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Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration
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 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.
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 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.
320 pages, Kindle Edition
Published March 4, 2025
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Displaying 1 - 7 of 7 reviews
July 22, 2025
Superb.
October 5, 2025
“Justice Abandoned” is about 6 key Supreme Court cases that contributed to the system of mass incarceration in America today, in which ~2 million people are behind bars (including about 400,000 people awaiting trial making a mockery of “innocent until proven guilty”).
According to the author, these cases were wrongly decided accordingly to any philosophy of constitution interpretation (originalism or more progressive approaches).
I found this book to be extremely engaging and persuasive and would definitely consider reading it again.
According to the author, these cases were wrongly decided accordingly to any philosophy of constitution interpretation (originalism or more progressive approaches).
I found this book to be extremely engaging and persuasive and would definitely consider reading it again.
February 26, 2026
The USA has the world's highest incarceration rate, and there are two possible explanations for why: Either people in the USA are more likely to be criminals than all other people in the world, or else the USA has harsher policies than elsewhere. Rachel Barkow opts for the latter.
The author, a law professor at NYU School of Law, calls her country "the planet's premier penitentiary operator" with a rate at least five times higher than other affluent countries. Several hundred thousand people are in jail awaiting trial, many of them because they are too poor to post bail. After conviction, Americans face harsher sentences than in peer countries.
These dubious distinctions were not always true. They were imposed by policies adopted in the 1970s and 80s, which is familiar ground for those who have read "The New Jim Crow" (2010) by Michelle Alexander.
Barkow's thesis is that the Supreme Court (SCOTUS) was a prime cause of this era of mass incarceration. Six wrongly decided cases led to a regime of harsher punishment and diminshed constitutional rights. "The Constitution provides checks on mass incarceration — it just needs a Court willing to fulfill its promise."
Those landmark cases condoned the following:
☆ Widespread pretrial detention of people who are presumed innocent.
☆ Punishing defendants for exercising their right to a jury trial
☆ Upholding disproportionate sentences
☆ Tolerating massive prison overcrowding
☆ Greenlighting stop and frisk
☆ Ignoring pervasive racial bias
Barkow analyzes each of the six cases, and demonstrates how they failed to vindicate individial liberty under the Constitution (COTUS.)
☆ The first case lowered the bar for pretrial detention — "The United States v. Salerno" (1987). For most of American history, those accused of crimes were not incarcerated prior to trial. Instead, the principle of innocent until proven guilty was applied. Prior to a guilty verdict, people were not punished by being confined in an uncomfortable if not a dangerous jail for weeks, months, even years. The presumption was release pending trial.
That practice began to change in the 1960s with the era of mass incarceration. Now the majority (60%) of all defendants face pretrial detention, with that number being 75% in the federal system.
The consequences are staggering. When the accused are locked up, they are under pressure to plead guilty, especially when the deal provides for immediate release because common sentence is for time served.
Detainees can lose their jobs, can lose custody of children, can have vehicles repossessed, and so on. When someone is incarcerated, the presumption of innocence is a myth. No one really assumes people are locked up because they are innocent. Instead, people assume where there's smoke there's fire.
Sometimes charges are eventually dropped. A fraction of accused are ultimately found not guilty. Regardless, those who are never convicted are never reimbursed for the losses they suffered prior to a disposition.
As the crime rate rose in the 1960s, so did public support for preventive detention. President Nixon advocated a change in law in Washington D.C. where judges gained statutory authority to consider public safety in setting bail.
During the Reagan administration, a broader federal law was enacted to authorize detaining those deemed "dangerous," which included those charged with drug crimes. States soon emulated federal law. This Bail Reform Act contains no time limit on pretrial detention, and the average period is 255 days.
The problem is that "dangerousness" is a flexible term that is applied to the majority of crimes, even to minor offenses. In addition, the fear about defendants committing more crimes while on bail was exaggerated. A GAO study in 1987 found only 1.8% of all federal defendants released on bail were re-arrested, with the majority of those arrests being misdemeanors such as illegal operation of a motor vehicle. The effect of the Bail Reform Act was to reduce the re-arrest rate to 0.8%.
