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Opinion | Nancy Gertner

Irresponsible attacks on a fine judge

At left, Judge Timothy Feeley in 2015.Faith Ninivaggi/The Boston Herald via Associated Press

Just when we have finally come to see the opioid crisis as both a public health and public safety problem, Governor Charlie Baker and others would have us careen in the opposite direction.

Take the case of Manuel Soto-Vittini of Peabody. Salem Superior Court Judge Timothy Feeley sentenced Soto-Vittini to probation for possession with intent to distribute 15 grams of heroin and a small amount of cocaine. Soto-Vittini had no criminal convictions, just a dismissed drug-possession charge from a decade ago, when he was 22.

According to the evidence, he had been dealing drugs for a month. The assistant district attorney recommended one to three years in state prison, which means Soto-Vittini probably would have served about 10 months. The defense argued for probation, saying a state prison term made no sense for a first offender, particularly since, as a non-citizen, Sotto-Vittini will likely face deportation as a result of his conviction.

Judge Feeley's decision to impose probation was or should have been unremarkable. Instead, it was greeted with protests, vituperative newspaper columns, and most outrageous of all, calls for his impeachment. We have seen this before — the demand for mandatory imprisonment in drug cases, even the threats against judges who aim to sentence proportionately — and we know it ends badly. The moral panic against crack cocaine in the 1980s led to mass incarceration and wildly disparate sentences for blacks and Hispanics as compared to whites, with little impact on distribution. Is that where we are heading?


Soto-Vittini, originally from the Dominican Republic, has been in the United States since he was 15. Now a legal permanent resident with a family and a job, this was his first criminal conviction. Although he lost his job when he was arrested, he found another after he was released on bail, no small task. He continued to support the woman he had met in high school and their two children.


Based on these facts, the judge's decision was hardly extraordinary. What was extraordinary was the reaction. Protesters appeared outside the Salem Superior Court calling for Judge Feeley's impeachment. Governor Charlie Baker called Judge Feeley's sentence "ridiculous and outrageous." Worse, in a moment that can only be called "Trump lite" in its resemblance to Trump's habit of trashing judges with whom he disagrees, Baker suggested that the courts deal with Judge Feeley just as it had with the judge who was suspended for inappropriate sexual conduct in his chambers.

Not to be outdone, state Representative Jim Lyons, Republican of Andover, announced he was filing a resolution calling on Baker to remove Feeley. Representative Geoff Diehl, a Republican US Senate hopeful, quickly boarded the impeach-Feeley bandwagon.

Why? Because this case involved heroin. The heroin epidemic is extraordinarily serious, as was the crack cocaine epidemic, but the remedy should not be the usual reflexive one. The National Academy of Sciences and others report that the prison sentences imposed for crack cocaine had little impact on that drug's illegal distribution.

Their report urged limiting imprisonment to cases where alternatives are less effective in achieving the same social ends, just what Judge Feeley considered. It is not a question of putting resources into a public health crisis, but rather of where to invest those resources. One year in state prison — where the government wanted Soto-Vittini to go — costs $55,170, according to the Vera Institute of Justice. How many addicts could be treated with that money? Is probation with likely deportation a better alternative on all fronts, as Judge Feeley found?


And then there is an entirely different cost, the incalculable cost of an unjustified attack on a judge. Before Soto-Vittini's sentencing, the prosecutor described Judge Feeley as "purposeful and thoughtful and reflective in matters of sentencing." No one called for his impeachment in case after case in which he followed prosecutors' recommendations; no one ever does. No one thought to look at his distinguished record as a federal prosecutor for decades; again, no one ever does.

The message — even to judges with life tenure — is clear: The way to avoid being criticized is to imprison more and more. It is always a one-way ratchet. This time we can ill afford it.

Governor Baker, you should know better.

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