Excerpted From: Rachel E. Barkow, The Court of Mass Incarceration, 2022 Cato Supreme Court Review 11 (2021-2022) (95 Footnotes) (Full Document)


RachelEBarkow[. . .] Let me start by getting everyone up to speed on just how nuts America's commitment to incarceration and criminalization is before I turn to the Supreme Court's role in its evolution. America used to look like most of the rest of the world and certainly other Western democracies when it came to incarceration. Until the 1970s, we had a stable incarceration rate on par with other countries. But then our incarceration rate started to explode. We now lead the world in both the total number of people incarcerated--nearly 2.3 million the rate of incarceration per capita. The U.S. incarceration rate is more than five times what it was in 1972, when it began its record climb upward, and is a rate 5 to 10 times higher than that of other industrialized countries. America has less than five percent of the world's population but almost a quarter of the world's prisoners.

As shocking as the incarceration numbers are, they are the tip of an even bigger iceberg of state control. One out of every 52 people in the United States is under some form of criminal justice supervision (such as probation or parole). In some states and communities, the rates are even higher. In Georgia, for example, one out of every 18 people is on probation or parole. We are now living in a country where one out of every three adults in America has a criminal record. For every 15 people born in 2001, one is expected to go to prison at some point in his or her life.

This extraordinary amount of state deprivation of liberty does not fall equally on the population. Black people in America bear a disproportionate share of the brunt. African Americans make up about a third of the people incarcerated, even though they are 13.4 percent of the U.S. population. One third of Black men have at least one felony conviction. Black adults are more than five times more likely to be incarcerated than white adults. And here, too, the national averages, as shocking as they are, are smoothing out even more alarming statistics in some communities. In the District of Columbia, for example, more than 75 percent of Black men can expect to be incarcerated at some point during their lives. 75 percent! At our current pace, almost one out of three Black men in the country can expect to be incarcerated during his lifetime compared to six percent of white men.

I could easily fill my time today with numbers as shocking as these that show the sweep of government overreach in criminal matters, whether by detailing the literally thousands upon thousands of collateral consequences of convictions that deprive people of rights and access to governmental benefits or by detailing inhumane conditions in prisons and jails or abuses by police and prosecutors that go unpunished. But instead of detailing the sweep of the governmental excess in all its tragic glory, I want to discuss an overarching question that applies to all of this: How can this happen under our Constitution?

[. . .]

We are seeing a different pattern now from President Biden, and it is precisely because reformers have been clamoring for just this kind of professional diversity on the bench. It is not taking place evenly across the country, though, because there is still deference to home state senators in judicial selection. And not all the senators are doing a good job on this front. So if you care about these issues, I urge you to follow what your senators are doing and encourage them to put forth judicial nominations of people who have represented individual clients and protected civil liberties instead of spending their lives siding with the government.

There is room for both on the bench, but given the gross imbalance we have now, it is going to take a concerted effort to bring in more criminal-defense lawyers and those with civil-liberties experience to come anywhere close to achieving balance. And I think that balance is going to be critical to turn back the tide of mass incarceration. It won't happen overnight and it won't be easy, but it is a necessary first step. The courts have been key players in creating mass incarceration, and they are going to have to be key players in taking it down.

Vice dean and Charles Seligson Professor of Law and faculty director, Center on the Administration of Criminal Law, New York University Law School.