Did These 6 Key Supreme Court Decisions Lead to Mass Incarceration?

These key cases were wrongly decided from the originalist perspective embraced by the current [Supreme] Court …

“‘The United States is now a world leader when it comes to incarceration,’ Supreme Court Justice Neil Gorsuch and co-author Janie Nitze noted last year in their book Over Ruled. They added that ‘our incarceration rate is not only eight times as high as the median rate in Western European democracies’ but also higher than the rates under authoritarian regimes such as those in Rwanda and Turkmenistan.

“Gorsuch and Nitze attribute that dubious distinction to the proliferation of criminal laws and draconian sentencing schemes. Legislators surely bear much of the blame. But in Justice Abandoned, New York University law professor Rachel Elise Barkow indicts another culprit: the court on which Gorsuch serves.

“Barkow’s book highlights half a dozen Supreme Court decisions that she says ‘enabled mass incarceration’ by compromising constitutional principles to accommodate politicians, prosecutors, and police officers bent on locking up more and more people for longer and longer stretches of time.

• United States v. Salerno (1985)
• Bordenkircher v. Hayes (1978)
• Harmelin v. Michigan (1991)
• Rhodes v. Chapman (1981)
• Terry v. Ohio (1968)
• McCleskey v. Kemp (1987)

“Those decisions expanded pretrial detention, approved coercive plea bargaining, upheld disproportionate sentences, tolerated overcrowded prisons, greenlit stop-and-frisk tactics, and rejected challenges to racial disparities in the criminal justice system.

“Barkow argues, for the most part persuasively, that these key cases were wrongly decided from the originalist perspective embraced by the current Court, which is dominated by Republican appointees who have shown they are willing to overturn longstanding precedents. She says it is therefore reasonable to think the justices, if presented with arguments grounded in text and history, might reconsider the rulings that paved the way to mass incarceration.”

Read the full article at Reason.com.