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November 21, 2007

Judge Gertner sentences in a holiday mood

The Boston Globe covers a notable sentencing decision by  Sentencing Hall of Famer Judge Nancy Gertner in this article entitled "Judge skips guidelines, releases man in crack case Long prison sentence hurts blacks, she says." Here are snippets:

A federal judge has freed a Boston man who pleaded guilty to selling small amounts of crack cocaine, saying that he dealt the drugs out of desperation and that long prison sentences for such crimes often do more harm to black communities than good. 

US District Judge Nancy Gertner sentenced Myles Haynes to the 13 months he has served in jail since his arrest.  She said that he appeared to be an honest man whose two admitted drug sales were isolated and that lengthy federal prison terms for such crimes are depleting cities of a generation of young black men. "Isn't it time for us to say that there is on the one hand the impact of the drug trafficking and on the other hand the impact of mass incarceration of African-Americans from crack cocaine?" Gertner said from the bench Monday. "To suggest that the public safety requires the further incarceration of Mr. Haynes makes no sense." Gertner then set aside sentencing guidelines that could have kept Haynes behind bars an extra 20 to 28 months.

While federal judges sometimes depart from guidelines, it is rare for them to air such outspoken views from the bench. Glancing at Haynes's 8-year-old son, Myles Jr., in the gallery with the defendant's family, Gertner added, "Indeed, when I see your son, I think that public safety requires that you be with your son so that he doesn't follow in your footsteps."

November 21, 2007 at 10:53 AM | Permalink


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I guess this means that the government will be appealing, and the First will have to rebut each one of her propositions.

Posted by: S.cotus | Nov 21, 2007 11:21:03 AM

When Hillary or Barack is elected, I hope s/he appoints Judge Gertner to the First Circuit. She's incredibly smart and independent. And it would probably be good for the country to have a sentencing expert with a command over the post-Booker world on the appellate court.

Posted by: crimlaw | Nov 21, 2007 11:35:15 AM

This is sentence will probably be overturned, but I agree with crimlaw, however, I think that if a position opens up in the Supreme court, she will be a great candidate. of course, assuming we have also a democratic senate, otherwise the conservatives wont like some one that actually thinks in favor of the common people.

Posted by: EJ | Nov 21, 2007 12:37:44 PM

The racial comments are jarring, to say the least.

Posted by: federalist | Nov 21, 2007 1:54:59 PM

Oh no! Someone mentioned race! Isn't that illegal?

Posted by: S.cotus | Nov 21, 2007 2:29:07 PM

How are the racial comments jarring?

Posted by: Gray Proctor | Nov 21, 2007 3:33:47 PM

"Isn't it time for us to say that there is on the one hand the impact of the drug trafficking and on the other hand the impact of mass incarceration of African-Americans from crack cocaine?" Perhaps, but not if "us" refers to federal judges and "to say" refers to the act of letting a crack dealer go entirely free.

I hope that the newspaper account is sensationalized and that there's more to it than that.

Posted by: | Nov 21, 2007 4:10:54 PM

Strike that. I read (much) too quickly and missed that he'd already been in prison for 13 months. This seems reasonable and a little overdramatized by the Globe. 13 mos instead of (doing the math from the newspaper article) 33-41 months seems pretty reasonable.

Posted by: 4:10 | Nov 21, 2007 4:16:21 PM

federalist, you are always using words/phrases like "obviously," "no doubt," "no question," "clear," and, most recently, "to say the least." But you don't ever back these assertions up.

What do you mean by "jarring, to say the least"? Why are they "jarring," other than merely because you think so. Your opinion may go far when you're arguing with yourself, but you don't persuade anyone if you don't support your opinions with reasons.

In an attempt to respond to whatever substance I think you intended your comment to provide: Saying that harsh crack sentencing policies have a devastatingly negative impact on African-Americans is hardly a racist statement. The Sentencing Commission has levied this accusation as far back as ten years ago. See http://www.ussc.gov/r_congress/NEWCRACK.PDF at page 9 ("nearly 90 percent of the offenders convicted in federal court for crack cocaine distribution are African-American while the majority of crack cocaine users is [sic] white. Thus, sentences appear to be harsher and more severe for racial minorities than others as a result of this law.").

Posted by: DEJ | Nov 21, 2007 6:25:11 PM

As a regular reader of the blog (working to obtain a Masters in Criminal Justice), I must say that it's about time someone on the bench besides Judge Cassell shows some common sense. It's unfortunate that the feds will waste money appealing this sentence, but you know they will (because they can). What a waste all the way around! I applaud Judge Gertner! It's time for some changes so sentences like this one do NOT get overturned!

Posted by: ShellyT | Nov 22, 2007 7:12:41 PM

Has anyone ever attempted to study the impact of drug laws and enforcement? Is such a study even possible? On the one hand you have people like Judge Gertner saying they do more harm than good. On the other you have law-and-order types saying that these laws are needed because drugs destroy lives and communities.

One could make a list of quantifiable measures of well being (employment rate, high school graduation rate, etc.) But how does one determine the impact of drug laws and enforcement?

Posted by: William Jockusch | Nov 24, 2007 10:32:56 AM

Mr. Jockusch, I like your idea. However, any survey would be condemned as politically biased.

Shelly, Your comments perplex me. You claim that judges generally do not show “common sense.” However, you fail to define that term. (Defining terms is important to lawyers, and the number one reason that lawyers distrust non-lawyers.) Moreover, while ex-Judge Cassell did complain a lot about the perceived unfairness of our system of criminal justice, he never actively took substantive positions that would tend mitigate them. For example, he never went so far as to declare the guidelines substantively unconstitutional, as other judges had done nor did he write a large body of law dealing with the proper weighing of the 3553 factors. I would urge you go to law school.

You also do not explain what “changes” you seek.

Posted by: S.cotus | Nov 26, 2007 12:44:45 PM

The judge's comments show that she looked at the sentence through the lens of race, which seems to be a no-no.

Posted by: federalist | Nov 26, 2007 5:02:24 PM

I don’t know what a “lens of race” is, but unlike you and Mr. Colbert, “I see race.” Some people are black. Some people are white. Some people are a combination of the two.

Black people seem to be drawn to crack. White people seem to be drawn to coke. For some reason or other, legislatures and the USSC seems to have found it its heart to punish crack more severely. Maybe they had race-neutral reasons for doing so. Maybe they were racists. It doesn’t matter. Black people have felt the brunt of the war on drugs, and those caught with medium or large amounts of crack faced larger sentences then white people caught with similar amounts of the other white powder.

Then came Booker.

While some judges Gertner’s circuit initially announced that they would ignore Booker, other judges started to entertain arguments that the guidelines were unreasonable and they should start taking the 3553 factors seriously. But you knew this.

Somehow, in hearing arguments and fashioning sentences, you seem to think that any argument that has a racial component to it is improper. Why is this?

Would a white person be unequally protected if a black person doesn’t have to spent many years in jail? What is your theory that this is a “no-no”? Is it some wacky theory that only-nonlawyers can understand? Or is it just that you love spending taxpayer money to put people in jails?

Posted by: S.cotus | Nov 26, 2007 9:19:12 PM

Update (this was my case) the government filed a notice of appeal..but just this week notified me it will not pursue it.

Posted by: Jessica Hedges | Aug 18, 2008 9:46:31 PM

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