Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration
Author: Rachel Elise Barkow
Publisher: Harvard University Press, 2025. 320 pages.
Reviewer: Chad Flanders | Spring 2025
This is an excellent book. In more or less chronological fashion, Rachel Barkow goes through six major Supreme Court decisions on criminal law and procedure and blames them for (alternatively) encouraging, fostering, or at the very least not getting in the way of the rise of mass incarceration in America. There is something in this book for everybody. Well-written enough for the beginner in law, it has facts and conclusions that can teach even those who are familiar with these cases. Barkow goes through the cases carefully and exhaustively, telling their stories, criticizing the holdings and–in perhaps the best feature of the book–going through the aftermath of the decisions. She shows how we are living in the over-incarcerated world that these decisions helped to create. Barkow’s chapters are a mix of narrative, doctrinal analysis, and social science. She interprets each case along many dimensions, all of them illuminating.
Of the Supreme Court decisions she covers, only one may be familiar to many: Terry v. Ohio, or the “stop and frisk” case. The other decisions may not be as well known, but Barkow persuasively argues that they deserve to be held in infamy for the carceral world they have helped to make. United States v. Salerno rendered cash bail a tool for holding indefinitely prior to trial those a court deems to be “dangerous.” Bordenkircher v. Hayes blessed the use of threats by prosecutors to increase charges if the defendant chooses to go to trial in order to coerce favorable plea bargains. Harmelin v. Michigan set no boundary on how disproportionately severe criminal sentences could be under the Eighth Amendment. In Rhodes v. Chapman, the Court abdicated any role it might have had in policing awful prison conditions. And in McCleskey v. Kemp the Court blocked the ability of defendants to argue and win Equal Protection cases based on clear statistical evidence of racial disparities in punishment. Of these, Terry perhaps stands out as not quite fitting the overall structure of the book: it has less to do with charging and sentencing and more with the cop on the beat. This chapter’s appearance towards the end of the book somewhat disrupts the flow of the argument—the reader goes from bail to jail, only to reverse course for a discussion of stops and arrests.
Although Barkow doesn’t put it in such grand terms, what emerges from Justice Abandoned is the Supreme Court presiding over a sort of constitutional transformation — one that bent the Constitution to accommodate America’s zeal for punishment. Barkow shows how many of these decisions aren’t well reasoned in their particulars and are also unsupported by any major constitutional law theory. They aren’t especially originalist, nor are they grounded in moral principles of a “living Constitutionalism.” In many of the cases, Barkow laments that the Court’s approach amounts to throwing its hands regarding tough questions such as what counts as proportional punishment or as humane or decent prison conditions. Better not to get involved, the Court seems to be saying: we can’t micromanage legislatures, or prisons, or prosecutors, or trial courts that are making these decisions. But the result, as Barkow ably sets out, is a Court that doesn’t just slow the rise of the prison industrial complex, but also blesses it. The upshot of the Court’s decisions is loud and clear: sentences aren’t excessive; plea deals aren’t coercive; prison conditions aren’t cruel and unusual; states may criminalize and punish as they see fit. The Court defers to the “expertise” of other institutional actors (legislatures, prison wardens, prosecutors), while not asserting its own expertise as interpreters (and last line enforcers) of constitutional norms. The Court may not have been taking the initiative in this transformation — which required Congress and the states to push the boundaries — but the result was a transformation all the same. It didn’t have to happen and it could have been stopped or slowed. Thanks to the Court abandoning its role, it did happen.
One might argue that Barkow’s book is too Supreme Court-centric and too optimistic about how the Court might have changed things had these cases gone the other way. Barkow’s book ends with a robust call for the Justices on the Supreme Court to take a stand and more forcefully assert their role against mass incarceration. The epigraph to the last chapter is from Justice Ruth Bader Ginsburg: “Justices continue to think and change …. I am ever hopeful that if the Court has a blind spot today, its eyes will open again tomorrow.” But we might consider in this regard, cases where the Supreme Court did decide cases in favor of criminal defendants, where Justice Ginsburg might have said its eyes were open. After all, the Supreme Court is responsible for decisions like Gideon v. Wainwright and Mapp v. Ohio. Gideon made it constitutionally required for criminal defendants to be represented by counsel in criminal cases even if they could not afford to pay them. Mapp mandated that courts exclude any evidence from trial that was seized as the result of illegal police behavior. These decisions have not lived up to their promise to make things less harrowing for those caught up in the criminal justice system. States do not fund public defender offices at all adequately, leading to massive caseloads and overworked public defenders. Mapp has been eviscerated by exception after exception to the “exclusionary rule” and the illegally seized evidence gets to be used by prosecutors in trial anyway.
