Pubdate: Tue, 27 Jul 2010
Source: Economist, The (UK)
Copyright: 2010 The Economist Newspaper Limited
Bookmark: (Mandatory Minimum Sentencing)


Rough Justice

America Locks Up Too Many People, Some for Acts That Should Not Even 
Be Criminal

IN 2000 four Americans were charged with importing lobster tails in 
plastic bags rather than cardboard boxes, in violation of a Honduran 
regulation that Honduras no longer enforces. They had fallen foul of 
the Lacey Act, which bars Americans from breaking foreign rules when 
hunting or fishing. The original intent was to prevent Americans 
from, say, poaching elephants in Kenya. But it has been interpreted 
to mean that they must abide by every footling wildlife regulation on 
Earth. The lobstermen had no idea they were breaking the law. Yet 
three of them got eight years apiece. Two are still in jail.

America is different from the rest of the world in lots of ways, many 
of them good. One of the bad ones is its willingness to lock up its 
citizens (see our briefing). One American adult in 100 festers behind 
bars (with the rate rising to one in nine for young black men). Its 
imprisoned population, at 2.3m, exceeds that of 15 of its states. No 
other rich country is nearly as punitive as the Land of the Free. The 
rate of incarceration is a fifth of America's level in Britain, a 
ninth in Germany and a twelfth in Japan.

Tougher Than Thou

Some parts of America have long taken a tough, frontier attitude to 
justice. That tendency sharpened around four decades ago as rising 
crime became an emotive political issue and voters took to backing 
politicians who promised to stamp on it. This created a ratchet 
effect: lawmakers who wish to sound tough must propose laws tougher 
than the ones that the last chap who wanted to sound tough proposed. 
When the crime rate falls, tough sentences are hailed as the cause, 
even when demography or other factors may matter more; when the rate 
rises tough sentences are demanded to solve the problem. As a result, 
America's incarceration rate has quadrupled since 1970.

Similar things have happened elsewhere. The incarceration rate in 
Britain has more than doubled, and that in Japan increased by half, 
over the period. But the trend has been sharper in America than in 
most of the rich world, and the disparity has grown. It is explained 
neither by a difference in criminality (the English are slightly more 
criminal than Americans, though less murderous), nor by the success 
of the policy: America's violent-crime rate is higher than it was 40 years ago.

Conservatives and liberals will always feud about the right level of 
punishment. Most Americans think that dangerous criminals, which 
statistically usually means young men, should go to prison for long 
periods of time, especially for violent offences. Even by that 
standard, the extreme toughness of American laws, especially the ever 
broader classes of "criminals" affected by them, seems increasingly 

Many states have mandatory minimum sentences, which remove judges' 
discretion to show mercy, even when the circumstances of a case cry 
out for it. "Three strikes" laws, which were at first used to put 
away persistently violent criminals for life, have in several states 
been applied to lesser offenders. The war on drugs has led to harsh 
sentences not just for dealing illegal drugs, but also for selling 
prescription drugs illegally. Peddling a handful can lead to a 
15-year sentence.

Muddle plays a large role. America imprisons people for technical 
violations of immigration laws, environmental standards and arcane 
business rules. So many federal rules carry criminal penalties that 
experts struggle to count them. Many are incomprehensible. Few are 
ever repealed, though the Supreme Court recently pared back a law 
against depriving the public of "the intangible right of honest 
services", which prosecutors loved because they could use it against 
almost anyone. Still, they have plenty of other weapons. By counting 
each e-mail sent by a white-collar wrongdoer as a separate case of 
wire fraud, prosecutors can threaten him with a gargantuan sentence 
unless he confesses, or informs on his boss. The potential for 
injustice is obvious.

As a result American prisons are now packed not only with thugs and 
rapists but also with petty thieves, small-time drug dealers and 
criminals who, though scary when they were young and strong, are now 
too grey and arthritic to pose a threat. Some 200,000 inmates are 
over 50-roughly as many as there were prisoners of all ages in 1970. 
Prison is an excellent way to keep dangerous criminals off the 
streets, but the more people you lock up, the less dangerous each 
extra prisoner is likely to be. And since prison is expensive-$50,000 
per inmate per year in California-the cost of imprisoning criminals 
often far exceeds the benefits, in terms of crimes averted.

Less Punishment, Less Crime

It does not have to be this way. In the Netherlands, where the use of 
non-custodial sentences has grown, the prison population and the 
crime rate have both been falling (see article). Britain's new 
government is proposing to replace jail for lesser offenders with 
community work. Some parts of America are bucking the national trend. 
New York cut its incarceration rate by 15% between 1997 and 2007, 
while reducing violent crime by 40%. This is welcome, but deeper 
reforms are required.

America needs fewer and clearer laws, so that citizens do not need a 
law degree to stay out of jail. Acts that can be regulated should not 
be criminalised. Prosecutors' powers should be clipped: most 
white-collar suspects are not Al Capone, and should not be treated as 
if they were. Mandatory minimum sentencing laws should be repealed, 
or replaced with guidelines. The most dangerous criminals must be 
locked up, but states could try harder to reintegrate the softer 
cases into society, by encouraging them to study or work and by 
ending the pointlessly vindictive gesture of not letting them vote.

It seems odd that a country that rejoices in limiting the power of 
the state should give so many draconian powers to its government, yet 
for the past 40 years American lawmakers have generally regarded 
selling to voters the idea of locking up fewer people as political 
suicide. An era of budgetary constraint, however, is as good a time 
as any to try. Sooner or later American voters will realise that 
their incarceration policies are unjust and inefficient; politicians 
who point that out to them now may, in the end, get some credit.
- ---
MAP posted-by: Richard Lake