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The effectiveness of mandatory minimums is up for debate. NPR's Scott Simon talks to retired federal judge and Harvard Law professor Nancy Gertner about the topic.

Transcript:

SCOTT SIMON, HOST:

Brock Turner was released from prison yesterday. He's the former Stanford student who was convicted of sexually assaulting an unconscious woman and sentenced to six months in prison. Many people found that sentence lenient. Lawmakers in California have now passed a bill to enforce a mandatory minimum prison sentence for anyone convicted of sexually assaulting a person who is unconscious or unable to give consent.

Now, this comes at a time when many judges and politicians on all sides of the spectrum have questioned mandatory minimum sentences, especially in drug cases. President Obama has called for an end to mandatory minimum sentences for nonviolent drug offenders. Nancy Gertner is a retired federal judge. She's now a law professor at Harvard and joins us from studios there. Professor, thanks so much for being with us.

NANCY GERTNER: Good to be here.

SIMON: As I don't have to tell you, a lot of judges have complained about mandatory minimums for years now. I made note of some words from Justice Anthony Kennedy who said in 2003 they take discretion away from trial judges. What's your experience been?

GERTNER: Well, they plainly do that. They plainly keep you from individualizing a sentence, from looking at the individual as an individual, even looking at the victim as an individual. And they - I had a professor once who described it this way - that discretion is hydraulic. When you take it away from the judge, it then oozes into other parts of the system, and it becomes the discretion of the prosecutor or the discretion of the police officer. And then that discretion is not accountable in open court, is oftentimes exercised in a discriminatory fashion when judges are discriminatory. You know that because it's exercised in a public setting. So we haven't eliminated discretion. We've just changed the sight of it.

SIMON: In your mind, is this an overreaction, passing a law because of the publicity over one case?

GERTNER: Well, I think it absolutely is an overreaction. One of the things we've learned in the era of mass incarceration is that we should be asking the question of what works, what works to deter, what works to prevent recidivism, that we shouldn't be passing laws out of outrage. We shouldn't be passing laws that sort of do nothing but express our spleen at the - at this particular event. There were ways of dealing with this that was not necessarily passing a law.

By the way, the other thing about mandatory minimums is that you wind up with a bidding war in the legislature. So now this is a mandatory minimum that applies to an unconscious victim. And so the next horrible crime would lead someone to say, well, if that's a mandatory minimum, than this one should be a mandatory minimum as well. And that's what led to the era of mass incarceration.

SIMON: At the same time, can you see why people are upset about this?

GERTNER: I can certainly see it. I was surprised at the sentence myself. I think it's a fair criticism of the judge, and there's a recall of that particular judge, which I have some problems with, but at least that outcry is having an outlet.

SIMON: Let me ask you a question that's drawn from the situation we're now seeing in Chicago with its terrible proliferation of homicides. A Chicago police superintendent has recently called for mandatory minimums for gun crimes, and the police department says that, unfortunately, there's a revolving door created of people who are incarcerated for just a few months or a couple of years come out and commit a crime all over again. And they're not even arguing that it would be a deterrent. What they're saying is we need to keep these folks off the street for 10 years, not two.

GERTNER: We've had the experience in the federal system with mandatory minimums for gun crimes, and it has not affected the rate of gun crimes on the street. We have had enhancements for gun crimes. I myself had to put people away for 10 or 15 years in certain cases with gun crimes. What you often see then is it simply takes people off the street for that period of time while others take their place.

In fact, in Boston, what I would see is that it would only mean then that younger offenders would be having guns with even less, you know, moral compass than the older offenders. There may well be a sentencing solution here, but it is complicated. And more and more onerous sentences and more and more onerous mandatory sentences haven't done the trick in the past 30 years. We should be looking at something else.

SIMON: It seems to me your argument boils down to appoint good judges and you'll have fewer of these doubts.

GERTNER: Well, I don't think it's only good judges. I do think that the issue is a complicated one. It has to do with social attitudes. It has to do with public education. It has to do with employment. I mean, I think that we have to ask the question of what works to stop the crime. What happens here is we wind up with the easiest solution, and the past 30 years have made it clear that that is not the best solution. In fact, what it has done, particularly the drug mandatory minimums, is silenced and incarcerated a generation of African-American men. So before we walk down this road again, if we ever do, we have to ask what works.

SIMON: Nancy Gertner, retired federal judge and now professor of law at Harvard, thanks so much for being with us.

GERTNER: Thank you.