Alternatives to the Carceral State: The Judge’s Role

Nancy Gertner Alternatives to the Carceral State: The Judge’s Role T H ER E IS A D IS C O N N E C T B E TW EE N T H E ACADEM Y A N D T H E PUBLIC, THE Congress and the courts th a t the papers in this volum e dram atize. The academy, or especially, the sponsor of the conference from which this volum e derives, the New School-has highlighted the extraordi­ narily troubling im plications of the mass im prisonm ent o f the past tw o decades, the racial disparities, the social dislocation to poor com m unities and com m unities of color, the im pact on this dem oc­ racy of felon disenfranchisem ent, the extent to which retribution has surpassed all other purposes of punishm ent, displacing any effort to determ ine “w hat w orks” to reduce crime. But the public is barely a participant in these discussions. If it reads the tabloids, watches tele­ vision, or surfs the Internet, it hears an entirely different story, a story about dangerous crim e rates and im pending doom, a story about fear and retribution. And so long as it hears that story, it will support ever m ore punitive laws, and rail against judges who are widely perceived to be lenient. The story is in fact m ore complex, the proverbial “good news” and “bad news.” The good news is that the public may not be as punitive as the m edia and politicians suggest if they are given the facts, They under­ stand sentencing and individualized treatm ent. They can tell the differ­ ence betw een the kingpin and the mule, betw een the postal w orker who steals a check and the Enron executive who rapes a company. The social research Vol 74 : No 2 : Summer 2007 663 bad news is that courts, which know the individual facts, nevertheless face extraordinary pressures to be tough, no m atter w hat the offense. Manyjudges have been affected by 20 years ofonerous sentencing policy and 24/7 media coverage that parodies the bench rather than covers it. The conclusion is ironic: those who have the inform ation about offend­ ers—judges—face extraordinary pressures from those who do not—the public. W hile sentencing policy was once considered a m atter o f judi­ cial expertise and received little scrutiny (Barkow, 2005: 745), today it is the contested territory of politicians, on the one hand, and late night talk show hosts on the other. The U nited States Sentencing Com m ission conducted a poll about public attitudes to crim es (Rossi and Berk, 1995: 82-86). The public did not support harsh treatm ent of nonviolent drug offenses, differential sentencing betw een offenders convicted of distributing crack rather th an powder cocaine, increases in the punishm ent for environm ental crimes, violations of civil rights and certain bribery and extortion claims. As to individual sentences—as opposed to aggre­ gate data—there was only a “m odest am ount” of agreem ent betw een sentences given by the respondents and the sentences required by the Guidelines (Rossi and Berk, 1995: 208). If the public knew w hat judges know about the individual defendant, it would m ake a difference to their attitudes. In any event, w hat the commission did not test was the public’s consideration of the kinds of trade-offs necessary to support high levels of incarceration, such as the cost of incarceration and the social disruption to com m unities of incarcerating large num bers of m inorities. The public hears only the sound bites. By the late 1980s, w hen crime became the fodder of political campaigns, so-called lenient judges were parodied by the media. By the tim e of the presidential contest in 1990, the politicization o f crim inal justice had become a national phenom enon. In the mid-90s, the debate veered in a distinctly anti­ judge direction. One cannot m inim ize the adverse, even threatening, climate in w hich sentencing decisions are now being made. Under the circumstances, it was far easier for judges...