Book Review: Did The High Court Cause Mass Incarceration?

By U.S. District Judge Lynn Adelman | October 30, 2020, 5:22 PM EDT

This article is part of an Expert Analysis series of book reviews from judges.


Judge Lynn Adelman

About 50 years ago, the U.S. embarked on a shift in its approach to issues involving criminal justice. Both federal and state governments began to adopt much more punitive policies, and these policies ultimately led to a massive increase in the number of people incarcerated in federal and state prisons and local jails.

Even though only about 5% of the world's population resides in the U.S., this country now houses 25% of the world's prison population. At present, over 2.2 million people are incarcerated in the U.S., an approximate increase of 500% since 1970. The term that is frequently used to describe this phenomenon is "mass incarceration."

Some observers find this situation extremely disturbing. This is because imprisonment on this scale has an extremely harmful impact on many people, including those who are incarcerated, their families and the communities from which they come. When they are released, many of the formerly incarcerated face very difficult prospects, including a diminished likelihood of achieving satisfactory employment and a decent income, sustaining domestic partnerships, and generally integrating into society. Racial minorities are particularly vulnerable to these diminished prospects.

"The Supreme Court's Role in Mass Incarceration" by William T. Pizzi. Routledge, 148 pages.

The attitudes that led to these more punitive policies began to surface in the 1950s and '60s particularly in the South. The hostility that resulted from the U.S. Supreme Court's desegregation cases became increasingly intense as the court ventured more deeply into the areas of civil rights and criminal justice.

Politicians recognized the potential benefits of attacking such decisions, and began to politicize criminal justice issues. They did this both by stirring up latent fear of criminals and by encouraging the displacement of racial animosity onto criminals.

Former Sen. Barry Goldwater, R-Ariz., denounced the "growing menace" to personal safety, and former President Richard Nixon skillfully linked civil rights activism to the issue of crime. Completely absent from the party platforms in 1964, sections discussing crime and law enforcement issues made up some 10% of the 1968 Democratic platform and 8% of the Republican platform.

In the years that followed, Congress and state legislatures enacted numerous laws imposing harsher criminal penalties. Among the laws passed in the roughly 35-year period commencing around 1970 were:

  • Provisions calling for mandatory minimum sentences in drug cases and others;

  • Three-strikes laws;

  • The Sentencing Reform Act, which abolished federal parole and authorized the creation of the very severe federal sentencing guidelines;

  • Sex offender registration and community notification laws;

  • The 1994 Violent Crime Control Act, which provided states with financial incentives to impose longer prison sentences and build more prisons; and 

  • So-called truth-in-sentencing laws through which states eliminated parole and good time and required defendants to serve longer periods of confinement.

In addition, Congress passed the Anti-Terrorism and Effective Death Penalty Act, which significantly curtailed the right of persons in state custody as the result of violations of their federal constitutional rights to obtain relief via a writ of habeas corpus in federal court. Both Republicans and Democrats were responsible for this punitive legislation. 

As a result of the shift toward greater harshness and the harmful impact that it has had, a number of scholars, both in law and the social sciences, as well as journalists, have spent a great deal of time and energy attempting to understand the underlying reasons behind the move toward this more punitive approach. And, unsurprisingly, they have reached a variety of conclusions.

Social scientists such as David Garland have determined that the principal cause of the punitive turn in American policy and the concomitant increase in the number of incarcerated individuals was the crisis of governance arising out of broad-based discontent stemming from declining economic prospects. In their view, political leaders, unable to respond effectively to the anxiety fueled by deindustrialization, deunionization and global competition, relied increasingly on harsh criminal justice and public assistance policies to demonstrate that government was competent.

Others have concluded that the shift in American penal policy grew out of the shakeup in the racial hierarchy caused by the civil rights movement.

Law professor Michelle Alexander developed this argument, emphasizing the disproportionate rate of African Americans imprisoned. She sees mass incarceration as a product of white resentment toward the gains made by African Americans and as a means of reinstating Black subservience.

And law professor John Pfaff argues that the principal cause of the increase in incarceration is the much harsher approach taken by prosecutors, particularly county district attorneys, in the years since 1970. 

