Victims' family member, Steve Davis speaks to media outside federal court in Boston Tuesday, June 12, 2012, after Catherine Greig, who spent 16 years on the run with former Boston mobster James "Whitey" Bulger, was sentenced to eight years in prison for helping to hide one of the FBI's Ten Most Wanted Fugitives. (AP Photo)

There is a canned, formulaic newspaper story about any criminal case. It can be repeated in every prosecution, no matter what the crime, no matter who the defendant.

Here’s how it goes: Judge X sentenced defendant Y to five years (or whatever the number). The prosecutor argued for 10 (or higher than the number the judge gave). The victim’s family is appalled. When interviewed, they stridently proclaim their outrage at the judge. The press then echoes that sentiment.

All concerned assume that the right sentence is the one the prosecutor wanted or the victim demanded. So when the judge sentences the defendant to less, they cry foul. Another lenient judge! Another liberal! Another blow against the “tough on crime” mentality!

Never do you see the opposite: a columnist decrying a sentence that was too high or a reporter noting that these sentencing lengths are just arbitrary numbers – five, 10, 15, 20 – without any relationship to what works to deter crime, what is cost effective, etc. And they are “just” numbers that will inevitably increase over time, precisely because they are contentless.

They do not reflect expert opinion about proportionality — for example, measuring relative sentences across crime categories or comparing nonviolent drug sentences to sentences for violent crime. They don’t consider alternative approaches. They don’t evaluate recidivism, whether drug treatment programs in certain instances will work better than incarceration.

These numbers only reflect the public’s and the district attorney’s spleen – and so whatever the number was before the sentencing of this defendant, they “must” be higher in the next case, with the next defendant. There is, in short, no end.

Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

We lead the world in imprisonment not just by a little — but by several orders of magnitude. Our nearest competitors are Rwanda and China, hardly good company. And the racial figures are even worse: At the end of 2010, black men had an incarceration rate of 3,059 sentenced prisoners per 100,000 U.S. black male residents. This rate was almost seven times higher than the incarceration rate for white men (456 per 100,000).

Three decades ago, we considered rehabilitation and specific deterrence to be more important than retribution. And while there were unquestionably problems with that approach, at the very least it enabled a discussion about what punishments made sense to ensure public safety, to minimize recidivism and to balance all of the purposes of sentencing. In addition, it permitted criminal justice experts in various fields – including judges – to participate in a meaningful discussion about crime.

But in the 1980s rehabilitation was discredited. On the eve of sentencing reform in the federal courts, one scholar wrote: “What works? Nothing!” – although he subsequently amended his views. The sentencing focus shifted for the most part to a single purpose: retribution. And for that purpose there were new “experts”: the public. If the most important question had become, “What punishment fits this crime?” Everyone could weigh in.

And not just the public. By the late 1980s, crime issues were part and parcel of the political debate — think of the role of the Willie Horton ads in the 1988 presidential election. A decade later came the shock jocks and 24/7 pundits. What the public thinks about the crime, and thus what the criminal “deserves,” came to be shaped — indeed inflamed — by the press.

Meanwhile, criminal justice experts were sidelined. As Duke University law professor Sara Sun Beale argued in the aptly titled 1997 article “What’s Law Got to Do With It?” — criminal justice policy is largely driven by the media. The good news of falling crime rates over the past two decades was rarely reported; the nightly news famously reflected the principle, “if it bleeds, it leads.” The result? Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

Some of the blame surely goes to the media. Take the case of Kenneth Belew of Somerville, Mass. On the evening of April 21, 2011, after drinking too much, Belew got behind the wheel and lost control of the car. Of the five passengers – two tragically died. The judge sentenced Belew to five years; the prosecutor had wanted eight to 10.

A Boston Globe columnist excoriated the judge in all too familiar terms: He was insensitive and unduly lenient for not imposing the sentence the prosecutor wanted. But what the prosecutor wanted was hardly the measure of fairness. The presumptive range of sentences under the Massachusetts Sentencing Guidelines was about three and a half to five and a half years.

