Learning from European Punishment Practices—and from Similar American Practices, Now and In the Past

American jurisdictions seeking to reduce their heavy reliance on prison sentences should emulate European practices, but they should also learn from practices already found in some American states, and in all states at earlier times in our history. European countries make much less use of custodial sentences by employing alternatives such as prosecutorial diversion, fines and day fines as the sole sanction, suspended custodial sentences, and community service or training orders imposed as conditions of probation. These European practices should not be dismissed on the assumption that they are “too foreign”; each of them is well-known in the United States, and their use may be more common than we imagine. If we had better data on these practices – which we should – jurisdictions that aren’t often using them could learn from those that are. There may also be uniquely American practices that help to explain why some states have been able to maintain consistently low prison rates, or to lower their formerly high rates. One such practice is the use of sentencing guidelines combined with parole abolition, developed and monitored by an adequately funded independent sentencing commission, and matching prison use with available prison capacity. Finally, we should learn from our collective past; the United States has not always had extremely high “mass incarceration” rates, nor has it always had rates much higher than those in Europe. Americans should not accept, as the new normal, prison rates five times higher than those that prevailed for fifty years prior to the mid-1970s.