Overview

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.

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Reviews

Groundbreaking, engrossing, and authoritative…[Barkow] is standing up for liberty. -- Lincoln Caplan * Harvard Magazine * Lays at the feet of the U.S. Supreme Court the explosion of incarceration that started in the 1970s and continued through the turn of the century, on to today. -- Arthur Rizer * Federalist Society * [A] fine-grained account…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. * Publishers Weekly * In Justice Abandoned, Rachel Barkow reveals how the Supreme Court—over six decisions spanning twenty-five years—slowly and methodically paved the way for mass incarceration. Her precise, powerful analysis proves that each case could, and should, have come out differently. If you want to understand how America came to be the world’s largest jailer, you simply must read this book. -- James Forman, Jr., author of <i>Locking Up Our Own</i> How does the Supreme Court bear responsibility for mass incarceration? Rachel Barkow lays out the crucial wrong turns the Court has taken. Justice Abandoned is learned and accessible—and full of ideas for how the law could and should change. -- Emily Bazelon, author of <i>Charged</i> Rachel Barkow delivers an insightful and meticulously researched retelling of six Supreme Court cases that shaped the US incarceration system as we know it today. Her work highlights a history we should all confront if we are to right the wrongs of our past and reform the status quo—which, as she demonstrates, was brought about as much by the Supreme Court as by political actors. -- Preet Bharara, author of <i>Doing Justice</i> Most people, whether concerned citizens or specialists, think that mass incarceration is the result of bad policies, overreaching police and prosecutors, and structural racism. Justice Abandoned shows that the Supreme Court is also to blame for repeatedly failing to stand up for individual liberty in the face of government claims that public safety requires suppressing rights. Writing with clarity and verve, the brilliant Rachel Barkow unpacks six dramatic moments when the Court got it wrong and enabled the imprisonment of millions of people who would not face incarceration in any other liberal democracy on earth. -- Noah Feldman, author of <i>Scorpions</i>

Most people, whether concerned citizens or specialists, think that mass incarceration is the result of bad policies, overreaching police and prosecutors, and structural racism. Justice Abandoned shows that the Supreme Court is also to blame for repeatedly failing to stand up for individual liberty in the face of government claims that public safety requires suppressing rights. Writing with clarity and verve, the brilliant Rachel Barkow unpacks six dramatic moments when the Court got it wrong and enabled the imprisonment of millions of people who would not face incarceration in any other liberal democracy on earth. -- Noah Feldman, author of <i>Scorpions</i>

Most people, whether concerned citizens or specialists, think that mass incarceration is the result of bad policies, overreaching police and prosecutors, and structural racism. Justice Abandoned shows that the Supreme Court is also to blame for repeatedly failing to stand up for individual liberty in the face of government claims that public safety requires suppressing rights. Writing with clarity and verve, the brilliant Rachel Barkow unpacks six dramatic moments when the Court got it wrong and enabled the imprisonment of millions of people who would not face incarceration in any other liberal democracy on earth. -- Noah Feldman, author of <i>Scorpions</i> How does the Supreme Court bear responsibility for mass incarceration? Rachel Barkow lays out the crucial wrong turns the Court has taken. Justice Abandoned is learned and accessible—and full of ideas for how the law could and should change. -- Emily Bazelon, author of <i>Charged</i> In Justice Abandoned, Rachel Barkow reveals how the Supreme Court—over six decisions spanning twenty-five years—slowly and methodically paved the way for mass incarceration. Her precise, powerful analysis proves that each case could, and should, have come out differently. If you want to understand how America came to be the world’s largest jailer, you simply must read this book. -- James Forman, Jr., author of <i>Locking Up Our Own</i> Rachel Barkow delivers an insightful and meticulously researched retelling of six Supreme Court cases that shaped the US incarceration system as we know it today. Her work highlights a history we should all confront if we are to right the wrongs of our past and reform the status quo—which, as she demonstrates, was brought about as much by the Supreme Court as by political actors. -- Preet Bharara, author of <i>Doing Justice</i>

Author Information

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.

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