The United States imprisons about 1.8 million people—more than any other nation. Roughly a quarter of those behind bars have not been convicted; they are detained while awaiting a court hearing. The burden is not evenly distributed: the share of black men in prison is three times their share of the national population. What explains America’s commitment to spending so much to lock up so many? In her previous book, Prisoners of Politics (2019), Rachel Barkow put the blame squarely on the fact that U.S. criminal justice policy at every level—local, state, and federal—is made by politicians and voters rather than agencies informed insulated from political pressure and informed by expert analysis. The public perennially demands tough-on-crime policies. Legislators oblige by enacting ever-harsher laws. Elected prosecutors enforce those laws. Reforms won in recent years through politics—election of progressive prosecutors, bail reform, decriminalization of marijuana, and modest sentencing law changes—barely moved the needle.
Barkow’s new book, Justice Abandoned, starts with the same convincing premise: populist and politicized policymaking generally sustains the laws and practices that produce mass incarceration. She has now shifted both the focus for blame and reform to the U.S. Supreme Court, a choice both obvious and odd. Obvious because the Court clearly deserves some of the blame: for decades it has ruled, in a variety of cases that Barkow astutely unpacks, that the Constitution puts few restraints on the policies that have filled American prisons and jails. Odd because if there is one institution less likely than Congress or prosecutors to put the brakes on mass incarceration, it would seem to be the current Court.
Barkow tells a lucid, insightful story about how the United States went from a country with relatively ordinary levels of imprisonment for most of the twentieth century to the world leader in depriving citizens of liberty. Policymakers had to overcome several hurdles. To arrest, prosecute, convict and imprison a lot more people requires more money for more police, prosecutors, public defenders, judges, and prison cells. Barkow explains how the Court approved policies that made arrest, prosecution, and punishment cheaper and easier—and in the process more cruel, more biased, less accurate, and less just.
The number of people in pretrial detention—often for months—rapidly increased after Congress passed the 1984 Bail Reform Act, which for the first time authorized jailing defendants not for their past criminal conduct but based on a judge’s prediction about their future dangerousness. The Supreme Court approved this new basis for detention on the dubious rationale that jail before trial is not “punishment” but merely a “regulatory” practice to prevent crime. States quickly passed similar laws. Over the next two decades, pretrial detention skyrocketed. Before the BRA, one-quarter of people charged with federal crimes were jailed pretrial. Today, about three-quarters are; average detention time has grown from two months to nearly twelve. Whether this change makes the world safer is basically unknowable. While we know most defendants out on bail don’t commit another crime, we have no idea how many were needlessly detained based on an erroneous prediction about their dangerousness.
Most people in prisons have been convicted of something, but very few by a jury. Nearly all pled guilty. Defendants have always had the option admit guilt, but only in the last half century did the Supreme Court endorse plea bargaining and allow prosecutors to condition guilty pleas on defendants waiving not only trials but also rights to appeal, to challenge illegal searches, or to see government evidence. It also approved pressure tactics such as making one defendant’s plea bargain conditional on another defendant also pleading guilty. In the Court’s view, none of this was coercive. A choice between pleading guilty to a five-year sentence or a mandatory life sentence after trial merely gives defendants a free choice. And if defendants plead guilty freely, surely none confess to crimes they didn’t commit. Yet, as Barkow notes, a shocking number of wrongful convictions—confirmed by DNA evidence—were the result of defendants who pled guilty. The Court ignored the foreseeable strategy its rulings enabled: prosecutors use the greatest pressure when their evidence of guilt is weakest. When government’s case is strong, prosecutors can simply show their cards, which convinces most defendants to plead guilty for even modest leniency.
Once these tactics were widely adopted, the share of trial convictions shrank from an already-modest twenty percent in the 1970s to barely three percent. Legislatures pitched in by enacting harsher sentencing laws to give prosecutors more bargaining leverage: the harsher the potential post-trial sentence, the more readily defendants agree to avoid it through a plea bargain. Average sentences grew in the last four decades along with the number of convictions. Barkow reports that life sentences proliferated, so that one in seven prisoners are now in for life—one in five for black prisoners. Barkow describes how the Court concluded that the Constitution had effectively nothing to say about excessive prison sentences. Despite the Eighth Amendment’s ban on cruel and unusual punishments, the Court ruled it was not judges’ job to decide whether sentences are so unconstitutionally disproportionate—even when, as in Harmelin v. Michigan, a first offender’s sentence for having less than a kilogram of cocaine was life-without-parole.
Imprisonment is expensive. States have long minimized costs through overcrowding and failing to provide decent food and basic health care. In the 1970s, these practices were so widespread that lower courts declared prison conditions unconstitutional in thirty-one states. Then the Supreme Court decided, in 1981, that the Constitution gave states wide leeway on overcrowding and substandard conditions. Barkow suggests that the Court feared that it was up against realistic limits of judicial power. The Court observed in one case that, if it held that the Constitution required every inmate to have a nine-by-six foot space two-thirds of all inmates would be deemed imprisoned unconstitutionally.
Whether states would have ignored such strictures is speculative but doubtful. States did as little as possible in the face of court-ordered reforms, but none defied judicial authority. In 2011, when the Supreme Court narrowly affirmed a lower court order for California to address its grossly overcrowded prisons—in which, among other cruelties, mentally ill inmates were locked in cages rather than given medical treatment—the state complied. Barkow joins other scholars in the conclusion that, by gutting constitutional oversight of prisons, the Court removed what could have been a meaningful constraint on the steady increase in prison and jail populations.
Still, it remains an open question what prisons would look like had the Court opted for a different path across the landmark decisions Barkow criticizes. There are reasons to think Barkow is right: the Court could have hindered mass incarceration by interpreting key constitutional provisions in line with its earlier decisions and in accord with plausible understandings of the Constitution’s original meaning. Courts’ job is sometimes to make clear that the Constitution prohibits some policy choices favored by legislatures and voters. Doing so, they often succeed. Lower courts once forced meaningful reforms of some of the worst prisons. When a federal court found overwhelming evidence of racially biased stop-and-frisk practices by New York City police, the NYPD changed its policy without measurable effect on crime prevention.
On the other hand, sometimes bad-but-popular policies find ways around judicial roadblocks. Southern school districts for decades avoided Brown v. Board of Education’s bar on racial segregation. Perhaps prosecutors and trial judges would have found other ways to replace trials with guilty pleas even without the harshest pressure tactics for plea bargains. If forced to improve prison conditions, maybe states would have ramped up leasing prison labor. Prohibiting the most extreme sentencing laws might have yielded only slightly less extreme ones. When the Court banned mandatory life-without-parole sentences for teenage offenders, the effect in some states was barely noticeable: they now impose life sentences with a chance for parole decades in the future.
However that alternate world might have turned out, criticizing the Supreme Court’s mass incarceration decisions at this late date is more an argument about the consequences of flawed constitutional interpretation than a roadmap for reform. For the foreseeable future, the Court will have a conservative super-majority with no inclination to revisit Barkow’s hit-list of bad precedents, all of which were put in place by less conservative versions of the Court. Realistic prospects for reform, dim though they are, more likely rest with the process in which Barkow understandably places little hope: democratic politics. There has, in fact, been some modest progress through—among other things—reform of bail, sentencing, and marijuana laws and mass clemency for certain drug offenses. Those reforms are far too little to reverse a half-century of mass incarceration. But for now, they seem to be the most we can expect.
