From omnipotence to impotence: American judges and sentencing

Judge Nancy Gertner, US District Court

Free public lecture

American judges once believed sentencing was an area of their special competence, resisting all efforts to restrict their discretion. In 1987 when the United States Sentencing Guidelines were enacted, 200 judges declared them unconstitutional.

Twenty years later the situation is reversed. Judges from the United States have conceded that the advisory Sentencing Guidelines carry considerable weight, with some even pressuring Congress to tighten the sentencing rules, further restricting their discretion.

This lecture will look at the dramatic shift from sentencing omnipotence to perceived impotence and the important cautionary tale this tells about sentencing reform gone awry. It will investigate the lessons that may be learned from the United States experience by countries currently involved in ‘guideline’ sentencing debates.

Speaker profile

Judge Nancy Gertner graduated from Barnard College and Yale Law School, where she served on the Yale Law Journal. She began her career as a clerk for the late Honourable Chief Judge Luther Swygert, 7th Circuit, Chicago, Illinois and in 1994 she was appointed by President Clinton to the United States District Court for the District of Massachusetts. She has been teaching sentencing at Yale Law School for the past five years and has taught at a number of prestigious Law Schools in the USA. Judge Gernter is a Charles R. Merriam Distinguished Professor at Arizona State Law School and is co-author of the book The Law of Juries (Glasser Legalworks) with attorney Judith Mizner.

This lecture is proudly presented by Monash University Law School together with the Sentencing Advisory Council, the Australian institute of Judicial Administration and the Judicial College of Victoria.