August 23, 2012
On August 20, the New York Times’ “Room for Debate” segment explored the question “Do Prosecutors Have Too Much Power?” HLS Professor of Practice Nancy Gertner, a former judge of the U.S. District Court for Massachusetts, was one of five debaters who weighed in on the topic.
“You can’t bargain away your right to counsel in a guilty plea deal; you shouldn’t be allowed to bargain away your right to appeal,” writes Gertner.
“This market is no longer a marginal part of the criminal justice system. As Justice Anthony Kennedy noted recently, this bargaining is the system. Procedural protections are inadequate; the playing field, unequal. Still, every appeals court has found appeal waivers to be constitutional. They did not have to; the Constitution, after all, doesn’t even mention plea bargaining. It is an issue of fairness. Rather than being protective of a defendant as they should, the appeals courts have permitted an already well-armed government to demand even more.”
Gertner was a criminal defense and civil rights lawyer for 24 years and a federal district court judge for 17 years. Her scholarship focuses on sentencing and criminal procedure. She is the author of "In Defense of Women: Memoirs of an Unrepentant Advocate" (Beacon Press 2011), and a longstanding advocate for gender equality.
The National Association of Women Lawyers (NAWL) recently awarded Gertner its highest honor, the Arabella Babb Mansfield Award.