Tough justice isn't working in the Land of the Free

Out of America: The US locks up more of its citizens than any other country, but that may be about to change

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In September 2011, a petty hoodlum named Willie James Sauls stole the handbag of an old woman outside a department store in Austin, Texas. He later used a credit card of hers to fill up his SUV, at a cost of $99, roughly £60. A couple of months later he was caught, and in August 2012 was convicted and sentenced to 45 years in jail.

Yes, 45 years. True he had, as they say, some previous, as a member of a local street gang, who had served time for burglary. He had also deliberately picked out an especially vulnerable victim. But in most other countries, this sort of offence, however despicable, would have warranted a few months inside at most, maybe just community service. Sauls though found himself facing a longer spell behind bars than he had been on this earth, 37 years at the time of sentencing.

This particular distortion of justice occurred in Texas, a state not noted for tenderness towards the criminal community. But it could have been almost anywhere in the United States. Willie James Sauls was just a tiny, but utterly representative example of why in the Land of the Free, you are more likely to lose your freedom than anywhere else on earth. Just possibly, however, that may be starting to change.

Eric Holder, the US attorney general, is probably the least loved member of the Obama cabinet. Virtually since taking office, he has been a lightning rod for controversy. For months his resignation has been demanded, not just by Republicans but some Democrats too. Yet last week, when he delivered a damning critique of the US legal and penal system, nary a soul dissented. A watershed may be at hand, you sense, in the way America deals with crime.

For four decades or more, "get tough" has been the mantra. Congress and individual states have passed a host of minimum sentencing laws, particularly for drug offences and repeat offenders, culminating in the infamous "three strikes and you're out". Steal a pizza as a third offence in some states, and you're automatically put away for life.

And so, to Holder's momentous speech to the annual meeting of the American Bar Association in San Francisco. He was ordering, he said, "a fundamentally new approach" to minor drug crimes by federal prosecutors. But that was only part of the problem. "As a prosecutor, a judge, an attorney in private practice, and now, as our nation's attorney general, I've seen the criminal justice system first-hand, from nearly every angle," Holder declared. "And we must face the reality that … our system is in too many respects broken."

Nowhere is it more obviously broken than in America's bloated prison-industrial complex. No country sends more people to jail, or keeps them there for longer. More than two million people are in federal and state prisons, including seven of every 100 black men aged between 30 and 34. Over the past two decades, the average length of prison terms rose by a staggering 36 per cent.

The broader figures are no less breathtaking. The US's incarceration rate, of 716 per 100,000 inhabitants is unsurpassed; with 5 per cent of the world's population, it has almost 25 per cent of the world's prison inmates. The figure for Russia, according to the London-based International Centre for Prison Studies, is 479 per 100,000. Britain, pretty jail-happy by EU standards, has 148, France 102 and Germany 80 per 100,000. Bottom of the list, in case you were wondering, is the Republic of San Marino, with just six.

And all this when violent crime has been falling steadily across the US since the 1990s. Quite why, no one is sure. Maybe it's smarter policing, especially at neighbourhood level. Other theories include the legalisation of abortion (on the grounds that unwanted children are more likely to be neglected and abandoned and, therefore, take up a life of crime), and the phasing out of the lead content in water pipes, paint and petrol, amid research suggesting a clear link between exposure to lead and criminal behaviour.

And maybe, of course, the decline has something to do with those long sentences meted out to the Willie James Sauls of this world. If so, then deterrence, one of the three traditional purposes of sending people to prison, may have had an effect. Of the other two purposes, retribution is working magnificently, as the above figures attest. However, as for rehabilitation (the concept implicit in that dreadful "correctional facility" euphemism), forget it. America's overcrowded jails do not cure people of crime. They breed crime. Two out of every three released prisoners are re-arrested within three years.

The immediate impact of Mr Holder's instructions may be limited. Only in time will it become clear if federal prosecutors are complying, while other changes – if they are to last – will have to be enacted by a largely dysfunctional Congress. Furthermore, the federal prison system over which the attorney general presides accounts for barely a sixth of prisoners. The vast majority are sent by state courts to state prisons. But at state level too, things are changing.

A driving reason of course is money. The prison-industrial complex costs $80bn a year to run, an unsustainable burden in these cash-strapped times, for federal and state governments alike. As a result, the US prison population has been falling, albeit very slightly, for the last three years. But, confounding the law-and-order lobby, crime rates continue to decline. And even in places like Texas the penny is starting to drop.

Nor was it a coincidence that Mr Holder spoke on the very day a federal judge declared the New York City police practice of random "stop-and-frisk" searches of pedestrians to be unconstitutional – or that far fewer death sentences are now being passed by courts, while the number of executions in 2013 is set to be the lowest in 20 years. Make no mistake, America isn't turning into Scandinavia or San Marino. But the country's attitude to crime and the punishment thereof seems to be shifting. And not before time.

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