Nancy Gertner is one of the few criminal defense lawyers who made it to the federal bench without forgetting where she came from.  Now that she’s retired to Harvard Law School, she has the freedom to give us the occasional smack back to reality, and does so in a post at Cognoscenti.

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!

Sure, there are occasional exceptions to the rule, but it’s reporting made easy to scream outrage and turn an otherwise humdrum article into a cause célèbre for justice for [fill in the blank].  It turns a page 37 story into a front pager, maybe even an editorial about the deplorable state of the judiciary.  And the point is that some punk prosecutor’s cries for 79 years makes it the bar by which a sentence is judged. 

Judges have to explain the sentences they impose. Not so prosecutors.

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.

It’s as if prosecutors have some magical way of plucking a number out of thin air that makes it real, and makes the media embrace it as the proper measure of punishment. 

The by-product of this sentence inflation is sentencing creep.

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.

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.

As I’ve pondered many times, what makes a sentence of 17 years right, but a sentence of 16 years, six months, wrong?  After all, the parsimony clause commands that a defendant be sentence to no more than is necessary. So is that last six months truly necessary?  Why?

More significantly, our collective sense of harshness, disproportionality, has shifted markedly over time, and not in a good way.

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?

Sentences that used to be measured in years are now measured in decades.  How did it happen that a five year sentence, an extraordinary length of time for a person to be imprisoned, separated from his life and family, because a slap on the wrist?  And yet that’s how it’s perceived today.  It used to be that a sentence of greater than ten years was huge.  Today, it’s barely adequate for jaywalking.

The public not only has a short memory, but one that’s never been particularly good at proportionality when it comes to the damage inflicted on others.  And the media’s need to inflame, to create the sensational in its race for eyeballs, is insatiable.  But the fodder for the public’s angst and the media’s outrage of the day are actual human beings. 

When was the last time a reporter demanded that a prosecutor explain why he asked the court to sentence a defendant to more than 20 years in prison?  When was the last time a reporter followed up by demanding a substantive rationale, beyond the visceral retribution because the crime was so horrible?  And how many readers of that reporter’s story say to themselves, five year of a life is a very long time to lose?

While Judge Gertner remembers what it was like to sentence a human being to decades in prison, other former federal judges, like Utah lawprof Paul Cassell, pound the misery of victims, demanding constantly greater flesh to assuage their suffering.  How long before some prosecutor intones  Jeralyn Merritt’s ironic joke, life plus cancer, as if a judge should really impose it as a sentence?  And how long before some reporter writes about it as if anything less is a travesty of justice? And readers nod their empty heads in agreement?

Unless we heed Judge Gertner’s warning, this is where it will eventually go, as we run out of lifetimes to sentence people.