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.

"Groundbreaking, engrossing, and authoritative…[Barkow] is standing up for liberty." - 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." - Federalist Society

"Makes a strong case that the Framers would have been dismayed by developments such as routine pretrial detention, search and seizure without probable cause, and a plea-bargaining system that has turned the promise of trial by jury into a fantasy. By explaining why these decisions should trouble originalists, Barkow makes it seem at least possible that the Supreme Court might correct some of its mistakes." - Reason

"An intelligent, essential compendium that creates a 360-degree view of the United States’ crisis of mass incarceration." - Library Journal (starred review)

"Demonstrate[s] the consistent inclination of several different groups of Justices to fail to do the job the Court is supposed to do, which is to uphold the Constitution, particularly as various sections of that document relate to mass incarceration." - Arts Fuse

"[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