Melissa Harris-Perry: We're revisiting a conversation I had back in January about judges being historically resistant to most reforms. Take a listen.

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Melissa: Here's Victoria Pratt, former Chief Judge in the Newark Municipal Courts, and she offered a theory of change in the justice system.

Victoria Pratt: People say that change is a marathon, but when we're dealing with what's happening in the criminal justice system, I charge everyone that it needs to be a sprint because these are lives that are being lost, and these are families, actually generations of families, that are being stuck on this conveyor belt.

Melissa: In the high-stakes marathon of change, judges play a critical role, but a report from the Square One project at Columbia University argues that historically, judges have been resistant to change, even reforms that broaden the scope of their sentencing discretion. The Reimagining Judging report traces the history of judicial resistance to reform and suggests a path toward meaningful change. I spoke with the author of that report, Judge Nancy Gertner, Professor of Harvard Law School and retired judge for the US District Court for the District of Massachusetts. I asked her about the evidence that some judges have been historically resistant to most types of reform.

Judge Nancy Gertner: The evidence is in the resistance to, for example, compassionate release during COVID, the numbers of judges that have been unwilling to release even elderly prisoners who have had COVID. When the Supreme Court said that you can't impose life without parole for juveniles, mandatory life without parole, juveniles had to be resentenced around the country. The sentences really, more often than I care to describe, are 30 years and 20 years. In other words, judges have been giving juveniles the functional equivalent of life imprisonment.

Given that discretion, to take into account all sorts of factors about adolescents and what we know about the neurobiology of adolescent, judges still default to the same numbers that they had defaulted to before that decision. Then you add to this the extraordinary resistance to the efforts of progressive prosecutors. In Massachusetts, we had a situation where a prosecutor, [unintelligible 00:02:30] which is essentially wipe away a charge which she found to have been insubstantial, and the judge rejected it as if it was in the past. Of course, the judge would go along with almost anything a prosecutor did.

There's a few examples, but it's a resistance to change that I can only describe as the habits of mass incarceration and the ways in which we are rigidified. Our views about punishment after 40 years of a retributive system have been frozen. No longer does 1 year or 10 years seem like a legitimate sentence, 20 years must be the legitimate sentence. We're immunized to these numbers. That's what I talk about, the habits of mass incarceration die hard.

Melissa: Being neither an attorney nor a judge, I'm interested in your sense of whether this resistance that we see in the existing judiciary, because it seems to me it could have a couple of different possible origins. One is that those who make it to the bench, either through appointment or through election, are those individuals drawn from the possible box of judges who are more retributive in their worldview, a priori, at the beginning.

The other possibility is that the experience of sitting on the bench creates for, certainly not a random, but a random draw from the box of potential judges who are qualified, again, whether appointed or elected. Then after spending time on the bench, we see this calcification of views around retributive notions of justice. Is it your sense that it's who ends up there or what happens once they are there?

Judge Nancy Gertner: I'd have to say both. Who ends up here? Up until recently, the vast majority of judges were former prosecutors. Somehow we believed that a prosecutor could move to neutral, but a defense lawyer could not. It seems to me that starts the process because what happens is that you value, you understand, you credit the views of the prosecutor more than you credit the views of the defense. Judges become risk averse on the bench.

Part of that is the way the press treats criminal justice matters. You don't want to be the judge that is written about in the morning when the guy you let go commits another crime. The fact of the matter is, that's a press issue. The press really winds up reinforcing that because it only, for the most part, covers instances in which someone will mess up and not the 15 cases in which someone succeeded. The judge gets only pressure. It's only an influence on one side of the ledger and not on the other. Then your point was well taken. There is a socialization on the bench. Judicial neutrality, which is terribly important, oftentimes translates as not being involved in the communities that you serve.

State court judges are different. Federal court judges can be a considerable distance from the communities that they serve, and that means that their vision of what's going on is filtered largely through the prosecutors and the media. They don't know the impact of the families their sentences have rent apart or the impact of taking large numbers of men between the ages of 18 and 27 off the streets. They don't see that impact. That calcifies, your word, very good word, that calcifies their approaches.

Melissa: As you talk about that distance, the notion that neutrality would require us to be distant from not connected to the very-- It sometimes happens around journalism as well, that in order to be neutral you need to be absent from the communities that you're covering. I presume that in judging, much like in media, there are class and race differences between those we cover, those we talk about, versus the communities where judges themselves reside.

How is that disparate reality of judges who are mostly not poor people, mostly not people of color, making decisions, especially in criminal court, primarily about people from poor communities and oftentimes about people who are people of color?

Judge Nancy Gertner: The easy way to put it is, if someone appears in front of you, who is white, in my case, you can make assumptions about who they are. You don't have to ask too many questions because you know. If someone who comes before you is a person of color, a person who can't speak English, who's lived in communities that are very different from yours, there are lots of questions to ask. I was a judge in the time of mandatory guidelines and mandatory sentences. If you believe that you know it all, you don't have to ask any questions. You are bound to revert to stereotypes. It's bound to happen. You're not asking the questions that you should because you don't think that you have to.

Melissa: All right, everybody. Let's take a quick recess. We'll be right back with more about the resistance of judges to change and how to change that.

