Answers to the questions have to be at least 150 Words and replies have to be a minimum of 75words and be substantial and move the conversation along. (Date and time are only so I can go back
and find them again later.)
Question 1: Answer
Read the journal articles about various inequalities that exist in America. Pick one of the
areas (such as wage inequality, gender pay, racial gaps, etc). What are some historical
solutions to the area of inequality that you selected? Explain if modern day solutions have
been more effective in alleviating the problem or not.
Reply to: Shannon Kilmer
Feb 24, 2022, 11:05 AM
I chose gender wage inequality. Men have always made more them women. California is
one of the best states to make things more equal. women make about 85 cents to the mans
dollar (Walker 2013). they also have women in head positions in companies and in senate.
Some states have no female head positions. In the past men were more likely to go to
college and make more money and the females stayed home. In todays world women still
make less then men in some places but with the economy the way it is they should both
make the same due to its very hard for only to have one working parent the a family.
Resources
Gender & sexual orientation. (2013). In R. A. Walker, & S. K. Lodha, The atlas of California:
mapping the challenge of a new era. University of California Press. Credo Reference:
https://lopes.idm.oclc.org/login?url=https://search.credoreference.com/content/entry/uc
pressc/gender_andamp_sexual_orientation/0?institutionId=5865
Reply to: Peonny Hail
Feb 24, 2022, 8:12 AM
Hello class and Professor Williamson,
The article on inequity I have come across that exists in America is that female scientists
set back by the pandemic may never make up for the lost time. This inequity takes us back
to the Women’s liberation movement. In the United States, from 1960 to-1980s when
women had no voice and were unable to vote or have equal rights and opportunities and
personal freedom for women as men. Women’s suffrage and the civil rights had a
significant role in this change. Changes include the same job opportunities, wage,
education, control over one’s own body, and custody of her children. However, in this
article, the inequity of class, race, and gender affects the purpose of science (Lermen 2018).
No matter how much education or more experience a woman has versus a man in the
scientific field, they are still looked down upon regardless of their individual merit.
Reference
Lerman, K. (2018). Female scientists set back by the pandemic may never make up lost
time. In The Conversation (Ed.), The conversation. The Conversation. Credo Reference:
https://lopes.idm.oclc.org/login?
Reply to: Mary Parker
Feb 23, 2022, 11:14 PM
I must admit that I did not know John Fitzgerald Kennedy was the person who we owe for
the term “affirmative action”. This article I read about affirmative action and its necessity in
our society to be extended was quite compelling.
I know the realities of Civil Rights was the impetus for President Kennedy and these acts
but it still does not sit well to be only a process that the most powerful person in the nation
had to enact instead of social justice with federal assistance (Chrisman, 2013). This
enactment and abundance of programs that the government attempted to make de jure did
much in comparison to the previous decades but has not the force to compel a stubborn
and enraged society that bathed in bigotry and steeped in racist and discriminatory
overtones.
Chrisman crystallizes the motives of the opponents to affirmative action and relate them to
the inequalities that are pervasive in the Black communities prior to their existence
(Chrisman, 2013). Agendas made in the line of social justice have been guised to assert
nothing more than a subversion to globalization at the behest of only some upwardly
mobile African Americans, he says (Chrisman, 2013). Chrisman further remarks quite
acerbically that the fledgling efforts of Affirmative Action need to be intensified to curtail
the true agenda of this country which is economic and military superiority (Chrisman,
2013).
The issues that Chrisman mentions include all that plague any minority and specifically as
it relates to the plight of the subjugation of African Americans because he is writing from a
substantial journal called the “Black Scholar” and it is positively for the efforts of any
system that provides solace where bootstraps were once removed from a population in this
country (The Black Scholar, 2022).
References
CHRISMAN, R. (2013). Affirmative Action Extend It. Black Scholar, 43(3), 71–72.
https://doi-org.lopes.idm.oclc.org/10.1080/00064246.2013.11413651
The Black Scholar. (2022). About Us. The Black Scholar.
Question 2: Answer
Compare and contrast the American and Norwegian incarceration systems. Distinguish at
least three characteristics that are similar as well as distinct. Identify what is being done in
each system to minimize the negative impacts on individuals lives, the community, and the
larger issue of incarceration and its impact on society. Which characteristics seem to be the
most effective?
Reply to: Ivan Camacho
Feb 25, 2022, 1:52 PM
Hello everyone,
The distinctions between Norwegian incarceration and the United States systems are made
apparent very early into the reading. An example of this is when the reading states that the
United States have some of the “highest crime and recidivism rates in the world.” This
entails that the focus on retribution and rehabilitation for prisoners is not effective and the
incarceration system is faulty. The United States have some very harsh and high sentencing
structures in place where as Norway has some of the lowest crime and recidivism rates.
Norway focuses more on normality and trying to reintegrate their offenders into a normal
society without handing out harsh and lengthy punishments.” The United States can keep
its focus on retribution while at the same time making sure that its punishment does not
swell to include those negative side effect.” These side effects that offenders in the United
States involve isolation from society, reinforcing bad habits and making reintegration upon
release nearly impossible. Another difference is that the United States and their citizens
encourage the use of long sentencings and even at times the death penalty, something that
Norway does not even consider. A bigger difference between the United States and
Norwegian incarceration systems is the number of housed offenders with around 716
people for every 100,000 people in the national population of the United States, compared
to the 72 people in prison for every 100,000 people in the national population. However, a
similarity between the two countries is the increase of incarceration rates stemming from
1980 to 2000. Both countries saw an increase in incarcerations during this time period. For
both of these countries between the years of 1970s and 1980s ran into the issue of a war
on drugs and the increase of penalties. A very useful similarity that the United States used
was to invest in similar provisions towards the younger generation to avoid future
problems. “it has shown that investment in similar provisions, such as preschool for young
children and summer jobs for teenagers, reduces crime rates in the future and at the same
time, increases overall federal savings.”
References
LABUTTA, E. (2017). The Prisoner as One of Us: Norwegian Wisdom for American Penal
Practice. Emory International Law Review, 31(2), 229–359
Reply to: June Cummins
Feb 25, 2022, 1:05 PM
Hello
“The United States suffers from among the highest crime and recidivism rates in the world.
This is in part due to its focus on retribution as the purpose of punishment and its high
sentencing structure” (Labutta, E 2017). This is different in regards to how Norwegian
incarcerates its offenders. In Norway, they penalize the system of normality. In Norway,
they are more focused on reintegrating their offenders back into society, whereas the USA
looks to punish and isolate them without not much attention to reintegration. This is
probably why in the USA we have a higher rate of re-offenders returning to prison 24
months after being released. In the USA if you have a felony on your record it is harder to
find employment therefore, it affects your ability to have housing and have a decent life.
