New paper explores "Reimagining Judging" in the US "after a decades long love affair with prison"

Retired US District Judge Nancy Gertner, who is now teaches at Harvard Law School, has this great new 44-page report titled "Reimagining Judging" released as part of the the Square One Project's Executive Session on the Future of Justice Policy.  This press release and this executive summary provides an overview of the report, but my post title draws on this passage from the report that helps frame how Judge Gertner approaches this critical project:

Countless papers have been written about the perils of unstructured discretion — discrimination and bias chief among them (Frankel 1973).  But I want to raise another issue: The unique problem of giving judges discretion in sentencing at this moment in time, after a decades long love affair with prison.  How can judges who have been schooled in the extraordinarily punitive system that produced mass incarceration for the past thirty years suddenly operate in a system that — one hopes — will reflect wholly different premises?  How can a judicial system based on one set of assumptions suddenly enact or apply a wholly different approach?  These are precisely the same questions we have asked of police, correctional officers, and prosecutors in a changed criminal legal system.  Is change possible in juvenile correctional facilities that reflected hard-nosed punishment, too often accompanied by physical and sexual abuse scandals?  Is change possible with police schooled to be warriors, not guardians?  Although surprising at first blush, assuming that law-following judges will enforce such institutional changes — much like with these other actors — is not enough.

In this paper, I touch first on judicial resistance to recent modest criminal law reforms, one example of what I have described elsewhere as the phenomenon of “the habits of mass incarceration” (Gertner 2020).  Then I sketch out — very briefly — the factors that make judges resistant to change: constraints that apparently limit a judge’s horizons, cognitive influences that they ignore, and political pressures that are unexamined.  Finally, I propose a way to effect change — a very preliminary suggestion.

Several caveats: I am generalizing from my experiences from 17 years in the federal system.  This is not an empirical paper.  Not all judges fit these descriptions.  Nor is this paper about what needs to be changed in the broader criminal legal system; others are dealing with those profound and overarching questions.  Finally, the message here is not that judicial change is impossible, only that it is difficult.  Any “reimagining project” must take judicial impediments to change into account; this paper considers how to revamp the criminal legal system through the lens of those who must apply that system’s rules.