Policing Mass Incarceration

32 Pages Posted: 26 May 2022 Last revised: 23 Aug 2022

Date Written: May 10, 2022

Abstract

In Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, Dean Erwin Chemerinsky issues an indictment of the Supreme Court, charging that institution with facilitating undue state violence, wrongful convictions, invasions of dignity, and racial inequality. The Supreme Court has produced these consequences by offering needlessly narrow remedies for constitutional wrongs and by issuing crabbed constructions of criminal procedural rights. Chemerinsky’s indictment is written with clarity, comprehensiveness, and humanity.

This Book Review argues that mass incarceration presents an immense barrier to the author’s goals of producing less violent, more accurate, less invasive, and less racist policing. First, many of Chemerinsky’s proposals for police reform assume a system of criminal trials. In our system of mass incarceration, the overwhelming majority of incarcerated persons never receive a trial. If the criminal legal system did attempt to rely on trials instead of coerced guilty pleas, the system would collapse under the weight of the sheer number of people we prosecute. Second, Chemerinsky argues that we should revisit and raise the requisite standard for police to search a suspect from reasonable suspicion to probable cause. But in a system of mass incarceration, probable cause is not hard to come by. The more things we label “crime,” the more reasonable it is to believe that someone is likely committing one. Third, mass incarceration feeds on legal reforms that are not aimed at decarceration. A “criminal caste” is more tolerable if the government gives the caste members “rights” before stripping them of humanity and core dimensions of citizenship.

It is imperative to reverse and control mass incarceration to achieve lasting transformation of the police. There is no equitable way to police in a world of mass incarceration.

Keywords: policing, mass incarceration, criminal justice reform, federal courts, rights, constitutional law, criminal procedure, civil rights, civil liberties, race and the law

Suggested Citation

Smith, Jr., Fred, Policing Mass Incarceration (May 10, 2022). Harvard Law Review, Vol. 135, No. 7, p. 1853, 2022, Emory Legal Studies Research Paper 22-20, Available at SSRN: https://ssrn.com/abstract=4105618

Fred Smith, Jr. (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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