This essay will reflect on the toolbox of strategies for criminal justice reform, offering examples of recent successes in state legislative revision; in a ballot initiative where the state legislature rejected reform measures favored by the public; 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.