Prosecutors seem to be the primary target for criminal justice reformers today, and with good reason: they are key gatekeepers to whether criminal charges get brought or not, and the particular charges they bring often dictate a defendant’s sentence. In a world dominated by plea bargains, prosecutors are essentially the final adjudicators in most criminal cases. But it is important not to let a focus on prosecutors distract criminal justice reformers from simultaneously pursuing reform elsewhere. Indeed, the effective regulation of prosecutors—not to mention other key aspects of criminal justice—demands that reformers pay attention to other institutions. Chief among those other key sites of reform should be the courts, and particularly the federal courts.

One of the reasons prison populations have mushroomed is that the federal courts in general, and the Supreme Court in particular, have weakened constitutional protections against government excess in criminal law and have failed to question, much less scrutinize, government punishment practices. The federal courts have largely failed to protect constitutional guarantees for criminal defendants across a range of doctrinal areas, thus allowing the government to run amok in criminal cases without check.

Consider just two examples. The Constitution guarantees criminal defendants the right to a jury trial in both Article III and the Sixth Amendment. While the Supreme Court has made clear that the government cannot condition the exercise of other constitutional rights on concessions to the government, it has departed from this approach when it comes to the jury trial right. It has allowed the government to put a heavy price tag on the exercise of the jury trial right by allowing prosecutors to threaten far more serious charges when a defendant opts to go to trial instead of pleading guilty. It has, for example, upheld a prosecutor’s threat (which the prosecutor ultimately carried out) to charge a defendant under a repeat-offender law with a mandatory life sentence if the defendant refused to plead guilty and accept the prosecutor’s initial offer to seek a five-year sentence. The Court likewise accepted as “voluntary” a plea with a fifty-year sentence attached under circumstances where the defendant would face the death penalty if he went to trial. Lower courts have followed the Supreme Court’s lead and recognized that prosecutors can threaten sentences orders of magnitude higher than the plea deals they are offering if defendants opt to exercise their jury trial rights.

By allowing the government to threaten severe punishments that are far greater if a defendant exercises his or her jury trial right, the Supreme Court has weakened the jury power to the point that it exercises little restraint on the government. The result is that prosecutors operate virtually unchecked when seeking pleas, creating the world we live in now, where more than 95 percent of cases that reach final disposition get there through a plea deal, instead of trial.

A second crucial area where the federal courts have effectively ceded their authority to police constitutional rights is the substantive review of punishments. The Eighth Amendment of the Constitution bars cruel and unusual punishments, but the Supreme Court has done little to enforce that guarantee outside of the context of the death penalty. The lower courts have taken the Supreme Court’s cues and have similarly upheld egregiously long sentences. They have, for example, upheld a sentence of seventy-one years for a driver in four bank robberies who had no prior record and who cooperated with law enforcement. Courts have been just as reluctant to second-guess prison conditions, no matter how abhorrent.

These are not the only rights that the federal courts have insufficiently protected. We see the same anemic oversight by the courts when jurisdictions impose fines and fees without considering whether the individual has the ability to pay, in violation of both due process and equal protection. Further, the courts rarely strike down statutes as vague, and the rule of lenity is all too often ignored by the courts as they stretch to find clarity in favor of the government where none exists. Federal courts have also made it almost impossible for defendants to bring actions against prosecutors for violation of their constitutional rights under the relevant statute, 42 U.S.C. § 1983, by creating immunity doctrines out of whole cloth.

The net effect of courts failing to police these constitutional protections has been to enlarge government power and to create space for abuses in criminal matters. The courts have thus assisted in creating an irrational scheme that over-criminalizes and imposes excess punishment at a great cost to liberty and the public fisc without any tangible benefits to public safety. The Constitution, and the rule of law, demands far more of the courts and our government.

Judges do more than just interpret and pronounce the relevant legal standards. They have tremendous discretion across a range of issues that are of critical importance to criminal law, including sentencing, evidentiary rulings, and the content of jury instructions. Judges have also taken the lead in many cases in establishing alternatives to incarceration or treatment models in their courts.

