Nancy Gertner: A Rare Breed

I write about the relative few people in law who care about justice. It's not about giving people who break the law a free pass. It's about approaching caging humans delicately and smartly. Most people in the business of law (especially in the harsh federal system of justice) devalue human life and crush people like cockroaches. Too many federal judges dole out ridiculous, soul-crushing prison sentences that serve no legitimate purpose. Too many federal prosecutors wield their power like a dangerous weapon and cruelly abuse it in the name of burying nonviolent offenders alive with prison sentences that are shocking high and grossly disproportionate to the crime. Even apathetic criminal defense attorneys (mostly in federal court) have become callous, pushing along assembly-line "justice."

Not Nancy Gertner.

Nancy Gertner is a former U.S. federal judge who built her career around standing up for civil liberties, women’s rights, and ensuring justice for all. Appointed in 1994 to the federal bench of the U.S. District Court of Massachusetts by President Bill Clinton, Gertner stepped down in 2011 to teach at Harvard Law School.

What would make someone who loved practicing law, was named one of “The Most Influential Lawyers of the Past 25 Years” by Massachusetts Lawyers Weekly, and who received numerous awards, including the Thurgood Marshall Award, decide to step down? 

Simply put, she was tired of the rampant injustice she saw in the justice system. And that makes Gertner a rare breed, because far too many federal judges have little regard for human life. But Gertner has always had the ability to humanize what other judges couldn’t – or wouldn’t. She has always recognized that each person, regardless of the crime they committed, has a story.

One need only to look at Gertner’s formative years to understand where her passion for human rights and justice for all comes from.

Broadway Calls?

Born on the lower east side of Manhattan, Gertner’s parents had very little money. In fact, growing up, Gertner slept in a crib until she was 8 years old because she, her sister and parents all slept in one room, and they couldn’t afford and didn’t have space for another bed. 

But despite her meager surroundings, Gertner had grand aspirations. She knew from a very young age she wanted to either be a famous Broadway musical theater star, or the President of the United States. While neither professional would be her ultimate calling, it was clear her love of story and desire to make a difference in the world began at a young age.

She eventually entered Barnard College, Columbia University’s private women’s liberal arts college in New York City. At the time, Barnard was a hotspot for the developing feminist movement as well as anti-war and civil rights politics. Gertner became very involved in the activities, taking part in protests and marches across the city, envisioning a world that was different from her parents’ generation. 

It was at this time that Gertner’s aspirations of being President of the United States began to fade, and in their place, a career as a lawyer developed.

“Lawyers were very much heroes in the Civil Rights Movement. They then evolved to become heroes of the Women Rights Movement,” Gertner has said. “It was a safe way to channel my progressive tendencies.”

After graduating From Yale law School, Gertner found herself clerking for the Chief Judge of the Seventh Circuit in Chicago. The old-fashioned sexism she experienced in this new environment was a stark contrast to the sisterhood of the feminist world she had just come from. And she wasn’t about to take it lightly.

Gertner recognized the delicate balancing act she would have to perform, playing the part of the young female clerk, while also standing up for herself and women in general. She believed in the old adage: if you’re not part of the solution, you’re part of the problem.

“You simply couldn't take these kinds of indignities. You had to stand up for everything. Otherwise, you were implicitly legitimizing them.”

A fire had been lit.

The Saxe Case

In 1975, Gertner would get a call from Susan Saxe that would shape the following 20 years of Gertner’s practice. Saxe was a young woman who, like Gertner just years earlier, was heavily involved in the anti-war movement. But while Gertner and her peers were marching in protest, there were others who took to more violent means as a way to protest the war.

The Weather Underground was a small group of three men and two young Brandeis University female students. The group felt the anti-war movement was stalling and believed more intense actions needed to take place. They began robbing banks to get money to fund more anti-war activities.

All three men were excons who had been part of a re-entry program at Brandeis and easily persuaded Saxe and the other female student to help them pull off the heists. 

During one particular robbery, things went horribly wrong. Saxe and two of the men were inside the bank robbing it. The other woman was waiting in the getaway car, and the third man was out front, guarding the bank, watching out if the police arrived.

Saxe and the two men successfully robbed the place, got in the getaway car and drove away. Unfortunately, the point man out front was unaware the robbery was over and had gone off without a hitch. When a police officer arrived on the scene and started to walk into the bank, the man shot and killed him.

In the blink of an eye, what had been a serious crime had turned into a capital offense. Under the felony murder rule, if you participate in the felony in any way, you are responsible for foreseeable consequences which included murder. 

All five group members went underground, and the men were caught almost immediately. Five years later, Saxe was finally apprehended.

It was 1975 and Gertner had only been a practicing lawyer for three years. Saxe’s original lawyer, who had been a mentor of Gertner’s years earlier, decided she didn’t want to try the case and recommended Saxe hire Gertner instead. Though Gertner had miniscule experience trying anything remotely as big as this case, Saxe insisted on a female lawyer.

Everyone from the press to the judge to the prosecutor to the milkman didn’t think Gertner had a chance. A new attorney defending a woman who was involved in killing a cop? It made for a great movie logline, but it was clear they were going to lose spectacularly.