Due to Norway guidelines, they are more focused on providing punishment with
rehabilitation verse in the USA we are focused on revenge, retribution and less on reentering offenders back into society. “Its prisoners suffer fewer of the negative, unintended
side effects of prison that isolate the prisoner from society, reinforce bad habits, and make
reintegration upon release nearly impossible.” (Labutta, E 2017). In the United States, we
are driven by the need to hand down sentences without giving full thought to what
happens when a person is released. “As of 1999, the United States was sentencing
individuals to prison at a rate six to ten times higher than that of most comparable nations”.
(Labutta, E 2017). “As a result of these factors, by October 2013, the United States had the
highest prison population rate in the world, housing 716 prisoners for every 100,000
people in the national population.26 At the same time, Norway housed only seventy-two
prisoners for every 100,000 people in the national population.” (Labutta, E 2017).
References
LABUTTA, E. The Prisoner as One of Us: Norwegian Wisdom for American Penal
Practice. Emory International Law Reviewed 2017.
Reply to: Amy Patacini
Feb 25, 2022, 10:58 Am
Good Morning,
Prison systems, across the world, have some similarities, punishing the ‘criminal’, taking
away rights and freedoms, but how a prison seemingly acts on the inside changes
drastically. In the U.S. we are amazingly overcrowded in our prison system, prisoners
increasing 300% since 1983 (Gerhold, 2021), this means more money for the prison
system which is a government and taxpayer bill (Gerhold, 2021). Why has the U.S. prison
system become so overcrowded? Is overcrowding because of laws, repeat criminals, no
rehabilitation, lack of programs outside of prison? Norway has implemented a few different
strategies for their prison system, the concept for prisoners is called “restorative justice”
(Gerhold, 2021). Restorative justice teaches life skills, ways to be a productive member of
society and remorse for their crimes (Gerhold, 2021). Norway also has a maximum
sentence of 21 years, regardless of the crime (Gerhold, 2021). Norway and the United
States prison systems relying on budgeting through taxes, but Norway is primarily a social
welfare state model (Sharma, 2015). This social welfare state model gives prison some
leeway when molding their prisons, there is much more room for social experimentation in
Norway. Trying to pick this all apart and determine which is better is an extremely difficult
task, the countries have a completely different structure, government, socially, culturally.
This topic also evokes a lot of emotion and opinion, thinking just of the victims what could
be a prison system that delivers justice and also second chances? The Unites States prison
system has rehab programs for prisoners, education option, there are levels of good
behavior incentives. Social reintegration programs should be plentiful, education on being
a successful member of society is an absolute must.
References:
Gerhold, R. (2021, January 20). Norway vs. US: How Different Are Their Prison Systems? Kent
Partnership. Retrieved February 23, 2022, from https://www.kentpartnership.org/whatnorways-prison-system-can-teach-the-united-states/
THE PRISONER AS ONE OF US: NORWEGIAN WISDOM FOR
AMERICAN PENAL PRACTICE
Abstract
The United States suffers from among the highest crime and recidivism rates
in the world. This is in part due to its focus on retribution as the purpose o f
punishment and its high sentencing structure. Norway, on the other hand, has
some o f the lowest crime and recidivism rates and boasts Halden prison, which
has been hailed as the world’s most humane prison. In Halden and other
prisons, the Norwegian penal system applies the principle o f normality. Under
the principle o f normality, Norway seeks the reintegration o f its offenders into
society. Its prisoners suffer fewer o f the negative, unintended side effects o f
prison that isolate the prisoner from society, reinforce bad habits, and make
reintegration upon release nearly impossible. This Comment proposes that the
United States could reduce its high crime and recidivism rates with a
penological approach that bridges that o f the two countries—a rehabilitative
retributivism. The United States can keep its focus on retribution while at the
same time making sure that its punishment does not swell to include those
negative side effects. By reducing its sentencing structures and incorporating
the principle o f normality into its retributive goal, the United States could better
ensure that prisoners return to society as productive members, and it could
experience lower crime and recidivism rates as a result.
Introduction
On Friday, July 22, 2011, at 3:26 in the afternoon, a car bomb was detonated
in Oslo, Norway, killing eight people and damaging a number of government
buildings.1 Less than two hours later, a gun rampage erupted only a short
distance away on Utoya,2 a Norwegian island to the northwest. In order to gain
access to the island and to his victims, the gunman told the ferryman he was
1 Umberto Bacchi, Anders Behring Breivik Timeline: The Massacre, The Trial, The Sentence [VIDEO],
I n t ’l B u s . T im es (Aug. 24, 2012, 9:09 AM), http://www.ibtimes.co.uk/breivik-timeline-massacre-trial-
sentence-utoeya-oslo-377030 [hereinafter Bacchi, Anders Behring Breivik Timeline]; see also Umberto Bacchi,
Anders Breivik Threatens Hunger Strike fo r Playstation 3 and Adult Games, INT’L BUS. TIMES (Feb. 14, 2014,
3:29
PM),
http://www.ibtimes.co.uk/anders-breivik-threatens-hunger-strike-playstation-3-adult-games1436492 (confirming the death of 8 people) [hereinafter Bacchi, Anders Breivik Threatens Hunger Strike].
2 Bacchi, Anders Behring Breivik Timeline, supra note 1.
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traveling to the island to do research about the bomb blasts.3 He disguised
himself in police uniform and shouted offers of help to victims to trick them into
coming out of hiding.4 The gunman shot and killed sixty-nine people, the
majority of which were teenagers attending a youth camp for the Norwegian
Labour Party .5 When the police arrived a little over an hour after the slaughter
began, the gunman surrendered willingly and without struggle.6
The above chronicles the short but gruesome affair that has been called “one
of the worst terrorist attacks in Europe since the Second World War .” 7 The
gunman, Anders Behring Breivik, was found guilty at trial and sentenced to
twenty-one years, the highest penalty available in Norwegian courts.8 There was
little outrage over the result of the trial and no cries for vengeance .9 The public,
including the parents of the teenagers killed, actually spoke out against any
theoretical application of the death penalty .10
This crime would have undoubtedly been treated very differently had Breivik
committed these atrocities in the United States and been subject to the criminal
jurisdiction of the U.S. penal system. Before trial, there would have been public
outrage at the crimes. At sentencing, it is unlikely that a sentence as low as
twenty-one years would have even been considered. *11 Breivik would likely face
multiple life sentences, if not the death penalty . 12 After trial, Breivik would be
subject to a penal system that would lock him up and throw away the key, and
be glad to have done so. 13
3 id.
