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May 24, 2012

"Cruel and Unusual: U.S. Sentencing Practices in a Global Context"

The title of this post is the title of this notable new report released this week coming from the University of San Francisco School of Law's Center for Law and Global Justice.  This press release provides a background and summary of this report, and here are excerpts from the press release:

Sentencing laws in the United States are at odds with the country’s human rights obligations to direct its prisons system towards rehabilitation, the University of San Francisco School of Law’s Center for Law and Global Justice said ... in a report examining the sentencing laws of all the countries around the world.  U.S. laws increasing the likelihood and length of prison sentences have created a prisons system out of step with the rest of the world.  They help to explain why, despite a declining crime rate, the U.S. prison population has grown six-fold since 1980 to become the world’s largest per capita.

The report, “Cruel and Unusual: U.S. Sentencing Practices in a Global Context,” compiles comparative research on sentencing laws around the globe and documents how sentencing laws distinguish the United States from other countries.  Researchers found that the United States is in the minority of countries using several sentencing practices, such as life without parole, consecutive sentences, juvenile life without parole, juvenile transfer to adult courts, and successive prosecution of the same defendant by the state and federal government.  Conversely, sentencing practices promulgated under international law and used around the world, such as setting 12 as the minimum age of criminal liability and retroactive application of sentencing laws that benefit offenders, are not systematically applied in the United States. Mandatory minimum sentences for crimes and “three strikes” laws are used in the U.S. more widely than elsewhere in the world....

Fact Sheet for “Cruel and Unusual: U.S. Sentencing Practices in a Global Context”

  • The United States is among only 20% of countries around the world having life without parole (LWOP) sentences.  LWOP sentences can never be reviewed and condemn the convict to die in prison.

  • The United States allows for LWOP sentences for a single, non-violent offense such as drug possession, whereas it is often restricted to multiple, violent crimes in other countries.

  • The United States is one of only nine countries which have both the death penalty and LWOP, along with China, Comoros, Cuba, Israel, Kazakhstan, Lesotho, Nigeria, and Zimbabwe.

  • There are currently over 41,000 prisoners serving LWOP sentences in the United States, compared to 59 in Australia, 41 in England, and 37 in the Netherlands.  On a per capita basis, the United States LWOP population is 51 times Australia’s, 173 times England’s, and 59 times the Netherlands’....

  • The United States, Canada, and Micronesia are the only federalist countries known to researchers allowing successive prosecution of the same defendant by federal and state governments for the same crime....

  • Under international human rights law, if legislators pass a new law to lighten sentences, offenders have a right to benefit from it retroactively.  Though 67% of countries have codified that right, the United States has not....

  • The vast majority of countries (84%) account for the age of the offender at trial, leaving the United States in the minority of countries (16%) trying and sentencing children as adults.

  • The United States is the only country in the world to use juvenile life without parole (JLWOP) sentences, with an estimated 2,594 juveniles offenders serving such sentences.

May 24, 2012 at 11:07 AM | Permalink


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Seems like the slippery slope arguments that the proponents of capital punishment have been citing for years -- if we abolish the death penalty, then the next argument will be that life without parole is cruel and unusual.

Would also note that "federal" is a vague term for comparing systems of government -- there are many degrees of local autonomy in different federal system with the US being somewhat on the high end. I don't think France or the current UK (both of which have some federal aspects) would be a fair comparison, but have always thought that pre-Act of Union England and Scotland would be an interesting topic for research on the common law understanding of double jeopardy in the dual sovereign situation.

