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

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.

Author: Rachel Elise Barkow
Publisher: Harvard University Press
Published: 03/04/2025
Pages: 320
Binding Type: Hardcover
Weight: 1.36lbs
Size: 9.56h x 6.17w x 1.03d
ISBN: 9780674294226


Review Citation(s):
Publishers Weekly 01/13/2025
Library Journal 02/01/2025 pg. 82

About the Author
Barkow, Rachel Elise: - Rachel Elise Barkow is the Charles Seligson Professor of Law and Faculty Director of the Zimroth Center on the Administration of Criminal Law at NYU School of Law. A past member of the United States Sentencing Commission, she is the author of Prisoners of Politics: Breaking the Cycle of Mass Incarceration.