Prison Nation: Rachel Barkow Traces Mass Incarceration to Supreme Court Failures
JUDJ-Prepared Summary from June 12, 2025 | Justice Abandoned: What Happens When the Supreme Court, the Constitution and the Rule of Law Are Ignored? The views and opinions expressed in this blog are those of the speaker.
In a recent America at a Crossroads discussion, NYU law professor Rachel Barkow shed light on the deep roots of mass incarceration in the United States—and the role the Supreme Court has played in allowing it to flourish. Barkow, a renowned scholar of criminal and constitutional law and a former member of the U.S. Sentencing Commission, joined journalist Warren Olney to unpack how fear-based politics, shifting legal norms, and judicial deference have led to America imprisoning a disproportionate share of the world’s population.
From Law and Order to a Prison Nation
Barkow began with a striking statistic: although the U.S. makes up just 5% of the world’s population, it holds between 20% and 25% of its incarcerated people. This didn’t happen by accident. As she explained, the U.S. incarceration rate remained in line with other democracies until the 1970s, when a political shift—spearheaded by Richard Nixon’s 1968 “law and order” campaign—ushered in a punitive era. Rhetoric about crime, often aimed at urban and minority communities, fueled public fear and support for harsher policies, including expanded policing and longer prison sentences.
The Supreme Court’s Quiet Approval
Barkow emphasized that mass incarceration couldn’t have taken hold without the Supreme Court’s complicity. One pivotal moment came in 1987, when the Court upheld a federal law allowing pretrial detention based not on guilt, but on perceived dangerousness. The decision, written by then-Chief Justice William Rehnquist, marked a major departure from the presumption of innocence—a cornerstone of American justice. Barkow noted the disturbing irony that the case relied on precedent from Korematsu, the infamous decision upholding Japanese internment during World War II.
This shift in legal reasoning paved the way for states and the federal government to expand pretrial detention dramatically. What began as a limited experiment in the District of Columbia became normalized nationwide, despite its constitutional shakiness.
Punishment Without Proof
As Barkow explained, detaining someone simply because they’ve been arrested—without proving guilt—undermines core civil liberties. Yet the Supreme Court’s willingness to defer to government claims of public safety has enabled laws that target marginalized communities, escalate incarceration rates, and weaken due process. “People forget that 95% of incarcerated individuals eventually return to society,” she said, underscoring how long sentences often make reintegration harder, not safer.
Race, Cost, and the False Promise of Safety
Barkow was also clear that the system’s harms fall disproportionately on communities of color. Mass incarceration, she argued, has become not only racially unjust but economically wasteful. “Most of the things we do in America around crime and punishment are both cruel and unnecessarily expensive,” she said. More effective and humane alternatives exist, but they are often ignored in favor of politically expedient crackdowns.
Courts Won’t Save Us—But People Might
Ultimately, Barkow doesn’t believe reform will come from the courts. Instead, she called on voters and elected officials to take action through legislation, public pressure, and activism. She stressed the importance of civic education and political courage: “We need to make clear this is not the country we want to live in.”
Her message is clear: America’s incarceration crisis didn’t emerge overnight, and it won’t be solved without sustained public engagement. But by understanding how the law—and those who interpret it—have helped create the crisis, the path to change becomes clearer.
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.