Ironically, detaining most accused may actually increase crime rather than prevent it. That's because detainees who lose jobs, apartments, and income may later resort to criminal behavior they were not previously committing. By contrast, those out on bail have an incentive to keep their noses clean so they can better beat the charges.
The facts is that the SCOTUS permits mass pretrial incarceration of about half a million Americans for crimes they have been accused.
The Founding Fathers created specific consitutional protections so innocent people wouldn't be punished. The Fifth Amendment provides that no one may be "deprived of life, liberty or property without due process of law." Spending six months in the Cook County Jail awaiting trial clearly deprives a person of his liberty.
The Eighth Amendment prohibits requiring "excessive bail." The traditional purpose of bail in Britain and America was to make it likely the defendant would have due process by returning for trial. The purpose was not to protect the community from further crimes, albeit there were some exceptions.
In short, protecting the innocent from punishment was a high priority for the framers of the Bill of Rights. They wanted to prevent the abuse of power that kings had inflicted on the innocent. The right to bail was seen as essential to a fair criminal procedure. The SCOTUS had repeatedly agreed — until the "Salerno" case where the justices approved of pretrial detention to protect the public from dangerous defendants.
This decision was not based upon originalism, writes Barkow, because history clearly shows that alleged dangerousness had not been a generally permitted reason for pretrial detention.
There are risks to the public of allowing someone accused of crimes to go free pending trial. On the other hand, as a federal court stated, "all guarantees of liberty entail risk, and under our Constitution those guarantees may not be abolished whenever government prefers that a risk not be taken." Reducing that risk comes at a high cost to many innocent people languishing in jail.
When the Salerno case was appealed by the DoJ, Chief Justice Roberts assigned himself to write the opinion. Roberts had been the author of the DC legislation during the Nixon administration.
The Roberts' opinion ignores the centuries of history, and evades the Due Process Clause by defining pretrial detention as a regulatory matter prescribed by Congress, not as a punishment. Yet punishment by incarceration is a main goal of the criminal justice system. Often persons convicted of a crime are sentenced to time served in pretrial detention, so judges consider pretial detention a penalty. In dissent, Justice Marshall labeled the regulatory argument as "an exercise in obfuscation."
Regardless of definition, pretrial detention obviously infringes on a person's liberty and inflicts various types of suffering identical to that of convicted persons incarcerated in the same jails. Even being detained on death row for three and a half years does not constitute punishment, based upon the Supreme Court's rejection of an appeal by that detainee.
As a precedent for detention, the DoJ cited the notorious "Korematsu" decision that upheld the internment of Japanese Americans during WWII. In 2018, the SCOTUS held that "'Korematsu' was gravely wrong the day it was decided...and has no place in law under the Constitution."
As far as the Eighth Amendment, the court stated it does not create an absolute right to bail. The majority did not address how the presumption of innocence can co-exist with the absence of bail and indefinite detention.
Today, the norm in federal courts is no longer reasonable bail. Instead, pretrial detention prevails based upon the prediction that the accused would commit a violent crime if released on bail. Research shows that predictions about whom may commit crimes are rarely accurate.
In the aftermath of "Salerno," states modeled their laws on the federal statute to authorize dangerousness as grounds for denying bail. At the state level, 38% of defendants are detained before trial, while many others are also detained because they are too poor to post bail. The majority of detainees are people of color.
Prosecutors at both levels like pretrial detention because it pressures defendants to plead guilty. On the other hand, there are significant costs.
One is the high cost of incarcerating half a million people. Another is the high cost to the person who is presumed innocent, whose children may be put into foster care. But those costs are unseen by the public, while a crime committed by a defendant out on bail or on personal recognizance is big news.
☆ The second major blow to individual liberty came in "Bordenkircher v. Hayes" (1978), the decision that made coercive plea bargaining the norm.
The COTUS protects the right to a trial by jury. In practice, only about one in 20 cases criminal cases is disposed of by a trial. Plea bargaining is how the vast majority of cases end up. Defendants who insist on exercizing their jury trial right face much steeper sentences than if they plead guilty.
In other words, Americans are severely punished if they insist on their Constitutional right to a jury trial. "It is a system of institutional blackmail, and you cannot have mass incarceration without it." Destroying the jury trial right is what leads to mass case processing.
