Criminal justice reform efforts sometimes seem improvisational. Scholars and activists have built a persuasive case that we need to reform the criminal justice system to reduce our reflexive dependency on mass incarceration and to root out bias against the poor, the mentally ill, and racial minorities. We know that actions like revising sentencing laws and eliminating cash bail are steps in the right direction. And so advocates around the country have been using any tools in grabbing distance to achieve those results: legislation, ballot initiatives, administrative or judicial regulations, or direct political action. Strategic discussion of how to prioritize and harmonize those approaches, or how best to build momentum among the states, however, is frequently held behind closed doors when it is held at all. Opportunistic arguments for reform can sound inconsistent and undertheorized. Reformers sometimes strike populist notes, arguing as the occasion demands that legislatures should yield to the will of the people when public opinion supports change, that legislatures should adopt enlightened policy regardless of public opinion, and that courts should invalidate the choices of legislatures. This essay will reflect on the toolbox of strategies for criminal justice reform, offering examples of recent successes in state legislative revision (Louisiana); in a ballot initiative where the state legislature rejected reform measures favored by the public (Oklahoma); in state and federal courts (challenges to debtors’ prison practices, and
continuing litigation to ensure that indigent defendants are represented by effective and adequately funded advocates); and in electoral campaigns (the recent District Attorney primary race in Philadelphia). The essay begins by commenting on the preconditions for successful criminal justice reform campaigns, and concludes by reconciling arguments for a populist criminal justice system with the counter-majoritarian role of the courts. The role the Constitution assigns to the people in the application of criminal justice system is to check governmental overreaching but not governmental leniency. It should be the role of the courts to check irrational or unfair criminal justice policy regardless of whether that policy commands popular support. While the federal courts have declined to play that role, state courts, not limited by the constraints of federalism, can and should become an important part of the solution to our broken criminal justice system.
Susan N. Herman,
Getting There: On Strategies for Implementing Criminal Justice Reform,
23 Berkeley J. Crim. L.