4 Michael Schwirtz, For Young Campers, Island Turned Into Fatal Trap, N.Y. Times (July 23, 2011),
http://www.nytimes.com/201 l/07/24/world/europe/24island.html?_r=0.
5 Bacchi, Anders Breivik Threatens Hunger Strike, supra note 1; see also Bacchi, Anders Behring Breivik
Timeline, supra note 1 (finding the majority of Breivik’s victims to be teenagers).
6 Bacchi, Anders Behring Breivik Timeline, supra note 1; see also Schwirtz, supra note 4 (confirming the
lack of struggle from Breivik).
7 Bacchi, Anders Breivik Threatens Hunger Strike, supra note 1.
8 Bacchi, Anders Behring B’-eivik Timeline, supra note 1; see also GENERAL CIVIL P enal C ode § 233
(Nor.), http://www.un.org/depts/los/LEGISLAT10NANDTREATlES/PDFFlLES/NOR_penal_code.pdf (last
visited Jan. 30, 2017); Bacchi, Anders Breivik Threatens Hunger Strike, supra note 1. All five judges
unanimously found Breivik sane when he committed these atrocities. Id.
9 Su-Syan Jou, Norwegian Penal Norms: Political Consensus. Public Knowledge, Suitable Sentiment and
a Hierarchy o f Otherness, 9 N at ’l T aiwan U.L. Rev . 283, 301 (2014).
10 Id. at 302.
11 The U.S. Code, which governs federal law across the various States, mandates a punishment of death or
imprisonment for life for first-degree murder. 18 U.S.C.S. § 1111 (2015).
12 See id.
13 Non-criminals have a tendency to distance themselves from criminals, seeing the criminal as someone
“indeliblfy] stain[ed]. . . irreclaimable. . . [and thus] thrown away.” M artha G. D uncan , Romantic
O utlaws, Beloved Prisons 140(1996).
2017]
THE PRISONER AS ONE OF US
331
The differences between the penal practices of the United States and Norway
are glaring, especially when comparing the incarceration and recidivism rates.
As of October 2013, the United States had the highest prison population rate in
the world, housing 716 people for every 100,000 people in the national
population.14 At the same time, Norway housed only seventy-two people in
prison for every 100,000 people in the national population, a rate almost one
tenth of the United States.15
What can explain this stark contrast between the two countries? Some might
argue it is expected that Norway would have low prison population rates,
especially when compared to the Unites States. Norway is a small, largely
homogenous16 country with deeply embedded social welfare systems.17 The
United States’ high prison population rates could simply be the product of
national characteristics— its people, geography, economy, and politics—and
Norway, a country with radically different characteristics, might have nothing
to offer the United States in terms of rethinking penal policy.
Such an argument is too dismissive when considering penal policy in the
United States, an area in crucial need of reform. Help from any comer, if
applicable, is valuable. Furthermore, while the circumstances surrounding the
problems of incarceration and recidivism are different, the problems themselves
are the same. The United States and Norway have attempted to solve these
problems in different ways, and Norway’s methods have borne better results.
Admittedly, some circumstantial features of Norway’s system are either unlikely
or impossible for the United States to adopt. This Comment argues that the
United States could stand to change its approach to incarceration and recidivism
by learning from the positive aspects of Norway’s system and its successes. The
United States needs a better response to the problems of incarceration and
recidivism. It is time that the United States look to Norway and evaluate whether
any of Norway’s effective treatments should be exported to the United States.
This Comment does not address the prevention of crime or the entry of
people into the criminal justice system. Nor is this Comment about the treatment
of people within the criminal justice system at any point prior to sentencing.
Rather, this Comment considers the treatment of people who have been adjudged
guilty and sentenced to a period of incarceration, and whether they are
14
15
16
17
id.
id.
Tapio Lappi-Seppala, Penal Policy in Scandinavia, 36 CRIME & JUST. 217,220 (2007).
Id. at 274 (citing the Scandinavian sentiment that “[g]ood social policy is the best criminal policy.”).
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EMORY INTERNATIONAL LAW REVIEW
[Vol. 31
effectively reintegrated into society once they are released. While a solution to
the problem of crime in the United States must invariably take into consideration
pre-conviction issues, those issues are outside of the scope of this Comment.
This Comment will compare the incarceration and recidivism rates of the
United States and Norway and analyze the explanations and causes behind these
rates. Simply replacing the U.S. system with the Norwegian system is not a
solution to the problem of the United States’ high incarceration and recidivism
rates. Not only would such a replacement not be possible because of inherent
differences in the structure, policy, and operations of each country, but it would
fail to honor the purposes of punishment as they have come to be understood
within the United States. Rather, this Comment argues that the solution is a
penological system that bridges each country’s approach—a rehabilitative
retributivism—that will lead to lower incarceration and recidivism rates than
either country’s model applied on its own. Specifically, if the United States
adopted Norwegian-style lower, indeterminate sentencing and applied the
Norwegian principle of normality within prisons, then the consequent changes
in the penal system would lower incarceration and recidivism rates.
In Part I, this Comment will provide the background of the different
incarceration rates, penal history, and recidivism rates of each country. In Part
II, this Comment will compare the different penal approaches of each country to
explore the cause of their differing incarceration and recidivism rates. This
Comment will also examine Norway’s newest prison, Halden, and the terrorist
attack of Norwegian national Anders Breivik as examples of Norway’s radical
penal approach. In Part III, this Comment will argue for a blended penological
approach that takes advantage of the Norwegian method of lower sentencing
structures and rehabilitative treatment without sacrificing U.S. retributivism.
I.
T he N u m b er s —A C o m pa r iso n of P riso n R a t e s , P en a l H ist o r y , a nd
R ec id iv ism R ates
Looking at numbers alone can be misleading as only two factors determine
a nation’s prison population rate: the number of sentences and the length of those
sentences.18 A massive incarceration rate may be the product of long sentences,
frequent incarceration, or both.
