In a recent feature by WBUR, Harvard Law professor and retired U.S. District Court judge Nancy Gertner points out many of the flaws of Massachusetts’s proposed “Three Strikes” legislation.  She points out that the legislation would be far harsher on criminal defendants than it would need to be to accomplish its aims, would increase prison overcrowding and overincarceration, and is unnecessary at a time when Massachusetts crime rates are declining.

Importantly, Gertner notes that with this increased emphasis on mandatory sentencing the public is “trading judicial discretion for prosecutorial discretion. The prosecutor chooses what the category of crime is, and therefore whether someone is going away for a long time. In a mandatory minimum situation, the judge is a bystander, and you know, there are wonderful prosecutors in this state but I would rather have a judge exercising discretion, subject to appeal and accountability, in a transparent way, rather than a prosecutor deciding that this is a three strikes case.”

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