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Melissa: We're talking about a report from the Square One Project at Columbia University called Reimagining Judging. Let's continue now with Nancy Gertner, a retired judge for the US District Court for the District of Massachusetts. She told me last January how we can begin to move forward toward meaningful change, her recommendation for re-imagining judicial selection and training.

Judge Nancy Gertner: People talk about diversity on the bench as if it is something that's terribly important visually, a representative. It's terribly important to have representatives. I think it's more than that. When you have people who have experienced the communities that are involved where you sentence, where you are a judge, that's critical. I like to write about how credibility decisions are something a judge makes all the time. Because I had been a criminal defense lawyer, I understood that police officers sometimes lied. I saw it in my work.

One of my colleagues said to me that he actually had never in his entire judicial career heard a police officer who lied on the stand. I wondered whether that was a product of the fact that where he lived and the communities that he interacted with, it didn't happen. If it didn't happen, or so he believed, that your threshold for then finding a police officer, incredible, is different than my threshold would be. Diversity, some sense of what the world is like, really matters.

Then as well, public defenders should be on the bench because once you get on the bench, it's important again that we believe that you should be dispassionate and removed from the communities you're a part of. I don't completely agree with that, but if you haven't had any experience of those communities beforehand, you get on the bench and you're even more distant, even more away from what you should be focusing on.

Melissa: You also mentioned something called sentinel event audits. What does that mean, and how could this help?

Judge Nancy Gertner: What happens when we have wrongful convictions? Somebody is found to be innocent after years of being in prison. We talk about what the prosecutor did, you talk about what the defense lawyer did, probation, police. We rarely talk about what the judge did. We rarely say, "What was before the judge and what did he or she see or miss?" I've just had that experience a few days ago. Someone was released in state court. I called up the Innocence Project, and I said, "Oh my God, who was the judge?" and they said, "You, Judge Gertner." I said, "Well, I want to go back over what happened."

I had had the case on the federal appeal, and the grounds for appeal are very narrow. It turns out the issue that tipped his conviction was not one that had been presented to me, so by sentinel event, go back and figure out how did it happen that we got it wrong, bearing in mind that all the players in the criminal justice system should go through that exercise? How did we miss this? Was it the lawyer didn't present the issue to me? What more can we do? I am accountable as a judge, one believes, only to a court of appeals. That's a different kind of accountability. Did I follow the rules, not did I get it right? It could be whether I got a result that actually matched reality.

Melissa: That's so helpful. I am thinking here about in the context of hospitals and medical care, that we see those grand rounds that provide also that opportunity for doctors to go back and ask, "What happened when we get it wrong?"

Judge Nancy Gertner: Right. "What did I miss? What did I miss?" What I missed is not what legal issue, but rather what did I miss about the person? What did I miss about the presentation? That's a different kind of accountability.

Melissa: As we're thinking about how this can change, I want to go again to this question of community engagement. I have the very unique experience. Oh, I don't know if it's unique or not. It's an enjoyable experience for me as a parent. I have a seven-year-old who is in a Sunday school class which, now, for more than a year, has been meeting via Zoom on Sunday morning. I get to sit in on my seven-year-old's Sunday school, and it happens to be led and taught by a woman who's a judge in our community who actually just recently retired from her role as judge.

It's been fascinating to me to listen to, someone I think of as, the judge in conversation with a group of 6 to 12-year-olds talking about all kinds of matters of how we should be and ethics. Sunday school at that age is not high theology, it's mostly ethics. It's mostly, like, how can we be together and be good people together? I thought so much about not only what these kids are learning from this judge but undoubtedly what she's learning from them when she asks them questions like, "How's school going? How are you feeling about COVID? How are your parents?"

Those basic getting-to-know-you questions from these kids are undoubtedly feeding back what this judge knows about the world and community that she is making decisions about. I guess I'm wondering, what are some of the ways that we could create more opportunities for engagement that feels appropriate to us for judges to be having but that can create some feedback loop for engagement and narrative?

Judge Nancy Gertner: Well, it's interesting. I have to start with what I know we shouldn't do. As a judge, really, in order to ensure judicial independence you are really told not to go to community events. You could go to bar association events. You could go to events with other judges. Most of the judges on my court lived in suburbia, so you literally could drive into the courthouse and not see any of the communities that you were involved with, so what does it mean? It means going to community events. It means even walking the streets to see what they are like, to go to the places that are involved.

My comments, by the way, are oftentimes more related to the federalization of street crime. When federal courts began to deal with street crime, some of the issues about distance, that's what I'm mainly talking about. Going into the streets, talking to people, we found quite extraordinary attitudes that people had about the federal court, particularly dealing with drug offenses. They wanted the community to be cleaned up but not at the price of large numbers of young men going to prisons on the other side of the country. There must be a way to talk about these issues in between that.

I think you have to engage with the communities that you're with. I talk about a book that I'm writing about the men that I sentenced, some of whom I'm interviewing, and I gave a talk at a local community center. One man asked me if this is essentially a reckoning, whether what I'm doing is a part of the reckoning that people are trying to come to grips with about racial issues. I said it's a reckoning, it's accountability, and it should be the beginning of a dialogue. That makes all the difference in the world. We really don't understand the communities that we serve unless we have been in them.

Melissa: That was Judge Nancy Gertner, a professor at Harvard Law School and a retired judge for the US District Court for the District of Massachusetts.

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