William & Mary Bill of Rights Journal


It seems to have fallen out of fashion to talk about judges as a source of criminal justice reform. Instead, the academic literature now focuses on the role that prosecutors and legislatures have played in mass incarceration. But judges have also played an important role in the phenomenon that has come to be known as mass incarceration. Perhaps more importantly, there are things that judges could do to help reverse that trend.

Judges will sometimes say our system is too harsh. But, in the same breath they tell us the decision to create such a system and the decision to dismantle it lie with the political branches. If we look closely, however, some decisions which made the criminal justice system harsher were made by judges. Some of those decisions represent affirmative exercises of judicial power—like the decision to impose longer sentences on defendants who insist on their right to a jury trial. But other decisions represent failures to act—such as deferring to prosecutorial recommendations. Both types of decisions had enormous consequences. They changed the very fabric of the criminal justice system. And judges continue to make decisions in courtrooms every day that reinforce those changes. The result is the system we have now—a system that incarcerates more people than any other country in the world.

Judges could combat mass incarceration through pointed pronouncements or radical doctrinal changes handed down by appellate courts. The Supreme Court’s opinion in Brown v. Plata, for example, shows that courts can literally mandate the reduction of prison populations. But not all reform must be sweeping or come from appellate courts. Trial court judges could make modest changes to how they handle their criminal dockets, and those changes could have a significant impact.

This Article will focus on how small changes in trial court practice could transform the criminal justice system for the better. This Article has three parts. Part I chronicles the ways in which judges have contributed to mass incarceration through action or inaction. Part II provides suggestions for what judges could do to help reverse that trend. Specifically, judges could reduce reliance on pretrial detention, modify the balance of power in plea bargaining, and impose more reasonable sentences. Part III identifies the sources of judicial authority for these recommendations and grapples with objections.

This abstract has been taken from the author's introduction.