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Mass incarceration is a big and well-recognized problem nationwide. There is widespread agreement that too many people are being incarcerated for too long. State and federal legislators have passed legislation aimed at reducing rates of incarceration. In 2018, Congress responded to this crisis through the passage of a criminal justice reform bill known as "The First Step Act" that implements reforms aimed at reducing incarceration rates in federal prisons for non-violent criminal offenders. (1) In academic and policy circles, the topic of mass incarceration has been widely debated. Judges, of course, play a role in that process. Yet, very little attention has been paid in public discourse to what judges think about their role in sentencing, and how it relates to mass incarceration.

State and federal judges are responsible for adjudicating criminal cases, and most importantly imposing sentences. But state courts impose most criminal sentences. In 2017, roughly 14 million or 95 percent of criminal cases were filed in state court systems, compared to 75,861 in federal court. (2) This statistic demonstrates the importance of state courts in any discussion relating to mass incarceration. In this study I interviewed thirty-three judges in starkly different jurisdictions--Alabama and Massachusetts. Alabama and Massachusetts have vastly different rates of incarceration. Alabama has one of the highest incarceration rates in the country, while Massachusetts has one of the lowest. The study reveals several factors that may attribute the differences in incarceration rates to the institutional and political contexts in which these judges work and how it may affect their decisions.

According to the United States Bureau of Justice 2018 statistics, an estimated 2 million people were imprisoned in facilities across the country. The United States incarcerates 693 people for every 100,000 Americans on average, placing the United States as the eleventh highest incarcerator in the world. (3) Alabama itself is within the top five highest incarcerators globally while Massachusetts is within the bottom five in the United States, and approximately sixtieth in the world. (4)

There are roughly 5 million people living in the State of Alabama according to the U.S. Census Bureau. Approximately 26.8 percent of the state's population identified as African American; 4.2 percent identified as Hispanic or Latino; and 65 percent of the population identified as White only. (5) In 2016, nearly 30,000 people were sentenced to the Alabama Department of Corrections, or ADOC. (6) African Americans made up roughly 54 percent of the inmates housed in ADOC facilities as well as community corrections, federal, other states, and county jail custody. (7) Alabama does not systematically account for inmates who identify ethnically or racially as Hispanic or Latino. Instead, it seems that this group is classified as "White" or "Other." (8) Although incarceration rates have declined, Alabama still incarcerates approximately 987 people for every 100,000 Alabamians, with prison inmate capacities exceeding 180 percent in recent years. (9) As one Alabama judge opined, "In other communities the impact of race [is] harder to pinpoint, but it's pretty easy to pinpoint in Alabama."

In contrast, the Commonwealth of Massachusetts with a population of approximately 7 million incarcerates roughly 330 people for every 100,000 Massachusettsans. (10) Although Massachusetts has lower incarceration rates, the commonwealth is "fairly high up because of racial disparities." In Massachusetts, 8.6 percent of the population identified as African American; 11.5 percent identified as Hispanic or Latino and 73 percent of the population identified as White only. (11) African Americans accounted for approximately 27 percent of the prison population. (12) Roughly 25 percent of prison inmates self-reported as Hispanic. (13) Like Alabama, more than half of the Massachusetts prison population is comprised of racial minorities. (14)



Studies of criminal justice reform have traditionally examined the impact of . sentencing disparities, systematic deficiencies, inadequate funding, and political mandates on mass incarceration trends in the United States. Historically, these studies exclusively analyze the judicial decision making of unelected federal judges. However, the literature is substantively void of introspective contributions from key participants in the criminal justice system--state judges. A closer look at the role of state judges in the context of contemporary mass incarceration provides myriad academic and practical applications, especially where there are substantive nonconformities. The State of Alabama and the Commonwealth of Massachusetts squarely fit within this paradigm.

In both Alabama and Massachusetts, the district and trial courts have jurisdiction over criminal sentencing. Although there are some institutional differences in the authorities vested in each jurisdiction, judges in these courts are responsible for sentencing criminal offenders. According to the Alabama Administrative Office of Courts, there are 245 circuit and district court judges vested with jurisdiction to decide criminal cases. (15) Judges in Alabama are selected through a partisan election process for a six-year term. (16) Political pundits describe Alabama as a conservative, red state associated politically with the Republican Party. (17) In Massachusetts, there are 344 comparative judicial offices, including 249 superior and district court judges vested with jurisdiction in criminal cases. (18) Massachusetts judges are selected by gubernatorial appointment for a permanent term with a mandatory retirement age of seventy. Massachusetts is described politically as a socially progressive, blue state associated politically with the Democratic Party. (19)

I individually interviewed a total of thirty-three Alabama and Massachusetts trial and district court judges. The judges were interviewed with the stated condition of anonymity. I gave preliminary instructions regarding the study topic and expressly explained my role as researcher to counteract assumptions about my knowledge of the subject matter as a sister judge. All judges gave extremely candid and complete answers. During the interviews, the words "conservative" and "progressive" peppered the responses in political and social contexts. Focusing on introspective judicial decision making and institutional features, I started the interviews asking for a broad definition of criminal justice reform to establish a framework for the judges and identify common themes. There were four main topics for the judges to consider: 1) Responsibility for criminal justice reform; 2) Effectiveness of current reform efforts; 3) The judge as participant in reform; and 4) The judicial selection process. Nevertheless, some judges, especially my Alabama colleagues, tended to presume my awareness. In these instances, I gave intermittent explanations of my role as researcher. However, the interviews, designed to last one to one-and-a half hours, averaged forty-five minutes to an hour.

Most interviews were conducted by phone. As a current member of the bench, I drafted questions based on existing literature and commonly expressed concerns among colleagues. I was looking for patterns in the responses primarily from judges outside of my jurisdiction to counter slants toward possible preconceptions based on jurisdictional homogeneousness. Alabama judges voluntarily responded to my direct email request. Requests for participation in Massachusetts were made through two intermediaries, a court official and a law professor. More Alabama judges were interviewed than Massachusetts judges. More trial judges were interviewed than district judges in both jurisdictions. Still, the voluntary response created a diverse pool with varying age, race, gender, experience and political affiliation.