18 Marc Mauer , Race to Incarcerate 38(1999).
2017]
THE PRISONER AS ONE OF US
333
With 2.24 million prisoners, the United States houses more prisoners than
any other country;19 however, the United States comprises less than five percent
of the world’s total population.20 The number of sentences undoubtedly
influences this rate. As of 1999, the United States was sentencing individuals to
prison at a rate six to ten times higher than that of most comparable nations.21
Additionally, sentence length significantly contributes to this rate. Although
some countries sentence more prisoners than the United States, the United States
has a higher incarceration rate because it doles out longer sentences.22 Due to
mandatory minimums and truth-in-sentencing laws,23 sentence length has
increased to the point where U.S. prisoners are serving an average of twentyseven months in prison, a five-month increase from 1990.24 Moreover, about
twenty percent of state prisoners and thirty-three percent of federal prisoners
will have served more than five years.25 As a result of these factors, by October
2013, the United States had the highest prison population rate in the world,
housing 716 prisoners for every 100,000 people in the national population.26 At
the same time, Norway housed only seventy-two prisoners for every 100,000
people in the national population.27
U.S. incarceration rates have not always been so high. There was a dramatic
increase in incarceration in the 1970s.28 In some ways, this can be attributed to
a spike in violent crime. The number of murders more than doubled from 1960
to 1974, rising from 9,110 to 20,710.29 Furthermore, 1973 marked the enactment
19 See Roy Walmsley, World Prison Population List, tN T’L C t r . f o r P r is o n S t u d ., w w w .
prisonstudies.org/sites/default/files/resources/downloads/wppl 10.pdf (last visited Jan. 30, 2017).
20 Adam Liptak, U.S. Prison Population Dwarfs that o f Other Nations, N.Y. TIMES (Apr. 23, 2008),
http://www.nytimes.com/2008/04/23/world/americas/23iht-23prison. 12253738.html?pagewanted=all& r=l& ;
see Michelle Ye Hee Lee, Does the United States Really Have 5 Percent o f the World’s Population and One
Quarter o f the World’s Prisoners?, WASH. POST (Apr. 20, 2015), https://www.washingtonpost.com/news/factchecker/wp/2015/04/30/does-the-united-states-really-have-five-percent-of-worlds-population-and-one-quarterof-the-worlds-prisoners/?utm term=.22dc7c570800.
21 M auer , supra note 18, at 9.
22 Liptak, supra note 20.
23 Truth-in-sentencing laws require offenders to serve the majority of their sentences—the exact amount
varying based on the jurisdiction—and reduce the possibility of early release through probation or parole. Truth
in Sentencing Law & Legal Definition, US L egal , http://defmitions.uslegal.eom/t/truth-in-sentencing/ (last
visited Jan. 30, 2017).
24 Joan Petersilia, From Cell to Society: Who is Returning Home?, in PRISONER REENTRY AND CRIME IN
AMERICA 16 (Jeremy Travis & Christy Visher, ed s., 2 0 05).
25 Id.
26 Walmsley, supra note 19.
27 Id
28 Mauer , supra note 18, at 32.
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of laws codifying mandatory prison terms and limiting plea bargaining for
various drug offenses; these laws increased the likelihood of incarceration and
the length of resulting sentences.30 In comparison, Norwegian incarceration rates
remained stable from the early 1950s to the mid-1980s.31
Both countries then experienced a rise in prison populations. From 1980 to
2000, the U.S. prison population rate increased by about one hundred prisoners
every five years, jumping from an overall incarceration rate of 220 prisoners per
100,000 people in 1980 to 683 in 2000.32 From 1980 to 1995, the Norwegian
prison population increased at a rate of about five prisoners every five years,
jumping from an overall incarceration rate of forty-four percent in 1980 to sixty
percent in 1995.33 While both country’s rates increased, the United States’ rate
increased by over 300%, while the Norwegian rate increased by less than twenty
percent.
In the United States, the increased incarceration rate was tied closely to drug
arrests. From 1980 to 1990, drug arrests nearly doubled.34 Unfortunately, this
increased rate says nothing about whether there were more drug offenses being
committed. In fact, a closer look shows that drug use was on a decline, with
14.1% of the population using drugs in 1979 and only 5.1% using drugs by
1995.35 Despite this decline, from 1980 to 1992, the likelihood of receiving a
prison term for a drug offense increased by an astounding 447%, and most of
the terms given were mandatory.36 Judges were left with little discretion, and the
United States is still reeling from the effects of this “Get Tough” movement.37
The movement resulted in an eighty-four percent increase in offenders sentenced
to prison between 1985 and 1995, but seventy-seven percent of this increase
31 Lappi-Seppala, supra note 16, at 255.
32 United States o f America, In t ’l C tr . for P rison Stud ., http://www.prisonstudies.org/country/unitedstates-america (last visited Jan. 30, 2017).
33 Norway, INT’L CTR. FOR PRISON Stud ., http://www.prisonstudies.org/country/norway (last visited Jan.
30, 2017).
34 M auer , supra note 18, at 143.
35 Id. at 145.
36 Id. at 151; see also Marc Mauer & Michael Coyle, The Social Cost o f America’s Race to Incarcerate, in
C riminal J ustice : Retribution vs. R estoration 8 (Eleanor Hannon Judah & Rev. Michael Bryant eds.,
2004) (noting the five year mandatory sentence for possession of five grams of crack cocaine).
37 The “Get Tough” movement marked a period of crackdown on drag crimes. Arit John, A Timeline o f the
Rise and Fall o f ‘Tough on Crime’ Drug Sentencing, W ire (Apr. 22,2014,12:10 PM), http://www.thewire.com/
politics/2014/04/a-timeline-of-the-rise-and-fall-of-tough-on-crime-drug-sentencing/360983/. In 1986, President
Ronald Reagan signed into law the Anti-Drug Abuse Act, resulting in high mandatory minimums for drug
crimes. Id.
2017]
T H E P R IS O N E R A S O N E O F US
335
consisted of nonviolent offenders.38 Drug offenders made up over half of the
increase and now comprise nearly one in four of the prison population.,g
The United States was not alone in its war on drugs. Norway also cracked
down on drugs, and this intensified drug control is likely one cause of the
increase in prison population rates. Maximum penalties for serious offenses
were raised multiple times in the 1970s and 1980s. In 1981, for example, serious
drug offenses were placed alongside first-degree murder as having the potential
to receive twenty-one years,40 the highest sentence in Norway.41 It is worthwhile
to note that such a harsh punishment for drug crimes is an anomaly in a system
otherwise based on detached rational assessments and rehabilitation.42
Following the flurry and fervor of these drug crackdowns, prison population
rates in both countries slowed or even declined. The United States’ rate of
increase slowed to about twenty prisoners every two years, leveling out between
the years 2006 and 2008 at an overall incarceration rate of about 752-755.43 In
2010, the prison population rate decreased to 731, marking a slow, downward
trend that has continued ever since.44 Norway’s incarceration rate, by contrast,
did not merely slow. After a momentary decline from 1995 to 2000 that caused
the rate to rest at fifty-seven,45 the rate increased in increments of one to five
prisoners to reach seventy-four by 2010.46 However, in 2012, the rates dipped to
seventy-two, which Norway has largely maintained to date.47 Although there are
some differences in the numbers, the overall prison population rate trends have
been somewhat parallel between the two countries.
