Rice University's premier undergraduate journal of scholarship in domestic and international policy.
Lajward Zahra
Mar 6
Looking to the Dutch and German Criminal Justice Systems to Mitigate Excessive Incarceration in the US
Photo by Golden Illustrations for the New Yorker
Introduction
Over the past decades, the United States has faced increasing criticisms of its criminal justice system from citizen groups such as the Fair Fight Initiative, Families Against Mandatory Minimums, and The Center for Prison Reform, among others. These criticisms have particularly focused on the high rate of convictions leading to incarceration and the prolonged duration of sentences. In 2023, 49% of American adults agreed that the criminal justice system was "fair," down from 66% in 2003 (Gallup 2023). Similarly, in 2002, 65% of American adults preferred targeting “the root causes of crime,” a significant increase from 42% who favored a more “punitive” approach in 1994 (Open Society Foundations 2002). The U.S. criminal justice system is indeed excessively punitive compared to peer countries in North America and Western Europe. The problem is not endemic to certain states or regions of the United States either; all fifty states incarcerate individuals at a higher rate than any of the U.S.’ peer countries in North America and Western Europe (Prison Policy Initiative 2021). Additionally, from the 1970s to the 2010s, the incarceration rate overall in the United States increased by over 700 percent, with over 1.2 million incarcerated individuals in the United States today (American Civil Liberties Union 2024).
With states spending an average of $45,771 per incarcerated individual per year, there are clear material incentives for turning to restorative justice, which offers more frequent alternatives to incarceration. (USAFacts 2023). Moreover, because restorative justice is an approach to addressing crime that emphasizes repairing harm and rebuilding an offender’s connection to society rather than focusing on punishment, restorative justice helps mitigate harms like the school-to-prison pipeline and recidivism (Bahna 2022; Augudelo 2021). The United States can look to the German and Dutch models of restorative justice, specifically, alternative sentencing practices, to inform and guide comprehensive reform efforts to mitigate excessive incarceration in the United States. However, it is imperative to note the unique challenges presented by ingrained "tough on crime" attitudes and deeply rooted racial disparities within the American criminal justice system.
Dutch and German Policies
The Dutch and German incarceration rates, ranging from about 70 to 80 people per 100,000, are drastically low compared to the U.S.' over 700 per 100,000 incarceration rate. (Prison Policy Initiative 2021). This stark difference in incarceration rates allows the policy practices of these countries to be strong blueprints for the United States to consider in criminal justice reform practices. Specifically, the United States should model the use of alternative sentencing practices to resolve more minor criminal offenses. For example, both Germany and the Netherlands permit prosecutors to allow offenders to pay a sum of money or complete a certain amount of unpaid work hours in place of incarceration for offenses that carry less than a 6-year sentence, which make up a majority of the countries’ crimes. The system is very successful: over 30% of criminal charges in Germany in 2004 were resolved through a transaction. Offenders are frequently sentenced to community service, taking courses, or confiscation of property over incarceration (Shames & Subramanian 2005). Moreover, judges in Germany are frequently directed to “suspend a sentence” when it is less than one year; a suspended sentence looks similar to parole in the United States (Shames and Subramanian 2005). These alternatives to incarceration are so frequently employed in the Netherlands and Germany that in 2004, the Netherlands had an incarceration rate of 10% among convictions, compared to the U.S.’ rate of 70% (Shames and Subramanian 2005). More recently, 87% of individuals convicted of a federal crime were sentenced to incarceration in 2015 (Families Against Mandatory Minimums 2024).
On the other hand, in the United States, fines are frequently imposed as an add-on along with prison sentences for crimes (Shames & Subramanian 2005). Minimum sentencing laws, significantly less frequent in the Dutch and German criminal justice systems, tend to exacerbate this problem. In 2015, mandatory minimum sentences were applied to 46% of federal drug offenders and about half of the federally incarcerated population was serving time for drug offenses (Families Against Mandatory Minimums 2024). If U.S. policies instructed judges to suspend shorter sentences in favor of parole and prosecutors to pursue sentences of community service and fines, particularly in nonviolent offenses like the Dutch and German systems, and removed mandatory minimum sentencing, rates of incarceration would decrease.
Obstacles
However, there are cultural obstacles to the implementation of these policies. U.S. attitudes towards criminal justice can be summed up as “tough on crime," where by and large, harsher sentencing is seen as an effective strategy to discourage similar criminal activity. This oft-repeated phrase by lawmakers and prosecutors has directly contributed to the increase in incarceration rates as well as rates of wrongful convictions. Recently, Mayor Eric Adams of New York City came under scrutiny for embracing policies that would result in higher rates of incarceration and emphasizing crime rates (Swarns 2023). However, the rate of violent crime has decreased nationwide (Dilanian 2023). Violent crime has decreased by 8% from 2022 to 2023, whereas criminal activity like robberies and burglaries has decreased by around 10% in the same period (Huppke 2023). It is troubling that these attitudes continue to persist as crime rates drop, as they pose a significant challenge to persuading lawmakers and voters to embrace alternative sentencing policies.
It is also imperative to discuss the underlying—or arguably overt—racial nuances of the problems with the U.S. criminal justice system. According to the Pew Research Center, “Black adults were still imprisoned in 2020 at five times the rate for white adults” (Pew Research Center 2023). Additionally, when jailed, black individuals spent, on average, 12 more days in prison than their white counterparts (Pew Research Center 2023). Punitive attitudes also tend to impact Black and Hispanic populations more severely; the United States Sentencing Commission found Black men and Hispanic men received sentences that are 13.4% and 11.2% longer than those of white men from 2017 to 2021 (United States Sentencing Commission 2023). Similarly, Hispanic women received sentences that were 27.8% shorter than those of their white counterparts (Pew Research Center 2023). These racial realities do not manifest the same way in the aforementioned countries, and they will prove to be challenging variables when navigating criminal justice reform in the United States. Criminal justice is an issue often linked with structural racism, making it more complex to solve immediately as pushback occurs on the overall policies themselves and who they might aid in particular.
Conclusion
In critiquing the U.S.’s excessively punitive approach and excessive incarceration, the German and Dutch criminal justice systems serve as key potential models for specific criminal justice reform because of their respective low incarceration rates and alternative sentencing methods. Fortunately, over 90% of U.S. adults surveyed by the American Civil Liberties Union agreed that the United States criminal justice system “has problems that need fixing," and 71% agreed that “it is important to reduce the prison population in America” (American Civil Liberties Union 2023). However, the journey toward implementing such reforms in the United States is not without its legal, cultural, and structural challenges carefully navigated, requiring thoughtful consideration of the unique aspects of the American context. Persuading lawmakers to make changes modeled after the German and Dutch systems will likely require significant lobbying from citizens and other groups. There is a will and a way to transform America and pave the path for a more humane and just system.
The views expressed in this publication are the author’s own and do not necessarily reflect the position of The Rice Journal of Public Policy, its staff, or its Editorial Board.
Agudelo, Philip, Restorative Justice and the School-to-Prison Pipeline: A Conceptual Framework to Address Racial and Ethnic Disproportionality, Children & Schools, Volume 43, Issue 3, July 2021, Pages 141–148.
Ram Subramanian and Alison Shames. Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States. New York, NY: Vera Institute of Justice, 2013.
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