This convenience for the criminal justice system is what the SCOTUS hung its hat on — even though the Bill of Rights protects liberty, not convenience. Efficiency trumped individual rights in "Bordenkircher v. Hayes."
Defendants are coerced into surrendering their jury trial right by the threat of an extreme sentence and by the offer of relative leniency.
The Framers saw juries as an essential check and balance on government officials. Juries could "protect the accused against overzealous prosecutions, corrupt judges, and even tyrannical laws."
A chief grievance against King George in the Declaration of Independence was his restrictions on colonial juries. Every state constitution prior to the COTUS protected the jury right. The Framers wanted to prevent the abuse of power. The jury was a key check, with unanimity required to convict and its power to acquit that was final.
To allow plea bargaining is to condone "just what the Framers expected the jury to prevent, the aggrandizement of state power." Prosecutors place "an unconstitutional condition on the very mechanism designed to check them."
In the "Frost" decision (1926), the SCOTUS explained that "if the state may compel the surrender of one constititional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution may thus be manipulated out of existence."
The SCOTUS has protected other rights — such as freedom of speech, religion and association — from being traded away through unconstitutional conditions. Yet the jury trial right is no less fundamental.
Legal historian Bill Nelson argues that "for Americans after the Revolution, as well as before, the right to trial by jury was probably the most valued of all civil rights."
That civil right is a lower SCOTUS priority, however, than the judiciary's administrative efficiency. The prevalence of plea bargaining has come at the cost of "the jury's critical role in our democracy and the scrutiny of government conduct that trials bring."
In "Bordenkircher v. Hayes,"
the jury trial right was treated as a second-class protection with no legal reason offered. Instead, there was a policy preference for efficiency, while the jury trial was seen as an impediment instead of a fundamental right.
Paul Hayes was a black man from Kentucky who was charged with forging a check for $88.30. The prosecutor offered him a five-year sentence for pleading guilty, and threatened him with a life sentence under the habitual criminal law if Hayes was convicted at trial. Hayes refused the deal and was convicted.
The SCOTUS euphemistically called the threatened life term "prosecutorial persuasion." There is very little true bargaining when the prosecutor holds the cards. An innocent person might plead guilty to avoid a life sentence, a prospect the court denied. Yet 15% of prisoners exonerated by DNA pleaded guilty.
The decision was based on the either/or fallacy, namely, either fully bless plea bargaining or else the court system would collapse.
Not considered was a third option to put some reasonable limits on the type of bargain permitted to reduce coercion. For example, forbid a huge disparity between sentences for pleading guilty and going to trial. Forbid prosecutors from insisting that defendants agree to other matters than a guilty plea such as never appealing or asking for compassionate release.
The big green light to prosecutors has led to an increase in the percentage of convictions obtained by guility pleas. From 80% in the mid 1970s it rose to 90% by the late 80s and to 95% currently. It is common for prosecutors to charge more offenses even when some evidence is weak, to gain more leverage.
The goal of the plea bargain is to secure a plea, not the truth. There is minimal judicial oversight of the evidence in a plea bargain.
When pleas come before any pretrial litigation about police misconduct, then misconduct not only is unexposed, but it is rewarded with a conviction. Without the checks and balances of jury trials, abuses of power are more likely. As Justice Frankfurter said, "the awful instruments of the criminal law cannot be entrusted to a single functionary."
The SCOTUS refuses to curb the threat to indict a spouse ("familial coercion") in order to procure a guilty plea. Likewise, the Court does not scrutinize the process that sometimes leads to perjured testimony at trial from a jail-house snitch who gets reduced charges in return for testimony against someone else.
Plea bargaining makes convictions easier to obtain. The process leads to longer sentences because penalties are lenthened in statutes at prosecutorial behest to facilitate guilty pleas. In short, the USA would not lead the world in incarceration rate without the unrestricted use of the plea bargain.
☆ The third decision that aided and abetted mass incarceration upheld disproportionate sentencing where the sentence does not fit the crime.
Three-strikes laws have resulted in life sentences for incredibly minor third offenses such as stealing a bottle of vitamins. Ditto for mandatory sentencing laws.
