Excerpted From: Carissa Byrne Hessick, Judges and Mass Incarceration, 31 William & Mary Bill of Rights Journal 461 (December, 2022) (129 Footnotes) (Full Document)


CarissaByrneHessickIt 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.

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The dramatic increase in incarceration rates over the past half-century should be a cause for concern for everyone in the criminal justice system, including judges. While much of the blame for the rise of mass incarceration lies with legislators and prosecutors, judges also contributed to high levels of incarceration through both action and inaction. Because judges have been part of the problem, they should also be part of the solution.

Sweeping doctrinal change, such as allowing meaningful Eighth Amendment challenges to lengthy sentences of incarceration, could have an obvious effect on mass incarceration. But smaller changes implemented by individual trial judges can also have significant effects. For example, when a culture change among judges in New York City led them to release more defendants pretrial without setting bail, the city's jail population dropped by nearly two-thirds.

There are numerous changes individual trial courts could make in their own courtrooms to reduce pretrial detention, change the dynamics of plea bargaining, and impose more reasonable sentences. This Article identifies a few specific recommendations to achieve those goals and it explains that trial court judges have the power to implement those changes in their own courtrooms, starting immediately. Indeed, some of these changes have already been implemented by judges across the country.

Of course, pushing back against mass incarceration might prove politically perilous for state judges who face elections. There are high-profile examples of judges losing their offices because of a lenient decision in a criminal justice case, or because interest groups have used criminal justice cases to target judges in elections in order to elect new judges who are more favorable to their noncriminal law interests. But political pressure does not explain why the thousands of appointed judges who need not worry about elections have contributed both actively and passively to America's incarceration problem.

Ultimately, individual judges will have to decide for themselves whether they want to continue to be part of the problem of mass incarceration or whether they want to be part of the solution.

Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law and Director of the Prosecutors and Politics Project, University of North Carolina School of Law.