Justice Abandoned
How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration
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- $35.99
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- $35.99
Publisher Description
An influential legal scholar argues that the Supreme Court played a pivotal role in the rise of mass incarceration in America.
With less than 5 percent of the world’s population and almost a quarter of its prisoners, America indisputably has a mass incarceration problem. How did it happen? Tough-on-crime politics and a racially loaded drug war are obvious and important culprits, but another factor has received remarkably little attention: the Supreme Court. The Constitution contains numerous safeguards that check the state’s power to lock people away. Yet since the 1960s the Supreme Court has repeatedly disregarded these limits, bowing instead to unfounded claims that adherence to the Constitution is incompatible with public safety.
In Justice Abandoned, Rachel Barkow highlights six Supreme Court decisions that paved the way for mass incarceration. These rulings have been crucial to the meteoric rise in pretrial detention and coercive plea bargaining. They have enabled disproportionate sentencing and overcrowded prison conditions. And they have sanctioned innumerable police stops and widespread racial discrimination. If the Court were committed to protecting constitutional rights and followed its standard methods of interpretation, none of these cases would have been decided as they were, and punishment in America would look very different than it does today.
More than just an autopsy of the Supreme Court’s errors, Justice Abandoned offers a roadmap for change. Barkow shows that the originalist methodology adopted by the majority of the current Court demands overturning the unconstitutional policies underlying mass incarceration. If the justices genuinely believe in upholding the Constitution in all cases, then they have little choice but to reverse the wrongly decided precedents that have failed so many Americans.
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In this fine-grained account, NYU law professor Barkow (Prisoners of Politics) argues that the expansion of mass incarceration in the U.S. can be traced back to the Supreme Court's repeated disregarding of the Constitution. Dissecting a series of the court's decisions, she demonstrates how each one enabled mass incarceration and posits a different decision that would have been reached if the court had been faithful to the founders' intentions. For instance, in discussing United States v. Salerno, which "lowered the bar" for detaining people who have merely been charged with a crime—and who today account for a quarter of all people incarcerated at any given time—Barkow contends that the decision ignored both the due process clause and the Eighth Amendment (which protects against excessive bail and cruel and unusual punishment). Other chapters discuss Supreme Court decisions that led to the rise of coerced plea bargaining (i.e., when the defendant only accepts the plea bargain because they have been overcharged), mandatory minimums, stop and frisk, and prison overcrowding. By framing her arguments as genuine originalism, Barkow's explicit and laudably practical aim is to help lawyers strategize how to win over today's court ("While the current Court is a conservative one, it contains enough justices who are committed to originalism and willing to overturn cases that it is not unthinkable to imagine a doctrinal shift"). Legal analysts would do well to check this out.