The Framers were concerned about excessive sentences. They demonstrated that concern by giving the president the powers of commutation and pardon to undo excesses. They inserted the jury guarantee as a check on overzealous prosecutors. The Framers also added the Eighth Amendment to impose a proportionality requirement for bail, fines, and sentences.
In practice, those checks have proven ineffective. Presidents generally don't like to appear soft on crime. Juries are involved in precious few cases today. When they are involved, the courts have ruled that juries in noncapital cases are not told about potential punishments if they convict.
Finally, the Eighth Amendment has been emasculated by SCOTUS interpretation. "Capital sentences face stringent review by the Supreme Court to make sure they comply with the Eighth Amendment, and, as a result, they have declined sharply." By contrast, "the threshold for getting noncapital sentences reviewed is effectively impossible to meet." This lack of review has led to grossly disproportionate sentences and some of rhe harshest penalties in the world.
Proportionality was required in the Magna Carta. The phrase "cruel and unusual" appears in the English Bill of Rights. At the Virginia convention to ratify the COTUS, Patrick Henry argued for a Bill of Rights saying, "when we come to punishments, no latitude
ought to be left, nor dependence put upon the virtue of representatives." The Framers of the Eighth Amendment clearly wanted proportionality in the criminal justice system.
In "Weems v. US" (1910), the court agreed that the Amendment covered excessive sentences as well a cruel modes of punishment. The Court repeated that interpretation in 1958 and 1962. The Court has held that death is an excessive penalty for rape, for juveniles, and for persons of very low IQ.
The Court did an about-face in "Harmelin v. Michigan" (1991). Contrary to precedent and history, the SCOTUS decided to stop reviewing noncapital sentences for excessiveness. The majority decided that it was appropriate to decide whether fines are excessive — but not prison terms.
In this case, Ronald Harmelin was a first-time offender caught with less than 1.5 pounds of cocaine. He was sentenced to life without parole, the same maximum sentence reserved for first-degree murder in Michigan. The SCOTUS soon after upheld three-strikes laws that sent shoplifters to prison for 50 years.
Because the Court has abdicated its responsibility to apply proportionality to sentencing, the length of prison terms has increased. One in seven prison inmates is serving a life sentence (one in five for black men), but only 38% of lifers committed first-degree murder.
☆ Barkow address three more Court failures to uphold constitutional rights: in "Rhodes v. Chapman" (1981), the Court tolerated overcrowded prisons.
In "Terry v. Ohio," (1968), the Court greenlighted stop-and-frisk.
In "McClesky v. Kemp" (1987), the Court overlooked pervasive racial bias.
This book is an eye-opener about why the USA became number one in incarceration. Barkow gives persuasive critiques of the landmark cases that ignored original intent to diminish liberty and to lock up millions of Americans. She makes a strong case that mass incarceration was aided and abetted by the Supreme Court. -30-
The author, a law professor at NYU School of Law, calls her country "the planet's premier penitentiary operator" with a rate at least five times higher than other affluent countries. Several hundred thousand people are in jail awaiting trial, many of them because they are too poor to post bail. After conviction, Americans face harsher sentences than in peer countries.
These dubious distinctions were not always true. They were imposed by policies adopted in the 1970s and 80s, which is familiar ground for those who have read "The New Jim Crow" (2010) by Michelle Alexander.
Barkow's thesis is that the Supreme Court (SCOTUS) was a prime cause of this era of mass incarceration. Six wrongly decided cases led to a regime of harsher punishment and diminshed constitutional rights. "The Constitution provides checks on mass incarceration — it just needs a Court willing to fulfill its promise."
Those landmark cases condoned the following:
☆ Widespread pretrial detention of people who are presumed innocent.
☆ Punishing defendants for exercising their right to a jury trial
☆ Upholding disproportionate sentences
☆ Tolerating massive prison overcrowding
☆ Greenlighting stop and frisk
☆ Ignoring pervasive racial bias
Barkow analyzes each of the six cases, and demonstrates how they failed to vindicate individial liberty under the Constitution (COTUS.)