Posted by: TMM | May 24, 2012 12:15:03 PM

During my time at the U.S. Penitentiary - Big Sandy in Inez, Ky. ten years ago, I met a 22-year old black D.C. inmate who had a sentence of life without parole under the Federal 3-strikes drug law, section 851. Pursuant to that statute, the Judge has no discretion but to impose a life sentence if the prosecutors file the papers setting forth the predicate convictions, which may be felony drug possession offenses, not just felony drug distribution offenses. According to this inmate's PSR, the total amount of drugs involved in his three drug possession offenses (qualifying him for a life sentence) was 8 ounces of marijuana and 3 grams of heroin. It will cost more than $2 million to incarcerate such a young man in Federal prison for more than 50 years, until he dies. His sentence is morally reprehensible, just plain wrong. We need to get Congress to change that law and make it retroactive.

Posted by: Jim Gormley | May 24, 2012 12:58:14 PM

This is really fascinating (if not a little disconcerting). It's old news now to see that the USA is a world leader in incarceration, but this is the first I've heard of our ranking in terms of sentencing practices such as LWOP sentences and dual sovereign prosecutions.

What strikes me the most out of just that executive summary is the fact that even though several other countries have LWOP sentencing available to them, our LWOP population is many orders of magnitude greater than at least those countries listed.

Well at least we're good at something, right?

Posted by: Guy | May 24, 2012 9:53:48 PM

Guy --

"Well at least we're good at something, right?"

Right. We're good at being the principal force that defeated two of the most powerful, malicious, anti-human and cruel ideologies ever devised, Fascism and Communism, and the imperialist slave states that thrived on those ways of thinking. We were also good at rebuilding the world after our victory, when every similarly powerful and victorious nation throughout history would have simply raped, pillaged and plundered.

I'm really not too impressed with the pygmies who are all too eager to accept our largess, who sat on their fat backsides while we sacrificed hundreds of thousands to liberate the world, and now want to lecture us.

Want to avoid the draconian criminal law system of the USA? Fine. Here are two easy ways to do it: Don't commit crime, or move to Uganda or Uzbekistan or Argentina or Cuba or Russia some of these other wonderful places you think are in a position to look down their noses at us.

Posted by: Bill Otis | May 24, 2012 10:47:25 PM

Well, at least we have the lowest crime rates of any industrialized nation to show for it. Right?

Posted by: C.E. | May 24, 2012 11:19:39 PM

Nice bill! but when it's all said and done 100 years or so from now i think most people will look back at this time and rightly decide the United States ended up being wose then both fascism and Communism!

Posted by: rodsmith | May 25, 2012 12:16:53 AM


I didn't anticipate my comment to be taken literally; it was intended purely as hyperbole. Actually I love America, and have been known to tear up whilst visiting the constitution in DC (I actually have caught quite a lot of flak from my significant other for that).

I think that our history with playing at world power is somewhat more complicated and nuanced than you're making it out to be, not that we haven't achieved nor done good deeds, but it always comes for a price and with a consequence.

To me though, that seems like it hasn't a thing to do with the question of whether our criminal justice system is draconian (it is) and whether it is overly-so (not to be a broken record...)

England, too, sacrificed a great deal to defeat the Nazis (and, coincidentally, is the country of my birth) -- and yet their criminal justice system is positively tame when compared to us, so I'm not sure what the one has to do with the other.


Posted by: Guy | May 25, 2012 12:58:23 AM

Bill, was it not said long ago, "patriotism is the last refuge of a scoundrel."

Posted by: anon13 | May 25, 2012 12:24:42 PM

Jury nullification could and should be a force to address the cruel and unusual sentencing which is referenced in Prof Berman's post.

Mr. Otis,

In the final analysis, two things defeated fascism: the red army and the atomic bomb. To be fair, the USA did provide significant material and moral support to the red army. We also invented the bomb and dropped it. Nobody defeated communism. If you are referring to the collapse of the Soviet Union, a whole host of exogenous and internal factors led to its collapse.

"Don't commit crime". I agree with you in principle. In the days when the criminal code dealt mainly with crimes of violence and theft of property, it was a simple matter to stay out of trouble. Today, as a practical matter, I can't keep up with the thousand of pages of state and federal criminal statutes.

