"The Media's Reporting On Justice Is Criminal"

The title of this post is the headline of this extended recent commentary by (former judge, now professor) Nancy Gertner. Here are excerpts:

There is a canned, formulaic newspaper story about any criminal case.  It can be repeated in every prosecution, no matter what the crime, no matter who the defendant.

Here’s how it goes: Judge X sentenced defendant Y to five years (or whatever the number).  The prosecutor argued for 10 (or higher than the number the judge gave).  The victim’s family is appalled.  When interviewed, they stridently proclaim their outrage at the judge.  The press then echoes that sentiment.

All concerned assume that the right sentence is the one the prosecutor wanted or the victim demanded.  So when the judge sentences the defendant to less, they cry foul. Another lenient judge!  Another liberal!  Another blow against the “tough on crime” mentality!

Never do you see the opposite: a columnist decrying a sentence that was too high or a reporter noting that these sentencing lengths are just arbitrary numbers — five, 10, 15, 20 — without any relationship to what works to deter crime, what is cost effective, etc. And they are “just” numbers that will inevitably increase over time, precisely because they are contentless.

They do not reflect expert opinion about proportionality — for example, measuring relative sentences across crime categories or comparing nonviolent drug sentences to sentences for violent crime.  They don’t consider alternative approaches.  They don’t evaluate recidivism, whether drug treatment programs in certain instances will work better than incarceration....

We lead the world in imprisonment not just by a little — but by several orders of magnitude.  Our nearest competitors are Rwanda and China, hardly good company.  And the racial figures are even worse: At the end of 2010, black men had an incarceration rate of 3,059 sentenced prisoners per 100,000 U.S. black male residents.  This rate was almost seven times higher than the incarceration rate for white men (456 per 100,000)....

Recently, a Suffolk County prosecutor criticized the Supreme Judicial Court for not requiring a judge whom the prosecutor believed to be too lenient to disclose his personal notes, records and diaries to justify his sentences.  When was the last time a prosecutor was required to disclose why he chose to prosecute a defendant, or picked a given charge, or recommended a given sentence?  The answer is never.

And, to a shocking degree, the prosecutor is picking numbers out of the air.  Twenty years ago, we considered five years a very long sentence.  In most European countries that is still the case.  But now, in the United States, we increase sentences by fives.  It’s like a betting game.  Five does not send a message if it is what the defense lawyer wants.  OK, I’ll raise you five more.  Why five?  Why not 10?...

To be sure, pundits are beginning to write about the unfairness of mandatory minimum sentences.  They are beginning to notice the disproportionate sentences for African Americans and Hispanics.  And in this depressed economy, the media is beginning to acknowledge that lengthy sentences, particularly for nonviolent drug offenders, are not remotely cost effective.

But those general observations are rarely reflected in media coverage of individual cases. And individual cases, particularly the celebrated ones, are what drive the legislative debate (think Megan’s or Melissa’s laws) — not a general analysis of the needs of the criminal justice system or the lack of a relationship between the declining crime rate and our ever increasing imprisonment rate.