Opinion

opinion | Nancy Gertner

Undoing the damage of mass incarceration

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Over a 17-year judicial career, I sent hundreds of defendants to jail — and about 80 percent of them received a sentence that was disproportionate, unfair, and discriminatory. Mass incarceration was not an abstraction to me. Sadly, I was part of it.

Last weekend’s release of 6,000 prisoners from federal prison is an encouraging start to reform, but it’s only a start.

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I was a judge during the most punitive period of US history — the ’90s — when we imprisoned more than any other country, even the most autocratic. I did what I could to mitigate the impact of the laws I had to apply. There were 10-, 15-, and 20-year mandatory sentences for drugs, which made no sense under any rational social policy. There were mandatory-sentencing guidelines, which often led to absurd results. When I made a small downward adjustment, explaining what I did in a written opinion, I risked reversal by an appellate court that saw only sentencing calculations, not people.

To say that we treated human beings like numbers is not an overstatement. What mattered most was the quantity of drugs or how many guideline “points” were in their criminal record. What did not matter were facts like whether the defendant dealt drugs out of the car he was living in rather than dealing to buy a fancy car. What did not matter was whether his record was violent or just a collection of petty offenses. Family ties were not ordinarily relevant; neither was drug addiction. Mental health issues were largely ignored. Factors everyone would agree are meaningful to determine culpability, even the risk of reoffending, were irrelevant.

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I did what I could to find out about the human beings before me, even when their humanity did not seem to “count” in the law. And when statutes (or the appellate court) prevented me from imposing a humane sentence, I protested in opinions, articles, and speeches.

I did what I could, but wish I had done more. I left the bench to undo the damage I (and others) had done. So much had been written about mass incarceration in the abstract, but I wanted to write concretely about the men (and they were largely men) I had come to know. I kept files on each of them. I had a spread sheet listing their sentences, my reasoning, and, more important, what became of them. Did jail make a difference? Rarely. It hurt more than it helped. It was a waste of money, and a waste of lives.

More than writing, now I am doing. I am identifying those who should get presidential clemency — because of changes in the law, or because their sentences were wildly disproportionate. I write letters on their behalf, even reach out to lawyers for them. I want to envision them resentenced under a humane system.

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But my efforts — and even those of the president — are puny compared to what needs to be done. David Cole, a professor of law at Georgetown University, and Mark Mauer, executive director of the Sentencing Project, have proposed a Marshall Plan for communities decimated by our failed war on drugs. Through the Marshall plan after World War II, the United States rebuilt the countries we had vanquished rather than punishing them. Although the judicial system did not destroy American communities with bombs and ammunition, it did so with prosecutions, prisons, and punishment. The impact is clear. A generation of African-American men are missing from their neighborhood’s economic life, barred from federal aid, subsidized housing, and employment. They are silenced, unable to vote or to serve on juries. The sons and daughters of jailed parents too often follow them to jail.

Thoughtful people on all sides have come to realize how woefully skewed our policies were, ill befitting a great country.

When I oppose mandatory minimums and onerous guidelines, when I work to get clemency for the men I sentenced, and when I write about it, it is not an abstraction. I know what it felt like to pronounce a heartbreaking sentence on a human being who did not remotely deserve it. I want others to feel it too.

Nancy Gertner is a retired federal judge and a professor at Harvard Law School.
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