Even this relatively brief overview of judicial powers and discretion should make plain that who sits on the bench makes an enormous difference in how criminal law looks in the United States, not only because these judges interpret criminal laws, but also because of their vast discretion and the stature they have to urge even more changes. While it has been obvious to many criminal justice reformers to pursue a litigation strategy as part of their reform efforts, they have largely ignored judicial selection as a key area for pursuing change, but the selection of judges is critical for all the areas outlined above.

It is long past time for those interested in criminal justice reform to focus on the composition of the bench as part of their reform efforts. Although there has been a nascent movement to focus on how we select prosecutors, judges have thus far escaped attention. This relative lack of interest was vividly demonstrated when Justice Antonin Scalia passed away, and President Barack Obama had to name a successor to his seat on the Supreme Court. This vacancy should have been of central concern to those interested in criminal law, not only because the Court is central to policing constitutional guarantees in criminal cases, but also because Justice Scalia was often a crucial vote for protections for defendants.

Given Justice Scalia’s importance in many blockbuster criminal cases that protected defendant’s rights, one might have expected criminal justice reform advocates to pay close attention to his replacement by President Obama. Black Lives Matter and other criminal justice reform advocates could have focused on the nomination to ensure that Justice Scalia’s replacement would, at a minimum, share his commitment to constitutional rights that protect defendants—and indeed look for someone who would be more protective, as Justice Scalia was not uniformly protective of defendants’ interests, all but ignoring the Eighth Amendment, for example.

There were some reports that President Obama had considered people with public defense in their background for the open seat. For example, President Obama allegedly considered two women who have experience as federal public defenders—Jane Kelly, a judge on the United States Court of Appeals for the Eighth Circuit, and Ketanji Brown Jackson, a judge on the United States District Court for the District of Columbia. But there was little advocacy by criminal justice reformers around the issue or any noticeable attention by them to the type of justice who should be selected. When President Obama announced his selection of Judge Merrick Garland, a former career prosecutor with a record of supporting the government in criminal cases, there was hardly a word from the criminal justice advocacy community. If reformers want to achieve real substantive changes in criminal law, however, this must change, not only by paying attention to Supreme Court appointments, but to all federal court appointments and judicial selection at the state level, too. Who serves on the judiciary is critical to the development of criminal law.

The federal bench is overwhelmingly comprised of individuals with prosecution experience and has very few individuals with a public defense or civil liberties background. Almost half the active judges on the federal bench (43 percent) have prosecutorial experience, compared with only 10.4 percent with public defense experience. Even with a President who proclaimed an interest in criminal justice reform, these numbers barely budged. Of President Obama’s nominees, a full 41 percent had prosecution experience, and only 14 percent had public defense experience. While President Obama appointed five of the current federal appellate judges with public defense backgrounds, that brought the total to just seven (namely, Judge G. Steven Agee, Judge Bernice Donald, Judge Jane Kelly, Judge Edward Prado, Judge Luis Restrepo, Judge Robert Wilkins, and Judge James Wynn).

Although judicial doctrine is often slow to change, a bench with more diverse perspectives than those who worked as government prosecutors is more likely to shift, both in terms of doctrine and in terms of those critical day-to-day findings of fact and exercises of discretion. Social scientists have long demonstrated that judicial backgrounds affect decisions. One cannot expect much scrutiny of the government with a bench overwhelmingly occupied by prosecutors. Of course, people can, and do, obtain new perspectives and outlooks as they take on different roles, so some people who become judges with a professional background in prosecution may be objective and not simply defer to the government’s claims and positions. But “it defies what we know about human nature and experience to think that someone’s past experiences have no effect on their outlook.” Because real criminal justice reform requires judges to check overreach by prosecutors and other law enforcement officials, it is critical that the bench “reflect a range of professional backgrounds.”

Thus, if criminal justice reform groups want to make real changes in the system, they need to take that commitment to all areas, including the judiciary. That means taking an active role in policing who gets appointed to the federal bench.

This essay is a revised and excerpted version of Chapter 10 of Rachel Elise Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration (Harvard 2019). Rachel E. Barkow is the Segal Family Professor of Regulatory Law and Policy at NYU Law School.

Leave a Reply