The judges related factors that may correlate high rates of incarceration with judicial attitudes and sentencing practices. The interviews provided vital information explaining perceived obstructions caused by politically motivated legislative mandates, inadequate funding, and the respective judicial selection processes. The responses are presented in aggregate. Anonymous quotations are included to clearly express areas of consensus and jurisdiction specific discussions. As a member of this professional group, I also added quotations as a quality control measure to assure the reader that the expressed views are solely those of the participants.



One of the most obvious factors to consider in the discussion of mass incarceration between the Alabama and Massachusetts justice systems is the starkly different judicial selection processes. Alabama judges are selected by contested partisan election. Judicial candidates for office at all levels of the judicial system are required to qualify with a political party or adhere to requirements for independent candidates. (20) For over two hundred years, judges in Massachusetts have been selected by gubernatorial appointment to serve a lifetime appointment, now with a mandatory retirement age of seventy. (21) The opposing judicial selection processes may be the most prominent factor when considering the diverging incarceration rates.

All Alabama judges rebuffed or tepidly considered the idea of an appointment process. Massachusetts judges homogeneously rejected the proposition of a contested election as a judicial selection method. Nevertheless, the responses suggested that the judicial selection processes may influence sentencing decisions that affect the respective rates of incarceration.

Participants affiliated with the Democratic Party made up 52 percent of the judges interviewed from Alabama, and the remaining 48 percent affiliate with the Republican Party. Although Massachusetts judges are appointed, 60 percent of the participants in this study were appointed by Republican governors. The remaining 40 percent by Democratic Governors.

A. The Election

Alabama judges commonly believe that the partisan component of the judicial selection process may negatively influence sentencing decisions and contribute directly to the state's overcrowded prison system. (22) Generally, Alabama judges pointed to the partisan component of the selection process as problematic, or at least concerning, in a state where straight party voting dominates judicial races. One judge summarized this notion stating, "when you're ... associated with [a] particular party ... it's just not a good visual for the general public ... it seems ridiculous on its face to say that you're one or the other when you're supposed to be totally unbiased." Described in religious terms by another judge, "judges should be non-denominational." The significance of this acknowledgement relates directly to judicial attitudes among Alabama judges about sentencing practices. Although expressed objectively, most Alabama judges believed that "there is some correlation between" the judicial selection process in Alabama, "how [judges] impose punishment," and Alabama's prison population. Democratic judges inferred that their Republican counterparts experience more community pressure to be "tough on crime." One judge candidly described this inference in a distinctly political science context:
   [A] judge is going to serve in the community that he's a part of by
   and large ... [I]f that is a more moderate or liberal or conservative
   community, then typically that judge, will serve the needs [of that
   community]. We don't have our own goal; we have to serve the goals
   of our constituents. Judges are [required] by law as far as what
   they can do, but for the most part they are serving the people of
   that community. So, you have to sort of acquiesce in a sense to
   what that community needs and what they want you to do as an
   elected official.

In affirming this point, there were repeated references to fears of special interest groups running "Willie Horton" political advertisements. The premise of the "Willie Horton" ad, ironically based on a Massachusetts case, centers on a judge releasing an offender from custody who then commits a heinous crime after release. In summary, one judge explained:
   In six years [judges] stand for reelection and some lawyer out
   there decides ... to say ... he is soft on crime ... she's talking
   about rehabilitating somebody who's a rapist, who's a murderer,
   who's a robber, you know. So, if you note that in the back of your
   head and you know that another lawyer could use that in a campaign
   ... you're going to be a little bit more cautious about that. May
   not be quite as ambitious ... If i lose the election, then, you
   know, I don't have a platform at all to try to help, educate the
   community, educate other lawyers, judges [or] the legislature as
   to what needs to be done in this criminal justice system.

Although Alabama judges acknowledge that there is likely a correlation between the role of a judge as a partisan political figure and the overcrowded prisons in Alabama, the judges unanimously expressed contentment with some form of an election process. Each judge was generally "opposed to appointing] judges" citing perceived hindrances to minorities and socio-economically disadvantaged Whites being appointed by a governor. Therefore, most Alabama judges believe that the selection of judges is "within the province of the people." However, there was a consensus among Alabama judges that partisanship and the public demand for tough-on-crime punishment probably influence sentencing decisions and thereby contribute to incarceration rates.

B. The Appointment

Under Massachusetts law, "[a]ll judicial officers . . . shall be nominated and appointed by the governor, by and with the advice and consent of the council." (23) In 1975 a formalized merit-based selection process was created for the appointment of judges. (24) Massachusetts judges unanimously and enthusiastically touted the judicial appointment process. The judges attribute the quality of the Massachusetts judiciary to the rigors of the merit selection process. The judges expressed in varying degrees an aversion to the idea of judicial elections. Most judges believe that the judicial appointment process insulates them from the political pressures associated with answering to an electorate, "no one can either implicitly or explicitly threatened you with your job". Likewise, Massachusetts judges describe an independence that allows them to exercise judicial discretion without fear of electoral retribution with respect to sentencing decisions. "Massachusetts judges are very proud and feel very strongly that the [merit selection process] gives us the opportunity to be independent [and] true to the law without worrying about public clamor." There was an overwhelming presumption among Massachusetts judges that the gubernatorial appointment process insulates the judiciary from political considerations that may influence sentencing decisions, which corresponds with decreasing incarceration rates.



In addition to variances in judicial selection, considerations of race and socioeconomics are also routinely debated in the context of mass incarceration. Theoretically, neither race nor socio-economics should affect sentencing in a blind justice system. But the responses given by the judges suggested that these factors are considered in sentencing decisions at least in the margins and where judges have discretion.

