run for president of the United States. Then I figured that you had to be a lawyer in order to get to be a senator first. I got stuck at the first stage!” Gertner laughed. “But you know, I love public policy issues. I went to law school at the time that the civil rights movement was at its height, and women's movement, and anti-war movement –  and lawyers were the vehicle for social change. So that's how I became interested in it.”

Mass incarceration was one of the issues that was discussed at this year’s SSASA symposium. Toward the end of 2010, the American Civil Liberties Union reported more than 2.2 million people in the U.S. were behind bars. Gertner spoke to participants about mass incarceration and the structures in the justice system that had exacerbated it.

“For a 100 years, the principal purpose of sentencing was rehabilitation. Rehabilitation was essentially using a medical model to deal with crime. Other kinds of professions also went through this. The judge was looking for a cure. The belief was that everyone could be cured, and the idea was that he would come up with ways of solving the crime in a way: not just finding the perpetrator but solving the criminal - and that judges had virtually unlimited discretion to figure out what the appropriate sentence would be.”

Things changed in the 1980s, due to a whole host of factors. There was a spike in the crime statistics and the implications of the Vietnam War stayed in the American people’s minds. The public were concerned about discrimination in sentencing and the discretion of judges to cast sentences. The media became increasingly focused on covering crime. Toward the end of the decade, the phrase “If it bleeds, it leads” appeared in the lexicon and became a mantra for many.

“Suddenly, we essentially rejected rehabilitation as a rationale for sentencing, and moved to retribution,” said Gertner. “So, rehabilitation asks, ‘What will help the offender not offend anymore?’ Retribution asks, ‘What does the crime deserve?’ So, it was a very different question and it led to different answers, and the answer is that retribution led to mass incarceration.”

The concern over the discretion of judges and inconsistencies between sentences issued across the U.S. led to the creation of a set of guidelines that provided objective standards for sentencing. “That essentially is to wish there was no judgment, no discretion.  So, you focused on the nature of the crime, and you focused on the nature of someone's criminal record,” said Gertner.

That would, for example, lead to drug-related cases being judged on the basis of the quantity of the substance and past convictions alone, with no regard to the individual’s situation and the judge’s discretion on whether they thought the accused was likely to re-offend.

Gertner said, “You focused on objective factors that [some] believed could be objectively enforced. Of course that wasn't true. Those objective factors were often the product of decisions made by others down the line, which we're not so objective.”

In 2011, Gertner published her memoirs, fittingly entitled In Defense of Women: Memoirs of an Unrepentant Advocate. Now, she’s working on another book about judging –  not an aspirational one but one on the "hard work of judging." More specifically, she will be reflecting on her own experiences as a judge, working in a system that she didn’t always deem to be fair.

For her book, Gertner reached out to some of the people she had sentenced to find out what happened to them. “I found it easiest to write about the people I had sentenced because that was a situation in which I was most acutely aware of the difference between my beliefs and what the law required,” Gertner said. “I was obliged to impose mandatory minimum sentences. I was obliged to use mandatory guidelines. And I felt the difference between what I was obliged to do and what I believed in all the time. So, this book is about the men that I sentenced.”

The book paints the portraits of several men, who they were, what Gertner learned about them and the legal framework she had to use to evaluate them. Moreover, the book discusses how they should have been sentenced in a “humane system”, according to Gertner. “These are portraits that will help us understand how punitive and inhumane the system became.”

Gertner was appointed to the federal bench in 1994 by President Bill Clinton. Since retiring in 2011, she has continued to teach subjects including criminal law, criminal procedure, forensic science and sentencing, and has written about women’s issues around the world. Whether she’s in the court room, the lecture hall or writing her book, her work continues to be a source of inspiration for Gertner.

“I believe that lawyers should effect social change. That's what animates me as a lawyer, as a judge, as a professor. These are remarkable tools and a remarkable education that should be used to serve the public good.”

Judge Nancy Gertner was a participant of the Salzburg Global program Life and Justice in America: Implications of the New Administration, which is part of Salzburg Global’s multi-year series Salzburg Seminar American Studies Association (SSASA). More information on the session can be found here. You can follow all of the discussions on Twitter by following the hashtag #SSASA.