Those guidelines were established by a Sentencing Commission consisting of prosecutors, defense counsel, public safety and correctional officials, and victim-witness advocates. And the judge accompanied the sentence with an elaborate recitation of the reasons for the sentence — on the record and in public.

The prosecutor cannot be so monitored. He picks a number and does not have to explain it, beyond justifying it in the particular case. There are no public, transparent guidelines for prosecutors, no Sentencing Commission, no standards. He cannot be easily reviewed to see if he is biased, choosing mandatory minimums for defendants of color more than for those who are white, or simply going with his gut.

Recently, a Suffolk County prosecutor criticized the Supreme Judicial Court for not requiring a judge whom the prosecutor believed to be too lenient to disclose his personal notes, records and diaries to justify his sentences. When was the last time a prosecutor was required to disclose why he chose to prosecute a defendant, or picked a given charge, or recommended a given sentence? The answer is never.

And, to a shocking degree, the prosecutor is picking numbers out of the air. Twenty years ago, we considered five years a very long sentence. In most European countries that is still the case. But now, in the United States, we increase sentences by fives. It’s like a betting game. Five does not send a message if it is what the defense lawyer wants. OK, I’ll raise you five more. Why five? Why not 10?

When sentences had to bear some relationship to outcomes – what worked to prevent recidivism, for example – there were limits. With retribution, there are few.

To be sure, pundits are beginning to write about the unfairness of mandatory minimum sentences. They are beginning to notice the disproportionate sentences for African Americans and Hispanics. And in this depressed economy, the media is beginning to acknowledge that lengthy sentences, particularly for nonviolent drug offenders, are not remotely cost effective.

But those general observations are rarely reflected in media coverage of individual cases. And individual cases, particularly the celebrated ones, are what drive the legislative debate (think Megan’s or Melissa’s laws) – not a general analysis of the needs of the criminal justice system or the lack of a relationship between the declining crime rate and our ever increasing imprisonment rate.

That is the only explanation of why, just when punitive states like Texas and Mississippi are repealing “three strikes” laws, Massachusetts just passed one, after two highly publicized and tragic crimes: the murders of Melissa Gosule and Officer Jack Maguire. Three strikes is nothing more than a baseball metaphor – not social policy.

Too often the themes the press echoed and the legislators repeated were simply without basis:

Myth 1: Massachusetts judges are coddling criminals. In fact, since the Willie Horton incident, imprisonment rates have increased, with consequent prison overcrowding. Even independent judges feel the public’s pressure to imprison more and more.

Myth 2: Parole boards coddle criminals. But parole was declining steadily after the Horton incident and, after Officer Maguire’s killing at the hands of a paroled offender, was effectively shut down further.

Myth 3: Prosecutors can be trusted to decide who should be charged and who should not be. It is a fallacy to believe that all prosecutor’s decisions are without flaws, any more than all judge’s decisions are wrong. Indeed, prosecutors’ decisions are less likely to be publicly reviewed, or to be independent of political influence, than those of judges.

Myth 4: We need higher sentences to stop violent crime. Not so. Violent crime has been declining, especially in Massachusetts.

Myth 5: We need higher sentences to deal with recidivism. Indeed, the recidivism rate is high – by some accounts as high as 40 percent – but given the imprisonment rate, it suggests the failure of prisons more than anything else.

Myth 6: It is costless to imprison more and more. Hardly. Since rehabilitation was generally discredited in the 1980s, reformers have focused on evidence-based practices proven to be efficacious in preventing crime. In this recession, every dollar spent on prison walls is a dollar less for treatment that works.

So it matters how the media covers the individual case, whether it follows the usual formula, “whatever the prosecutor wanted was right” or is more nuanced. The press can’t decry mass incarceration while regularly beating the drum to criticize judges who are trying to make reasonable distinctions between offenders.

Tags: Bulger Trial, Law

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  • Fabiola Prieto

    Nancy, I love this piece. I think you have many good points, but you’ll be happy to know that not all media is the same.

