The Supreme Court’s Failure to Stop the Politics of Mass Incarceration
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.