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The American ‘Punisher’s Brain’

U.S. sentencing practices seem especially extreme when compared with countries like Canada, Germany, and the Netherlands.

May 17, 2021
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

Our penchant for punit­ive senten­cing goes back beyond the Consti­tu­tion or the Pilgrims or even Brit­ish common law. It goes back further than the Magna Carta or the Code of Hammur­abi or the Talmud, back to the dawn of human history, when small groups of people adop­ted concepts of culp­ab­il­ity and punish­ment as a matter of basic survival. Our ancient ancest­ors shamed and weeded out the rule-break­ers among them, some­times with leni­ency, usually in harsh ways, to protect the integ­rity and the unity of their tribe.

All humans may be hard­wired to be cruel in a fash­ion. But as Robert Ferguson argued in his 2014 master­work, Inferno, the United States has allowed these instincts to domin­ate crim­inal justice policy. The result over the past half century has been an unpre­ced­en­ted era of mass incar­cer­a­tion. On any given day, more than 2 million people are locked up in the nation’s 5,000 or so pris­ons and jails, many serving sentences grossly dispro­por­tion­ate to the nature of their crimes. And that does­n’t even include another 50,000 or so people effect­ively imprisoned in federal or private immig­ra­tion deten­tion centers.

A 2016 report by the Bren­nan Center for Justice concluded that nearly 40 percent of the prison popu­la­tion at the time — nearly 600,000 people, or more than the entire popu­la­tion of Atlanta or Milwau­kee — was imprisoned without any legit­im­ate public safety justi­fic­a­tion. Moreover, as the Senten­cing Project recently revealed, there are more people serving life sentences today across the nation — some 206,000 people in federal and state pris­ons — than there were people in prison alto­gether in the United States in 1970. In fact, 83 percent of the world’s popu­la­tion of life-without-parole pris­on­ers is living behind Amer­ican bars.

But if retributive justice is in our DNA, if punish­ment comes down to us from prehis­tory, why is Amer­ican justice so much harsher than it is in other West­ern demo­cra­cies? The Neth­er­lands, for example, impris­ons its citizens at a per capita rate that is one-tenth the Amer­ican per capita rate for all sorts of crim­inal offenses.

One obvi­ous root of this excep­tion­al­ism is Amer­ica’s endless struggle over racial justice. We endured punit­ive senten­cing in the racist “Black Codes” that sprung up in south­ern states after the Civil War to incar­cer­ate or force newly freed slaves into a form of inden­tured servitude. We saw it in “convict leas­ing.” We saw the same in the form­a­tion of Jim Crow laws sanc­tioned by the Supreme Court and in the discrim­in­at­ory hous­ing and employ­ment prac­tices and policies the law allowed.

Modern punit­ive senten­cing schemes began to take root half a century ago, when the Nixon admin­is­tra­tion began its “war on drugs,” a futile battle the nation is still waging. These punit­ive efforts meta­stas­ized in the late 1980s and early 1990s, when a nation­wide crime wave gener­ated a “tough on crime” response that led to the creation and enforce­ment of “three-strikes” laws, expan­ded the scope of mandat­ory minimum sentences, and fueled “truth in senten­cing” meas­ures. All of these, together, vastly expan­ded the number of people sent to federal and state pris­ons.

Those policies are largely still with us, three decades later, despite recent reforms and a decades-long decline in viol­ent crime. So, in some juris­dic­tions, is capital punish­ment. At the same time, there has been an explo­sion of excess­ively punit­ive sex offender laws, requir­ing regis­tra­tion on lists, impos­ing resid­ency restric­tions, and even impris­on­ing people for “treat­ment” long after their prison terms have been completed.

Roughly 20 such “civil commit­ment programs” now exist in vari­ous states, and many of the people in them may be indef­in­itely detained. We also see the Amer­ican “punish­er’s brain,” as Color­ado Judge Morris Hoff­man once put it, in the often inhu­mane ways in which the condemned are forced to serve out these sentences in danger­ous, dirty pris­ons bereft of adequate health care. And we see it all even though there still appears to be little compel­ling evid­ence justi­fy­ing excess­ively punit­ive sentences. In fact, a grow­ing body of evid­ence has under­mined long-perceived links between public safety and the length of prison sentences.