After a lengthy trial and a week-long jury deliberation, they had a verdict. The jury had gone from being split 9 to 3 for an acquittal, to 10 to 2, to 11 to 1. Saxe would plead guilty to manslaughter and spend only 8 years in jail, far less than everyone assumed she’d get. It was seen as a major victory.

Gertner has said that the Saxe case changed her life,

“…the experience of pouring your heart into something and of winning, not for gobs of money, but winning for a person.”

She spent many more years trying all sorts of civil and criminal trials as well as federal cases and also began teaching at Harvard and other law schools. But a new opportunity was calling.

Gertner Gets Benched

The year was 1992 and Bill Clinton had been elected to the White House. Many of Gertner’s colleagues were seeking a job in the administration. Gertner had known Bill and Hillary for years. In fact, she and Hillary had been good friends in law school. 

While she had never been a public defender or a U.S. attorney, and though she never had a government job, Gertner began to like the idea of doing something new; of making a difference in a bigger way.

Not long after being sworn in, Gertner realized her new role was very different from roles she had played in the past. As someone who had always taken a very strong stance around social and political positions, she found it hard to move to a neutral position. It was alien to her, a woman who for 20 years had fought to right the wrongs in the world, to suddenly sentence someone to a term that was entirely unjust. But with no lawful way to impose a lower sentence, Gertner’s hands were often tied. At every opportunity, if there were two results in a case, she would choose the one she felt was the most just.

“I couldn't ignore who I had been. I knew what I believed in. I knew the way I thought things should come out in many cases, not in all. But at the same time, I loved the law, its principles, its rules. I didn't want to be false to my positions, on the one hand, or to the law, on the other. So that set up a conflict that was going to go on for the next 17 years. And it was a conflict between my clear sense of what was fair on the one hand and my sense of what the law required.”

Throwing the Book at the FBI

Gertner has publicly stated she preferred to hear cases that "made a difference." No doubt the most prominent of these was the case brought against the Federal Bureau of Investigation (FBI) by a group of men who had been imprisoned for 20 years because the FBI had prepared and polished an informant who accused the men of a murder they did not commit. The FBI knew the informant was lying and not only allowed him to testify against these innocent men, but also shored up his testimony and kept the truth under wraps.

Gertner would go on to award damages to the defendants under the Federal Tort Claims Act, to the tune of $100-million. This amount was a record. 

The Untold Harm of Mass Incarceration

Gertner had spent more than 35 years attempting to ensure that justice was always served. And while she could find loopholes and certain precedents that allowed her to dole out what she felt were just sentences, at the end of the day, she was trying to humanize the people that stood before her. But she was working within in an inhumane legal system, and she knew it. 

When the U.S. Sentencing Commission refused to take any of her opinions into consideration when reworking the federal sentencing guidelines, Gertner was forced to acknowledge it was time to move on.

After retirement, Gertner began working on a book about sentencing, not from a legal standpoint, but from a human one. The legal field had changed since she entered it back in the seventies. America was now imposing some of the harshest punishments seen anywhere in the Western world, and sentences were often handed out based on how many “boxes” were ticked. Attention was always given to numbers – how much money, how much drugs, how many prior convictions. Rarely, if ever, was consideration given to the person’s mental health, addiction, or childhood trauma. 

It wasn’t easy writing Incomplete Sentences.

Gertner knew she was risking delegitimizing her judicial career. And yet, she believed it was important to openly discuss how human beings were treated in the criminal legal system. If you’re not part of the solution, you’re part of the problem.

While working on the book, a defendant that had stood in front of her a decade earlier reached out to her on Facebook to tell her she was a special person and offered her “peace and love.”

Gertner agreed to meet with him, and that meeting led to others, even meeting a former defendant who was still serving time in federal prison. All of these men wanted to tell her their story. They shared what it feels like to be prosecuted by the federal government and hear you’re going away for a very long time. 

At the end of her book, Gertner makes a shocking admission,

“By the time I left, the pattern was clear. I had sentenced hundreds and hundreds of men (mostly men) to sentences 80 percent of which I came to believe were unfair, unjust, and disproportionate.”

In addition to writing several other books, including a memoir, Gertner, ever an outlier in the judicial field, spends her time teaching law students, lawyers and federal judges about sentencing, hoping the insights she gained during her 17 years on the bench can contribute to ending mass incarceration. 

My Dream Team

Anyone who has read my blogs knows that I have my dream team, people who are in the business of law who are outliers in that they see prisoners as people—and who act on their compassion.  On my list is Miangel Cody, Brittany K. Barnett, Jessica Jackson, Amy Povah, Kim Kardashian, Mark Osler—and now, Nany Gertner.

They are all truly special people who are pioneers in the changing the perspective from which prisoners are the justice system are viewed.  It's easy to be compassionate. But it's a lot harder for one to act on compassion and devote one's life to putting a dent in the widespread injustice that flows from the status quo.  

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Citation: Thanks to the American Bar Association for providing content.