While the prison rates alone are shocking, it is important to look at whether
these rates are specific to new offenders or repeat offenders. A comparative look
at recidivism in the two countries reveals no better numbers for the United
States. In the United States, an average of nine million prisoners are released
38 MAUER, supra note 18, at 32.
39 Id. at 32, 151; see also Mauer & Coyle, supra note 36, at 11.
40 Lappi-Seppala, supra note 16, at 256-57.
41 Bacchi, Anders Behring Breivik Timeline, supra note 1; see also GENERAL CIVIL P enal Code § 233
(Nor.); Bacchi, Anders Breivik Threatens Hunger Strike, supra note 1.
42 Lappi-Seppala, supra note 16, at 261.
43 United States o f America, supra note 32.
44 Id
45 Norway, supra note 33.
46 ld.\ see also Lappi-Seppala, supra note 16, at 218 (confirming that all the Nordic countries were
experiencing an increase in prison population rate in the late 1990s).
47 Norway, supra note 33.
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[Vol. 31
back into the community each year.48 Unfortunately, “about two-thirds (67.8%)
of released prisoners were arrested for a new crime within 3 years, and threequarters (76.6%) were arrested within 5 years.”49 Over a five-year study of state
prisoners released in thirty states, almost 1.2 million arrests occurred, and 16.1%
of these arrests were attributable to released prisoners.50 Norway, on the other
hand, has the lowest reoffending rate of all the Nordic countries; about one-fifth
of ex-prisoners reoffend within two years of release, contrasted with a rate of
24-31% for other Nordic countries.51 Comparing the United States’ 67.8% to
Norway’s approximately twenty percent paints a bleak picture for the United
States.
However, the differences are not as drastic as they might appear at first
glance. When looking at re-incarceration rates, not merely re-arrest rates, the
U.S. rate is lower, at 28.8%.52 Norway’s rate of actual re-incarceration is higher,
at about twenty-five percent.53 Furthermore, discrepancies also arise from the
types of offenders being jailed. If a country jails offenders who commit crimes
without a high degree of recurrence, it naturally follows that its recidivism rates
will be lower than those countries that jail offenders who commit crimes with
high degrees of recurrence. For example, one study confirmed that, “[excluding
traffic offenders, [a group few other countries jail and a type of crime without a
high degree of recurrence,] Norway’s recidivism rate would . . . be around 25
percent after two years.”54 Both the United States and Norway, however, face
the difficulty of reoffenders charged with property crimes.55 In the United States,
48 Eleanor Hannon Judah & Rev. Michael Bryant, Rethinking Criminal Justice: Retribution vs.
v s . R e storation 2 (Eleanor Hannon Judah & Rev. Michael
Bryant eds., 2004) (quoting 2002 Bureau o f Justice Statistics).
Restoration, in C rim inal J u stic e : R etribu tion
49 M atthew R. D uro se et a l „ R ecidivism o f P risoners R ele a sed in 30 S ta tes in 2005: P atterns
FROM 2005 TO 2010 1 (Apr. 2014). These numbers were not compiled from the whole nation but from a study
done among state prisoners released in thirty states in 2005. Id.
50 Id.
51 Ragnar Kristoffersen, Abstract: Relapse Study in the Correctional Services o f the Nordic Countries,
KRIMINALOMSORGEN, www.lcriminalomsorgen.no/getfile.php/2819934.823.xpewptatwc/Nordic+relapse+study
-tabstract-t-.pdf (last visited Jan. 30, 2017); see also About the Norwegian Correctional Service,
KRIMINALOMSORGEN, http://www.kriminalomsorgen.no/index.php?cat=265199 (last visited Jan. 30, 2017).
52 Jessica Benko, The Radical Humaneness o f N orw ayH alden Prison: The Goal o f the Norwegian Penal
System is to Get Inmates Out o f It, N.Y. TIMES Ma g . (Mar. 25, 2015), http://www.nytimes.com/2015/03/
29/magazine/the-radical-humaneness-of-norways-halden-prison.html? t=0.
53
Id
54 Id
55 According to the Federal Bureau o f Investigation, in the United States, property offenders are identified
as those who have committed any o f the property crimes o f burglary, larceny-theft, motor vehicle theft, or arson.
Property Crime, F ed . BUREAU OF INVESTIGATION, https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-
2017]
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“82.1 % of property offenders were arrested for a new crime, compared to 76.9%
of drug offenders, 73.6% of public order offenders, and 71.3% of violent
offenders,”56 while in all the Scandinavian countries (Norway included)
criminals sentenced for theft showed the highest reoffending rates.57
Although these rates are close, it is still necessary to examine Norway’s penal
system for guidance. While patterns may be the same, the overall picture is not.
The United States’ incarceration rate is ten times that of Norway.58 Accordingly,
even if each country faces a comparable likelihood of recidivism of its criminal
offenders, a much larger portion of U.S. society is affected. The recidivism rate
applies to a larger group of people and thus has a greater impact. Cumulatively,
these small differences can have a major impact.
II. Factors and Causes
What causes this disparity in incarceration rates between the United States
and Norway? Many factors are at work in both countries. Factors in the United
States include higher levels of violent crime, harsh sentencing, public sentiment
of fear and distrust, and pressure on elected judges to cater to that public
sentiment.59 A study comparing the imprisonment rates of Scandinavian
countries found that differences in those countries rates were rooted in public
sentiment, the extent of welfare provisions, income equality or lack thereof, and
political and legal structures, rather than any differences in the rate of crime.60
This panoply of factors shows that there is no easy solution to the problems
surrounding imprisonment and recidivism. This Comment will compare some
of the main factors contributing to the incarceration and recidivism rates in each
country. While the list of factors is by no means exhaustive, this Comment will
analyze some of the core reasons for the differences between the two countries.
A. Purposes o f Punishment
A country’s beliefs about punishment and its purposes are a significant
driving factor in shaping its penal system. The United States began with a
u.s/2014/crime-in-the-u.s.-2014/offenses-known-to-law-enforcement/property-crime (last visited Jan.
2017).
