Prisons and Punishment in the U.S. and Europe

Warning: this post is slightly wonkish. John Pfaff, a professor at Fordham Law School, lists some myths about prison growth in the United States:

Myth No. 4: In the past three decades, we've newly diverged from the rest of the world on punishment. Given that our incarceration rate before the mid-1970s is one-seventh the rate of today, it is easy to think that we're suddenly acting like outliers. But the fact is that American views on punishment have been harsher than Europe's since the birth of this country (although politicians may overestimate the extent to which they must be tough on crime to win elections). More strikingly, if we look back historically at the lockup rate for mental hospitals as well as prisons, we have only just now returned to the combined rates for both kinds of incarceration in the 1950s. In other words, we're not locking up a greater percentage of the population so much as locking people up in prisons rather than mental hospitals. Viewed through this lens, what seems remarkable is not the current era of mass incarceration but the 1960s and '70s, during which we emptied the hospitals without filling the prisons. Any reform agenda that does not acknowledge the ingrained nature of our punitive impulses will surely fail.

His prescription for reform:

...We need to stop admitting many minor offenders, even if they're serving only short sentences. We need to focus less on high-profile drug statutes and more on the ways small-fry drug convictions cause later crimes to result in longer sentences. Once we start admitting fewer people to prison, we should shift money from prisons to police. If this seems like tinkering, rather than a sweeping fix, that's because it is. See Myth No. 4: Reformers shouldn't waste their breath trying to turn us into Europe.

I'm always interested in comparative criminal-justice -- in fact, I'm writing a book about it now. I have two observations about Pfaff's comparisons of the U.S. and Europe. He's right that European attitudes toward crime seem to be somewhat less punitive than American attitudes. But they're not much less punitive. Europeans have "ingrained punitive impulses" too. You need only read a few issues of a tabloid like Bild in Germany to determine that there are millions of ordinary citizens who would love to see much stricter punishment of criminals.

But what Pfaff downplays is the huge gap in incarceration in the U.S. and Europe since the 1980s. Briefly put, the incarceration rate in most European societies has inched up or remained steady since the early 1980s (depending on the country), but has exploded in the U.S. That is a huge difference in policy outcomes. The main difference between the U.S. and Europe, and one that I find curiously under-studied (hence my book), is that average European voters -- unlike their American counterparts -- have almost no influence over their nations' criminal-justice policies. 

Let me state a general case. In the UK and almost every European nation, serious crime is always regulated by one nationwide penal code. These penal codes were written by commissions of experts (law professors, criminologists, sociologists). They are updated relatively rarely, and then only by the national legislature. When the legislature does want to update the penal code, it will usually turn to a similar commission of experts for advice. Thus, penal code reforms are infrequent, incremental, and subject to expert screening and approval, whether formal or informal.

In the U.S., by contrast, criminal lawmaking is done on a state-by-state basis, and politicians are directly responsive to the public's desire for harsher punishment. After a string of robberies, a state legislator will draft a law doubling prison sentences for robbery, and then immediately introduce it onto the floor of the state legislature (since American criminal law is made on a state-by-state basis). If the law gets the approval of 51% of the other legislators, it's part of the penal code. There will be no expert commission, in fact, the legislator will usually not even bother to consult a law professor. In many states, citizens can directly enact criminal laws by popular referendum.

I know, I know -- many European politicians grandstand with tough-on-crime rhetoric. But if you carefully examine the actual changes in the law that follow the rhetoric, they either never happen, or they consist of minor tinkering around the edges of th existing legal framework. Europe has gotten somewhat more punitive recently, but has not seen the kind of drastic, Draconian laws that the U.S. has enacted.

To sum up: the big difference between the U.S. and Europe is not what average voters think about crime and punishment, but rather how much direct influence he or she has over the government's penal policies. In the U.S., they often have quite a bit; in Europe, they have almost none.

Comments

[coach purses]

There is no exact definition of the word happiness. Happy people are happy for all sorts of reasons. The key is not wealth or physical well-being, since we find beggars, invalids and so-called failures, who are extremely happy.

[headbang8]

I don't buy a relationship between empty mental hospitals and full prisons.

The menally ill ended up homeless on the street. They are older and of mixed race. The prison population is swelled by younger, African American males.

How many homeless end up in gaol for vagrancy? Relatively few. Many of us, and them, wish that rather more would. At least they'd be safer.

The rise in prison populations isn't related to mainstreaming the mentally ill. It's just easier to get resources for punishment than care.