☆ The first case lowered the bar for pretrial detention — "The United States v. Salerno" (1987). For most of American history, those accused of crimes were not incarcerated prior to trial. Instead, the principle of innocent until proven guilty was applied. Prior to a guilty verdict, people were not punished by being confined in an uncomfortable if not a dangerous jail for weeks, months, even years. The presumption was release pending trial.
That practice began to change in the 1960s with the era of mass incarceration. Now the majority (60%) of all defendants face pretrial detention, with that number being 75% in the federal system.
The consequences are staggering. When the accused are locked up, they are under pressure to plead guilty, especially when the deal provides for immediate release because common sentence is for time served.
Detainees can lose their jobs, can lose custody of children, can have vehicles repossessed, and so on. When someone is incarcerated, the presumption of innocence is a myth. No one really assumes people are locked up because they are innocent. Instead, people assume where there's smoke there's fire.
Sometimes charges are eventually dropped. A fraction of accused are ultimately found not guilty. Regardless, those who are never convicted are never reimbursed for the losses they suffered prior to a disposition.
As the crime rate rose in the 1960s, so did public support for preventive detention. President Nixon advocated a change in law in Washington D.C. where judges gained statutory authority to consider public safety in setting bail.
During the Reagan administration, a broader federal law was enacted to authorize detaining those deemed "dangerous," which included those charged with drug crimes. States soon emulated federal law. This Bail Reform Act contains no time limit on pretrial detention, and the average period is 255 days.
The problem is that "dangerousness" is a flexible term that is applied to the majority of crimes, even to minor offenses. In addition, the fear about defendants committing more crimes while on bail was exaggerated. A GAO study in 1987 found only 1.8% of all federal defendants released on bail were re-arrested, with the majority of those arrests being misdemeanors such as illegal operation of a motor vehicle. The effect of the Bail Reform Act was to reduce the re-arrest rate to 0.8%.
Ironically, detaining most accused may actually increase crime rather than prevent it. That's because detainees who lose jobs, apartments, and income may later resort to criminal behavior they were not previously committing. By contrast, those out on bail have an incentive to keep their noses clean so they can better beat the charges.
The facts is that the SCOTUS permits mass pretrial incarceration of about half a million Americans for crimes they have been accused.
The Founding Fathers created specific consitutional protections so innocent people wouldn't be punished. The Fifth Amendment provides that no one may be "deprived of life, liberty or property without due process of law." Spending six months in the Cook County Jail awaiting trial clearly deprives a person of his liberty.
The Eighth Amendment prohibits requiring "excessive bail." The traditional purpose of bail in Britain and America was to make it likely the defendant would have due process by returning for trial. The purpose was not to protect the community from further crimes, albeit there were some exceptions.
In short, protecting the innocent from punishment was a high priority for the framers of the Bill of Rights. They wanted to prevent the abuse of power that kings had inflicted on the innocent. The right to bail was seen as essential to a fair criminal procedure. The SCOTUS had repeatedly agreed — until the "Salerno" case where the justices approved of pretrial detention to protect the public from dangerous defendants.
This decision was not based upon originalism, writes Barkow, because history clearly shows that alleged dangerousness had not been a generally permitted reason for pretrial detention.
There are risks to the public of allowing someone accused of crimes to go free pending trial. On the other hand, as a federal court stated, "all guarantees of liberty entail risk, and under our Constitution those guarantees may not be abolished whenever government prefers that a risk not be taken." Reducing that risk comes at a high cost to many innocent people languishing in jail.
When the Salerno case was appealed by the DoJ, Chief Justice Roberts assigned himself to write the opinion. Roberts had been the author of the DC legislation during the Nixon administration.
The Roberts' opinion ignores the centuries of history, and evades the Due Process Clause by defining pretrial detention as a regulatory matter prescribed by Congress, not as a punishment. Yet punishment by incarceration is a main goal of the criminal justice system. Often persons convicted of a crime are sentenced to time served in pretrial detention, so judges consider pretial detention a penalty. In dissent, Justice Marshall labeled the regulatory argument as "an exercise in obfuscation."
Regardless of definition, pretrial detention obviously infringes on a person's liberty and inflicts various types of suffering identical to that of convicted persons incarcerated in the same jails. Even being detained on death row for three and a half years does not constitute punishment, based upon the Supreme Court's rejection of an appeal by that detainee.