It is well settled that racial minorities, especially African Americans and people of Latino descent are incarcerated at higher rates than Whites. (25) According to the United States Census Bureau, in 2017 13.3 percent of the American population identified as African American; 17.8 percent identified as Hispanic or Latino and 61 percent identified as White only. However, in July of 2018, African Americans made up almost 40 percent of the total prison population. (26) In examining criminal justice reform in this context, there was consensus among judges in both jurisdictions that "disparities] in sentencing" serve as a primary contributor to mass incarceration. Therefore, reducing "racial disparities in sentencing" was deemed an indispensable aim in reforming the criminal justice system and reducing incarceration rates. Nationally, opposing factions cite varying economic, social or political rationales in support of criminal justice reform and the need for reduced incarceration rates. (27)

The bi-partisan debate relating to mass incarceration has been fueled to some degree by the growing opioid crisis in the U.S. (28) There was a presumption among the judges that the exercise of judicial discretion in sentencing should not be "influenced by a person's race, economic status or the implicit bias of the judges." The criminal justice system should be "blind to race and other extraneous" considerations. But race was also discussed in direct relation to the government and public efforts to reform the criminal justice system in response to this crisis. In summarizing a viewpoint shared by others, one judge explicitly associated the legislative efforts to combat opioids with the drug epidemic now becoming a "White problem." This viewpoint centers on the crack epidemic, which disproportionately affected the African American community in the early 1980's and 1990's, when defendants charged with crack related offenses "were getting some long sentences." Another judge explained, "[o]nce [drugs] became a white problem ... we weren't just locking people up to solve the problem." Disparate enrollment in deferred sentencing programs was also cited in relation to race and sentencing practices. A sampling of Massachusetts Drug Court programs revealed that 87 percent of Drug Court participants were White, even when the court is in a predominately African American community. (29) According to one Massachusetts judge, "There's a lack of diversity in our drug courts ... that's tough for people to ... take a real look at the issue of race[.]"

In addition to racial disparities, each judge referred in varying ways to "a direct relation with poverty and crime." (30) According to the United States Census Bureau, the median income in Alabama is $44,758.00, and educational attainment is below the national average. Correspondingly, Alabama has one of the highest violent crime rates in the United States. (31) Conversely, the median income in Massachusetts is $70,954.00, and educational attainment is above the national average. (32) Likewise, Massachusetts has an average or below average crime rate. (33) Relating to race, judicial decision making may be influenced to some degree by the reality that "judges bring their own experiences with them." In considering matters of race and socio-economics in the context of judicial attitudes about criminal justice reform, one judge candidly explained:
   [Y]our personal life experiences are [your] teacher and if you have
   never been around groups of people less fortunate than yourself or
   you have never even had the opportunity to experience groups of
   people less fortunate than yourself, then you are shaped ... that's
   your world. I think it's hard for people to understand folk less
   fortunate than them. Most of the time the only interaction [judges]
   have with people of color or people who are less fortunate than
   them are in these jobs and it's just hard for them to care about
   criminal justice reform.


Obstructive Legislation

While judges are authorized to exercise some discretion in sentencing, the discretion is not unconstrained. It has long been concluded that the mass incarceration phenomena in the United States occurred as a direct result of the pivot from a rehabilitative criminal justice system to a retributive, draconian criminal justice system. (34) Even a glancing analysis of mass incarceration in all fifty states confirms incarceration rates higher than those of countries and territories internationally condemned as human rights violators. (35) The retributive policies of the 1990's War on Drugs and its offshoots placed federal and state legislative "tough on crime" mandates primarily on judges, especially state judges. (36)

A. Tough-on-Crime

Mandatory minimum sentencing guidelines have become the most prominently scrutinized tough-on-crime mandate, and widely credited for exponential increases in incarceration rates. Under the mandatory minimum sentencing structure, judges have no discretion in the minimum prison sentence imposed for certain crimes. Judges in both jurisdictions unanimously attributed high prison incarceration rates in significant part to tough on crime mandates. "Some judges are of the view that if not for that mandatory minimum, they might come up with a different sentence that might be more appropriate for the particular offender." Mandatory minimum sentencing was perceived among judges in both jurisdictions as a practical obstruction to effective sentencing strategies. Mandatory minimum sentencing was described by one judge as "shifting] discretion from the judge to the prosecutor." The judges intuitively used low level drug crimes as the foremost example of the negative impact on prison populations caused by mandatory minimum sentencing. In discussing this universal frustration with the adverse effects of mandatory minimum sentencing, one judge explained:
   "We first [...] have to decide what we're going do. Are we going to
   treat everybody as if they are a dangerous major drug dealer? Are
   we going to carve out for those persons who are addictedf,] who are
   as much a victim of the drug? Are we going to incarcerate them for
   the duration of their life as we would a major dangerous

On this point, there was consensus that mandatory minimum sentencing related to drug offenses, mental illness, and "spin off" crimes creates an unworkable mandate on judges. Reportedly, the divesting of discretion here impedes the judges' ability to tailor sentences to specific circumstances. "It's not going to work ... unless you tailor it to each person's case individually." In other words, the judges correlate mandatory minimum sentencing with the inability to effectively address substance abuse and mental health illness in the criminal justice system. In support of this view another judge stated, "[i]f you look at the population in the prisons ... , overwhelming numbers ... have either substance abuse or mental illness or both. If you could treat all of that effectively, you could close a lot prisons and prevent a lot of crime."

B. Judges as Lobbyists

The judges believed good a legislative-judicial relationship to be critical in the creation of legislation that allows them to use their discretion "to help people." The judges collectively acknowledged a subjective role in criminal justice reform and reducing incarceration rates. One of the many judges who addressed this point affirmed that "[W]e can put a face to it. We see it day in, day out. We see individuals. We see the lives that have been destroyed ... victims, defendants and their families. So ... it's personal." Both Alabama and Massachusetts legislatures have recently passed measures to address mass incarceration and the resulting fiscal and social burdens placed on each prison system. But the legislation passed in each jurisdiction looks different, and so do the legislative-judicial relationships. (37)

Every judge identified the legislature as having primary responsibility because criminal justice reform primarily "lives within the prerogative of the legislature." This presumption was based on the legislature's power of pen and most importantly purse. But the public's demand for punishment was uniformly identified as the leading influence on legislative decision making and the enactment of retributive mandates, making matters of reform "all politics." When discussing perceived impediments to substantive criminal justice reform, across the board the judges pointed to the political pressure of legislators being labeled "soft on crime." One judge explained that the Nixonian tough-on-crime mandate "plays well with the public and the legislature," encouraging retention of retributive sentencing policies that exponentially increase incarceration rates.

