By Nancy Gertner

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Forgive this title. It is a bit of a tease. In fact, I am completely skeptical of commentators who second-guess a judge’s decision in sentencing.

When I teach sentencing — previously at Yale Law School and now at Harvard — I have students engage in an exercise. I provide them with the documents involved in a real sentencing, and I ask them what sentence they would have selected.

There is always a caveat: These were sentences based on paper, not the real human being whose reactions you can observe, whose words you hear and whose affect you experience. When I brought the students into my court to see a real sentencing, they understood the difference.

Before Manning, the longest sentence ever served for disclosing classified information to the media was two years.

So I make these comments about the sentencing of Chelsea Manning, who came to prominence as Bradley Manning [see editor's note below], with two qualifications: First, I do not have all of the facts that were before the sentencing judge. What I know is gleaned from media accounts of Manning’s sentencing on multiple counts, including violations of the Espionage Act, for copying and disseminating classified military field reports, State Department cables and assessments of detainees held at Guantanamo. Media accounts are obviously filtered through one set of lenses: a reporter who may or may not be schooled in military law.

Second, as I told my students, there is a substantial difference between a sentence based on paper, and one based on a human being. (Even the Supreme Court has come to realize that a trial judge has a unique vantage point on the sentencing facts, to which appellate courts must defer in reviewing a sentence.)

To frame the issue further: Newspapers reported that Manning faced “up to 90 years in prison.” The comment is absurd. To put it charitably, maximum penalties are set up to deal with the worst version of an offense, and in most cases the sentence will be much, much lower.

In this case, that maximum was appropriately affected by the judge’s decision to acquit Manning of the most serious charge, giving aid and comfort to the enemy. That was as it should be. Whistleblowing is not a zero-sum game; if I criticize my country or release documents that show wrongdoing, I may well help the enemy. But if there is no evidence of actual “aid,” that “harm” is what we call free speech.

In the end, the judge sentenced Manning to 35 years; the prosecution had asked for 60. These numbers — 60, 35 — are contrivances. They are not keyed to rehabilitation. They may well be posited for deterrence but more likely were settled upon without anyone carefully considering what it would take to deter. Or, if they reflect retribution — just deserts — how do they compare with other sentences? We don’t consider her deeds in a vacuum; we have to look at what other like offenders get for similar or even worse offenses. Has anyone ever received 35 years under these circumstances?

Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy and Technology Project, issued this statement:

“When a soldier who shared information with the press and public is punished far more harshly than others who tortured prisoners and killed civilians, something is seriously wrong with our justice system.”

What about the other factors? Namely Manning’s state of mind, her obvious mental impairment, the anxiety occasioned by having to hide her gender identity under the Army’s “Don’t Ask, Don’t Tell” policy.

This is not to say that that she should not be punished at all. It is to say that there is a difference between someone who makes decisions without impairments and someone who makes decisions with impairment: We consider the latter less culpable — not innocent.

We should also consider her motives. We respond differently to crimes depending on why they were committed: for profit, out of a misplaced sense of public spirit, to harm another, or in order to alleviate harm. Manning did what she did to uncover what he considered injustices in Afghanistan and at Guantanamo. She may well have been wrong, but that her motivations were in good faith seems clear.

At the same time, we should consider the harm her actions actually caused. Again, we do that all the time in sentencing — the victim impact statement, the measure of the size of the fraud, etc. A recent article suggested that Manning caused less harm than the government initially noted, perhaps because of the ameliorative measures it took after the leak. The damage allegedly inflicted by the release of the Pentagon papers was only political; it was an historical document. This harm is immediate, but is it enough to justify a 35-year sentence?

And what of the benefits Manning effected, what she exposed, what she demonstrated — endless detention without trials, the human costs of the Afghanistan war, etc. Indeed, we have crafted a criminal justice system based on whistleblowing, giving credit when a citizen gives information about wrongdoing. We call them “informants,” and as the recent Bulger trial shows, they get all sorts of benefits — lesser sentences — even when they commit murder. We balance their crimes against the value they provide in exposing other wrongdoing.

How does the entity to which the information was leaked figure into the equation? Is there a difference between leaking sensitive classified documents to Wikileaks, as Manning did, and giving them to The Guardian, as Edward Snowden did? Should we consider the decision to go to a reputable news organization — which would arguably exercise more judgment and restraint — less destructive?

Whistleblowing is not a zero-sum game; if I criticize my country or release documents that show wrongdoing, I may well help the enemy. But if there is no evidence of actual “aid,” that “harm” is what we call free speech.

Apparently not. In 2013, these distinctions may make no meaningful difference. As Professor Yochai Benkler noted at the Manning trial, Wikileaks was praised for releasing documents on corporate corruption in Europe, rampant censorship in China and extrajudicial killings in Kenya. Until the Manning disclosures, WikiLeaks had come to be seen as a legitimate venue for whistleblowers.

A court should also consider the nature of prior imprisonment. Manning was reportedly abused in pretrial detention and was held in solitary confinement under conditions far, far more onerous than the usual detainee. According to the United States Special Rapporteur for Torture, Manning’s detention was “cruel, inhuman and degrading.” So arguably the time in custody counted more than the usual — a day was more than a day.

Before Manning, the longest sentence ever served for disclosing classified information to the media was two years, according to Liza Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program. Manning’s 35-year sentence, she told The Guardian, was comparable to those handed down for paid espionage on behalf of enemy countries.

Professor Benkler called the sentence “outrageous,” and a far greater threat to the American Constitutional order than any of the disclosures she made.

It was disproportionate — to say the least — to both the offense and offender.