The political posturing side of being "tougher on crime" than the other guy is obvious. However, one should also look at other aspects of the incentive system surrounding "justice" in the US.
Prison builders and prison guards' unions income is determined by the aggregate number of prisoners, not by the outcome of the correctional process. An obvious outgrowth of this is their lobbying for longer sentences for crimes, violent or otherwise. A less obvious aspect is that they are de facto rewarded for higher crime rates and recidivism. Economically, there is a disincentive to effectively rehabilitate those who have been incarcerated. The prison industry can also be seen to benefit from employment discrimination against those who have been convicted of a crime, thereby providing them with fewer legitimate means for seeking income.
There are many other issues contributing to this as well, some of which are:
- Only 3% of cases go to trial at the federal level and 4% at the state level, the remainder being resolved by means of "plea bargains" which frequently amount to coerced confessions. Consequently, the absolute number of trials is less than it was 30 years ago in spite of the number of inmates having increased by more than 1000%.
- Prosecutorial and judicial accountability has been steadily eroded since the 60s - Nifong and the judges in the "kids for cash" were unique more in that they were held to account than in the actual nature of their conduct.
- Americans fundamentally view their fellow citizens as disposable. There is a deeply entrenched notion that "people don't change" that becomes evident when they come in contact with members of other cultures and discuss reform. Accept it or not, the "throw-away" society doesn't just describe Americans' consumer habits. Hence less and less emphasis is placed on reforming behavior and more and more on punishment.
- There is a great deal of money invested in the status quo and no voter interest in change. Newspaper readers want to read news that reinforces their existing views of the "justness" of the justice system and thus it is the reporters' job to report on stories that support that view as opposed to presenting a more representative view of the actual functioning of the system as a whole.
There are stories of abuse and de facto corruption in justice systems throughout the world. Frequently, the response of a state needing convictions is to weaken protections. In Germany in the 20s juries acquitted too often, so trial by jury was eliminated. Starting at some point in the 60s the UK made jurors commit to perpetual secrecy on jury deliberations, thereby preventing any later oversight of the prosecutor's or the judge's handling of the case. The US courts have continually diminished the rights of juries, mentioning "jury nullification" or the sentences entailed by the charges which a defendant is being tried for is illegal. In recent events HR. 5652 which would cap punitive damages at 2x economic damages or 250,000$, also states: "The jury shall not be informed about the maximum award for non-economic damages." Yet in spite of these curtailments state courts only try roughly one in twenty five cases.
Inevitably with as many things being subject to criminal sanction as there are today in the US it is a lottery as to how and whether they are enforced. I often like to say it is like playing Russian roulette, what varies from country to country is the number of chambers with a bullet in them.
Although Italy isn't the paragon of governments, their justice system has a number of checks on the extent to which individuals can abuse their power:
- Selective prosecution is illegal e.g. in a case in which the plaintiffs who had all engaged in some sort of fraud or another against the defendant would all have to have been prosecuted. This prevents DA's offices from effectively being used, inadvertently or deliberately, to advance criminal interests.
- If the total sentence for the charges exceeds 5 years then the case has to go to trial. This limits the extent to which prosecutors can cheaply rack up "convictions" by coercing confessions through overcharging (it is common in the US for a prosecutor to give a defendant a dozen charges and then offer a plea for one - putting a very high penalty on losing at trial).
- In Italy prosecutors are actually charged and prosecuted for misconduct. In the US a prosecutor typically has to have numerous instances of alleged misconduct over the course of decades before a state bar will do anything. Nifong's case was extremely unusual - not in what he did, but in that the defendants had the money for truly independent counsel (I'll discuss further in a later post how most defense attorney's are not sufficiently independent to adequately defend their charges) and the PR muscle to get him removed.
- In Italy the appeals courts look at the actual merits of the case as opposed to simply the legal basis on which the case was tried and consequently actually overturn a statistically significant number of convictions. In the US an appeals court that does this is rebuked for "second guessing the jury". It is sad, recognizing the fallibility of individuals used to be regarded as oversight, not "second guessing".