Justice Abandoned

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 the war on drugs are obvious and important culprits, but another factor has received little attention: the Supreme Court. Since the 1960s, the Court has repeatedly disregarded constitutional limits on the state's power to lock people away.

Justice Abandoned¿highlights six decisions that made mass incarceration possible. These rulings have been crucial to the rise in pretrial detention and coercive plea bargaining. They have blessed disproportionate sentencing and overcrowded prisons. And they have sanctioned innumerable police stops and widespread racial discrimination. If the Court were committed to protecting constitutional rights, none of these cases would have been decided as they were.

Rachel Barkow offers a roadmap for change, showing 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, then they have little choice but to reverse the wrongly decided precedents that have failed so many Americans.