The latest academic to weigh in on the causes of mass incarceration is William Pizzi, a comparative law scholar and long-time observer of criminal justice issues. In his book, "The Supreme Court's Role in Mass Incarceration," Pizzi identifies a new culprit as being responsible for the high rate of incarceration in the U.S. — the Supreme Court.

Acknowledging that his argument is controversial, Pizzi contends that a long line of Supreme Court decisions in the area of criminal procedure, many decided during the time Earl Warren served a chief justice and long regarded as iconic, have contributed substantially to mass incarceration.

At the risk of oversimplification, his argument is that the criminal procedure revolution that included cases such as Miranda v. Arizona, requiring that warnings be provided to arrestees prior to questioning, and Mapp v. Ohio, providing for an exclusionary rule for Fourth Amendment violations, made criminal justice overly complicated and expensive, caused trials to become increasingly unworkable, and led to a system in which plea bargaining dominates.

The disappearance of the prospect of a trial removed an important restraint on prosecutors regarding the quality of cases they charge. Further, as trials vanished, the system became able to process many more cases, and as a result many more defendants wound up in prison than was the case before the criminal procedure revolution.

Pizzi's view is that, to a considerable extent, the decisions of the Supreme Court that appeared to advance the rights of defendants and to improve the fairness of the system, in fact, backfired and had the opposite effect. He regards the Supreme Court as ill-equipped to make sweeping rules in such areas of criminal procedure as investigation, interrogation, lineups, etc., and he believes that when it attempted to do so it made many mistakes.

He also believes that the court erred when it applied the same procedural rules, i.e., the rules promulgated in Miranda, Mapp and other decisions, to both federal and state courts, arguing that these jurisdictions handle different types of cases and face different problems.

On this point, for example, Pizzi argues that the Supreme Court went too far in Miranda by giving arrestees in state courts the right to determine whether any questions could be put to them after arrest. He also argues that the court erred when it granted defendants the right to jury trials in less serious cases such as misdemeanors, as it did in Baldwin v. New York, contending that it would make more sense to permit such cases to be tried by judges.

Another example of a case in which the Supreme Court sought to provide greater fairness to defendants but which Pizzi contends created an unduly complicated procedure is Anders v. California.

In Anders, the court held that a lawyer appointed to file an appeal after trial for an indigent defendant who wrote a letter to the court stating that an appeal had no merit had not done enough to protect the defendant's rights. Pizzi argues that Anders reflects the court's distrust in our trial system in contrast to jurisdictions such as Canada, England and Australia, which are more grudging in allowing appeals.

In the latter chapters of his book, Pizzi shifts his attention away from procedure and focuses more on issues involving sentencing. He discusses some of the problems caused by laws imposing fixed sentencing ranges, harsh mandatory minimum sentences and onerous sentences for repeat offenders.

He identifies some of the factors that came together to lead to such laws, including a shift away from rehabilitation as the dominant theory of sentencing, the increased pressure on state legislators in the wake of crime, the exploitation of the fear of crime by politicians, the backlash against Supreme Court decisions and the emergence of a powerful victim's movement.

He explains how the changes in sentencing laws conferred ever-increasing power on prosecutors who became able to control sentences by the way they charged crimes and even by the way they described them for purposes of sentencing. This power gave prosecutors a huge advantage in the plea bargaining process, enabling them to obtain guilty pleas from many defendants largely because the punishment that a defendant would receive if he were convicted after a trial was so severe.

Pizzi goes on to criticize the Supreme Court for failing to develop a proportionality jurisprudence as a limitation on overly harsh sentences in noncapital cases, as Canada and European nations have done.

He discusses a number of the court's decisions including the 1993 case of Harmelin v. Michigan in which it upheld an infamous Michigan statute that mandated a life sentence without parole for anyone possessing 650 grams or more of cocaine. This was a brutal sentence, one usually reserved for murderers, but the court concluded that neither the severity of the penalty nor its mandatory nature violated the U.S. Constitution.

Pizzi notes that in 2003, the court had another opportunity to impose a reasonable limit on a defendant's punishment, this time involving California's three-strikes law.