As a precedent for detention, the DoJ cited the notorious "Korematsu" decision that upheld the internment of Japanese Americans during WWII. In 2018, the SCOTUS held that "'Korematsu' was gravely wrong the day it was decided...and has no place in law under the Constitution."
As far as the Eighth Amendment, the court stated it does not create an absolute right to bail. The majority did not address how the presumption of innocence can co-exist with the absence of bail and indefinite detention.
Today, the norm in federal courts is no longer reasonable bail. Instead, pretrial detention prevails based upon the prediction that the accused would commit a violent crime if released on bail. Research shows that predictions about whom may commit crimes are rarely accurate.
In the aftermath of "Salerno," states modeled their laws on the federal statute to authorize dangerousness as grounds for denying bail. At the state level, 38% of defendants are detained before trial, while many others are also detained because they are too poor to post bail. The majority of detainees are people of color.
Prosecutors at both levels like pretrial detention because it pressures defendants to plead guilty. On the other hand, there are significant costs.
One is the high cost of incarcerating half a million people. Another is the high cost to the person who is presumed innocent, whose children may be put into foster care. But those costs are unseen by the public, while a crime committed by a defendant out on bail or on personal recognizance is big news.
☆ The second major blow to individual liberty came in "Bordenkircher v. Hayes" (1978), the decision that made coercive plea bargaining the norm.
The COTUS protects the right to a trial by jury. In practice, only about one in 20 cases criminal cases is disposed of by a trial. Plea bargaining is how the vast majority of cases end up. Defendants who insist on exercizing their jury trial right face much steeper sentences than if they plead guilty.
In other words, Americans are severely punished if they insist on their Constitutional right to a jury trial. "It is a system of institutional blackmail, and you cannot have mass incarceration without it." Destroying the jury trial right is what leads to mass case processing.
This convenience for the criminal justice system is what the SCOTUS hung its hat on — even though the Bill of Rights protects liberty, not convenience. Efficiency trumped individual rights in "Bordenkircher v. Hayes."
Defendants are coerced into surrendering their jury trial right by the threat of an extreme sentence and by the offer of relative leniency.
The Framers saw juries as an essential check and balance on government officials. Juries could "protect the accused against overzealous prosecutions, corrupt judges, and even tyrannical laws."
A chief grievance against King George in the Declaration of Independence was his restrictions on colonial juries. Every state constitution prior to the COTUS protected the jury right. The Framers wanted to prevent the abuse of power. The jury was a key check, with unanimity required to convict and its power to acquit that was final.
To allow plea bargaining is to condone "just what the Framers expected the jury to prevent, the aggrandizement of state power." Prosecutors place "an unconstitutional condition on the very mechanism designed to check them."
In the "Frost" decision (1926), the SCOTUS explained that "if the state may compel the surrender of one constititional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution may thus be manipulated out of existence."
The SCOTUS has protected other rights — such as freedom of speech, religion and association — from being traded away through unconstitutional conditions. Yet the jury trial right is no less fundamental.
Legal historian Bill Nelson argues that "for Americans after the Revolution, as well as before, the right to trial by jury was probably the most valued of all civil rights."
That civil right is a lower SCOTUS priority, however, than the judiciary's administrative efficiency. The prevalence of plea bargaining has come at the cost of "the jury's critical role in our democracy and the scrutiny of government conduct that trials bring."
In "Bordenkircher v. Hayes,"
the jury trial right was treated as a second-class protection with no legal reason offered. Instead, there was a policy preference for efficiency, while the jury trial was seen as an impediment instead of a fundamental right.
Paul Hayes was a black man from Kentucky who was charged with forging a check for $88.30. The prosecutor offered him a five-year sentence for pleading guilty, and threatened him with a life sentence under the habitual criminal law if Hayes was convicted at trial. Hayes refused the deal and was convicted.
The SCOTUS euphemistically called the threatened life term "prosecutorial persuasion." There is very little true bargaining when the prosecutor holds the cards. An innocent person might plead guilty to avoid a life sentence, a prospect the court denied. Yet 15% of prisoners exonerated by DNA pleaded guilty.