Generally, judges in both jurisdictions optimistically believed that increased awareness among the electorate and legislature would encourage a more dramatic shift away from a "tough on crime" approach toward a more effective "smart on crime" strategy. The process of educating the legislature revealed interesting discussions about the judiciary's interaction with the legislature. Both state and commonwealth cannons of judicial ethics make allowances for judges to engage in discussions with legislators and the public on matters concerning the court. There are no statutory or ethical constraints on judges initiating contact with the legislature to discuss topics relating to sentencing and criminal justice reform generally. But the strategies exercised in the jurisdictions are starkly different, as is the resulting criminal justice legislation that directly correlates with mass incarceration rates.

Alabama judges described an unorganized hodgepodge of methods used to influence legislators. The kaleidoscope of methods included direct contact with respective legislators, submission of opinion editorials, lobbyists retained by the circuit and district judges' associations, communications by way of the presiding judges of each circuit, and direct appeals to the community through public discourse and presentations. There was no consensus among Alabama judges on the effectiveness of any one method or combination of methods employed to educate lawmakers. Alabama judges, in stark contrast to their commonwealth counterparts, described historic and contemporary conflicts in legislature-judicial branch relations that have created an "indifference toward the judiciary." Despite an unbridled ability to communicate with legislators, Alabama judges generally believed that input from the judiciary was not adequately considered in the most recent criminal justice reform legislation. In affirming this point one judge explained, "In order for us to get our prison populations down or criminal justice reform, if that is important to our state, we've all got to talk." Another judge explained, "We need to look at evidence based practices as a basis for the way we do the reform." But the consensus among Alabama judges was that there is "a disconnect between the legislature and the judicial branch." Alabama judges universally acknowledged problems with the disjointed legislature-judiciary communication processes, coupled with inherent political considerations. There was agreement among Alabama judges that critical judicial input in the criminal justice legislative process has been impeded. As a result, Alabama judges describe criminal justice policies that "play[] well with the public," but may not adequately reduce the state's prison population.

Although Massachusetts judges are permitted to individually communicate with legislative officials, most did not find such a proposition necessary and gave great deference to "tradition." There was a clear aversion among Massachusetts judges to individually engage legislators, telegraphing a rank and file mindset in this regard. One Massachusetts judge explained the universal commonwealth sentiment stating, "I've just never felt comfortable in our role of addressing the legislature ... So we try to let the chiefs of the departments along with the chief of the appeals court and the chief of the [Supreme Judicial Court] do the speaking for us." Each Massachusetts judge described a positive relationship between the legislature and judiciary. Although there has been "some fluctuation" there has been a positive "consistency" with legislature-judiciary relations. Overall, Massachusetts judges believe that "there's a lot of respect for the judiciary and that "historically there's no animosity between branches." The reported amicability between these branches of government may be attributed in part to the regulated interbranch communication system. Collectively, Massachusetts judges perceived the judiciary to be a respected branch of government. In support of this belief one Massachusetts judge explained that "the legislature has tried to be very cooperative with us and responsive ... I think they have[.]" The judiciary reportedly had a significant role in the debate and drafting of the commonwealth's most recent criminal justice reform legislation. Supreme Judicial Court leaders served as key advisors and liaisons throughout the process. The judiciary worked with the Governor, and legislative leaders to introduce legislation based on a comprehensive study of the Massachusetts Court System conducted by the Council on State Governments. In affirming this point one judge explained, "Our chief justice of the supreme judicial court has been quite outspoken about proposing changes in law that would give judges more discretion about sentencing [and] make sentencing more evidence based." Massachusetts judges described the judiciary as a non-partisan, respected and coequal branch of government that utilizes a uniformed communication system to sustain positive legislature-judiciary relations. This perception corresponds with the judiciary's prominent role as a participant in drafting criminal justice reform legislation that may prove to effectively reduce incarceration rates.



Perhaps surprisingly, another factor that may affect sentencing decisions among the judges is the training that they receive after taking the bench. Here, there was a striking difference between Alabama and Massachusetts judges in relation to sentencing decisions and continued judicial education. In both jurisdictions, judges who reportedly practiced "little criminal law," if any, prior to becoming a judge discussed the learning curve in this new area of substantive law and the importance of judicial education. But, judges with substantial criminal law experience also considered judicial training vital forjudges to "know what to do." Here deviating practices surfaced creating an interesting consideration in the analysis of mass incarceration and sentencing decisions.

Newly elected judges in Alabama may electively participate in a state sponsored orientation that typically commences over a two to five-day period. These judges are also encouraged to attend the two-week general jurisdiction course at the National Judicial College. The state pays the expenses for this training through dedicated funds and scholarships. As announced in 2013, all other judges are exempt from continuing judicial education requirements. (38) One judge explained that training is "not mandatory [in Alabama] because they can't afford to pay for us to go. So, it's limited." Nevertheless, the Administrative Office of Courts in collaboration with the judicial program committee coordinates most of the elective in-state training opportunities for judges at the semi-annual state judicial conference. Over the years, Alabama prison reform has occupied a vast space in judicial training discussions. But, according to a conference presenter, some judges may have been "overwhelmed" by the topic. So, "very little criminal law" was offered at recent trainings. As a result, concern was expressed that judges are not receiving training on proper application of criminal laws especially relating to sentencing. In expressing this view, one Alabama judge opined,
   We're called upon to handle issues of life and death and there is
   no mandatory training. ..for [ ] judges. [T]here should be
   mandatory training for us. But even if it's not mandatory, I think
   most good judges want training and we can't even get it. I don't
   even think we would need to rewrite laws if we just had adequate
   training ... yearly judicial training, but good judicial training,
   not training that is led by a judge just because he has been a
   judge for 25 years. I mean, good judicial training.

