1st Edition

The Supreme Court’s Role in Mass Incarceration

By William T. Pizzi Copyright 2021
    160 Pages
    by Routledge

    160 Pages
    by Routledge

    The Supreme Court’s Role in Mass Incarceration illuminates the role of the United States Supreme Court’s criminal procedure revolution as a contributing factor to the rise in U.S. incarceration rates. Noting that the increase in mass incarceration began climbing just after the Warren Court years and continued to climb for the next four decades—despite the substantial decline in the crime rate—the author posits that part of the explanation is the Court’s failure to understand that a trial system with robust rights for defendants is not a strong trial system unless it is also reliable and efficient.

    There have been many explanations offered for the sudden and steep escalation in the U.S. incarceration rate, such as "it was the war on drugs" to "it was our harsh sentencing statutes." Those explanations have been shown to be inadequate. This book contends that we have overlooked a more powerful force in the rise of our incarceration rate—the long line of Supreme Court decisions, starting in the Warren Court era, that made the criminal justice system so complicated and expensive that it no longer serves to protect defendants. For the vast majority of defendants, their constitutional rights are irrelevant, as they are forced to accept plea bargains or face the prospect of a comparatively harsh sentence, if convicted. The prospect of a trial, once an important restraint on prosecutors in charging, has disappeared and plea-bargaining rules.

    This book is essential reading for both graduate and undergraduate students in corrections and criminal justice courses as well as judges, attorneys, and others working in the criminal justice system.

    Chapter 1. Mass Incarceration and Its "Causes"

    Chapter 2. The Risks of Constitutional Rule-Making

    Chapter 3. The Federal System, State Systems, and Miranda v. Arizona

    Chapter 4. The Vanishing Trial and Mass Incarceration

    Chapter 5. Must Fair Trials Be Jury Trials?

    Chapter 6. The Shift from Indeterminate Sentences to Determinate Sentences

    Chapter 7. Plea Bargaining in the United States: Coercing Guilty Pleas

    Chapter 8. The Supreme Court: Uncertain on Proportionality…Endorsing Deterrence

    Chapter 9. Limiting Judicial Power at Sentencing: The Emergence of Sentencing Guidelines Systems

    Chapter 10. The Supreme Court: An Obstacle to Reform

    Chapter 11. Extreme Adversarialism, Muted Adversarialism, and the Slow Death of Trials

    Chapter 12. Where Do We Go from Here?


    William T. Pizzi is Professor of Law Emeritus at the University of Colorado Law School. He is a graduate of Harvard Law School and he also holds an advanced degree in philosophy from the University of Massachusetts. Following law school, Professor Pizzi was a federal prosecutor in the District of New Jersey before joining the faculty at Colorado Law where he taught for thirty-five years. He is one of the foremost scholars in the United States on comparative criminal issues. He has lectured abroad for both the Ford Foundation and the United States Information Agency.

    This book contains an unorthodox, unusually interesting and highly stimulating account of the Supreme Court’s impact on the American criminal justice system. The author’s suggestions about weakening the system’s intense adversary character include valuable comparisons with other countries in the common law tradition.

    Mirjan R. Damaška, Sterling Professor Emeritus of Law, Yale Law School

    William Pizzi, long one of the keenest observers of our criminal justice system, has written a book brimming with insights and surprising connections. Anyone wanting to understand the phenomenon of mass incarceration will find here persuasive explanations in corners where others would not have thought to look.

    Richard D. Friedman, Alene and Allan F. Smith Professor of Law, University of Michigan Law School

    As William Pizzi shows in this masterful volume, the American system of criminal procedure is like no other. It has been shaped by grand pronouncements of the Supreme Court that appeared to advance the rights of the accused but that, in practice, have produced their antithesis. By rendering decisions without much regard for cost or practicality and without the ability to compromise or adjust to changing circumstances, the Court has made trials so adversarial and so unworkable that they have almost vanished. Harsh leverage now induces defendants to sacrifice their rights, and assembly-line plea bargaining has led to the imprisonment of Americans at a rate unmatched anywhere else in the world. Pizzi’s extraordinary knowledge of the procedural systems of other Western democracies as well as our own and his insight and unfailing good sense have produced a powerful indictment of a criminal justice system off the tracks.

    Albert Alschuler, Julius Kreeger Professor Emeritus of Law and Criminology, University of Chicago Law School

    In his new book, Professor William Pizzi presents a unique and insightful take on the underappreciated causes of a critical public policy issue—Why are so many Americans in prison? In The Supreme Court’s Role in Mass Incarceration, Pizzi exposes how many Court decisions that gave the surface of appearance of improving our criminal justice system have, in fact, backfired. Anyone with any interest in understanding why we have one of the world’s highest incarceration rates—and is willing to entertain ideas that depart from the conventional wisdom—will find much to learn from Pizzi’s work.

    Paul G. Cassell, Ronald N. Boyce Presidential Professor of Criminal Law and University Distinguished Professor of Law, S.J. Quinney College of Law at the University of Utah

    Based on expert analysis of both Supreme Court jurisprudence and the criminal justice systems of other nations, The Supreme Court’s Role in Mass Incarceration offers intriguing and important insights into the causes of perhaps the most significant criminal justice issue of our time. The book’s diagnosis and possible treatments will challenge and engage all readers, scholars, policymakers and members of the public alike, who want to bring more justice into the law.

    Gabriel J. Chin, Edward L. Barrett Jr. Chair and Martin Luther King Jr. Professor, University of California, Davis School of Law

    In a lively, thoughtful, and thoroughly original treatment, Professor Pizzi identifies a new culprit responsible for high U.S. incarceration rates: the United States Supreme Court. Pizzi demonstrates that by constitutionalizing vast swathes of criminal procedure, the Court has fuel-injected the system of plea bargaining to the point that it is so "efficient," and the incentives of its participants so warped, that no one, including defendants, can any longer take the risks of trial. This Court-induced plea-bargaining-on-steroids is a big reason, maybe the biggest, why so many Americans are incarcerated. Perhaps more significantly, Pizzi shows that the Court’s piecemeal forays into process have left state systems little room for the kinds of systemic experiments likely needed to lead us back to reasonable levels of incarceration. This book was a breath of fresh air to everyone who has waited to hear about the cost side of such revered cases as Mapp, Miranda, and even Gideon. How stunning to see in these pages that the costs of those historic constitutional decisions are being borne largely by the very people they were intended to protect.

    The Honorable Morris B. Hoffman, Denver District Court Judge