56 Durose ET AL., supra note 49, at 1.
57 Kristoffersen, supra note 51.
58 Walmsley, supra note 19.
59 Liptak, supra note 20.
60 Lappi-Seppala, supra note 16, at 219.
30,
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rehabilitative goal. The Quakers formed the first prisons, calling them
“penitentiaries,” and these and subsequent prisons of the early colonial period
assumed “that an offender is someone who has erred but is capable of change,
and that the period of incarceration can be viewed as a time to effect
interventions that may bring about more law-abiding behavior.”61 For many
years after this period, prisons followed the model set out in its early origins.
Then, in 1962, the Model Penal Code adopted nearly the entire list of penal
purposes.62 In 1968, forty-eight percent of the public thought the primary
purpose of prison was rehabilitation, with seventy-two percent thinking the
purpose shouldbe rehabilitation.63 In the 1970s, courts continued ruling in favor
of rehabilitation. As one federal court in Texas declared: “[rehabilitation must
be the overriding goal of our correctional institutions. Unless society
subordinates all of the correctional purposes to the goal of rehabilitation, it faces
the paradox of promoting the production rather than the reduction of crime.”64
Similarly, a New Hampshire federal court found that “[pjunishment for one
crime, under conditions which spawn future crimes and more punishment,
serves no valid legislative purpose” and thus, prisoners must be housed in
conditions that do not decrease their efforts towards rehabilitation or increase
their chances of recidivism.65
At the same time, the Norwegian government was pressing for greater focus
on rehabilitation. In 1978, the Ministry of Justice and Public Security presented
the Norwegian Parliament with a report on crime.66 Among its main goals, the
report included the construction of new alternatives to imprisonment, shortened
sentences for property offenses, and restricted use of indeterminate sentencing.67
During this time period, both countries were traveling firmly on the path towards
continued and deeper rehabilitation as their guiding approach to penal theory.
While Norway continued on this path, the United States took a pendulum swing
in the opposite direction.
61 MAUER, supra note 18, at 42. The penitentiary developed during the 18th century. DUNCAN, supra note
13, at 147.
62 Albert W. Alschuler, Centennial Tribute Essay: The Changing Purposes o f Criminal Punishment: A
Retrospective on the Past Century and Some Thoughts About the Next, 70 U. CHI. L. REV. 1, 6 (Winter 2003).
63 M auer , supra note 18, at 44 (citing Francis T. C ullen & Karen E. G ilbert , R eaffirming
Rehabilitation (1982)).
64 Taylor v. Sterrett, 344 F. Supp. 411,420 (N.D. Tex. 1972).
65 Laaman v. Helgemoe, 437 F. Supp. 269, 316 (D.N.H. 1977).
66 Lappi-Seppala, supra note 16, at 255.
67 Id.
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THE PRISONER AS ONE OF US
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Rehabilitation was still the principal goal of the U.S. criminal justice system
until the final quarter of the twentieth century.68 Gradually, other justifications
for punishment gained prominence. In 1984, a Florida court declared
retributivism to be only one element of all punishment imposed by society.69
Norway, on the other hand, was experiencing a revolution of a different kind in
its penal system: in 1998, when an explicit focus was placed on rehabilitation,
and again in 2007, when reintegration and helping inmates find housing and jobs
even before release was prioritized.70
The United States has now declared a preference for deterrence,
incapacitation, and retribution as goals for punishment, but has pointedly
avoided indicating a preference for rehabilitation or restorative justice.71
Alternatively, the Norwegian view of punishment is that the restriction of liberty
is the punishment—the offender retains the same rights as non-offending
citizens.72 While American cases have also affirmed incarceration as the
punishment, this affirmation has not prevented stripping the prisoner of his
rights. Rather, this affirmation has been used only to prevent poor prison
conditions and mistreatment, such as beatings and physical deprivations.73 It has
certainly not been used as a basis for rehabilitative efforts. The American
approach to punishment centers on retributivism, while the Norwegian approach
centers on rehabilitation and restoration. Understandings of the purposes of
punishment shape consequent penal policy, and the differences between these
two countries will be highlighted even more as this Comment dives deeper into
each country’s respective penal practice.
B. Sentencing Structures
Sentencing structures also play a major role in the differences between the
two countries’ incarceration and recidivism rates. The United States started with
indeterminate sentencing just as it started with rehabilitation. Indeed, the
rationales of the two were inextricably linked. Indeterminate sentencing
68 Alschuler, supra note 62, at 6.
69 Spaziano v. Florida, 468 U.S. 447,461-62 (1984).
70 Benko, supra note 52.
71 Melanie Reid, Crime and Punishment, a Global Concern: Who Does It Best and Does Isolation Really
Work?, 103 K y . L.J. 45, 74 (2014-2015) (citing Richard J. T errill , World C riminal J ustice Systems : A
C omparative SURVEY 252-53 (8th ed. 2013)); see also Daniel W. Van Ness, Justice that Restores: From
Impersonal to Personal Justice, in C riminal J ustice : Retribution vs . Restoration 100 (Eleanor Hannon
Judah & Rev. Michael Bryant eds., 2004).
72 About the Norwegian Correctional Service, supra note 51.
73 Barnes v. Gov’t of V.I., 415 F. Supp. 1218,1224 (D.V.I. 1976).
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incentivized the prisoner to participate in rehabilitative programs.74
Unfortunately, indeterminate sentencing also left open potential for abuse and
injustice as a result of prison officials’ and parole board members’ biases.75
Indeterminate sentencing was also criticized for allowing early release of
offenders who many thought deserved lengthier terms and contributed to a rise
in crime as a result of their early release.76 Thus, the argument for determinate
sentencing and rejection of rehabilitation emerged.
In 1984, Congress passed the Sentencing Reform Act.77 In it, Congress
replaced the previous indeterminate sentences with ‘“ guidelines [that] reflect the
inappropriateness of imposing a sentence to a term of imprisonment for the
purpose of rehabilitating the defendant or providing the defendant with needed
educational or vocational training, medical care, or other correctional
treatment.’”7* The Act therefore embodied the radical transformation occurring
within the United States to reject the role of rehabilitation in punishment.