Another judge explained,
   The state overall does the best that they can do[.] There's just so
   many complexities that they really can't educate you on
   everything ... We do a pretty good job. Could we do better? Yes, we
   could always do a better ... but maybe it's up to the department of
   corrections to say. hey, we're overcrowded. We've got these other
   options for sentencing ... Responsibility rests with a number of

There was little mention of training opportunities outside of the biannual state judicial conference and the general jurisdiction course at the National Judicial College. Overall, state sponsored training forjudges was believed to be important for fundamental understanding, accurate implementation of criminal laws and sentencing practices that avoid exacerbating incarceration rates.

In contrast, judicial training in Massachusetts is a combined mandatory and elective system. Training for new commonwealth judges includes a two-year curriculum that focuses on mentorship, orientation, and in-class presentations on relevant subject matter. (39) One Massachusetts judge commended the training, stating, "I didn't realize as a lawyer that there was that sort of collegiality and support among the judges and that's impressed the heck out of me." Senior Massachusetts judges attend elective and mandatory "regional meetings like four times a year" organized by the judicial leadership. Training on specific subjects such as race and implicit bias have been made mandatory for all Massachusetts judges. Expenses for judicial training are funded by the state. Additional judicial training is offered at the Flaschner Institute, a center established for educating commonwealth and federal judges in Massachusetts offering more than thirty five training opportunities on different areas of substantive law and specialized subject matters throughout the year. In addition to judicial training, the Massachusetts Superior Court leadership collaborated efforts between the judiciary, prosecutors, defense counsel, the legal academy and the legislature to study and develop evidence-based practices for the trial court. In 2016, the Massachusetts Superior Court published Best Practices for Individualized Evidence-Based Sentencing. The Best Practices guide provides instruction for superior court judges to identify
   [F]actors relevant to the imposition of a committed sentence, to
   alternatives to a committed sentence, and to supervision upon
   release ... probation, including use of a risk/assessment tool to
   determine the level of supervision ... identify conditions of
   probation that ... decrease recidivism; and ... probation violations,
   to ensure that a probationer is held accountable in a timely and
   proportional manner. (40)

The Best Practices guide was well received among superior court judges, Eepecially those with "very little criminal law" experience prior to taking the bench. They described the guideline as helpful. Many explained that it provides consistent and proportional sentencing practices across the Massachusetts court system. Although this guide is not mandatory, most trial judges find it to be helpful and follow the guideline "closely." For these judges, the Best Practices gives "guidance from people who know what works and what doesn't work" in making effective sentencing decisions and reducing the incarceration rate.



The plight of mass incarceration has forced opposing policy makers at the federal and state levels to address specific problems like prison overcrowding, albeit for varying philosophical reasons. Conservative-leaning policy makers explain the need for criminal justice reform primarily in terms of economic hardships. (41) Many progressive or liberal-leaning policy makers point to social injuries caused by mass incarceration. (42) However, it is a generally accepted premise across the political spectrum that the current rates of mass incarceration are fiscally unsustainable. In other words, "the public doesn't want to build more prisons, [and the] legislature doesn't have money to build prisons."

As a general premise, it can be concluded from this study that legislative mandates and institutional features may affect judicial discretion in sentencing. The conclusion relates directly to the widely divergent incarceration rates in Alabama and Massachusetts. The study revealed variations in attitudes, practices and policies that judges as actors in the criminal justice system believe to be obstructive to efforts aimed at reducing incarcerations rates. Judges perceive themselves as intermediaries between the criminal justice system and the communities to which most offenders will be returned. Therefore, any genuine effort to effectively reform the criminal justice system and reduce prison populations must include substantive involvement of state judges. Overcrowded prisons have necessitated reform of the criminal justice system. While this study centered on surface level political mandates and institutional features, the study of state judges as participants in the criminal justice system is vastly unchartered territory. Further study of these key actors in the criminal justice system is ripe for original contribution to the literature, and perhaps a missing consideration in the criminal justice and mass incarceration debate.
Appendix A: Recent Alabama Criminal Justice Reform Legislation

2015              Strengthen community-based supervision to reduce
Criminal          recidivism.
Justice Reform
Council of        * Standardize the use of risk and needs
State               assessments to target supervision resources
Government          for people who are most likely to reoffend,
Summary of          and reduce probation and parole officers'
Al.S.Bill 67        caseloads by prioritizing intense supervision
                    for people more likely to reoffend and providing
                    limited supervision for people less likely to
                  * Establish intermediate sanctions to respond to
                    technical violations of probation and parole,
                    and allow for short jail stays prior to
                    revocation in the range of possible sanctions.
                  * Improve the quality of Community Corrections
                    Programs (CCPs) by creating a new funding
                    standard for CCPs that sets appropriation
                    levels based on the degree of implementation
                    of evidence-based practices.
                  * Allow people on supervision who have lost
                    their driver's licenses as a result of their
                    convictions to apply for a driver's license
                    with limited driving privileges.

                  prison space for violent and dangerous
                  offenders. Divert people convicted of low-level
                  property and drug offenses away from prison

                  * Create a new Class D felony category for the
                    lowest-level property and drug offenses, and
                    require sentences to CCPs instead of prison.
                    Modify the classification of third degree
                    burglary to a nonviolent offense if an
                    individual enters an uninhabited, non-domicile
                    building and no person is encountered while the
                    crime is being committed.
                  * Respond to serious technical probation and
                    parole violations with 45-day periods of
                    incarceration followed by continued supervision.

                  Improve efficiency and transparency of the parole
                  decision-making process

                  * Require the parole board to create structured
                    parole guidelines, based on current research
                    and best practices, to ensure consistency in
                    the factors the parole board considers when
                    determining if a person is ready for parole.
                  * Mandate that the parole board record and share
                    reasons for parole denial with the person who
                    was denied parole, the victims, and the
                    Department of Corrections (DOC).

                  Ensure supervision for everyone upon release
                  from prison, and expand victim notification.

                  * Require people convicted of a Class C offense-
                    which includes property, drug, and person
                    offenses--to serve split sentences, which
                    provide a fixed term of incarceration and
                    guarantee a period of supervision after
                    release from prison or jail.
                  * Require that people serving a straight prison
                    sentence receive a period of supervision upon
                  * Complete the development of the electronic
                    victim notification system, and expand victim
                    notification regarding releases from prison.

