At the Federalist Society Blog, Arthur Rizer (Lincoln Network): Using Originalism to Attack Mass Incarceration: A Review of Rachel Barkow’s Justice Abandoned. From the introduction:
It is a singular fact of life in America that with five percent of the world’s population, the land of the free holds roughly a quarter of the world’s prisoners. Despite 15 straight years of declines, that amounted to more than 1.8 million people at the end of 2022. And this figure is dwarfed by the number of Americans who are involved in the justice system in other ways, primarily through community supervision: almost 3.7 million people.
How did we get here? Observers on the right or left—those who think those numbers are too high, or too low—have a variety of favored explanations. Drugs, or the War on Drugs. Rampant rates of violence among the criminal underclass, or systemic racism in the criminal justice system. Excessive policing, or too lax an approach to public safety.
Now comes Rachel Barkow, a law professor at NYU and director of the Center on the Administration of Criminal Law, with her own explanation for mass incarceration. In Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration, Barkow 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. Interestingly, though she is avowedly no originalist, Barkow blames mass incarceration on the Court’s abandonment of the original understanding of the Constitution’s criminal justice provisions. Instead, responding to “tough on crime” political currents in the 1970s to 1990s, the Court embraced an atextual, ahistorical approach that “can be defended only under a constitutional theory grounded in pathological deference to the government and its claims that liberty must be sacrificed for public safety.”
The Framers of the Constitution—suspicious of abuses such as England’s Bloody Code, which prescribed death for a more than 200 offenses including stealing rabbits—were careful to check the state’s power, deliberately making it “hard for the government to criminally punish people because they feared that making it too easy would be a far graver threat to core individual rights and safety.” But Barkow asserts that, starting in the 1960s and accelerating with the War on Drugs that commenced in the 1980s, the Supreme Court repeatedly departed from constitutional text, history, and precedent to expand the government’s power to arrest, prosecute, and detain in ways that both curtailed individual liberty and worsened racial inequality.
Barkow tracks this anti-constitutional project through six cases that she says “serve as the foundation for mass incarceration.” In “deviating from constitutional principles” in these cases, the Court gave the green light to states and localities (which prosecute the vast majority of criminal cases) to engage in unprecedented curtailments of individual liberty in the efficient pursuit of public safety. The decisions she highlights include well-known ones such as Terry v. Ohio (1968), where the Court permitted stop and frisk tactics and street seizures based on “reasonable suspicion,” a previously unrecognized standard in constitutional law. Other more obscure cases she indicts include Bordenkircher v. Hayes (1978), which blessed the plea bargaining system that has essentially swallowed the ancient practice of criminal jury trials in this country; Rhodes v. Chapman (1981), which largely shut the door on constitutional cases alleging inhumane conditions of confinement; and Harmelin v. Michigan (1991), which makes it practically impossible to challenge a prison sentence as unconstitutionally excessive.
Reasonable people can disagree about how best to interpret the Constitution, Barkow writes, but “these cases are remarkable because they fail under all the leading approaches to constitutional interpretation,” especially originalism. Though Barkow argues that these cases were wrongly decided under “living Constitution” interpretive approaches too, her book is most passionate (and persuasive) when discussing how these cases are failures under originalist and textualist approaches.
Posted at 6:22 AM