The Hidden Constitutional Costs of the Carceral System

Thousands of Americans have protested in recent weeks, outraged at repeated and brazen displays of police violence. While the brutality against black people and protesters of all races has rightly been the focus of their anger, the twin institutions of policing and mass incarceration impose other grave, often-overlooked costs on black communities. These costs come in the form of diminished constitutional rights. Because courts do not want to interfere with the machinery of these institutions, they have narrowly defined many core constitutional rights to allow the carceral system to function efficiently.

Very few, if any, constitutional rights are absolute. The First Amendment prohibits laws abridging freedom of speech, and yet the government can arrest you for falsely shouting “Fire!” in a crowded theater, because it has a legitimate interest in preventing an unnecessary and dangerous stampede. Other constitutional rights are subject to similar limitations when the government can offer a sufficient justification.

However, in criminal law, courts have repeatedly— requiring the government to prove that these limitations are justified. This deference to the government has allowed the carceral system to expand unchecked while over-policed and over-incarcerated communities incur extraordinary constitutional costs, in addition to the more familiar human, social, and economic ones.