Ewing v. California involved a defendant who stole three golf clubs worth $1,200. The defendant argued that his mandated 25-year prison sentence was grossly disproportionate to the crime he had committed. Again, in a 5-4 decision, the court upheld the sentence noting that it "does not sit as a super legislature" to "second-guess" states' policy choices. Former Justice Sandra Day O'Connor said that proportionality review would apply only to an extreme sentence such as a life sentence for overtime parking.

Relatedly, Pizzi is critical of the Supreme Court's failure to impose limits on prosecutorial power. He discusses the case of Bordenkircher v. Hayes in which the defendant was alleged to have committed a forgery in the amount of $88.30, a minor crime. The prosecutor offered to recommend a five-year sentence if the defendant pled guilty but if the defendant refused, the prosecutor threatened to indict him as a habitual criminal in which case a conviction would call for a mandatory life sentence.

The prosecutor justified his approach on the ground that the defendant should "save the court the inconvenience and necessity of a trial." Surprisingly, the defendant declined to plead guilty. The prosecutor followed through on his threat and filed a habitual offender charge.

The defendant was convicted of both the forgery and the habitual offender charge and received a life sentence. The case went to the Supreme Court, which by a 5-4 vote authorized the prosecutor's behavior and upheld the life sentence saying essentially that "this is simply plea bargaining."

Pizzi also criticizes other Supreme Court sentencing decisions including Blakely v. Washington, which he contends reflects the court's excessive emphasis on jury trials and which undermined an effort by the American Law Institute to develop a model sentencing guidelines system. Finally, he argues that the court's cases that have led to more plea bargaining have also encouraged a muted type of advocacy more appropriate for sentencing hearings than trials.

He argues that it is difficult for lawyers to shift from the more robust advocacy required for trial to the muted advocacy employed at sentencing, and that defense lawyers have decided to use their talents in plea bargaining and sentencing rather than trials. He concludes by arguing that in trying to reform the system over the last five decades, issue by issue, the court has been a major obstacle to reform and that we will never cut our incarceration rate substantially until we face up to what it has done.

I found some of Pizzi's arguments compelling and others less so. I thought that his criticism of the Warren court's criminal procedure decisions overlooked the positive dimensions of those decisions. I also was not convinced by his effort to connect them to mass incarceration.

On the other hand, I found his criticism of the Supreme Court's failure to develop a proportionality jurisprudence imposing limits on the severity of criminal sentences and its related failure to curb the power of prosecutors persuasive. I also found his linkage of these failures to overincarceration successful.

Regarding Pizzi's critique of the criminal procedure revolution, although his arguments that some of the Warren court's decisions had unintended consequences and that collectively they fell short of their goals have merit, his discussion would have been stronger and more nuanced had he discussed other aspects of them. He could, for example, have gone into the question of why the decisions were necessary in the first place and how they have been weakened by the successors to the Warren court.

Had he discussed the context of the criminal procedure revolution, he would have had to address the fact that it was part of a larger initiative on the part of the court to rehabilitate American legal institutions that had lost a considerable amount of legitimacy in the mind of the public. The criminal procedure decisions, in fact, are best understood as a critical part of an overall effort, which included reform of public education with regard to race as in Brown v. Board of Education, reform of political and voting practices as in Baker v. Carr, and expanded protection of indigents in a number of areas.

As professor Christopher Bracey has explained, the Warren court's attempts to limit intrusive police searches by excluding evidence seized in violation of the Fourth Amendment and to create rules regarding the manner in which police question suspects and conduct lineups were essential because members of disadvantaged groups were the victims of the majority of unlawful police activity.

Pizzi's attempt to connect the Warren court's decisions to mass incarceration would also have benefited from a discussion of the fact that many of those decisions have been substantially undermined by the court under Chief Justices Warren Burger, William Rehnquist and John Roberts. As professor Joshua Dressler puts it, some of the cases' most significant teeth have been extracted.

Police continue to use many of the techniques that was criticized in Miranda v. Arizona, and they have also developed effective ways of de-emphasizing Miranda warnings in order to persuade defendants to waive their Miranda rights. The result is that 80% of suspects waive their constitutional right to silence and an attorney, and 24% of interrogations result in a full confession and 64% in incriminating statements.