While these reforms initially appeared to have the goal of rooting out
sentencing disparities resulting from differing views of various judges, in
practice, the reforms led to a harsher penal practice that disregarded each
offender’s individual characteristics while simultaneously increasing the
severity of sentences.79 Determinate sentencing produced an atmosphere, which
is still present, in which “[w]e punish by the book, by the numbers, by rigid
guidelines, by unnecessarily cruel minimum sentences. The result is overfilled
prisons and unnecessary havoc and suffering for those within and without
incarcerating walls . . . indirectly punishing families and communities.”80
Determinate sentencing gifted America with length and certainty of sentences
unseen in the rest of the world. Looking at the years 1980-1996, over one half
of the increase in incarceration rates was attributed to a greater likelihood of a
prison sentence upon arrest, whereas only about one tenth was attributed to an
actual rise in crime.81 Judge Richard Posner acknowledged the role that our
sentencing structure plays, citing the United States’ “‘exceptionally severe
criminal punishments (many for intrinsically minor, esoteric, or archaic
74 MAUER, supra note 18, at 46.
75 Id.
16 Id. at 47.
77 Jack B. Weinstein. Notesfor the 58th Benjamin N. Cardoza Lecture: The Role o f Judges in a Government
of. by, andfor the People, 63 Record 326, 521 (2008) (citing 28 U.S.C. § 994(k)).
78 Id.
79 Alschuler, supra note 62, at 9-10.
80 Weinstein, supra note 77, at 347.
81 MAUER, supra note 18, at 34.
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THE PRISONER AS ONE OF US
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offenses)’ as one of the factors making the United States ‘one of the most penal
of the civilized nations.”’82
Norway has resisted the pressure to give harsh sentences. In 1981, around
the same time that the United States was implementing the Sentencing Reform
Act, Norway abolished the life sentence83 and replaced it with a twenty-one-year
maximum sentence.84 Imprisonment in Norway is generally imposed for terms
between fourteen days and fifteen years, in certain cases for a term not exceeding
twenty years, and “in cases in which it is specially provided, for a term not
exceeding 21 years.”85 For example, the minimum penalty for committing a
homicide is six years, but the maximum of twenty-one years may be applied
only in cases of premeditation, felony murder, or if the offender acted to conceal
a felony or evade its penalty.86 Breivik received this maximum sentence of
twenty-one years.87 Furthermore, the death penalty is prohibited in Norway, and
even use of imprisonment as a punishment is limited to serious offenses—the
majority of non-serious offenses are punished by fines.88 For those that do
receive a prison sentence, the average sentence in Norway is around eight
months,89 whereas the average sentence in the United States is twenty-seven
months.90 In Norway, “[ojver 60% of unconditional prison sentences are up to 3
months, and almost 90% is [sic] less than a year.”91
The availability of judicial discretion and shorter sentences does not
necessarily mean that Norway’s penal system is lenient. For instance, Norway’s
new Penal Code provides for a sentence as high as thirty years for international
crimes—crimes related to genocide, crimes against humanity, and some war
crimes.92 Another example comes from the Breivik case. Since sentencing,
Breivik has been kept in “near constant solitary confinement, under orders which
are renewed ‘almost automatically’ every six months,” and has been banned
82 DUNCAN, supra note 13, at 224 n.6.
83 Benko, supra note 52.
84 Lappi-Seppala, supra note 16, at 223; see also About the Norwegian Correctional Service, supra note
51.
85 General C ivil P enal Code (Nor.), supra note 8, § 17.
86 Id. § 233.
87 Bacchi, Anders Behring Breivik Timeline, supra note 1; see also GENERAL CIVIL PENAL Code (Nor.),
supra note 8, § 233; Bacchi, Anders Breivik Threatens Hunger Strike, supra note 1.
88 Lappi-Seppala, supra note 16, at 223.
89 About the Norwegian Correctional Service, supra note 5 1.
90 Petersilia, supra note 24, at 16.
91 About the Norwegian Correctional Service, supra note 51.
92 Id
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from sending or receiving letters.93 The Norwegian Correctional Service
justified this treatment because of the terroristic nature of Breivik’s crime and
his subsequent misbehavior in jail.94 It is significant that such treatment is not
given to every prisoner who receives the twenty-one year maximum; rather, it is
the result of individualized discretion applied to Breivik. However, even these
“harsh” treatments by Norway fall within the lighter end of American treatment,
both in terms of length of time in prison and the treatment applied. While most
prisoners in solitary confinement in the United States are housed in cells
measuring from 6 x 9 to 8 x 10 feet,95 Breivik’s solitary confinement initially
gave him use of an entire suite of rooms.96
The United States’ harsh approach to crime could in some ways be
understood if it faced more crime than other countries. Because the United States
certainly faces more crime by dint of population size alone, crime rates must be
compared instead. However, even these rates can be difficult to compare due to
problems of reporting and differing definitions of crime. Therefore, one study
compared victimization rates of eleven industrialized nations in lieu of crime
rates.97 While the United States matched the average rate of victimization,98 the
homicide rates in the United States are five to seven times the rate of most
industrialized nations.99 For instance, the homicide rate in Norway was the
lowest of the nations studied, at 0.9 homicides per 100,000 people, while the rate
of the United States was the highest at 7.4 homicides.100 Since the United States
has the same average rate of victims as other countries but significantly higher
homicide rates, more of the U.S. victim population consists of homicide victims
than in the victim populations of other countries. If the United States has more
homicide victims, it likely has more homicide offenders. Because homicide
offenders typically receive lengthier sentences than offenders who commit less
egregious crimes, the U.S. incarceration rate jumps higher as well.
93 Justin Huggler, Mass Murderer Breivik to Sue Norway Over Prison Conditions, Telegraph (Feb. 11,
2015, 5:46 PM), http://www.telegraph.co.uk/news/worldnews/europe/norway/11406616/Mass-murdererBreivik-to-sue-Norway-over-prison-conditions.html.
94 Id.
95 FAQ, Solitary Watch (2015), http://solitarywatch.com/facts/faq/.
96 Inmates in Norway Prison Are Not Happy with Breivik’s Conditions, NORDIC PACE (Feb. 14, 2015),
http://www.tnp.no/norway/panorama/4821-inmates-in-norway-prison-are-not-happy-with-breiviks-conditions.
97 Mauer, supra note 18, at 25.
98 Id. at 26. Victimization means that the United States has the same rate of victims as comparable
countries. Id. at 25-26.
