Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration

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. (Mar.)