[James Rytting]

Federal prison populations have exploded since the 80s. The sentencing guidelines are, quite literally, a study in cruelty that is excused by the alleged pursuit of fairness and consistency. (The entire edifice can be summed up by one line from Monty Python's Pirahna Brothers, "He was a cruel man!... but fair."). This illusion of justice as fairness is achieved at the federal level by turning punishment over to an administrative agency -- a committee, in fact -- advise by experts, that is part of the judicial branch, and, therefore, supposedly shielded from political influence. This thoroughly bureaucratic apparatus then churns out tables charts and forumla that puts a numerical value on criminal conduct and, invariably, assigns long prison terms ostensibly based on neutral calculations.

The stated purpose for the Federal Guidelines is to "combat" crime using the criminal justice system. Peeling away the abstraction, the goal is to combat criminals; and it is the militaristic goal of the American system, moreso than bureaucratization of Europe's, that differentiates the two versions of criminal.

A further crimp in the thesis that Europe's penological practices are due to bureaucratically entrenched inteligentia who resists revanchist populations is the fact that the social democratic countries of northern europe are also more democratic, certainly in the classical sense, i.e., Aristotle's, in which the measure is the extent to which poorer rather than richer classes wield power. They also are smaller than many U.S. states as well, the difference is not one of greater democracy at the local level in the U.S., except in the following sense: In the U.S. police and prosecutorial power, for reasons having a lot to do with race, resides disproportionately at the county level. In the U.S., the county system is a a decidedly undemocratic system, in contrast to the system of Komun's in Sweden for example, which does not disenfranchise the cities to near the same extent.

[Bruce]

worth consideration:

http://www.nytimes.com/2009/02/14/us/14judge.html?_r=1&hp

[michael]

I have always been pretty confused what to think about that conflict between expert opinion and elected officials. Who should have what share of influence?

[UBU]

In Myth 1, he draws a conclusion from the median of the sentences, but the argument needs the average of the served time instead. Author obviously confused. Stopped reading.

[observant]

The interesting question is: should the general public, more often than not without collective expert knowledge in criminal law (both in Europe and the U.S.), trump over expert opinion?

Europe, and perhaps Germany in particular, has a long tradition of top-down government, even today in the guise of representative democracy. While that does not come without its share of undesired effects, namely the people often feeling they have no hand in government decisions save for the one time every four years they get to cast their vote, there are some areas where this approach can make sense.

Criminal justice may be one of these. It is one thing to call for ever-tougher legislation to "put bad people behind bars", but the question is, what are the ramifications? In German law, punishment must be suitable, appropriate and necessary (geeignet - angemessen - erforderlich). Moreover, paragraph 2 of the Strafvollzugsgesetz (Criminal Corrections Code) states: "Im Vollzug der Freiheitsstrafe soll der Gefangene fähig werden, künftig in sozialer Verantwortung ein Leben ohne Straftaten zu führen (Vollzugsziel). Der Vollzug der Freiheitsstrafe dient auch dem Schutz der Allgemeinheit vor weiteren Straftaten."

This primary goal of imprisonment - enabling the inmate to lead a socially responsible life without criminal acts once he leaves prison (with protecting the public from the offender merely being a secondary goal), is a carefully crafted result of government-appointed expert input that has largely remained unchanged in the last decades. In the U.S. on the other hand, there has been a trend fueled by "popular demand" of long mandatory sentences even for not always very severe offenses - sentences that focus on "protecting the public" (and retribution) rather than rehabilitating the offender. California's Three Strikes Law which was drafted by an ordinary citizen and adopted almost unchanged into California's criminal code is one such example, and another one might be Megan's Law and the Adam Walsh Act, which address very serious issues and offenses that do deserve due punishment, but may be going a bit overboard.

If you, Andrew, are interested in the evolution of German penal law over the past 40 years, here is an opinion article you might find worth reading:

http://www.neue-kriminalpolitik.de/nk/hefte/Aufsatz_NK_08_04.pdf

[Johannes]

But can the comparatively soft course in the US in the 60ties and 70ties also be explained by voters direct influence? Is the thesis of a mere shifting of inmates between mental hospitals and prisons plausible? Did you really just "empty the hospitals" while the laws didn't change, but more defendants had pleaded for mental deficiencies?
This does not really concern the US-Europe comparison, which interests you, but I find the claim quite disturbing. Boiled down to basics it seems to mean that neither penal laws nor crime rates nor incarceration didn't change all that much in the last 50 years, but for about 20 years you just put more people into mental institutions instead in prison.