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Nancy Gertner

Abstract

Sentencing is different from almost all functions of the government and surely different from the other functions of the judiciary. It is the moment when state power meets an individual directly. It necessarily involves issues that are distinct from those in other areas of the law. It requires a court to focus on the defendant, to craft a punishment proportionate to the offense and to the offender. It should come as no surprise that in countries across the world, common law and civil code, totalitarian and free, judges have been given great discretion in sentencing. To be sure, that power had a different resonance in the countries of the former Soviet Union, or in China, than it did in the United States. In China and in the countries of the former Soviet Union, the judicial sentencing power involved maximizing the ability of the judge to bend to the will of the Party or the Party leadership. In the United States, in contrast, it was part and parcel of a progressive penological movement, linked to the goal of rehabilitating offenders. At the same time, a sentencing system is in fact a system, impacting all of the institutions of government, not merely the judiciary, but also the legislative and executive branches, and, in the United States, the jury. It would be wrong to look only at what is essentially the “end” of the story, when the judge pronounces the sentence, and not all of the stages that precede it. Likewise, it would be wrong to assume that one can change the behavior of one player in the system without that change having an impact on all of the others. Discretion is hydraulic; you take it away from one and it flows to another. United States v. Booker could well herald a new era in American sentencing practices. But before I address what that era may look like, it is important to identify two other time periods and describe how each failed to provide meaningful sentencing reform—the era of indeterminate sentencing and the era of “mandatory” guidelines (which is, perhaps, at an end). In each case, the major institutional players—including my own institution, the courts— failed to live up to the expectations of reformers. The challenge for today is how to avoid the mistakes of the past.

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