On April 13, 2018, in the Circuit Court of Arlington County, Virginia, Commonwealth’s Attorney Theo Stamos staked her position on sentencing for a man convicted of a misdemeanor and a low-level felony.
She locked into a debate with the man’s public defender about the concept of mass incarceration, which she does not believe in.
The most interesting part of this exchange from three years ago involves a nation almost four thousand miles away. Stamos, who now works at the Department of Justice as a “law enforcement liaison with state and local authorities,” attributed Norway’s lower incarceration rate to how Norwegians “have a different criminal justice system, a different set of values as a society, and they’re all Norwegian, all of them.”
Stamos added that the US is “far more heterogeneous” and “far more violent.”
Stamos was right about violence. Five of every 100,000 Americans die by homicide annually, according to the UN Office of Drugs and Crime. That compares poorly with one out of every 200,000 Norwegians dying by homicide each year.
But she was misleading, to put it politely, in implying that ethnic diversity causes more violence and higher incarceration rates.
Norway is predominantly ethnically Norwegian, but the immigrant population also tripled from 1998 to 2013. Its incarceration level increased from 57 per 100,000 people to a high of 74 per 100,000 in 2010, then dropped to 65 per 100,000 in 2018. In terms of actual numbers of prisoners, there were 2,548 prisoners in 2000 and 3,425 prisoners in 2018.
Germany, too, is less diverse than the U.S. But that’s changing.
In 2000, 88.2 percent of Germans were ethnically German. But one in five Germans were second-generation immigrants in 2017. And the Muslim population in Germany, which overwhelmingly constitutes non-convert immigrants, increased from 3.3 million to nearly 5 million people — or 4.1 to 6.1 percent of the population — from 2010 to 2016.
Did Germany’s penal philosophy, as told by the numbers, get harsher in response to an influx in immigrants? It doesn’t look like it. Instead of even a slight uptick in the last few decades, imprisonment rates actually shrank further.
As in Norway, there was a slight uptick in prisoners (from 2000 to 2006), then a shrinkage in the incarceration rate from 93 per 100,000 Germans in 2006 to 77 per 100,000 Germans in 2018.
In the U.S., we are not incarcerating more people proportionately than any other country because we are “far more heterogeneous.” We are more incarcerated because of higher rates of violence, which makes the voting public more afraid—but also because Americans prefer things this way.
To change that preference, we have to understand what’s behind it, as well as examine the feasible alternatives. Those alternatives can be found in Europe.
Americans concerned with decarceration should examine what led Europe down a different path and determine how best to get their peers to accept a system more closely resembling the ones found on the continent.
At least the first part of that equation can be found in the largely forgotten field of comparative criminal justice.
A new paper by Alessandro Corda, a law professor at Queen’s University Belfast, finds that comparative criminal justice study was once commonplace, especially before America split from its European cousins to engage in mass incarceration.
Jerome Hall, a much-celebrated criminal law professor, wrote in 1962 that “among democratic countries there is a wide sharing of values that have been articulated most precisely in their penal laws.”
But, around the same time, American legal reformers started looking between states for inspiration, which helped the U.S. solidify its place as an exporter of law and policy. By 1990, the prominent Journal of Criminal Law and Criminology, once a reliable font of comparative criminal justice research, essentially stopped publishing such material.
A generation removed from the collective forgetting about Europe, Corda explains, many younger U.S. academics and thought leaders came to embrace the populist, communitarian rhetoric of the political hard-left.
Increasingly, this has amounted to calls for prison and police abolition, including from societal elites. This trend has only accelerated after George Floyd’s death. One after another, top figures of the criminal justice reform movement went from advocating for massive cuts to prison populations to openly declaring themselves abolitionists.
The impact of this can be likened to a cannon being shot through the movement’s forward operating base.
A highly influential media organization that helped create the progressive prosecutor phenomenon went all in on abolition, only to then squander its millions of dollars in assets on managerial abuse and a failed unionization attempt. Now, there is no dedicated organization to correct false press claims that progressive prosecutors are to blame for rises in crime.
(A new, similar organization is already skewing its content toward abolition.)
Another important organization, one that has largely driven increased efforts to hold police accountable for killing civilians, helped torpedo the most ambitious, yet still politically viable, police reform bill ever introduced in Congress. The reason: the bill did not fit with the ideological framework of abolition.
The American Civil Liberties Union seems to have recognized how these organizations peeling off from realistic policy fights means reduced firepower for the bipartisan reform coalition. Describing its new goals since President Joe Biden took office, it announced an agenda that was far less ambitious than what Senator Cory Booker (D-NJ) put forth in the Second Look Act of 2019.
Reporting from the Vera Institute of Justice shows the result: the total number of incarcerated people in the US shrank by just two percent between midyear 2020 and spring 2021. After a precipitous fall in incarceration numbers at the height of the COVID-19 pandemic, prisons continued to slowly decrease populations while jails filled back up.
A fair assessment of the prospect of real decarceration in the perceivable future is that it may be hopeless.
The growing abolitionist cult can be expected to drop out of important conversations with lawmakers, opting instead to advocate on social media for a mix of “kin-based self-defense, vigilantism, and communitarian justice” that is incompatible with modern governance.
The remaining members of the reform coalition will ask government officials to not “cut 50” percent of the prison population, as the former name of one organization alluded to, but to cut a percentage point in a state every couple of years.
I propose a third way.
We should pivot away from populist sloganeering and toward the serious study of how our peer democracies balance their duties to uphold victims’ rights and public safety with a low incarceration rate, all without falling into ruin.
That requires a rekindled interest in Europe: not just a vague awareness that its nations incarcerate people less, but an understanding of the nuts and bolts of its criminal justice functioning on the day-to-day level.
Perhaps such work is not as bold or sexy as saying we should “abolish everything.” But when the smoke clears, it will prove much more important.
Rory Fleming is an attorney and writer who has worked for various criminal justice organizations, including the Law Enforcement Action Partnership, Harvard Law School Fair Punishment Project, and the National Network for Safe Communities. He writes from Philadelphia.
2 Comments
But if we have the highest incarceration rate in the world can’t we also learn from other continents that have lower incarceration rates than us? These places would include South America, Africa, and Asia. Should we not try to model our CJS after those continents as well? This “Eurocentric” approach to reform is most troubling. I smell the ugly odor of “White Supremacy”.
I’am lookinf forward for more posts.