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.

Barkow’s discussion and critique of United States v. Salerno (1987) is her best work. The case involved the Bail Reform Act of 1984, which authorized preventative detention of persons charged with federal crimes and awaiting trial, based on a finding that they were a danger to the community. So commonplace is pretrial detention today—at last estimate, about half a million people are detained before trial, or more than a quarter of the incarcerated population—that it can be startling to realize just how recent a phenomenon this is.

As Barkow notes, at the Founding, bail for those awaiting trial was the norm—a colonial reaction to English abuses of pretrial detention. The first statute to recognize a right to bail was the 1641 Massachusetts Body of Liberties, which stated that “no one shall be restrained or imprisoned . . . before the law has sentenced him thereto.” This norm was constitutionalized in the presumption of innocence at trial and in the Eighth Amendment’s Excessive Bail clause. Simply put, for most of the history of America, the presumption was that criminal defendants would be bailed, and almost all were.

In the period immediately after the Founding, states almost universally protected the right to bail, with many states constitutionalizing the right. By the 1960s, all but two states had constitutional provisions affording bail in almost all criminal cases. The only recognized ground for refusing bail was not dangerousness, but risk of flight or likelihood of witness tampering—that is, bail was only denied when necessary to “preserve the constitutional procedures for adjudicating guilt.” Only in a limited number of capital cases was the risk of flight or tampering considered inherently so high that pretrial detention was the norm.

This consistent practice began to unravel in the 1960s, starting with the Nixon administration’s embrace of dangerousness as a ground for denying bail in federal cases, unveiled in an Office of Legal Counsel memo penned by then-OLC lawyer William Rehnquist and defended in a law review article by Attorney General John Mitchell (himself later to serve 19 months in prison for crimes committed in the Watergate cover-up). This would culminate in the 1984 Bail Reform Act, which permits the denial of bail not simply to ensure appearance at trial, but also upon a finding that release would “endanger the safety of any other person or the community.”

The Supreme Court would permit this practice in a curt opinion in Salerno, penned by Chief Justice Rehnquist. Salerno’s outcome upholding a presumption of detention in certain instances is based on a frankly specious recasting of pretrial detention as a “legitimate regulatory goal” not subject to the Due Process Clause, rather than a “punishment” subject to the Constitution’s criminal protections. Barkow also recounts the lengths to which the government went to keep the case from being mooted by the main defendant’s conviction and incarceration in another federal case. Barkow quotes one scholar who said the Salerno Court “destroy[ed] two hundred years of American and almost a millennium of Anglo-American tradition” that preserved the liberty interest in bail before trial.

The result was a sea change—in both the federal system and in the states—so all-encompassing that, in its wake, we barely register that things were ever done any other way. The U.S. Commission on Civil Rights found that, between 1970 and 2015, the number of individuals detained pre-trial increased by 433 percent. The federal pretrial detention rate is around 75 percent, and detainees on average now spend about 255 days in prison prior to being convicted. States are little different: In Hernando County, Florida, for example, the pretrial detention rate has reached as high as 81 percent.

In the federal system, offenses that have a maximum penalty of more than ten years give rise to a statutory presumption of dangerousness requiring pretrial detention. As Barkow notes, it is difficult to find many federal statutes (especially drug statutes) that don’t have ten year maximum sentences, so something like 93 percent of federal drug statutes carry a presumption of pretrial detention. Even when a bail hearing in federal or state court is required, “dangerousness” can be found after a two- or three-minute bail hearing, often without the benefit of counsel, frequently without any meaningful assessment of risk. The result is that the rich make bail and the poor are remanded because they can’t pay trivial amounts of money.

Nor is pretrial detention without costs to defendants. Pretrial detainees are treated no differently from those who are incarcerated after a conviction. (In fact, they are often held in worse conditions. Anyone who has experience with the justice system knows that most defendants would rather be in state and federal prisons than in local jails where pretrial detainees are held, as conditions in the latter are almost universally abominable.) Detained defendants regularly lose jobs, custody of children, and housing. They more frequently end up pleading out cases they might otherwise fight simply to end their detention, accepting as a punishment “time served” that often exceeds what they might have received otherwise. The Supreme Court’s fiction that pretrial detention is not punishment is frankly grotesque.

Moreover, the evidence that any of this actually contributes to public safety is, as Barkow notes, mixed at best. High-profile cases to the contrary, the rates of new crimes committed by persons released pending trial are low. The best federal analysis found that in the years 2011 to 2018, the rate of new arrests among defendants released pretrial was about 2.1 percent (though revocations of release for “technical” violations like failing to report to a probation officer were much more common).

Barkow’s originalist case for overturning Salerno is powerful. It’s less so for other cases: the inhumane confinement case of Rhodes v. Chapman, for example, can be defended on originalist grounds as reflecting a reasonable apprehension about constitutionalizing the bunking arrangements in every prison in the country.

But perhaps the most striking feature of Barkow’s originalist analysis is that she attempted it at all. Barkow frankly acknowledges that her project responds to the Court’s current composition; at times, it is evident this book is a quarry from which amici will be mining nuggets for years to come. Barkow would be the first to admit that her preferred approach to interpretation is decidedly out of step with that of the Court’s majority. So it is a sign of just how far the Court has come in its embrace of originalist and textualist interpretive methods that even its critics recognize this is the ground on which they must fight.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].