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September 17, 2004

USA v. Europe: a sentencing Ryder Cup?

The Ryder Cup, one of my very favorite sporting events, is now underway (and the US team is already behind and playing nervous. The event has me imagining a contest between USA and Europe over sentencing law and policy. Though I am always biased for the home team, I know a lot of thoughtful observers would conclude that Europe is far ahead of the US with regard to the enlightenment of its sentencing policies.

Consider that, among his many astute points, Justice Anthony Kennedy in his speech to the ABA last year highlighted that in "countries such as England, Italy, France and Germany, the incarceration rate is about 1 in 1,000 persons. In the United States it is about 1 in 143." Justice Kennedy also mentioned the recent book by Professor James Whitman, Harsh Justice, which has as its subtitle "Criminal Punishment and the Widening Divide Between America and Europe." In his book, Professor Whitman documents the relative harshness of American punishment compared to its European counterparts and notes America's historical preference for broad criminalization and degrading criminal punishment as compared to Europe's tendency toward narrower criminal liability and punishments that preserve offender dignity.

Professor Richard Frase has recently discussed these important comparative issues in a thoughtful review of Professor Whitman's book. See Richard S. Frase, Historical and Comparative Perspectives on the Exceptional Severity of Sentencing in the United States, 36 Geo. Wash. Int'l L. Rev. 227 (2004). Among other insights, Professor Frase concurs with Professor Whitman's assessment that "sentencing is much harsher in the United States than in Europe," and he contends "this fact needs to be forcefully conveyed to the U.S. public and its leaders." In addition, Professor Frase suggests that "As Americans continue to rethink their harsh sentencing practices, they should look to European nations, and the practices described in [Professor Whitman's] book, for models of humane, efficient, and effective criminal punishment."

September 17, 2004 at 08:30 AM | Permalink

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Comments

This may be true, but even with the corollary that crime rates aren't significantly different, is the public going to care what those "froo-froo" Europeans do? Especially after the Second Gulf War, I don't think too many Americans have respect for anything Continental.
The other corollary is that many European citizens want harsher punishments, but because many European criminal justice systems are bureaucratically-administered, punishment levels remain fairly low. So unless we totally remove the legislature and executives abilities to adjust sentences, we will continue to see the "ratcheting up" without relief. What politician wants to say "I made sure that drug dealers/sex offenders/'violent criminals' got LESS time in 'cushier' prisons!"? Yeah, that guy will get re-elected.
It's not that I don't agree with Justice Kennedy, but I think that there needs to be a realistic method to introduce these concepts to America. Good luck.

Posted by: district clerk battling blakely | Sep 17, 2004 9:25:39 AM

Good points, as always, DCBB, though your comments raise very interesting questions about whether we want the US to move toward a more "bureaucratically-administered" criminal justice system. Indeed, its seems that DOJ and the USSC almost seem to be saying, in order to avoid the wrath of Blakely, that this is what we in fact have in the federal system. Needless to say, the jury is still out on that argument.

Posted by: Doug B. | Sep 17, 2004 9:32:21 AM

Indeed! And with the Court's move toward reinvigorating the "pure" adversary system (not only in Blakely, but, for example, in the Confrontation Clause in Crawford v. Washington) a bureaucratic model is unlikely to take shape any time soon. Therefore, it will be difficult to affect any sort of change in sentencing ranges apolitically, and near impossible to do so politically (because of the mood of the country, the political pressures on legislators to not be "soft on crime" or waste money on "luxurious prisons," etc.).
As to your point about whether we want to move toward a more bureaucratic model, I think the problem is that we are in the worst of both worlds -- an adversary, political system with an overly bureaucratic mechanism. The political machine creates a bureaucratic organization (the USSC) but cannot leave it alone to apply its expertise in the area when political pressures are present. (Feeney, Crack/Powder Cocaine disparities, for example). And then some of the safeguards that might be in place in a bureaucratic system (mandated trials, even if the suspect wishes to plead guilty, investigators hired by the court and available to both sides to search for evidence and give expert testimony in a neutral manner) are nonexistent in our head-to-head, politically motivated, and disproportionally funded system. With a truly "popular," adversary system, procedural requirements and the jury system act as those safeguards. But, as we can tell through Blakely, they haven't necessarily been working well currently.

Posted by: district clerk battling blakely | Sep 17, 2004 1:43:58 PM

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