News and Commentary Archive

Explore recent scientific discoveries and news as well as CLBB events, commentary, and press.

Mission

The Center for Law, Brain & Behavior puts the most accurate and actionable neuroscience in the hands of judges, lawyers, policymakers and journalists—people who shape the standards and practices of our legal system and affect its impact on people’s lives. We work to make the legal system more effective and more just for all those affected by the law.

The Corruption Continuum: When Giving Gifts Bleeds to Bribery

By Nancy Gertner | The Washington Post | May 6, 2016

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.

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Secrets of the Grand Jury

By Nancy Gertner and Jack Corrigan | The Boston Globe | April 27, 2016

The Globe reported Sunday that Boston Mayor Martin J. Walsh wouldn’t say whether he had been a grand jury witness in a federal investigation into the tactics of Boston Building Trades unions. Since then, many have chided him for not being more forthright. But that misses a critical point: Grand jury proceedings are supposed to be secret. Government agents are bound by strict confidentiality rules. They may not disclose who has been called, when they testified, or what the subject was; they are barred from releasing information about wiretaps or other evidence they have assembled. While witnesses may speak about their testimony, they do receive a letter from the government with their subpoena that strongly urges them not to do so to protect the integrity of the grand jury investigative process. And that “suggestion” is particularly important in this probe and one that Walsh was right to heed. Continue reading »

Even When Inconsistent, Justice Scalia Was Certain

On Saturday, February 13, Supreme Court Associate Justice Antonin Scalia passed away. CLBB Faculty Member Judge Nancy Gertner (ret.) reflects on his legacy.

By Nancy Gertner | The Boston Globe | February 14, 2016

I did not know Justice Antonin Scalia. Following the announcement of his death, I could not help but be struck by the accounts of his warmth, his friendships (notably with Justice Ruth Bader Ginsberg, with whom he regularly disagreed on the Supreme Court), his deep religious commitment, his infectious sense of humor.

I knew him through his opinions, books, and speeches. Even though I disagreed with him much of the time, one thing is clear: His legal positions could not be ignored — not by lawyers, scholars, judges, nor the public. I had to take them seriously in my own judicial decisions and in my writing. And the need to deal with his arguments shifted the debate, even the outcomes. Continue reading »

Judge Nancy Gertner Reflects On Mandatory Minimums

CLBB Facugertner_150x150lty Member Nancy Gertner appeared on WBUR to discuss her efforts to fix the system of mass incarceration that forced her to put hundreds of men and women behind bars, during her 17-year judicial career. In conversation with host Meghna Chakrabarti, Judge Gertner notes:

“The irony is, I’m going through all my sentences — hundreds of men, largely men that I sentenced — and I’m mostly dealing with mandatory minimums, because, candidly…I went as low as I could go in all of these cases. And now we’re dealing with people who just got stuck in, really, a nightmare sentencing structure.”

Listen to WBUR’s radio broadcast from November 13, 2015 here.

Undoing the Damage of Mass Incarceration

gertner_150x150By Nancy Gertner | The Boston Globe | November 4, 2015

Over a 17-year judicial career, I sent hundreds of defendants to jail — and about 80 percent of them received a sentence that was disproportionate, unfair, and discriminatory. Mass incarceration was not an abstraction to me. Sadly, I was part of it.

Last weekend’s release of 6,000 prisoners from federal prison is an encouraging start to reform, but it’s only a start.

I was a judge during the most punitive period of US history — the ’90s — when we imprisoned more than any other country, even the most autocratic. I did what I could to mitigate the impact of the laws I had to apply. There were 10-, 15-, and 20-year mandatory sentences for drugs, which made no sense under any rational social policy. There were mandatory-sentencing guidelines, which often led to absurd results. When I made a small downward adjustment, explaining what I did in a written opinion, I risked reversal by an appellate court that saw only sentencing calculations, not people. Continue reading »