In addition, Miranda required the government to satisfy a "heavy burden" to prove that a suspect's waiver of her rights to silence and counsel were procured properly. That heavy burden turned out to be the lightest legal burden there is, "preponderance of the evidence." Further, we know now that a waiver may be implied. And a suspect's invocation of her right to counsel and/or her wish to remain silent must be made unambiguously.

If an invocation is ambiguous, the police don't even have to clarify the suspect's wishes; they may keep on interrogating. And, remarkably, even after a suspect is told that she has a right to remain silent, if she wishes to assert that right and end the interrogation, even temporarily, she cannot just be silent, but rather she must invoke the right to silence unambiguously.

With respect to Mapp, the story is similar. As Dressler points out, the successors to the Warren court eliminated one of Mapp's principal justifications, "the imperative of judicial integrity," leaving the exclusionary rule's reason for existence dependent on a judicially conducted cost-benefit calculus of the rule's ability to deter police violations of the Fourth Amendment. That calculation resulted in a rule that unconstitutionally obtained evidence will only be excluded if the judge, often an elected judge, determines that law enforcement purposely, recklessly or grossly negligently violated the person's Fourth Amendment rights.

Thus, unconstitutionally obtained evidence is increasingly admissible and to a considerable extent, Mapp is a shell. Moreover, the exclusionary rule presupposes a constitutional violation, and violations have become harder to prove because the "few specifically established and well-delineated exceptions" to the warrant requirement are now neither few nor narrowly delineated. The great majority of police searches conducted without a warrant today fall within one warrant exception, or another, most notably, consent

Given the extent to which Miranda, Mapp and other of the Warren court's criminal procedure decisions have been undermined, Pizzi's argument that they are to blame for mass incarceration is a difficult one to make. Even aside from the fact that the criminal procedure revolution has turned out to be considerably less than revolutionary, the connection between the Warren court's criminal procedure legacy, the decline of trials and the increase in plea bargaining, and the problem of overincarceration is pretty attenuated.

The notion that expanding the procedural rights of defendants caused trials to become so complicated that defense lawyers eschewed trials in favor of pleas causing more people to go to prison is ultimately a stretch. In fact, in his recent book, "Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More Unjust America," Adam Cohen argues that it was the erosion of the rights created by the criminal procedure revolution that contributed to mass incarceration.

Cohen points out that the decisions by the successors to the Warren court weakening the criminal procedure revolution increased the likelihood of a suspect becoming an inmate at every stage of the criminal justice process. The loopholes created in Miranda made it more likely that a suspect would say something incriminating, and the erosion of Mapp made it more likely that a suspect would be searched and incriminating evidence seized. The court's stop-and-frisk jurisprudence made it more likely that police would find evidence leading to a prosecution.

For what it's worth, my own view is that neither the Warren court's criminal procedure decisions, nor the subsequent decisions limiting their application had anywhere near the impact on mass incarceration than did a number of broad economic and political factors, some of which I mentioned earlier in this review and others not.  

On the other hand, as previously stated, I found Pizzi's argument relating to the court's failure to develop a proportionality jurisprudence in noncapital cases important and persuasive. Pizzi points out that because of the absence of "proportionality as a control on sentencing, legislatures have carte blanche to impose whatever penalty they want for a crime except in the death penalty area. Time and time again, legislatures give in to the allure of deterrence."

And Pizzi is critical of what he regards as both legislative and judicial overemphasis on deterrence, particularly as it relates to the exclusionary rule announced in Mapp, but also as a justification for harsh sentences. He points out that the court has not always been averse to a relatively broad form of proportionality review.

In 1983, in Solem v. Helm, the Supreme Court found a sentence of life imprisonment without the possibility of parole to be disproportionate in violation of the Eighth Amendment when imposed on a seven-time nonviolent felony offender.

The Solem court based its decision on several objective criteria, including the harmfulness of the crime in comparison to the punishment, the sentences imposed in the jurisdiction for similar serious offenses, and whether other jurisdictions imposed lesser sentences for the same crime. Ten years after Solem, however, the court essentially gave up on its attempt to establish a serious proportionality jurisprudence holding in Harmelin that a life sentence for possession of a modest amount of cocaine was not disproportionate.

