Tag Archive | "comparative law"


Mass Incarceration at Home and Decarceration Abroad


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,[1] 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.[2]

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.[3] Finland experienced a cultural shift toward penal severity, minimum sentencing, and severe sentences for common crimes.[4] 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.[5] 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.[6]

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.[7] 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.


[1] 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).

[2] 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).

[3] Weiss & MacKenzie, supra note 1, at 275.

[4] Id. at 276.

[5] Id.

[6] Id. at 273.

[7] Id. at 269.

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Photo Credit: AP Photo/Jorge Saenz

Comparing the United States to Other O.A.S. Members in Protecting Victims of Domestic Violence

Photo Credit: AP Photo/Jorge Saenz

Photo Credit: AP Photo/Jorge Saenz

In my forthcoming Note, titled Filling the Gap of Domestic Violence Protection: Returning Human Rights to U.S. Victims[1] I argue that “[b]y failing to hold states accountable for enforcing mechanisms of DV protection, the U.S. federal government fails to satisfy its responsibility assumed by the American Declaration on the Rights and Duties of Man (“American Declaration”), thereby violating U.S. citizens’ human rights.” [2]  A topic of discussion in this Note is the United States’ position as a leader on the world stage and a member of the Organization of American States (OAS), an organization of thirty-five member nations [3] that aims to “ ‘strengthen the civic conscience of the American peoples’ for the purpose of the effective exercise of democracy, the observance of the rights of men, and greater integration.”

Expanding from the Note’s focus on how the United States can improve, let us look further into how the United States compares to its OAS compatriots.  In Argentina, 275 women lost their lives this year as a result of gender-based violence. This summer, thousands marched in Buenos Aires in a movement against domestic violence.  Argentina’s population is approximately 44 million, resulting in a rate of 6.25 gender-motivated murders per 1,000,000.  By contrast, “[m]ore than 1,600 women were murdered by men in 2013” in the United States when the population was approximately 318 million, resulting in a rate of 5.03 gender-motivated murders per 1,000,000.

By contrast, domestic violence incidents in Costa Rica were on the rise in 2012, amounting to 222 incidents reported per day. With a population of 4.1 million, that amounts to 55.5 incidents per 1,000,000.  By contrast, in the United States, 20,000 calls are made per day to domestic violence hotlines, [4] amounting to approximately 69 incidents per 1,000,000.

Overall, state sovereignty is a roadblock to national governments that have agreed to work towards international goals but are unwilling to undermine their control over their domain— the United States included. [5]  As I argue in Filling the Gap, domestic violence is a worldwide epidemic that should be curbed, especially by the countries that have agreed to respect human rights by signing the Charter of the OAS.  The United States has an opportunity to set the international tone and heighten protection within its borders.

Melanie graduated Magna Cum Laude from the Florida State University Law Review in May 2016. In law school, she served as an Executive Editor on the Florida State University Law Review and a Governor on the Florida Bar Young Lawyers Division Law Student Division and has several pieces published focusing on constitutional law, specifically individual rights, and family law, specifically child custody and domestic violence. Her long-term career goals include becoming a law professor.


[1] Melanie Kalmanson, Note, Filling the Gap of Domestic Violence Protection: Returning Human Rights to U.S. Victims, 43 Fla. St. U.L. Rev. (forthcoming 2016).

[2] Id. at Introduction.

[3] The members of the OAS are: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guayana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Lucia, Saint Vincent and the Grenadines, St. Kitts & Nevis, Suriname, Trinidad and Tobago, United States, Uruguay, and Venezuela.

[4] Kalmanson, supra note 1, at Introduction.

[5] See, e.g., http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1674&context=auilr, at p.4.


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The Australian High Court

Australia’s High Court says “no” to Spousal Privilege

OK, so this is written like a research project, but, hey, I’m the FCIL Librarian. Comparative law raises many issues, and this comment is not meant to be a complete exploration of all the possible issues raised in comparing Australian and US laws, but given the common law heritage of the United States and Australia, the different directions being taken by the two countries on this point is striking. This post is inspired by a one from Int-Law. For a more erudite discussion, click here .

The Australian High Court

The Australian High Court

Do you have clients in Australia? You may want to advise them of this recent decision from Australia’s High Court. Overturning what many say is hundreds of years of common law tradition, the Court said that in Australia, there is no spousal privilege under common law, and the Australian Crime Commission Act (2002) which created the Crime Commission, privileges only self-incrimination, “the person” giving testimony or providing documents. (Sections 30(4) and 30(5) are cited in the judgment as the relevant parts.)

