He sounds so judicial. He talks about neutrality, raising plain vanilla issues about deference to the expertise of administrative agencies. It is boring, hardly likely to engender indignation. He says his decisions are required by the law — not affected by his own background. He is Judge Neil Gorsuch and he may soon be on the Supreme Court. Don’t be fooled. His approach is not neutral, not required by the law, and far out of the mainstream. Quite apart from social issues like abortion or gay rights, his approach could gut health and safety and antidiscrimination laws. Continue reading »
That Attorney General Jeff Sessions made a false statement under oath before a congressional committee is clear. He said, “I did not have communications with the Russians,” when in fact he had met twice with Russian Ambassador Sergey Kislyak. The only question is what the consequences should be. Continue reading »
The Harvard Gazette covers a new Harvard Law School course led by CLBB’s Judge Nancy Gertner (ret.), which approaches the problem of mass incarceration from interdisciplinary perspectives. The course, also co-taught by Harvard sociologist Bruce Western and Vincent Schiraldi of Harvard Kennedy School, examines the origins of U.S. mass incarceration and helps students generate solutions to the issue. About the course and faculty, Judge Gertner notes:
“Each of us in different ways has been teaching and working on the problem of criminal justice policy. We thought there would be some unique value in bringing together three perspectives: the social science on problems of crime and criminal justice, the perspective of policy research and analysis, and law.
None of us ever believed that we would be in a world in which people are talking about reducing incarceration and letting people out of prison…. the discussion goes from the abstract to the concrete.”
About her experience with the problem of mass incarceration and commitment to resolving it, she comments on her time as a federal judge:
“Eighty percent of sentences that I was obliged to impose in drug cases were unjust, disproportionate, and inequitable,” she told the class of working as judge within a strict sentencing framework ushered in by the Sentencing Reform Act of 1984. After retiring in 2011, she embarked “on a trajectory of wanting to know more,” she said, and pressing for change.
Read the full article, “Hard Time Gets a Hard Look”, by Colleen Walsh, published by the Harvard Gazette on November 29, 2016.
Access to justice means more than fancy courthouses, a courtroom with high ceilings, the American flag unfurled, and even compelling quotes from the U.S. Constitution. Access to justice means more than a presiding judge looking dignified in a long black robe, on an elevated platform, with the lawyers before him or her. Access to justice is not a Kabuki show—the ceremony of justice but not the reality.
But to those accused of misdemeanor offenses in the Bronx, a court proceeding is just a hollow ritual. According to the lawsuit filed by The Bronx Defenders, Emery Celli Brinckerhoff & Abady, and Morrison & Foerster, there are few trials, no opportunity to confront witnesses, no way to challenge the government’s case, no opportunity to be publicly vindicated in a speedy proceeding, and unconscionable delays. Continue reading »
Nancy Gertner is a retired federal district court judge and a senior lecturer at Harvard Law School, and a CLBB Senior Faculty member. She is a signatory of an amicus brief in the Supreme Court case United States v. McDonnell, on behalf of former Virginia governor Robert McDonnell.
When we talk about political corruption, what often comes to mind is what the law calls “quid pro quo”: I give a politician money and in exchange he or she gets me a government contract or votes in my favor. But there is a continuum of quid pro quo exchanges, some plainly illegal, some not and some ambiguous.
In the case of former Virginia governor Robert McDonnell, the Supreme Court will decide whether it is constitutional to prosecute a public official for conduct on that continuum, conduct never before determined to be at the illegal end. The issue is not whether we should regulate gifts to public officials; the issue is whether the criminal law can be used as a bludgeon when we have not done so. I think not. As a matter of due process, criminal prosecutions can be brought only when we have clearly defined what is legal and what is not.