Around the world, there are around ten million people in prison at any given time. While the world’s criminal justice systems struggle to ensure access to legal representation, a fair trial, and freedom from torture, some countries have been more successful than others. Other western countries are moving toward decarceration, but politicians in the United States have been slow to recognize the devastating effects of the United States criminal justice system.
In the United States, over the last 40 years there has been incredible growth in the prison population. In 1972, United States prisons contained nearly 170,000 inmates; by 2012, prisons housed 1.5 million inmates. This 705 percent increase resulted from tough on crime laws and an increase in the number of criminalized activities. Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, explains that not only have prison rates increased, they have disproportionately affected people of color, particularly black men. Not only is the United States quickly becoming famous for its “mass incarceration,” as Professor Alexander points out, it has stunted the social and economic wellbeing of low-income communities and communities of color. Ironically, studies have actually found that mass incarceration has not enhanced public safety.
Recently, there has been a shift in public opinion around incarceration. In 2012, a plurality of the United States public believed that too many people were in prison. In an effort to reduce the prison population, last October the Justice Department committed to releasing 6,000 inmates through reducing sentence lengths. President Obama has also commuted the sentences for the most individuals in recent history, a total of 348. Currently, mass incarceration is a leading issue in the presidential race as both republicans and democrats have criticized incarceration rates.
The rate of incarceration in the United States, compared to other nations, is more than five times higher. However, similarly industrialized nations have comparable crime rates. A fundamental difference is that the United States interprets punishment to mean incapacitation and retribution, whereas other jurisdictions focus on resocialization and rehabilitation.
Germany and the Netherlands are examples of countries that focus on rehabilitating offenders. In the United States, the average rate of incarceration is 716 per 100,000 residents, whereas Germany’s rate is 79 per 100,000 residents, and Netherlands’ rate is 82 per 100,000 residents. Both countries primarily utilize non-custodial sanctions and diversion. Generally, other Western democracies use fines as the primary sanction. Compare this with the United States where 70 percent of convicted offenders are sentenced to a prison term for at least part of the sentence.
The German Prison Act states that the “sole aim of incarceration is to enable prisoners to lead a life of social responsibility free of crime upon release.” While the Netherlands’ 1998 Penitentiary Principles Act focuses on re-socialization. Notably, “prisoners are encouraged to maintain and cultivate relationships with others both within and outside the prison walls.” While prison sentences are utilized in Germany and the Netherlands, the length of prison terms are also generally much shorter than those in the United States. There are also fewer mandatory prison sentences. The United States sentences offenders to lengthy prison terms and makes more use of the death penalty compared to other Western democracies.
While incarcerated, prisoners in Germany and the Netherlands are treated differently than United States prisoners. Because rehabilitation is the primary goal, prisoners are allowed to wear their own cloths, prepare meals, learn job skills, and continue their education. The prisons themselves are designed with a lot of windows, lights, and wide hallways. Prison staff are trained similar to social workers and behavior specialists. Whereas the United States’ imprisonment method is principally punitive. To a degree, the United States’ method has become an American export. The supermax model originated within the United States and by 1999, there were 57 supermaxes in 34 states. This supermax model has now appeared in nine countries, including Brazil, which has one of the fasts growing prison populations. Supermax prisons utilize solitary confinement, largely eliminate common areas, and restrict prisoner interaction.
While Germany and the Netherlands provide a useful example of what the United States could aim for, Finland demonstrates a change theory for decarceration. In the 1950s, Finland had a rate of incarceration of 200 per 100,000. For the time, this was three to four times greater than other Nordic countries and nearly twice the United States’ incarceration rate. Finland experienced a cultural shift toward penal severity, minimum sentencing, and severe sentences for common crimes. By recognizing the limited capabilities of traditional imprisonment, Finland initiated several legislative and policy reforms. Finland’s movement toward decarceration critically relied on an ideological shift. The implemented reforms included reducing penalties, using noncustodial alternatives, and sentencing options designed to reduce the number of offenders sentenced to prison. By introducing more gradient-based sentences and increasing the use of community service sentences, Finland was able to reduce its prison population.
Finally, an issue related to the criminal justice system in the United States, beyond incarceration itself is the collateral consequences of conviction. Professor Alexander reported that these collateral consequences include restrictions on access to social services, housing, employment, and the right to vote. Collateral consequences contribute to the recidivism cycle that also plagues the United States criminal justice system. In Germany and the Netherlands, however, ex-offenders retain their rights to vote and access to certain social services. This is not surprising though, as the United States does not prioritize social services in the same way as other Western countries and spends less on these programs.
Change will not come quickly to the United States criminal justice system, but as Finland demonstrated, change is possible. Incarceration rates in the United States have begun to slow, albeit they are not yet declining. Further, a recent bipartisan publication, with contributors including Vice President Joseph Biden, Hillary Rodham Clinton, Marco Rubio, and Ted Cruz, proposes changes to address the problem of mass incarceration in the United States. In appeal to this attention, the United States should take the steps recommended by the Vera Institute of Justice. First, expand prosecutorial discretion to divert offenders. Second, reduce the reliance on incarceration as a first response and expand the use of community-based sanctions. Third, adapt the disciplinary structure and expand the menu of sanctions. Finally, normalize the conditions within prisons. These steps will require significant dedication to reform; however, it may yet be possible.
- Douglas B. Weiss & Doris MacKenzie, A Global Perspective on Incarceration: How an International Focus can Help the United States Reconsider Its Incarceration Rates, 5 Victims & Offenders 268, 270 (2010).↑
- Matthew B. Kugler, Friederike Funk, Judith Braun, Mario Gollwitzer, Aaron C. Kay, & John M. Darley, Differences in Punitiveness Across Three Cultures: A Test of American Exceptionalism in Justice Attitudes, 103 J. of Crim. L. & Criminology 1071, 1074 (2013).↑
- Weiss & MacKenzie, supra note 4, at 275.↑
- Id. at 276.↑
- Id. at 273.↑
- Id. at 269.↑