The rise of habitual offender three-strikes laws is a good example of the excess­ively punit­ive dynamic. These senten­cing laws, a byproduct of the 1990s “law and order” push, gener­ally require judges to mete out life-without-parole sentences to defend­ants who commit at least three offenses if the most recent of them is considered a “seri­ous” felony. Judges and legis­lat­ors in some states have used partic­u­larly broad defin­i­tions of these trig­ger­ing offenses. In Wash­ing­ton, for example — the first state to enact a three-strikes law — second degree robbery was for decades a three-strike-trig­ger­ing offense even though it was stat­utor­ily defined as a crime without a weapon and without injury to the victim.

“Truth in senten­cing” state laws, also spawned during the 1980s and early 1990s, are another good example of the ways in which Amer­ican poli­cy­makers have imposed partic­u­larly harsh senten­cing regimes. These laws were enacted to require pris­on­ers to serve a higher propor­tion of their sentences than had been the prac­tice, with much less “time off” for “good beha­vior” and much less defer­ence given to the judg­ments of local parole boards. Once again, Wash­ing­ton was the first state to enact such a meas­ure, in 1984, and today at least 40 states and the District of Columbia have some form of it on the books.

Mandat­ory minimum sentences are simil­arly wide­spread. The last 75 years or so have seen the tide of federal mandat­ory minim­ums ebb and flow. From the 1950s to 1970s it expan­ded. Then it receded. The Compre­hens­ive Drug Abuse Preven­tion and Control Act of 1970, a progress­ive law from the Nixon era, abol­ished mandat­ory minimum sentences for almost all drug offenses. Then the polit­ics of crime and justice turned again toward harsher punish­ment and more incar­cer­a­tion, and from the mid 1980s until just a few years ago Congress churned out one new mandat­ory minimum senten­cing scheme after another, even after doubts were raised about their effect­ive­ness.

The harsh­ness of these senten­cing regimes is magni­fied when they are compared to those in other coun­tries. For example, Amer­ican laws have long gran­ted trial judges the free­dom to impose consec­ut­ive sentences on separ­ate charges related to the same crime — in many instances effect­ively length­en­ing a defend­ant’s sentence to life without parole, but without saying so. There are U.S. pris­on­ers sitting in their cells with 200-year sentences. By contrast, only within the last decade were Cana­dian trial judges even allowed to issue consec­ut­ive sentences, and only in murder cases, specific­ally to ensure longer sentences before parole eligib­il­ity. European coun­tries are even more enlightened in their senten­cing approaches.

Dispar­it­ies in senten­cing are espe­cially stark when compared to prac­tices in such European coun­tries as Germany and the Neth­er­lands. The laws and crim­inal justice policies of these nations don’t just differ from their Amer­ican coun­ter­parts in the details — they differ in philo­sophy. The U.S. “punish­er’s brain” is absent from European justice models, which emphas­ize rehab­il­it­a­tion and reso­cial­iz­a­tion. Germany’s Prison Act, for example, specific­ally states that the very purpose of incar­cer­a­tion is to help pris­on­ers lead lives of “social respons­ib­il­ity free of crime” upon release.

The vast major­ity of defend­ants convicted of crimes in Germany and the Neth­er­lands — even what we would consider “crimes of viol­ence” in the United States — never spend any meas­ur­able time in prison. Most are diver­ted into other programs, or forced to pay fines, or given suspen­ded sentences. These prac­tices, and the emphasis on rehab­il­it­a­tion for those pris­on­ers who are kept behind bars, go hand-in-hand with low crime and recidiv­ism rates in those coun­tries.

When it comes to punit­ive senten­cing regimes, Canada sits some­where in between the Amer­ican and European models. Only 29 crimes in Canada’s crim­inal code carry a mandat­ory minimum sentence, most having to do with fire­arm-related offenses in a nation that has no Second Amend­ment. Canada did enact its own “truth in senten­cing” law in 2009 — federal legis­lat­ors wanted to be more punit­ive — but the meas­ure was struck down five years later by a unan­im­ous Supreme Court of Canada.

Amer­ican senten­cing laws are still harsher than those of coun­ter­parts in many other demo­cra­cies, and we are still by far the world’s incar­cer­a­tion leader, but recent bipar­tisan justice reforms on both a federal and state level have begun to change the Amer­ican punish­ment narrat­ive. Citing evid­ence-based prac­tices and rely­ing on stat­ist­ics under­min­ing long-held justi­fic­a­tions for many punit­ive sanc­tions, justice reformers across the coun­try have convinced poli­cy­makers that the costs of excess­ive sentences don’t just fall on the incar­cer­ated or their famil­ies but rather on all of us.