2017              Repeal of judicial override allowing a judge
Cody Nickel,      to impose the death penalty when a jury has
Alabama Ends      recommended life imprisonment.
Death Penalty
by Judicial

2018              Increased prison funding by additional $85 million
A Look at         for the state prison system over the next two
What Passed in    years.
the Alabama
Legislature,      Nitrogen Execution Bill allows the condemned to
ASSOCIATED        choose execution by nitrogen hypoxia if lethal
PRESS             injection is unavailable, or if they so elect.

                  Human Trafficking Bill enhances the penalties
                  already in place, increasing the offense to a
                  Class A felony, with a minimum jail sentence
                  of ten years.


                  Decriminalize minor offenses:

                  * Minor offenses for juveniles--civil infractions
                    and first offense misdemeanors with penalties
                    under 6 months--cannot be the subject of
                    delinquency findings
                  * Disruptive behavior in school (disturbing
                    assembly or disorderly conduct) cannot be
                    the subject of delinquency findings (but more
                    serious behavior can still be prosecuted);
                    Additionally, schools shall enter MOUs with
                    school resource officers defining
                    non-disciplinary role of school
                    resource officers
                  * Repeal offense of being in the presence of heroin
                  * Expand scope of good Samaritan protections to
                    youth alcohol and to probation violations
                  * Specify that use of prescribed drugs and medical
                    marijuana, shall not constitute a probation

                  Divert minor offenses away from prosecution and

2018              * Create mechanism for judicial diversion
PRISON REFORM       of juveniles for less serious offenses
LEGISLATION       * Improve and expand mechanism for district
BASED ON            court diversion of adults
SUMMARY BY          * Eliminate defunct requirement for probation
SENATOR               certification of diversion programs
WILLIAM             * Eliminate age restrictions on diversion
BROWNSBERGER        * Exclude serious offenses from diversion
                    * Assure that victims are heard in
                      diversion decisions
                  * Create legal/administrative framework to
                    expand use of restorative justice programs
                    for diversion of both juveniles and adults
                  * Require judges to make written findings before
                    imposing a sentence of incarceration of primary
                    caretakers of children
                  * Make drug diversion more workable by making it
                    possible for a wider range of professionals to
                    make findings of dependence
                  * Preserve powers of District Attorneys to divert
                    cases and manage their own diversion programs
                  * Require District Attorneys to develop diversion
                    programs for veterans and people with mental
                    illness or substance use disorders.

                  Reform Bail to reduce unnecessary incarceration:

                  * Codify main holding of the Brangan case--judge
                    should consider financial capability of defendant
                    and set bail only as high as needed to assure
                    defendant's return
                  * Require that if judge needs to set unaffordable
                    bail to assure return, the judge make written
                    findings that the Commonwealth's interest in
                    assuring return outweighs the harm of detention
                    to the individual and their family
                  * Allow judges to use community corrections
                    facilities for pre-trial release
                    (consistent with CSG report)
                  * Create pre-trial services unit to remind
                    defendants of upcoming court dates using
                    modern messaging approaches
                  * Create commission on bail to monitor change and
                    suggest further improvements

                  Repeal/limit mandatory minimums for non-opiate,
                  non-weight retail drug offenses:

                  * Limit applicability of school zone law to cases
                    involving guns or minors
                  * Eliminate mandatory for second offense class B
                    (make fentanyl class A)
                  * Eliminate mandatory for first offense
                  * Eliminate mandatory for second offense class
                  * Eliminate mandatory for second offense class C
                  * Eliminate mandatory for second offense class D
                  * Eliminate mandatory for sales of drug

                  Strengthen minimum mandatories for opioid

                  * Make all federally scheduled synthetic opioids
                    class A drugs in Massachusetts (if not otherwise
                    classified in Massachusetts)
                  * Include fentanyl, carfentanil and emerging
                    synthetic opiates in trafficking weight
                    ladder--mixtures containing these substances
                    and weighing over 18g, 36g, 100g, or 200g
                    will draw the same minimum mandatory penalties
                    currently applicable to mixtures containing
                  * Modify fentanyl trafficking statute so that it
                    applies to mixtures weighing over 10 grams that
                    contain fentanyl. Add minimum mandatory of
                    3.5 years, effectively adding a special bottom
                    rung applicable only to fentanyl to the
                    trafficking weight ladder. 10 grams gets
                    3.5 years under this section, 18 grams gets
                    3.5 years (from the main opioid ladder)
                  * Add a special minimum mandatory of 3.5 years
                    applicable to mixtures of any weight containing
                    carfentanil in any quantity but with the proviso
                    that the commonwealth must prove knowledge that
                    the mixture contained carfentanil

                  Strengthen Protections for Public Safety:

                  * Strengthen penalties for intimidation of
                  * Broaden eligibility for witness
                    protection programs
                  * Strengthen penalties for solicitation
                    of murder and other crimes
                  * Allow district court prosecution of conspiracy,
                    solicitation and intimidation
                  * Strengthen penalties for corporate manslaughter
                  * Strengthen penalties for high repetition of
                    Operating Under the Influence (OUI) offenses
                  * Broaden definition of inhalants that may result
                    in OUI prosecution
                  * Strengthen penalties for reckless homicide
                    by motor vehicle
                  * Create new crime of assault and battery on
                    police officer causing serious injury
                  * Create new crime of unlawful possession of
                    credit card scanner
                  * Expand crime of providing false information
                    to police officer
                  * Disclose findings of not guilty by reason of
                    insanity in the same way as convictions for
                    general employers and landlords.
                  * Strengthen DNA collection procedures from serious
                    offenders--collect forthwith upon conviction
                  * Mandate better tracking and retention
                    of rape kits
                  * Mandate creation of police training program for
                    bias-reduction and de-escalation

                  Reduce solitary confinement:

