The ongoing effort to address America’s mass incarceration problem has thus far focused on lawmaking. There are bills working their way through legislatures around the country that would reduce the severity of drug sentences, allow certain inmates to leave prison early by completing rehabilitation programs, and allow judges to be more lenient in doling out punishment. Advocates for reform have placed far less emphasis on the potential role of the appellate courts—institutions that have a long history of identifying systemic problems in American society and using their legal authority to force change, from Brown v. Board of Education to Gideon v. Wainwright.
For the most part, the judges presiding over the country’s appellate courts have lately been staying away from issues stemming from mass incarceration, only rarely hearing civil rights cases brought by prisoners and ruling in their favor even less often. But according to one legal scholar, University of California–Berkeley professor Jonathan Simon, there is reason to think that’s about to change—that after almost three decades of reticence on the awful prison conditions that have resulted from overcrowding, federal judges might be on the verge of an awakening of conscience.