Gertner in NYT: ‘The right to appeal is an issue of fairness’

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.”

Read Gertner’s full argument here along with the original editorial that sparked the debate, “Trial Judge to Appeals Court: Review Me”.

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.