These towering decisions (at the time) in favor of the constitutional rights of defendants have not stopped the march of mass incarceration. Now, maybe this failure of follow-through is the result of subsequent Supreme Court decisions. With the exclusionary rule, this is almost certainly the case. Even Terry v. Ohio might be looked at differently if later Supreme Courts actually put some teeth into the “reasonable suspicion” standard. But the fate of these cases shows the limits of the Court as an institution as against legislatures and other institutional actors (judges, police, prosecutors, etc.). Institutional change is impossible if the country favors the kinds of outcomes that Barkow outlined in her previous book Prisoners of Politics. Court decisions can get pushback and limit how much change the Court can actually effect. If the decisions Barkow covers in her book had gone the other way, would they have resulted in enduring and fundamental changes in how America runs criminal justice? Or would there have been popular resistance and gradual retreat by the Court, as has happened with Gideon and Mapp? Legislatures, even in the face of contrary Supreme Court decisions, might still find ways to hold people for long periods pre-trial, to piece together disproportionately long sentences, and to allow inmates to languish in squalid and inhumane prisons and jails.
Barkow’s book also occludes the role of states in mass incarceration. If the Court enables this phenomenon, then the states drive it. Most people are in state prisons because they have violated state laws. Of course, the Constitution still binds state actors. Barkow’s implicit premise is that if the Supreme Court laid down constitutional floors that states had to abide by, then we wouldn’t have so many imprisoned for so long. Maybe so, but the states put the Supreme Court in a position where they are the last remaining backstop. If more states decided to put their own limits on what would count as acceptable bail, or to abolish the death penalty, or to put caps on sentences, or to limit plea bargaining, then these measures would have lessened over-incarceration without the Supreme Court ever having to get involved. And it may be that the states would be the best place to start, for several reasons. Sometimes, individual state actors can wield an enormous amount of power — district attorneys’ power over prosecuting decisions (how to set bail, what to charge, how much or little to offer in a plea) exemplify this power, as Barkow highlighted previously in Prisoners of Politics. State courts may have more leeway under their own constitutions to draw clear lines against punishment. Barkow mentions in passing the important example of the Michigan Supreme Court, which struck down as “cruel and unusual” two sentences identical to Harmelin’s under its state constitution one year after Harmelin was decided.
Second, I am not as optimistic as Barkow is that remaining true to their principles and understanding their proper role would lead to U.S. Supreme Court getting get these decisions right. This is not just a point about the members of today’s Supreme Court, which includes a majority of appointees from right of center presidents who historically have been less than sympathetic to the claims of criminal defendants. Rather, some of these decisions are hard, and it is not obvious that even a more rigorous originalist analysis will get us the outcomes that Barkow wants. Barkow ably points out how the decisions in many of these cases — Bordenkircher, Harmelin, Rhodes, etc. — do not follow in any clear or straightforward way from originalist premises. But Barkow is much less forceful when it comes to the rules that these cases should have announced. To be sure, these are difficult calls, and decisions do not write themselves. When does a plea become coerced, if we are not going to abolish pleas entirely? How do we decide that a decision is disproportionate, when so many states already have seriously steep sentences for many crimes? What is the baseline for decent prison conditions, after we get past broad pronouncements against overcrowding? In each of these cases, it is not only hard to draw the correct constitutional line, but we can be sure that states will probably step right up to the line no matter where it gets set. One can almost sympathize with the members of the Court throwing up their hands, and leaving it to the states to figure it out.
This may sound fatalist. We are in difficult times, but reading books like Barkow’s can be a tonic. Her intuitions about where we should be going seem right, even if it may take a while to get there. Justice Abandoned helps illuminate the patterns in the Supreme Court’s decision-making on criminal procedure and criminal punishment and reveals how our current system of mass incarceration was far from inevitable. Justice Abandoned may not be a blueprint, but it provides something that is just as useful: a sense of the right way out.
Chad Flanders is a Professor of Law at Saint Louis University School of Law.
