The rogue state.

In his latest installment in his ongoing series of articles under the rubric “American Exception,” examining commonplace aspects of the American judicial system that are virtually unknown in the rest of the world, New York Times legal correspondent Adam Liptak reports the disturbing statistic that the U.S., with a prison population of 2.3 million, now “leads the world in producing prisoners.” China, with a population four times ours, is a distant second, with 1.6 million people behind bars.

Shockingly, we now lock up one in every 100 adults. When it comes to incarceration rates, the U.S. ranks first, at 751 prisoners per 100,000 in population. In comparison, England’s rate is 151 per 100,000; Japan’s, 63. The median for all nations is around 125 – about one-sixth the U.S. rate. As Liptak points out, the rise in the U.S. incarceration rate is recent. Between 1925 and 1975, the rate was around 110 per 100,000. It spiked as a result of the movement to get tough on crime in the late seventies.

Liptak also cites compelling evidence that the lengths of prison terms in the U.S. are far longer than anywhere in the world, especially for nonviolent offenses, including white-collar and drug. Vivien Stern, a research fellow at the International Centre for Prison Studies in London, writes that the United States has become “a rogue state, a country that has made a decision not to follow what is a normal Western approach.”

I began my career as a criminal defense lawyer around the same time this country began its “get tough on crime” campaign. It is clear to me that the pendulum has swung much too far in the direction of draconian retribution. Liptak proposes several possible causes for this alarming situation, among them the politicized nature of the criminal justice system. In my experience, each election cycle brings a new clarion call for longer, harsher, and more punitive sentences. The election of prosecutors and judges, and even the politicized process of appointing federal judges, feeds this out-of-control wildfire.

Even in the aftermath of case law changes to the federal sentencing system, with federal judges being provided the opportunity to exercise more lenity, they are still largely following the sentencing guidelines. The result can be drastic sentences, such as the one handed down recently to Bayou hedge fund executive Samuel Israel, who pleaded guilty and cooperated with the government. His pleas for mercy were ignored by the judge, who sentenced him to 20 years in prison. Until legislators, judges, and prosecutors recognize the futility of our obsession with protracted imprisonment for individuals whose lives can be salvaged, we will continue to be a “rogue state” when it comes to making the punishment fit the crime. CR