The issues before the Court, as stated in the judgment are:

Evidence – Privilege – Spousal privilege – Witness summonsed pursuant to s 28(1) of Australian Crime Commission Act 2002 (Cth) (“Act”) to give evidence regarding “federally relevant criminal activity” involving her husband – Witness declined to answer examiner’s questions by claiming spousal privilege – Whether spousal privilege exists at common law and, if so, whether spousal privilege extends to non-curial proceedings – If spousal privilege exists at common law, whether Act restricts or abrogates spousal privilege. Words and phrases – “compellability”, “competence”, “spousal privilege”.

Here is a link to the decision.

In the case, a wife was called before the Crime Commission investigating tax fraud, and asked to testify about the actions concerning her husband (she had worked in his accounting office as a secretary). She claimed a spousal privilege, and was upheld by the full bench of the Federal Court. But the High Court took a different view. The wife may now face jail time if she refuses to testify (although the High Court did order the Crime Commission to pay her costs). One wonders if spousal privilege was a consideration when drafting the Act? (Would be an interesting research project… )

The United States, while inheriting the same common law traditions, has taken a different approach. Spousal privilege is codified in the Federal Rules of Evidence, Rule 501 (Privileges in General).

The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:

  • the United States Constitution;
  • a federal statute; or
  • rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

The issue of Husband-Wife Privilege is fleshed out at Subdivision IX, of West’s United States Code Annotated (2001).  It provides extensive explanations of issues such as which matters are privileged (notes 446-454), confidentiality of communications (notes 431-435), and exceptions to privilege (notes 455-460). (One may also want to look at the definitions in Black’s Law Dictionary and Ballentine’s Law Dictionary).

Below is the summary, extracted from the judgment. Not only is the reasoning interesting, but I was struck by paragraph 232, which quotes U.S. Supreme Court Justice Oliver Wendell Holmes. I wonder how many U.S. Supreme Court decisions would quote an Australian judge?

Summary of conclusion and orders

  1. 231.        Opinions may differ as to the interpretation of statements in older texts and cases. Such statements as there are, which suggest that one spouse might not be obliged to give evidence or answer questions which may tend to incriminate the other, do not provide a sufficient foundation for a conclusion that a spousal privilege of the kind claimed existed. Statements in All Saints were addressed to the question of compellability and later cases show that they have been so understood. Those observations are consistent with a view that the court retains the power to determine the question of the wife’s compellability. Even so, the question of her compellability was not finally determined in that case. Its lack of resolution until much later, in England, does not suggest that the topic of a substantive witness privilege was likely to have been addressed. The later application of some of the old common law views towards marriage, which informed the rule of competency, and about which it is not necessary to proffer a view on this appeal, with respect to the compellability of a spouse in criminal proceedings, does not point to the existence of a privilege. It merely states an assumption that those views meant that a privilege arose. It has not been shown that that question has been addressed by the common law courts.
  2. 232.        The observations of Justice Oliver Wendell Holmes concerning the creation of legal doctrine are apposite here. He spoke of a statement of principle occurring only after a series of determinations on the same subject matter and by a process of induction and went on to say[433]:


“And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest it is to resist it at every step.”

No such developments are evident in the cases and materials to which reference has been made in this case. They suggest, at most, that a spouse might seek a ruling from the court that he or she not be compelled to give evidence which might incriminate the other spouse.

The Australian case was decided in a criminal context, on the issues of “compellability” and “competency” and, it concerns a single Act. The decision does not mean that spousal privilege may not be claimed under a different set of facts.

The implications and application of the decision are broad for Australians, and it raises several questions and issues. Marriage is a key value in society. Does this decision weaken the institution? The punishment of crime is also a key value to any society.  Is upholding the punishment of criminals a more important value (civil law is a different subject)? In many marriage vows there is the concept of ‘two’ becoming ‘one.’ Is the sanctity of marriage vows being undermined?  Is the prosecution of criminals more important than the sanctity of marriage? What impact might this decision have on Australian society’s view of the High Court?

The judgment makes for very interesting reading, covering significant historical cases, and the application of common law.  The discussion of the history of privilege is quite fun.

Here is a link to an Australian article discussing the decision which discusses the other privileges which may be under assault in Australia, such as the priest-penitent privilege. Quoting an Australian law professor, the article notes that the attorney-client privilege is under the least threat. Whew!

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University of Denver Sturm College of Law