Techno-Fascism-Vividly Described
In Justice Abandoned, Rachel Elise Barkow argues that much of the blame for the blight of American mass incarceration lies with the Supreme Court.
Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration by Rachel Elise Barkow. Harvard University Press, 304 pages, $35.
The U.S. is “home to the world’s largest number of people behind bars.” This country has five percent of the world’s population and almost twenty-five percent of the world’s prisoners. This is not news. Mass incarceration has been a fact of life in this country for half-a-century. A more contentious assertion is made in Justice Abandoned: Rachel Elise Barkow, a professor at the New York University School of Law argues that much of the blame for this ignoble situation lies with the Supreme Court.
Barkow focuses on half a dozen cases to support her argument. She connects these cases by claiming that, when presented with the opportunity to affirm individual rights guaranteed by the Constitution, the Court has consistently opted to support police and prosecutors. Her contention is that the Court has often been swayed too heavily by public opinion. Justices have worried that, if they chose to protect individual rights, the police would be inconvenienced and the courts would be overwhelmed.
Her discussion of plea-bargaining is especially damning. The right to trial by jury is “a core constitutional right,” but ninety-five percent of criminal convictions in this country result from plea-bargains rather than trials. When prosecutors offer bargains to men and women under arrest they often threaten them with the prospect of harsher sentences if they choose to exercise their constitutional right to a jury trial and then lose. Sometimes prosecutors threaten to add additional charges if the accused folks insist on going to trial. In her discussion of Bordenkircher v. Hayes (1978), Barkow demonstrates that the Justices signed off on the prosecutor’s right to threaten the defendant with a life sentence in order to get a guilty plea. The Justices accepted plea-bargaining as a legitimate strategy, failing to acknowledge that there can be no negotiation if one side, the prosecutor, wields all the power. She concludes: “The Court brazenly showed its hand and admitted that it cared more about the costs of jury trials than the reasons they were so important.” Efficiency, not justice, is the point. The Justices should have recognized and reinforced a Constitutional right instead of worrying about how clogged the courts might become if they had to accommodate more trials. As Barkow rightly points out, the cost-effectiveness of plea-bargaining has led to more convictions, which has helped to generate more mass incarceration.
The pattern in the decisions Barkow cites is clear. In case after case, the Justices decide what the result should be, then reason backwards to construct a rationale for the conclusion they’ve already reached, often twisting the Constitution into knots in the process. There are, of course, dissenting opinions for some of these decisions, but even some of those counter arguments fail to recognize the rights upon which the Constitution insists.
The Supreme Court has also failed to abide by the Constitution with regard to the conditions in American prisons. Barkow asserts that the Justices, like governors, senators, and representatives, fear being perceived as ‘soft on crime’ if they dare to address the overcrowded, filthy conditions faced by incarcerated men and women. With regard to Rhodes v Chapman (1981), Barkow convincingly demonstrates that “the Court sent an unmistakable signal that prisons were not meant to be comfortable, and that states could cram people into tight quarters without regard for what every expert and study concluded were the minimum space requirements.” Putting two men into a cell meant for one man and jamming scores of men into crowded, poorly ventilated dormitories not only increases the spread of disease and causes anxiety among those involved, it also leads to various conditions — riots, fights, assaults — that keep people in prison for longer periods. And this kind of treatment increases the likelihood the imprisoned will be arrested again, after they are released. Overcrowding inevitably increases mass incarceration. Rather than recognize and address prison conditions which obviously constitute “cruel and unusual punishment” (as defined in the Constitution), the Supreme Court has generally shrugged off such inhumane conditions as unavoidable. Since Rhodes v Chapman, Barkow argues, “it was almost impossible to bring a successful challenge on the basis of congestion, paving the way for decades of prisons bursting at the seams with people….The Court’s unwillingness to police prison capacity and conditions has been another key driver of mass incarceration.”
Among the other “drivers of mass incarceration” Barkow addresses are the Court’s “greenlighting” of unreasonable searches and seizures, the Court’s failure to address disproportionate sentences, and the inclination of the Court to fail to address “pervasive racial bias,” which she identifies as “the ultimate judicial cop-out.” In each case, she methodically demonstrates how the Court has ignored Constitutional mandates meant to protect individuals from abuse by the state.
Dismay at the current composition of the Supreme Court has been considerable, especially given the rank hypocrisy of Senator Mitch McConnell, whose machinations deprived President Barack Obama of the opportunity to appoint Merrick Garland. But part of what Barkow achieves in Justice Abandoned is to demonstrate 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. In her conclusion, Barkow asserts that, by favoring expediency, “the Court made this bad bargain, trading away Constitutional guarantees for illusory claims of public safety.” She goes on to maintain that — if the cases she identifies as especially significant failures in terms of their twisted reasoning and terrible impact were to be reexamined — even the current Justices might find grounds to reverse the decisions.
Bill Littlefield volunteers with the Emerson Prison Initiative. His most recent novel is Mercy (Black Rose Writing).