The decision was based on the either/or fallacy, namely, either fully bless plea bargaining or else the court system would collapse.
Not considered was a third option to put some reasonable limits on the type of bargain permitted to reduce coercion. For example, forbid a huge disparity between sentences for pleading guilty and going to trial. Forbid prosecutors from insisting that defendants agree to other matters than a guilty plea such as never appealing or asking for compassionate release.
The big green light to prosecutors has led to an increase in the percentage of convictions obtained by guility pleas. From 80% in the mid 1970s it rose to 90% by the late 80s and to 95% currently. It is common for prosecutors to charge more offenses even when some evidence is weak, to gain more leverage.
The goal of the plea bargain is to secure a plea, not the truth. There is minimal judicial oversight of the evidence in a plea bargain.
When pleas come before any pretrial litigation about police misconduct, then misconduct not only is unexposed, but it is rewarded with a conviction. Without the checks and balances of jury trials, abuses of power are more likely. As Justice Frankfurter said, "the awful instruments of the criminal law cannot be entrusted to a single functionary."
The SCOTUS refuses to curb the threat to indict a spouse ("familial coercion") in order to procure a guilty plea. Likewise, the Court does not scrutinize the process that sometimes leads to perjured testimony at trial from a jail-house snitch who gets reduced charges in return for testimony against someone else.
Plea bargaining makes convictions easier to obtain. The process leads to longer sentences because penalties are lenthened in statutes at prosecutorial behest to facilitate guilty pleas. In short, the USA would not lead the world in incarceration rate without the unrestricted use of the plea bargain.
☆ The third decision that aided and abetted mass incarceration upheld disproportionate sentencing where the sentence does not fit the crime.
Three-strikes laws have resulted in life sentences for incredibly minor third offenses such as stealing a bottle of vitamins. Ditto for mandatory sentencing laws.
The Framers were concerned about excessive sentences. They demonstrated that concern by giving the president the powers of commutation and pardon to undo excesses. They inserted the jury guarantee as a check on overzealous prosecutors. The Framers also added the Eighth Amendment to impose a proportionality requirement for bail, fines, and sentences.
In practice, those checks have proven ineffective. Presidents generally don't like to appear soft on crime. Juries are involved in precious few cases today. When they are involved, the courts have ruled that juries in noncapital cases are not told about potential punishments if they convict.
Finally, the Eighth Amendment has been emasculated by SCOTUS interpretation. "Capital sentences face stringent review by the Supreme Court to make sure they comply with the Eighth Amendment, and, as a result, they have declined sharply." By contrast, "the threshold for getting noncapital sentences reviewed is effectively impossible to meet." This lack of review has led to grossly disproportionate sentences and some of rhe harshest penalties in the world.
Proportionality was required in the Magna Carta. The phrase "cruel and unusual" appears in the English Bill of Rights. At the Virginia convention to ratify the COTUS, Patrick Henry argued for a Bill of Rights saying, "when we come to punishments, no latitude
ought to be left, nor dependence put upon the virtue of representatives." The Framers of the Eighth Amendment clearly wanted proportionality in the criminal justice system.
In "Weems v. US" (1910), the court agreed that the Amendment covered excessive sentences as well a cruel modes of punishment. The Court repeated that interpretation in 1958 and 1962. The Court has held that death is an excessive penalty for rape, for juveniles, and for persons of very low IQ.
The Court did an about-face in "Harmelin v. Michigan" (1991). Contrary to precedent and history, the SCOTUS decided to stop reviewing noncapital sentences for excessiveness. The majority decided that it was appropriate to decide whether fines are excessive — but not prison terms.
In this case, Ronald Harmelin was a first-time offender caught with less than 1.5 pounds of cocaine. He was sentenced to life without parole, the same maximum sentence reserved for first-degree murder in Michigan. The SCOTUS soon after upheld three-strikes laws that sent shoplifters to prison for 50 years.
Because the Court has abdicated its responsibility to apply proportionality to sentencing, the length of prison terms has increased. One in seven prison inmates is serving a life sentence (one in five for black men), but only 38% of lifers committed first-degree murder.