I am aware that I am breaking laws all the time even though I have no knowledge of what those laws may be. I do know that since there are so many laws and the state can't possibly enforce them all, that the state will selectively enforce those which are the most politically expedient. Thus, if I watch the news and keep up with which way the political wind is blowing I can pattern my behavior to avoid activities which our selective enforcers have deemed unlawful.

Posted by: Jardinero1 | May 25, 2012 12:43:10 PM

rodsmith --

Can I borrow your crystal ball? I don't necessarily know what'll be going on in 100 years; I'll settle to know where the market will finish on Monday.


Posted by: Bill Otis | May 25, 2012 4:36:40 PM

C.E. --

No, we do not have the lowest crime rate in the industrialized world. Japan -- which has an active death penalty -- has a crime rate lower than ours (and Western Europe's, the source of endless moral lecturing). We do, however, have a crime rate half what it was 20 years ago -- and have accordingly saved millions of people from being crime victims -- in significant part because of the policies you and the High Moral Arbiters in Uzbekistan, et al., decry.

I like having millions fewer crime victims. You don't?

Posted by: Bill Otis | May 25, 2012 4:42:47 PM

anon13 --

"Bill, was it not said long ago, "patriotism is the last refuge of a scoundrel."

It was said more recently that High Moralizing from countries that have contributed to the world not one-fiftieth of what the United States has is the first refuge of a gang of hypocrites.

Posted by: Bill Otis | May 25, 2012 4:51:16 PM

Guy --

And cheers to you. I kinda thought your comment had a bit more bite than you might have intended.

Posted by: Bill Otis | May 25, 2012 5:01:14 PM


For sure I didn't mean any offense, and I apologize if that's what you took from it. I just don't see the connection that you're trying to draw.


Posted by: Guy | May 25, 2012 5:19:41 PM

Guy --

The connection is that moral pygmies have no standing to scold moral giants, of which the United States is the leading example history offers. Never has a nation with such a comparative advantage in economic and military power acted with such benevolence toward the aggressor nations it defeated. Never.

See also my answer to C.E. It's just pie-in-the-sky huckstering to look down the nose at our "harsh" criminal justice system while never breathing a word about two decades' worth of massive improvements in public safety its complained-about features have helped create.

Posted by: Bill Otis | May 25, 2012 5:35:01 PM


Some serious questions for you. Accepting your premise for the moment that heavy sentences have had a significant effect on decreasing crime rates, why does that suggest that so much use of LWOP is necessary, rather than a lot of 10 to 15-year sentences or so. What is the magic in locking up the 22-year-old forever rather than until he is in his late 30s or so? In otherwords, what is your difficultly with modulation, taking into account concepts like diminishing returns to punishment scale, and maybe a bit of giving people second chances (and recognizing that people change for the better sometimes)? Why not re-introduce parole in the federal system and get a chance to see how things develop with offenders many years down the road? Is it worth considering the costs and benefits of various touch, but not immobile, sentencing schemes? Why the absolutist line on all of these issues? You seem to take the view that there is big downside to nuance in and of itself, and I am very interested in why that is. Thanks.

Posted by: Alex | May 25, 2012 6:47:08 PM


I don't know -- it seems to me to still be besides the main point, and that is the (overly) draconian nature of our criminal justice system. It may well be true that "moral pygmies" have no standing to complain, but that doesn't address whether their criticisms are, in fact, legitimate. Perhaps it's inappropriate to claim that the emperor has no clothes, but that claim or the criticism of the claim does little to alter the emperor's present wardrobe.

Furthermore, I think it's an open question as to whether LWOP sentencing, or draconian sentencing such as mandatory minimums have contributed to a decrease in crime rates or how much they have contributed. I think the converse can equally be stated, that draconian sentencing does far more harm than good (for example, in terms of what is seen with first time offenders being after decades of incarceration for drug offenses have problems with re-entry). Also, the research that I am familiar with suggests that likelihood of detection does *far* more in terms of deterrence than does severity of sentencing.


