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, pretrial detainees, whether held by court order or because they cannot afford bail, are at a disadvantage in preparing their defense. Unsurprisingly, they are more likely to plead guilty than otherwise similar defendants who are free before trial. Because Salerno disregarded “the Constitution’s commitment to liberty and due process,” Barkow writes, it is “a constitutional abomination” that today’s Court would reject if it carefully considered the original rationales for pretrial detention.
Even the term pretrial detention is misleading, since almost all criminal convictions—about 95 percent in state courts and 97 percent at the federal level—result from plea deals rather than trials. As both Gorsuch and Barkow note, prosecutors have tremendous power to coerce guilty pleas by threatening to bring additional charges that carry much more severe penalties. The Supreme Court approved that practice in the 1978 case Bordenkircher v. Hayes, which involved a prosecutor who offered a forgery defendant a five-year sentence if he pleaded guilty while threatening him with a mandatory life sentence under a “three strikes” law if he insisted on going to trial.
When the defendant was convicted and sentenced to life, he argued that he was a victim of vindictive prosecution. But as the Court saw it, his “give-and-take negotiation” with the prosecutor did not implicate due process because he was free to accept or reject the offer after weighing his options. Although prosecutors had long used this tactic sub rosa, the Court’s blessing eliminated any doubts about its legitimacy. That outcome, Barkow argues, was driven by practical considerations rather than sound constitutional analysis—a recurring theme in her book. If defendants routinely invoked their Sixth Amendment right to trial by jury, judges and prosecutors worried, the system would not be able to handle the resulting flood of defendants demanding that the government prove its case.
“It is no exaggeration to say that, without plea bargaining, mass incarceration could not occur,” Barkow writes. “The mass numbers of cases require mass processing, and you cannot have that without plea bargaining. It is the rotten core of mass incarceration, and it exists only because the Supreme Court has allowed the government to coerce people into giving up one of the most sacred of constitutional rights.”
The pressure that prosecutors can bring to bear on defendants is a function of the severe sentences that legislators authorize, which also directly contribute to mass incarceration by keeping people in prison longer. But the Supreme Court has made it essentially impossible to challenge those penalties as violations of the Eighth Amendment’s ban on “cruel and unusual punishments.” Although a “grossly disproportionate” prison sentence would be unconstitutional, the Court said in the 1991 case Harmelin v. Michigan, that description applies only in “extreme cases.”
How extreme? More extreme than a mandatory life sentence for possessing a pound and a half of cocaine, which the Court upheld in Harmelin. “The Eighth Amendment does not have to be a dead letter in the context of noncapital punishment,” Barkow writes. “It could still fulfill its intended purpose. That will only happen, however, with a Court that enforces it.”
The Supreme Court has recognized that prison conditions, such as confinement in “shockingly unsanitary cells,” can violate the Eighth Amendment. But Barkow argues that the Court dropped the ball by approving “double celling” of prisoners in the 1981 case Rhodes v. Chapman, which involved two men serving long sentences who were forced to share a 63-square-foot cell at a prison that was 38 percent over its designed capacity. That decision made mass incarceration cheaper because states did not have to avoid overcrowding by building more prisons. “States have never had to pay the full constitutional price of incarceration,” Barkow writes, “because the Court’s decision in Rhodes gave them the biggest discount of all by letting them double bunk, effectively giving them a constitutional two-for-one sale.”
Before people can be imprisoned, they have to be arrested, and the Supreme Court made that easier with its 1968 decision in Terry v. Ohio, which for the first time allowed police to stop, detain, question, and frisk people without probable cause. That constitutional compromise, Barkow argues, was not based on the Fourth Amendment’s text and history. Rather, she says, it was motivated by public concerns about rising crime and the resulting political backlash against the Court’s pro-defendant rulings in cases like Mapp v. Ohio, which excluded evidence obtained by illegal searches, and Miranda v. Arizona, which required police to inform arrestees of their constitutional rights.
Chief Justice Earl Warren, who wrote the majority opinion in Terry, alluded to that context, noting “the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to ‘stop and frisk’—as it is sometimes euphemistically termed—suspicious persons.” Stepping into that debate, the Court ruled that police may stop someone based on “specific and articulable facts” that, “taken together with rational inferences,” justify a suspicion that he is engaged in criminal activity. During such an encounter, it said, police also may frisk the suspect if they have “reasonable grounds” to believe he is “armed and dangerous.” That decision became a license for police in cities such as New York, Philadelphia, Chicago, and Los Angeles to stop and frisk pedestrians, often exceeding even the latitude granted by Terry.
Stop-and-frisk programs are notorious for targeting young black and Latino men, and that is just one example of the racial disparities apparent at every stage of the criminal justice system. By requiring evidence of discriminatory intent, Barkow argues in a chapter focusing on the 1987 death penalty case McCleskey v. Kemp, the Supreme Court has effectively blocked equal protection challenges to such disparities.
The originalist basis for that last complaint strikes me as weaker than Barkow’s arguments in other chapters. Still, she makes a strong case that the Framers would have been dismayed by developments such as routine pretrial detention, search and seizure without probable cause, and a plea-bargaining system that has turned the promise of trial by jury into a fantasy. By explaining why these decisions should trouble originalists, Barkow makes it seem at least possible that the Supreme Court might correct some of its mistakes.
This article originally appeared in print under the headline “6 Cases That Paved the Road to Mass Incarceration.”
