Document Type
Article
Publication Date
2022
Publication
William & Mary Bill of Rights Journal
Volume
31
Abbreviation
Wm. & Mary Bill Rts. J.
First Page
461
Abstract
This Article argues that judges—long overlooked in contemporary explanations of mass incarceration—have played a central role both through affirmative decisions that increased punishment and through failures to act as a check on prosecutorial power. It traces how judicial choices such as imposing the trial penalty, deferring to sentencing guidelines, allowing coercive plea bargaining, expanding pretrial detention, and adopting narrow or delayed statutory interpretations have structurally reshaped the criminal justice system to favor conviction and incarceration. The Article then proposes practical steps trial judges could implement immediately to reverse these trends, including reducing reliance on pretrial detention, eliminating the trial penalty, ensuring defendants receive discovery and legal rulings before pleading guilty, limiting unnecessary court appearances for misdemeanor defendants, and exercising genuine sentencing discretion through the parsimony principle. Finally, it explains that judges already possess ample authority—rooted in the judicial power to enter judgments, manage proceedings, interpret statutes, and impose sentences—to adopt these reforms, and contends that judicial action is essential if the judiciary is to move from being a contributor to mass incarceration to being a meaningful part of its solution.