    I’m involved with this news mobile app that reports specifically about criminal trials. Yes, we concentrate on trials that are highly publicized and controversial, but while our TV counterparts seem to spend every minute condemning the procedures and decisions, our App provides in depth legal commentary as well as explanations of the charges. We also include as many court documents as we have access to. The App is called Wild About Trial and is available in the Apple App store and in Google Play.
    Times are changing, and the beauty of the internet and freedom of information is that the opportunity to learn and become a better society.

  • Harvey A. Silverglate

    Nancy Gertner hits the nail on the head. What is also evident is that anytime a sentencing statute is named after a victim — Megan’s Law, for example — you can bet that it’s unfair and irrational, but that it makes for good press headlines for the prosecutor. Harvey Silverglate

  • Steven Coffey

    Excellent article. Far too many people are influenced by the media that promotes a bloodthirsty retributive culture when it comes to criminal justice. Every high profile case becomes scandalous, when it’s not even news, and sadly, many get hooked by it. My hat goes off to NPR for truly being the “fair and balanced” news outlet.

    We are supposed to pride ourselves on being a free country, yet increasingly, more Americans are incarcerated, and for longer periods of time. It’s as if we’re living through the Salem witch trials. I just hope that more people become conscious of what’s going on and begin to reject it, and that the pendulum begins to swing in the opposite direction.

  • Lilee

    Great article. Politicians feed in to the blood thirst of the masses. The media always takes the easy path via sensationalism. The media inflames the mob who demands its crucifixions and to be elected the politicians comply. It is a circle of cruel, lazy cowardice.

  • Andrew Turner

    What a refreshing piece. Part of this intractable problem is that, with the cheerleading of “news and information” organizations, becoming a public prosecutor is a major stepping stone for a career in politics. This disproportionate representation of the punitive side of justice ends up in the legislative bodies which write the laws. One step to solving this problem is to change our own attitudes about whom we elect to public office.

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  • Max Kennerly

    I certainly agree that the media’s tendency to play “he said, she said” by contrasting the sentence imposed by the judge against the sentence sought by the prosecutor – frequently without considering what the defense proposed, and virtually never discussing the guidelines and other comparable sentences – is regrettable, but the larger issue of whether our sentences are too strict remains open to debate.

    We’ve all seen instances in which, generally due to mandatory minimums, someone who was blameworthy but not extraordinarily damaging to society (e.g., a defendant repeatedly convicted for possession of marijuana) had an extraordinary sentence imposed upon them, but it does not necessarily follow that our sentencing is too high, or that it is at this point far beyond utilitarian goals. Several studies, including two of which I’ve cited below, have found that our current stricter sentencing does indeed reduce crime in part because it incapacitates criminals.

    Of course, with reducing crime in general, particularly violent crime, it does seem like we as a society have room to start reducing sentences again. Given the political climate today, however, I think advocates for that reduction in sentencing need to address the common perception that our reduced crime today is the result of stricter penalties and policing that began in 1980s. So far, I have not seen too many criminal justice advocates take that argument head on.

    Vollaard, B. (2012), Preventing crime through selective incapacitation.
    The Economic Journal. doi: 10.1111/j.1468-0297.2012.02522.x.

    Owens, E. G. (2009) “More Time, Less Crime? Estimating the Incapacitative Effects of Sentence Enhancements” Journal of Law and Economics, 52(3) 551-579.

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  • Kate Corrigan

    Once again, Nancy Gertner is right on target. I thank her for her courage to be frank. The press is all too eager to reprint the press releases of the government and to celebrate a lengthy sentence. What I find curious is that the press and the public rarely applaud when an individual is acquitted after a lengthy jury trial. Instead, I am often asked how it is that I can represnet “those people.”
    I recently had that experience. My client was acquitted on 9 counts in federal court. The news clips concentrated on the convictions of the other defendants – essentially a cut and paste of the DOJ press release. No one seems to care about the system functioning to exonerate defendants. My client’s liberty was not taken from him. That is a moment that should be celebrated. The Constitution and our justice system worked. That is how and why I represent “those people.”
    Kate Corrigan
    Orange County Criminal Defense Association, President
    Corrigan & Welbourn, APLC
    Criminal Defense Counsel

  • Carl Phillipson

    Excellent article Nancy.

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