USA v. Europe: a sentencing Ryder Cup?

The Ryder Cup, one of my very favorite sporting events, is now underway (and the US team is already behind and playing nervous. The event has me imagining a contest between USA and Europe over sentencing law and policy. Though I am always biased for the home team, I know a lot of thoughtful observers would conclude that Europe is far ahead of the US with regard to the enlightenment of its sentencing policies.

Consider that, among his many astute points, Justice Anthony Kennedy in his speech to the ABA last year highlighted that in “countries such as England, Italy, France and Germany, the incarceration rate is about 1 in 1,000 persons. In the United States it is about 1 in 143.” Justice Kennedy also mentioned the recent book by Professor James Whitman, Harsh Justice, which has as its subtitle “Criminal Punishment and the Widening Divide Between America and Europe.” In his book, Professor Whitman documents the relative harshness of American punishment compared to its European counterparts and notes America’s historical preference for broad criminalization and degrading criminal punishment as compared to Europe’s tendency toward narrower criminal liability and punishments that preserve offender dignity.

Professor Richard Frase has recently discussed these important comparative issues in a thoughtful review of Professor Whitman’s book. See Richard S. Frase, Historical and Comparative Perspectives on the Exceptional Severity of Sentencing in the United States, 36 Geo. Wash. Int’l L. Rev. 227 (2004). Among other insights, Professor Frase concurs with Professor Whitman’s assessment that “sentencing is much harsher in the United States than in Europe,” and he contends “this fact needs to be forcefully conveyed to the U.S. public and its leaders.” In addition, Professor Frase suggests that “As Americans continue to rethink their harsh sentencing practices, they should look to European nations, and the practices described in [Professor Whitman’s] book, for models of humane, efficient, and effective criminal punishment.”