☆ Barkow address three more Court failures to uphold constitutional rights: in "Rhodes v. Chapman" (1981), the Court tolerated overcrowded prisons.
In "Terry v. Ohio," (1968), the Court greenlighted stop-and-frisk.
In "McClesky v. Kemp" (1987), the Court overlooked pervasive racial bias.
This book is an eye-opener about why the USA became number one in incarceration. Barkow gives persuasive critiques of the landmark cases that ignored original intent to diminish liberty and to lock up millions of Americans. She makes a strong case that mass incarceration was aided and abetted by the Supreme Court. -30-
November 28, 2024
Reviewed for Library Journal; full review appears there.
June 7, 2025
One of the most important books I have read in quite a while and I wholeheartedly recommend it to anyone interested in the politics of the Supreme Court.
That sentence read like an oxymoron: the whole point of the Supreme Court is to make sure it is apolitical, that regardless of which party is in power, the Court keeps a steady hand in guiding the essence of the United States forward. Unfortunately, that goal has long become a fantasy. What readers will learn from the book is that the current Trump era is not the first time that the Court has capitulated to the whim of politics -- they already lost their grip on the Constitution in the war-on-drugs craze in the 70s. The difference between now and then is that back then, the Court may have only surrendered in few specific areas (e.g., criminal cases), yet today the capitulation is almost full-on. We might as well consider the Court as the right-wing authoritative government's rubber-stamp (for one case in example, see the Court granting full immunity to the president for official acts in 2024).
Sometimes, I fantasize that the Second Amendment folks might be enticed to join the fight to revert the six unconstitutional rulings listed in the book (damn, isn't that another piece of oxymoron, the Supreme Court issuing unconstitutional rulings). After all, preserving the original meaning of the Constitution means to preserve them all, regardless of whether it is the Second, or the Eighth, or the Fourteenth Amendment. Yet those Second Amendment folks are only "pick-up artists", just like their peers in fake Christianity, where they only pick up the sentences that align with their politics to preach, while ignoring all the other counter arguments in the same scripture. I will stop right here before turning this review into another rant.
Actually, there is not much to review from my end. The book is well-written, maybe a bit too "lawyerly" from time to time. It is not a light reading but a worthwhile one. I will let the quotes speak for themselves.
Memorable Quotes and additional rant are available on my Medium post (there are too many, have to post it somewhere else).
That sentence read like an oxymoron: the whole point of the Supreme Court is to make sure it is apolitical, that regardless of which party is in power, the Court keeps a steady hand in guiding the essence of the United States forward. Unfortunately, that goal has long become a fantasy. What readers will learn from the book is that the current Trump era is not the first time that the Court has capitulated to the whim of politics -- they already lost their grip on the Constitution in the war-on-drugs craze in the 70s. The difference between now and then is that back then, the Court may have only surrendered in few specific areas (e.g., criminal cases), yet today the capitulation is almost full-on. We might as well consider the Court as the right-wing authoritative government's rubber-stamp (for one case in example, see the Court granting full immunity to the president for official acts in 2024).
Sometimes, I fantasize that the Second Amendment folks might be enticed to join the fight to revert the six unconstitutional rulings listed in the book (damn, isn't that another piece of oxymoron, the Supreme Court issuing unconstitutional rulings). After all, preserving the original meaning of the Constitution means to preserve them all, regardless of whether it is the Second, or the Eighth, or the Fourteenth Amendment. Yet those Second Amendment folks are only "pick-up artists", just like their peers in fake Christianity, where they only pick up the sentences that align with their politics to preach, while ignoring all the other counter arguments in the same scripture. I will stop right here before turning this review into another rant.
Actually, there is not much to review from my end. The book is well-written, maybe a bit too "lawyerly" from time to time. It is not a light reading but a worthwhile one. I will let the quotes speak for themselves.
Memorable Quotes and additional rant are available on my Medium post (there are too many, have to post it somewhere else).
Read
November 5, 2025Did not know most of these court cases. While the judiciary has clearly caused a lot of problems for the criminal justice system, I wouldn’t really agree with Barkow and progressive prosecutors about finding solutions through the court as well. Too slow!
August 20, 2025
Much good analysis here, showing the effects of decisions along with the bad reasoning inside them.
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