Posted by: Guy | May 25, 2012 9:10:06 PM


"rodsmith --

Can I borrow your crystal ball? I don't necessarily know what'll be going on in 100 years; I'll settle to know where the market will finish on Monday.


Posted by: Bill Otis | May 25, 2012 4:36:40 PM"

Crystal ball...nope just looking at history. Considering what WE think of adolf hitler, stalin, mao, pol pot, edi amin and so on NOW it's not a stretch to think that in 100 years when people look back at the leaders of this time. the Bushes, Clinton, Obama, Ford, Nixon..

they will be saying the same thing we are now! They are dangerous and possibly psychotic!

Posted by: rodsmith | May 25, 2012 11:12:25 PM

Guy --

You just state that our system is "draconian." But that is a characterization, not a fact. ("Mr. X served 98 months" would be a fact). Nor do you provide any reason or evidence for your speculation that longer sentences have done more harm than good, and the speculation is directly inconsistent with the fact that the crime rate has gone down massively over exactly the decades that sentences have gone up.

It is true that a prospective criminal's assessment of the likelihood of being caught is a more powerful deterrent than the sentence he actually gets when he is. But you draw the wrong conclusion from this fact. The correct conclusions are (1) that we should have more police to increase deterrence (have you ever come out in favor of that?), and (2) until we do, we'd be nuts to throw away the second best deterrent simply because it's not No. 1.


Posted by: Bill Otis | May 26, 2012 9:54:16 AM

Alex --

I'm all for "nuance," except when it's used as a way to get back to the policies of the past, the ones that produced skyrocketing crime in the late sixties and seventies. I have been around academia long enough to know that "nuance" and "sophistication" and "refined" and other such words are employed simply as tools of self-congratulation, rather than in the service of improving the criminal justice system.

Parole was not eliminated because of a message delivered by men from Mars. It was eliminated because (1) it was scandalously inconsistent with the notion that the sentence we told the public the criminal would serve should be the sentence he serves; and (2) given the very high recidivism rate, parole cost too much to public safety.

"Nuance," I'm afraid, is nothing but code for going back to the policies of the sixties and seventies -- in other words, going back to what we know fails.

Posted by: Bill Otis | May 26, 2012 10:05:40 AM


When we incarcerate more people per capita than any other place on the planet, and as the OP points out, we have far and away more people incarcerated on LWOP sentences than any other place on the planet, the term "draconian" seems almost quaint, antiseptic, and clinical, but I think it suffices to describe the situation quite nicely. I also wouldn't say that my speculation is unsupported, as numerous pieces of social science research implicate many other things as being responsible for falling crime rates other than draconian sentencing. Your speculation, it seems to me, is simply a case of post hoc ergo propter hoc.

I don't know if more police necessarily solves the problem, but better policing, sure. I would be in favor of more police over, say, increasing the number of crimes for which mandatory minimum sentencing applies -- as that would have more of an impact in terms of deterrence.

It may well be that draconian sentencing acts as a deterrent, even if it's not a very effective one, Bill. But so would imposing the death penalty for even minor offenses. So would chopping people's hands off for stealing loaves of bread. We don't do that in this country because, at least ostensibly, we're still moored, even if only tenuously so, to the concept of proportionality: that the punishment must fit the crime. These discussions about what is an effective deterrent and what isn't do not take place in a vacuum, but rather within the context of the organizing principles of the country.

So even if it's true that imposing an LWOP sentence for stealing golf clubs on a third strike would have *some* deterrent value, its offense to notions of fairness, proportionality, the loss in terms of people who are essentially disabled for the rest of their lives when they didn't need to be, and the sheer economics of taking care of all of those people, is why I say it has done more harm than good. Like policing, the problem is one of having more years, but better ones.


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Posted by: IT Service Melbourne | Jul 22, 2012 3:02:21 PM

What international law or treaties state that if a legislature lightens sentences the lighter sentence is to have retroactive effect?

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