In February 2013, delegations from Colorado, Georgia and Pennsylvania traveled to Germany and the Netherlands to tour prison facilities, speak with corrections officials and interact with inmates. The delegations consisted of “criminal justice stakeholders” from each state — men and women involved in various areas of the criminal justice systems of their respective states. The trip was funded by the Prison Law Office and organized by the Vera Institute of Justice.
And boy was it eye-opening!
The differences in the goals and practices of criminal justice between western Europe and the United States are startling, as the members of the three delegations quickly discovered. “The German and Dutch systems are both organized around the central tenants of resocialization and rehabilitation,” according to Vera’s report on the trip, “Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States.” As the Vera report notes, “This is in contrast to the corrections system in the U.S., where incapacitation and retribution are central and where rehabilitative aims remain secondary (at least in practice if not in policy).”
So how are the differing goals and practices working out? With its emphasis on mass incarceration, the state prison population in the U.S. grew by 705 percent in the past 40 years, from 175,000 state inmates in 1972 to 1.4 million in 2012. When the prison populations of the Federal Bureau of Prisons and local city and county jails are added, the total rises to 2.2 million. This has led to an incarceration rate in the U.S. of 716 per 100,000 residents (one of every 104 American adults) and to state corrections expenditures of $53.5 billion in fiscal year 2012. And these figures do not include the federal prison system or city and county jails.
By contrast, the incarceration rate in Germany is only 79 per 100,000 residents. In the Netherlands it is 82 per 100,000 residents.
What accounts for these extreme differences? In the U.S. 70 percent of convicted offenders receive an active prison sentence. The average sentence is three years. In the Netherlands, only 10 percent of convicted criminals receive an active prison sentence; in Germany, the rate is even lower — six percent.
So what are the Dutch and the Germans doing that the U.S. is not doing? Both European countries have a menu of options that are far more likely to be invoked than an active prison sentence. In Germany and the Netherlands prosecutors “have broad power to divert offenders away from prosecution” toward penalties such as “fines, community service, compensation, driving restrictions, mediation, forfeiture, or confiscation of assets obtained by or used in the conduct in question.” This kind of “diversion” on the part of prosecutors, agreed to by the accused, avoids a criminal prosecution even for crimes that, in the U.S., would be considered felonies.
In Germany and the Netherlands, fines often “serve as a stand-alone — and often preferred — sanction.” In the U.S. fines are more commonly “used as an accessory penalty in combination with other sanctions,” most likely a prison sentence. Germany uses a unique approach, assessing what is called a “day fine.” These are fines that are “imposed in daily units (representing one day incarcerated) and are based on an offender’s personal income.”
Also, in both Germany and the Netherlands, when custodial sentences are given, “a relatively large percentage of these…are suspended.” In the U.S. this would be called “probation.” In both European countries, custodial sentences up to two years are routinely suspended.
The U.S. delegations also found the conditions of those incarcerated in Germany and the Netherlands to be very different from most prisoners in the U.S. From the Vera report: “Participants spoke about how struck they were by the degree to which the conditions of confinement are informed by the emphasis on resocialization and reentry, noting in particular the personal agency with which prisoners were invested in their daily life, the positive interactions between staff and offenders, and the focus on vocational training and education.”
Here are some examples of what the delegations observed: prisoners “wear their own clothes, decorate their own cells and keep their own personal belongings.” Moreover, prisoners “have freedom of movement within the unit or facility, access to self-catering facilities [prepare their own meals], and assist in organizing daily life in the prison.” And most astonishingly, “guards knock before entering cells, and prisoners have keys to their own cells and separate, walled toilets.”
Solitary confinement, a normal practice in state and federal prisons in the U.S., is rarely invoked in Germany or the Netherlands. When used in Europe, it is used only for a brief period of time. In Germany the law forbids solitary confinement for more than four weeks in any year; in the Netherlands, the statute limits it to two weeks in a given year.
It is well-known that drug offenders are the largest single population in prisons in the U.S. — a result of the decades-long “war on drugs.” In Germany and the Netherlands, incarceration for drug offenses is practiced mostly for drug traffickers. Other drug offenders are diverted to programs more suited to helping overcome habitual use. [Drug courts are being created in more and more states in the U.S. as an alternative to prosecution and incarceration. I see this regularly in my work at a residential substance abuse rehabilitation center].
When the trip ended, the U.S. delegations came home and discussed what they saw in Europe. In the section of its report on the “Implications for the United States,” Vera said this: “U.S. Policymakers seeking less crime, fewer victims, and greater safety in their states and counties cannot ignore the growing body of proof that many of the European practices — socialization, cognitive-behavioral interventions, education, life skills, and treatment of mental illness — are far more successful.” Vera identified five strategies U.S. criminal justice stakeholders should consider:
- Expand prosecutorial discretion to divert offenders. “Policymakers in the United States wishing to safely lower incarceration rates and the number of people exposed to the negative consequences of criminal justice contact should consider extending diversion options to higher-risk individuals and those with more serious offenses.”
- Reduce reliance on incarceration as a first response and expand the use of community-based sanctions. “Policymakers interested in effective corrections should ask whether they are making the best use of the options available to them and explore whether these options — as well as the pool of eligible offenders — can safely expanded to support a shift in emphasis away from institutional to community corrections.”
- Adapt the disciplinary structure and expand the menu of sanctions. “While many states provide incentives for program completion and good behavior, these are usually in the future (i.e, reduced incarceration time); corrections systems need more short-term positive reinforcement or incentives to encourage more constructive interactions between the institution, staff and offenders.” [Note: my experience ministering to inmates in the Federal Bureau of Prisons would support this strategy 10o percent. In the BOP there are zero short-term incentives for program completion and good behavior].
- Treat young offenders as a special population. “If US. jurisdictions want to salvage the potential of these young adults — as contributing members of communities — then attention must be paid to responding appropriately to their developmental needs, with an emphasis on treatment, education, and social or vocational training.”
- Normalize the conditions within prison. “The rationale of normalization is to mitigate the negative effects of incarceration on prisoners and increase chances for successful offender rehabilitation and reintegration.”
The Vera report is copiously footnoted, quite current (October 2013), and only 19 pages in length. The link above will take the reader directly to the online PDF.
For many reasons, the U.S. will not want or be able to do criminal justice and incarceration as they are done in Europe. But a growing chorus of influential voices in the U.S. is beginning to sing the same song: mass incarceration is a failure and our prisons are not preparing inmates for successful reentry to the community. Things need to change. Criminal justice needs to be re-envisoned. Do lawmakers, prosecutors, judges and prison officials have the courage to do this? More importantly, do the citizens have the courage to demand it?