                  * Repeal archaic solitary confinement concept
                    ("isolation") and define more humane restrictive
                    housing concept
                  * Define minimum humane conditions for restrictive
                  * Require that the commissioner develop
                    regulations "to maximize out-of-cell activities
                    in restrictive housing and outplacements from
                    restrictive housing consistent with the safety
                    of all persons."
                  * Require that prisoners confined to restrictive
                    housing shall, under regulations to be
                    developed, have "access to vocational,
                    educational and rehabilitative programs
                    to the maximum extent possible consistent
                    with the safety and security of the unit"
                  * Require that prisoners confined to restrictive
                    housing receive regular reviews to see if they
                    are ready to return to general prison population
                    and have an opportunity to participate in those
                  * Assure that correctional officers staffing
                    restrictive housing facilities have appropriate
                  * Protect LGBTQ prisoners from arbitrary use of
                    restrictive housing
                  * Assure that those segregated from other inmates
                    for their own safety are not placed in
                    restrictive housing, but in conditions
                    comparable to general population
                  * Create a balanced oversight board with access to
                    data, prison facilities and prisoners to report
                    on conditions in restrictive housing and progress
                    in reducing restrictive housing. The oversight
                    committee will have no authority over individual
                    prisoner confinement decisions

                  Generally improve prison conditions:

                  * Assure that transgender prisoners are housed with
                    prisoners of the same gender identity unless it
                    would endanger the prisoner or other prisoners
                  * Require that all prisoners without high school
                    diplomas have access to education programming
                  * Require that all prisoners are assessed for
                    substance use disorders (but do not require
                    medically assisted treatment)
                  * Preserve inmate access to regular in-person
                    visitation--video visits permitted, but not
                    in lieu of in person visits
                  * Expressly authorize creation of special prison
                    units for emerging adults (ages 18 to 24)
                  * Create commission to study LGBTQ prison health
                  * Create task force to study correctional officer
                  * Study prison long distance phone costs

                  Release prisoners who are permanently incapacitated
                  and pose no safety risk:

                  * Prisoners who are so debilitated that they do not
                    present a public safety risk may petition their
                    superintendent or sheriff for medical release
                  * The sheriff or superintendent shall make a
                    recommendation to the commissioner of correction
                  * The commissioner of correction will determine
                    whether the inmate is incapacitated and the
                    medical release plan is appropriate
                  * The parole board will supervise the released
                    prisoners and re-incarcerate them if they are
                    recovering contrary to expectations
                  * Judicial review is only by certiorari

                  Make it easier for people to get back
                  on their feet:

                  1. Reduce fees imposed on defendants

                  * Eliminate counsel fee for juvenile defendants
                  * No parole fee for the first year after
                    release from prison
                  * No probation fee for the first six months
                    after release from prison
                  * Make more fees waivable and standardize
                    waiver language across fees
                  * Streamline waiver process for probation
                    fees--no written finding required
                  * Improve procedural protections for people
                    facing incarceration for non-payment of fines
                    and increase rate at which fines are worked
                    off from $30 per day to $90 per day

                  2. Ensure that when state criminal records are
                  sealed or expunged, national fingerprint records
                  are also sealed or expunged

                  * Require that offense based tracking number
                    (OBTN) associated with a set of fingerprints
                    taken at arrest is recorded in court files
                    (not expand scope of finserorintins)
                  * Ensure that when cases are disposed of, the
                    disposition is transmitted to the national
                    system (using the OBTN)
                  * Similarly assure that sealing and expungement
                    orders are transmitted for parallel action in
                    the national system

                  3. Make criminal records more private

                  * Ensure that cases dismissed before arraignment
                    do not appear on criminal records
                  * Ensure that youthful offender cases tried in
                    juvenile court are treated as juvenile instead
                    of adult CORI
                  * Accelerate sealing availability from 10 years
                    to 7 years for felonies and from 5 years to
                    3 years for misdemeanors.
                  * Fix the glitch that causes resisting arrest
                    charges to be non-sealable
                  * Allow expungement of cases involving errors
                    of justice
                  * Allow expungement of non-serious cases up to age
                    21 (both juveniles and young adults)
                  * Exclude juvenile arrests from public police log
                    and expunge public police logs if the court case
                    is expunged
                  * Raise threshold that defines felony larceny from
                    $250 to $1200, so making more cases misdemeanors
                    that can be quickly sealed or expunged (preserve
                    ability of officers to arrest defendants in
                    cases above $250)
                  * Require that licensing authorities disclose in
                    advance offenses that may be disqualifying

                  * Confirm that sealed records need not be
                    mentioned in applications for housing
                    or professional licensure
                  * Prevent employers from inquiring about sealed
                    or expunged cases
                  * Protect employers from liability for failing to
                    know about cases that they are not permitted to
                    know or inquire about under CORI law.

                  4.Reduce entanglements with the registry of motor

                  * No longer suspend licenses upon court defaults
                  * No longer suspend licenses upon conviction of
                    tagging or vandalism
                  * Assure that parents will not lose their license
                    for non-payment of child support if the warning
                    notice is going to a bad address (do not limit
                    otherwise limit ability of the DOR to suspend

                  Take better care of juveniles and young adults:

                  * Raise minimum age of juvenile court
                    jurisdiction to 12
                  * Do not raise age of criminal adulthood to 19, but
                  * Expressly authorize creation of young adult units
                    within Houses of Correction (18-24)
                  * Expressly authorize designation of youth
                    probation officers
                  * Create task force to "to examine and study the
                    treatment and impact of individuals ages 18 to
                    24 in the court system and correctional system
                    of the commonwealth."
                  * Minimize harsh detention of minors (mostly
                    codifying existing good practice)
                  * Assure swift parental notification and
                    appropriate handling upon arrest
                  * Limit shackling in court room settings
                  * Prohibit housing of juveniles in contact
                    with adults
                  * Prohibit the use of room confinement as a
                    disciplinary measure for juveniles in DYS
                  * Protect the parent-child relationship by
                    disqualifying parents and children from being
                    called to testify against each other in court
                    (this does not apply to domestic situations and
                    does not prevent parents from asking the police
                    for assistance with their children if necessary)
                  * Create a juvenile justice policy and data board
                    to oversee and improve treatment of juveniles.
                  * Create task force on trauma-informed
                    juvenile care
                  * Provide access to counsel at parole hearings
                    for juveniles sentenced to life

