CRIME AND PUNISHMENT IN AMERICA

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
counterproductive.

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.