About

Rachel E. Barkow is the Charles Seligson Professor of Law at NYU School of Law and serves as the faculty director of the Zimroth Center on the Administration of Criminal Law. She is recognized as one of the country’s leading experts on criminal law and policy, with research areas including criminal law and procedure, administrative law, sentencing, separation of powers, and clemency. Barkow has authored significant works such as 'Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration' and 'Prisoners of Politics: Breaking the Cycle of Mass Incarceration.' She has written extensively, with over 60 articles and essays, and has contributed to public discourse on criminal justice reform, including the role of clemency and presidential power. Barkow has served as a member of the United States Sentencing Commission from 2013 to 2019, and her teaching has been recognized with awards including the NYU Distinguished Teaching Award and the Podell Distinguished Teaching Award. Her educational background includes a BA from Northwestern University and a JD from Harvard Law School, where she was awarded the Sears Prize. She clerked for Judge Laurence H. Silberman and Justice Antonin Scalia, and worked as an associate at Kellogg, Huber, Hansen, Todd & Evans.

Research topics

• Sociology
• Political Science
• Computer Science
• Criminology
• Law
• Political economy

Selected publications

• Political Victims: How the Politics of Victims’ Rights Comes Up Short

  SSRN Electronic Journal · 2026-01-01

  preprintOpen access1st authorCorresponding
  PublisherDOI

• Biden’s Criminal Justice Legacy

  Federal Sentencing Reporter · 2026-01-22

  articleSenior author

  Abstract Four years ago, this article’s authors proposed an executive agenda for Biden that revolved around needed structural changes that would allow criminal justice reform not only to succeed in the moment but also to better withstand subsequent attacks. Most of their proposals could have been accomplished without Congress. In this piece, the authors evaluate the Biden administration’s actual performance on these measures and show that he and his Department of Justice scored almost uniformly poorly across the range of issues, which include charging and sentencing policies, clemency, compassionate release, corrections, the death penalty, and forensic science.

  PublisherDOI

• Justice Abandoned

  Harvard University Press eBooks · 2025-03-04

  book1st authorCorresponding
  PublisherDOI

• OF TWO MINDS: THE SUPREME COURT'S DIVERGENT APPROACH TO CONSTITUTIONAL MENS REA

  SSRN Electronic Journal · 2025-01-01

  preprintOpen access1st authorCorresponding
  PublisherDOI

• Perspectives on <i>The Constitution of the War on Drugs</i>: A Collection of Posts from the Balkinization Blog

  SSRN Electronic Journal · 2024-01-01

  preprintOpen access
  PublisherDOI

• Justice Abandoned

  Harvard University Press eBooks · 2024-11-20

  book1st authorCorresponding

  An influential legal scholar argues that the Supreme Court played a pivotal role in the rise of mass incarceration in America. With less than 5 percent of the world’s population and almost a quarter of its prisoners, America indisputably has a mass incarceration problem. How did it happen? Tough-on-crime politics and a racially loaded drug war are obvious and important culprits, but another factor has received remarkably little attention: the Supreme Court. The Constitution contains numerous safeguards that check the state’s power to lock people away. Yet since the 1960s the Supreme Court has repeatedly disregarded these limits, bowing instead to unfounded claims that adherence to the Constitution is incompatible with public safety. In Justice Abandoned, Rachel Barkow highlights six Supreme Court decisions that paved the way for mass incarceration. These rulings have been crucial to the meteoric rise in pretrial detention and coercive plea bargaining. They have enabled disproportionate sentencing and overcrowded prison conditions. And they have sanctioned innumerable police stops and widespread racial discrimination. If the Court were committed to protecting constitutional rights and followed its standard methods of interpretation, none of these cases would have been decided as they were, and punishment in America would look very different than it does today. More than just an autopsy of the Supreme Court’s errors, Justice Abandoned offers a roadmap for change. Barkow shows that the originalist methodology adopted by the majority of the current Court demands overturning the unconstitutional policies underlying mass incarceration. If the justices genuinely believe in upholding the Constitution in all cases, then they have little choice but to reverse the wrongly decided precedents that have failed so many Americans.