                  Improve transparency of the criminal justice system

                  1. Mandate National Incident Based Reporting System
                  for arrests, including racial data

                  2. Juvenile justice policy and data board is to
                  drive consolidation of information about juvenile
                  contacts with the system

                  3. Require the Secretary of Public Safety to lead
                  improvement of adult criminal justice data systems,
                  creates adult criminal justice systems board

                  4. Require expanded reporting on civil forfeitures.

                  Better protect women in the criminal justice system

                  1. Mentioned above: Mandate better tracking and
                  retention of rape kits

                  2. Allow vacatur of crimes committed by victims of
                  human trafficking

                  3.Create commission on justice involved women

                  Reduce and remedy errors of justice

                  1. Empower stronger oversight of forensic labs and

                  2. Increase access to compensation for wrongful

TRACIE A. TODD, Judge Tracie A. Todd serves as a State of Alabama Circuit Court Judge for the Tenth Judicial Circuit Criminal Division where she has presided over felony and misdemeanor offenses since 2012. She is a former municipal court judge, prosecutor, Japanese language interpreter, and international language teacher. Tracie earned a dual Bachelor of Arts in International Business and Japanese Studies from Dillard University, Juris Doctor from the University of Alabama School of Law and Master of Laws in Judicial Studies from the Duke University School of Law. This project is dedicated to my family, staff and the thirty-three judges who made its completion possible.

(1.) Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, Pub. L. No. 115-391,132 Stat. 5194(2018).


(3.) Peter Wagner & Alison Walsh, States of Incarceration: The Global Context, THE PRISON POLICY INITIATIVE (June 16, 2016), [].

(4.) Id.



(7.) Id.


(9.) Chris Mai & Ram Subramanian, The Price of Prisons: Examining State Spending Trends, 20102015, VERA INSTITUTE OF JUSTICE (May 2017), price-of-prisons-2015-state-spending-trends/legacy_downloads/the-price -of-prisons-2015-state-spending-trends.pdf [].

(10.) Wagner & Walsh, supra note 3.


(12.) Id.

(13.) Id.

(14.) Id.

(15.) This information was provided by the Alabama Administrative Office of Courts via a direct email request to the human resources department.


(17.) See, e.g., PEW RESEARCH CENTER, PARTY AFFILIATION BY STATE (2014); Pat Roberts & Mark Begich, How Red or Blue is Your State?, the hill (Oct. 24, 2014), house-races/221721-how-red-or-blue-is-your-state [].

(18.) MASSACHUSETTS TRIAL COURT, MASSACHUSETTS TRIAL COURT ANNUAL DIVERSITY REPORT (2017). Boston Municipal Court also has concurrent jurisdiction over some felony offenses. However, there is no comparable structure in Alabama.

(19.) See, e.g., Pew Research Center, supra note 18; Roberts & Begich, supra note 18.



(22.) Michael H. LeRoy, Do Partisan Elections of Judges Produce Unequal Justice When Courts Review Employment Arbitrations?, 95 IOWA L. REV. 1569,1569-1616 (2010).

(23.) MASS CONST, ch. 2, art. IX.

(24.) Martin W. Healy, A Guide to the Massachusetts Judicial Selection Process: The Making of a Judge, MASSACHUSETTS BAR ASSOCIATION (2015), [].

(25.) Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, THE SENTENCING PROJECT (June 2016), -and-Ethnic-Disparity-in-State-Prisons.pdf [].


(27.) Cameron Smith, We Need Better Solutions than 'Big Government' Incarceration, (Mar. 16, 2017), [].

(28.) James G. Hodge et al., Redefining Public Health Emergencies: The Opioid Epidemic," 58 JURIMETRICS J. 1, 1-17 (2017).

(29.) Shira Schoenburg, Participants in Massachusetts' Drug Courts are Overwhelmingly White, MASSLIVE (Apr. 20, 2016), massachusetts.html [].

(30.) Stephanie Hong, Say Her Name: The Black Woman and Incarceration, 19 GEO. J. GENDER & L. 619,627 (2018).

(31.) Leada Gore, Alabama's Place on the List of Most Dangerous States, Al.COM (Nov. 15, 2018), [].



(34.) Albert Alschuler, The Changing Purposes of Criminal Punishment: A Retrospective on the Past Century and Some Thoughts About the Next, 70 U. Chi. l. Rev. 1, 1-22 (2003); Mark R. Fondacaro, The Rebirth of Rehabilitation in Juvenile anil Criminal Justice: New Wine in New Bottles, 41 OHIO N.U. L. REV. 691, 697-726 (2015).

(35.) Wagner & Walsh, supra note 4; New York Times Editorial Board, Justice Reform in the Deep South, N. Y. TIMES (May 18, 2015), [].

(36.) William N. Clark, The Criminalization of America, 76 THE ALABAMA LAWYER 224, 224-232 (2015).

(37.) See Appendices A & B.

(38.) This information came from a set of emails sent at the author's request to the director for judicial training at the Alabama Administrative Office of Courts.

(39.) The information was provided in the 2017 Judicial Education in the Trial Court inter-court memorandum disseminated by the chief judges. Memorandum from State Trial Court Chief Judges on Judicial Education in the Trial Court (2017) (on file with author).


(41.) Fondacaro, supra note 35.

(42.) Anne R. Traum, Mass Incarceration at Sentencing, 64 HASTINGS L.J. 423, 423-468 (2013).
Figure l.

Interview Participant Demographic Charts


Trial Judges      73%
District Judges   27%


Alabama          70%
Massachusetts    30%

Note: Table made from pie chart.

Figure 2

Participant Political Affiliation Charts

Democrat     48%
Republican   52%

Democrat     60%
Republican   40%

Note: Table made from pie chart.
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Title Annotation:Converging Paths: Judges and Scholars
Author:Todd, Tracie A.
Publication:Law and Contemporary Problems
Date:Mar 22, 2019

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