Federal judges should take more of a role in reforming the criminal justice system, especially through their sentencing decisions, says former U.S. District Judge Nancy Gertner of Boston, writing for the Square One Project.
Gertner says that in the past four decades, the role of federal judges has "changed drastically," as Congress established mandatory minimum sentences in many categories of cases.
Even as some mandatory penalties have been relaxed, judges have been resistant to most reforms, even when their own discretion is expanded, says Gertner, who was a judge based in Boston from 1994 to 2011 and now is on the Harvard Law School faculty
"The backgrounds of federal judges rarely match up with the demographics or experiences of the communities that they serve ..." and they seldom write opinions explaining their sentencing decisions," Gertner, says adding, "we must find ways to change this."
In Gertner's view, "courts must be actively involved in the revolutionizing of the justice system. Judges must engage with broader questions on how the current system disproportionately impacts communities of color and poor communities to effectively serve these communities...In holding judges and the judicial system accountable, the criminal legal system will be able to reckon with past harms and better transform its future."
Among her recommendations:
--Judicial selection should reflect not just diversity in race, gender, and sexuality but also diversity in socio-cultural experience.
--Judges should be trained in the impact of trauma, exposure to violence, poverty, and lack of access to schools, health care and employment.
--Judges should conduct retrospective reviews, similar to doctors’ independent “sentinel audits” after a death or serious injury when there is a wrongful conviction, recidivism, or an unexpected tragic event in a case.
--Judges’ sentencing records should be subject to regular statistical analysis to identify racial bias.
--Judges should meaningfully engage with the communities in which they serve.
--Judges should attempt to change the narrative through opinion writing, "shining a light on the humanity of individual people and the inhumanity of the criminal legal system."