  PublisherDOI

• The Evolving Role of the United States Sentencing Commission

  Federal Sentencing Reporter · 2024-06-01

  article1st authorCorresponding
  PublisherDOI

• Clemency

  Annual Review of Criminology · 2023-08-25

  articleOpen access1st authorCorresponding

  The federal government and most American states provide for some form of clemency that allows the president or the governor to reduce a sentence or pardon a conviction. Although most US presidents and some governors have made great use of this power in the past, it has long been in decline. Diagnosing the reasons for this decline proves easier than providing solutions to reinvigorate this practice. A great deal of scholarship explores the causes and offers solutions, and this review catalogs the main lines of argument. It also explains why clemency's renewal remains urgent, even in regimes dedicated to the rule of law, to serve the best purposes of punishment and check the excesses of criminal law and punishment that are inevitable given the political process and enforcement practices.

  PublisherOA PDFDOI

• The wholesale problem with Congress: the dangerous decline of expertise in the legislative process

  Russian Journal of Economics and Law · 2023-06-16

  articleOpen access1st authorCorresponding

  Objective : to document the declining respect for expertise in the US Congress, the implications for policymaking given the wholesale nature of the legislative process, and some possible ways to account for the decline of expertise in the legislative process. Methods : dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods: formal-logical and sociological. Results : It is no surprise to anyone that the US Congress has become a hyperpartisan battleground where little effort is expended to promote policies that work for Americans. While the US Congress has always viewed policy issues through the lens of party politics, the role of nonpartisan expertise in the legislative process is at an all-time low. The disrespect for experts is growing across society, but the decline in their use is particularly troubling in the US Congress because it exacerbates deficiencies that are inherent to the legislative process. The US Congress passes laws of general applicability and does not sit in judgment of specific applications of the law. Whether the US Congress does a good job setting those general policies depends on the process it uses for doing so. Sometimes, though increasingly rarely, the US Congress gathers the relevant facts and arguments about different aspects of a problem before acting. More often, legislators have specific outlier problems or prototypes in mind when they draft legislation, and if there is not an expert fact-finding process in place to study a proposal, cognitive biases may go unchecked. Scientific novelty : Part I details the role nonpartisan experts have played in the legislative process over time and documents the various ways that experts have fallen out of favor in the US Congress. Part II explains why this decline of expert involvement in legislation is particularly troubling given the way the US Congress operates as a body making wholesale policy with little individualized feedback on how its policies are applying to real-world scenarios. Part III then turns to the question of what, if anything, could or should be done about it. While the US Congress could, in theory, shift course, that seems unlikely. Throughout its history, the US Congress has cared about nonpartisan expertise when it worried about presidential overreach. But with parties dominating the political landscape, there is little likelihood that the US Congress will care enough about its institutional position relative to the executive. In the absence of legislative reform, Part III therefore considers two additional implications of the decline of expertise in the legislative process. First, the decline of internal expertise in the legislative body places greater weight on the use of administrative agencies to provide that guidance. Ironically, the US Supreme Court may be toying with a revitalization of the nondelegation doctrine at the precise moment that delegation is most urgently needed. Second, courts and other bodies that interpret statutes could consider the relationship between statutory meaning and the US Congress’s consultation with nonpartisan experts to help address statutory ambiguities. Practical significance : the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering the issues related to the functioning of the US Congress .

  PublisherOA PDFDOI

• Promise or Peril?: The Political Path of Prison Abolition in America

  SSRN Electronic Journal · 2022 · 3 citations

  1st authorCorresponding
  • Political Science
  • Political Science
  • Sociology
  PublisherDOI

Frequent coauthors

• Mark William Osler

  University of St. Thomas - Minnesota

  8 shared

• David R. Stras

  United States Court of Appeals for the Ninth Circuit

  3 shared

• Paul J. Larkin

  Heritage Foundation

  3 shared

• Anthony S. Barkow

  3 shared

• Stephanos Bibas

  3 shared

• Orin S. Kerr

  3 shared

• Kathleen O’Neill

  2 shared

• Douglas A. Berman

  1 shared

Education

• B.A.

  Northwestern University

  1993

• Other

  Harvard Law School

  1996

Awards & honors

• NYU Distinguished Teaching Award (2013)
• Podell Distinguished Teaching Award, New York University Sch…
• NYU's Making A Difference Award (2016)
• Elected Member, American Academy of Arts and Sciences (2019)
• Member, American Law Institute (2008)