6 Cases That Paved the Road to Mass Incarceration
Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration, by Rachel Elise Barkow, Harvard University Press, 320 pages, $35
“The United States is now a world leader when it comes to incarceration,” Supreme Court Justice Neil Gorsuch and co-author Janie Nitze noted last year in their book Over Ruled. They added that “our incarceration rate is not only eight times as high as the median rate in Western European democracies” but also higher than the rates under authoritarian regimes such as those in Rwanda and Turkmenistan.
Gorsuch and Nitze attribute that dubious distinction to the proliferation of criminal laws and draconian sentencing schemes. Legislators surely bear much of the blame. But in Justice Abandoned, New York University law professor Rachel Elise Barkow indicts another culprit: the court on which Gorsuch serves.
Barkow’s book highlights half a dozen Supreme Court decisions that she says “enabled mass incarceration” by compromising constitutional principles to accommodate politicians, prosecutors, and police officers bent on locking up more and more people for longer and longer stretches of time. Those decisions expanded pretrial detention, approved coercive plea bargaining, upheld disproportionate sentences, tolerated overcrowded prisons, greenlit stop-and-frisk tactics, and rejected challenges to racial disparities in the criminal justice system.
Barkow argues, for the most part persuasively, that these key cases were wrongly decided from the originalist perspective embraced by the current Court, which is dominated by Republican appointees who have shown they are willing to overturn longstanding precedents. She says it is therefore reasonable to think the justices, if presented with arguments grounded in text and history, might reconsider the rulings that paved the way to mass incarceration.
According to the Prison Policy Initiative, jails account for about 30 percent of the nearly 2 million people incarcerated in the United States, and more than three-quarters of detainees in those facilities are “legally innocent,” meaning they have not been convicted. That situation, Barkow argues, would have been inconceivable to the Framers, because bail and pretrial detention historically were aimed at ensuring defendants stuck around for the resolution of their cases and did not interfere with that process by, say, destroying evidence or intimidating witnesses. But in the 1987 case United States v. Salerno, the Supreme Court approved “dangerousness” as a justification for pretrial detention, meaning defendants could be locked up based on speculation that they might otherwise pose a threat to the general public.
In practice, Barkow notes, that policy of preventive detention meant that people could be punished before they were convicted. In addition to suffering that premature loss of liberty, pr
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