Although Pizzi does not discuss the genesis of the proportionality principle, he would likely agree that it makes sense to interpret the Eighth Amendment in a manner that accords with its overall moral purpose.

Professor Dennis Baker explains that the basic aim of the amendment is to ensure that the state does not inflict unjust, oppressive or disproportionate punishments on its citizens. The Solem court based its decision on the preconstitutional history of the right, the framers' original intention, the text of the Constitution, a number of precedents spanning over a century, and the underlying moral rationale for the right before holding that:

The principle of proportionality is deeply rooted in common-law jurisprudence. It was expressed in Magna Carta, applied by the English courts for centuries, and repeated in the English Bill of Rights in language that was adopted in the Eighth Amendment. When the Framers of the Eighth Amendment adopted this language, they adopted the principle of proportionality that was implicit in it.

And, in fact, it is hard to believe that the Supreme Court could not reasonably make the moral judgments required to interpret the Eighth Amendment in a way that prevents the state from imposing unjust punishments. These types of evaluative judgments are no different from those adopted to determine the scope, for example, of the right to free speech or the right to privacy. 

Relatedly, Pizzi also points out how mandatory minimum sentences contribute to mass incarceration. He explains both how such laws lead to more plea bargaining and how they increase the power of prosecutors. And there is no question but that the Supreme Court could accomplish a great deal by requiring individualized sentencing determinations in all felony cases as they have presently done in death penalty cases and in cases involving juvenile life without parole sentences.

Professor William Berry has made this point, arguing that all felony convictions have serious consequences. They result in dehumanizing effects that extend far beyond release including loss of the right to vote, state surveillance, and loss of the right to own a firearm, not to mention social stigma.

Were the court to require individualized sentencing by a judge in all felony cases and thereby eliminate mandatory minimum sentences, it would solve many of the problems that Pizzi is concerned about. It would shift the sentencing determination away from prosecutors and back to judges and likely have a considerable impact on mass incarceration.

It is also worth noting that other scholars have recently advanced important arguments against the constitutionality of law imposing mandatory minimums. Professor Donald Dripps, for example, argues that under such laws, prosecutors determine the sentence when they charge a defendant with an offense covered by the law. He goes on to argue that this arrangement is unconstitutional because it violates the principle established by the Supreme Court that procedural due process requires that a sentence be determined by a neutral tribunal and prosecutors are not a neutral tribunal.

As stated, in discussing excessive prosecutorial power, Pizzi examines the disturbing Bordenkircher decision in which the court upheld a prosecutor's use of a habitual offender enhancer carrying a life sentence as a cudgel to attempt to get the defendant to plead guilty to a minor offense. Pizzi's criticism is well taken. As professor William Stuntz pointed out, plea bargains will be fair only if prosecutors are prohibited from threatening unfair sentences and, because of Bordenkircher, that is not the case. Prosecutors have an incentive to threaten charges that are excessive.

Pizzi does not propose a way out of Bordenkircher, a task that would no doubt be very difficult. But academics have advanced some interesting proposals. Stuntz suggested a rule requiring that, in a plea bargained case, a trial judge find that any threatened sentence be fair and proportionate to the offense committed. And if it were not, the plea could be withdrawn. And professor Michael O'Hear argues that the court's recent line of cases beginning with Apprendi v. New Jersey rejuvenating the Sixth Amendment right to a jury trial could be used as a basis for overruling Bordenkircher.

In any case, as Pizzi points out, Bordenkircher has contributed to mass incarceration, and the court's failure to deal with proportionality in sentencing, mandatory minimum sentences and excessive prosecutorial power have contributed to the harshness of the American criminal justice system.



Lynn S. Adelman is a federal judge for the U.S. District Court for the Eastern District of Wisconsin.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.


The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio​​ Media Inc. or any of its​​ respective affiliates. This article is for general information purposes an​​d is​​ ​​not ​​intended to be and​​ should not be taken as legal advice.

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