99 Id. at 27-29.
100 Id. at 28.
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C. Social Atmosphere and Policy
Another factor fueling the difference between the U.S. and Norwegian penal
systems is the economic disparity or lack thereof within each country. Research
suggests that “the greater a society’s tolerance of inequality, the more extreme
the scale of punishment utilized .” 101 This link between economic disparity and
harsh punishment seems to be quickly confirmed by examining the United
States’ harsh, determinate sentencing and Norway’s lower, discretionary
sentences. Norway, unlike the United States, operates within a “controlled
capitalist market economy in which inequalities in incomes and distribution of
wealth and power are not tolerated as much as in most other countries.” 102 It is
a social welfare state that operates under the penal ideologies that “[g]ood social
policy is the best criminal policy” 103 and that “[s]ociety does better investing in
schools, social work, and families than in prisons .” 104 President Barack Obama
has recently recognized the wisdom in this approach and voiced his own iteration
of the need for social investment, saying, “[t]he best time to stop [crime] is
before it even starts. . . . If we make investments early in our children, we will
reduce the need to incarcerate those kids .” 105
Social policies contribute greatly to Norway’s low levels of incarceration
and recidivism. There is less economic disparity, less social marginalization, and
more prosperity than in non-welfare states like the United States.106 For
example, in Norway, rights of health care, education, and a pension are available
to all citizens. 107 Certain motives to commit crime, such as hunger and desperate
need, are thus eviscerated. While citizenship in the United States does not carry
the same rights, it has been shown that investment in similar provisions, such as
preschool for young children and summer jobs for teenagers, reduces crime rates
in the future and, at the same time, increases overall federal savings. 108
101 Id. at 39 (quoting Warren Young & Mark Brown, Cross-National Comparisons o f Imprisonment, in 17
and J ustice : A Review of Research 1^19 (Michael Tonry ed., 1993)) (internal quotation marks
omitted).
102 Lappi-Seppala, supra note 16, at 221.
103 Id. at 274; see Su-Syan Jou, supra note 9, at 286 (confirming Norway’s commitment to good social
policy in the form of high employment rates, social welfare programs, low poverty rates, and low income
inequality) (internal quotation marks omitted).
104 Lappi-Seppala, supra note 16, at 274.
105 David Hudson, President Obama: “Our Criminal Justice System Isn ‘t as Smart as It Should Be,” WHITE
HOUSE (July 15,2015,1:12 PM), https://www.whitehouse.gov/blog/2015/07/15/president-obama-our-criminaljustice-system-isnt-smart-it-should-be (internal quotation marks omitted).
106 Lappi-Seppala, supra note 16, at 274.
107 Benko, supra note 52.
108 Hudson, supra note 105.
Crime
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Recidivism may be curbed by Norwegian social policy. For example, “[t]he
Norwegian government has . . . a reintegration guarantee for those who have
served their sentence. They shall — if relevant — have an offer of employment,
education, suitable housing accommodation, some type of income, medical
services, addiction treatment services and debt counseling.”109 In turn, Norway
alleviates the problem of ex-convicts prowling the streets for jobs, shelter, or
food, and, upon finding none, turning back to the crimes they know can, at least
temporarily, provide money or relief.
D. Public Sentiment
Discrepancies between the United States and Norway can also be explained
by public sentiment and the political need of the state to respond. Because most
criminal justice officials are elected in the United States, there is great pressure
to match one’s sentencing decisions with public sentiment.110 In a culture where
the public sentiment regarding crime is fear and a desire to seek vengeance over
rehabilitation, this cannot help but lead to higher sentencing. Public sentiment
in the United States also reflects a loss of public confidence, caused in part by
the conflict model of penal justice, which welcomes criticism.**111 Examples of
public sentiment in the United States are easily found, from protesters in 1997
yelling, “Hang those white beys!” 112 to the more recent protests in Baltimore,
Maryland following the death of Freddie Gray while in police custody.113
By contrast, in Norway, fear and anger surrounding crime are low.114
Consequently, imprisonment rates are low.115 Eighty percent of the Norwegian
public and most of the victims’ families supported the court sentence for
Breivik.116 Even Breivik himself accepted the sentence with no intention to
appeal.117 The actions of the criminal justice system are more likely to be trusted
within Norway, which means that Norway’s rehabilitative approach is more
likely to be met with cooperation than antagonism by the public with which it
seeks to reintegrate its offenders. Not only does this suggest the role that public
109 About the Norwegian Correctional Service, supra note 51.
110 Lappi-Seppala, supra note 16, at 283.
111 Id. at 280.
112 Steve Bogira , Courtroom 302, at 65 (2005) (internal quotation marks omitted).
113 Timeline: Freddie Gray’s Arrest, Death, and the Aftermath, Baltimore Sun , http://data.baltimoresun.
com/news/freddie-gray/ (last visited Jan. 30,2017).
114 Lappi-Seppala, supra note 16, at 271.
115 Id.
116 Su-Syan Jou, supra note 9, at 292.
117 Id.
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THE PRISONER AS ONE OF US
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sentiment has to play on incarceration, but this also suggests the role that heavyhanded incarceration has to play on public sentiment. Where prisoners get longer
sentences, such sentencing has the potential to cultivate fear of prisoners, which
fuels longer sentencing structures. The cycle perpetuates.
E. The Principle o f Normality
Reintegration is core to Norwegian penal policy and probably the most
significant factor in its low incarceration and recidivism rates. The Norwegian
correctional service operates under the principle of normality—which says
“progression through a sentence should be aimed . . . at returning to the
community.” 118 In this way, prison is not viewed as a permanent or even long
term placement of prisoners. Prisoners are members of society temporarily
removed. The United States has no counterpart to this principle of normality and
is effectively hamstrung when it comes to successful reintegration.
Recognizing the difficulty offenders face upon returning to a community and
that this difficulty is only exacerbated by a closed system, Norway designs life
inside correctional facilities to resemble life outside prison as much as
possible. 119 Punishment is viewed solely as the loss of freedom ; 120 accordingly,
prison can be modeled to look like non-prison without frustrating the practical
application of justice. Furthermore, the country employs an import model in its
prisons, meaning that no prison staff members deliver “medical, educational,
employment, clerical or library services. [Instead, tjhese are imported from the
community.” 121 As a result, inmates not only mimic the lives that they hope to
live upon their release; they form relationships they can continue outside of
prison. Prison is not a time or place set apart from the community. Instead, prison
is a place where prisoners are drawn back into the society against which they set
themselves as aggressors, where they can gain the tools and relationships they
will need to thrive post-release.
This principle of normality can best be seen in the administration of Halden
prison. Halden, which sometimes is referred to as the most humane prison in the
world, is Norway’s newest prison and one of its largest. 122 Halden is the first
Norwegian prison built after the reformation of the Norwegian penal system, in
118
119
120
121
122
About the Norwegian Correctional Service, supra note 51.
Id.
Id.; see also Benko, supra note 52.
About the Norwegian Correctional Service, supra note 51.
Benko, supra note 52.
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which the primary goal became rehabilitation and reintegration into society. 123
Even its architecture reinforces Norwegian penal goals. Galvanized steel, a hard
material, is used to represent detention, while untreated larch wood, a soft
material, is used to represent rehabilitation and growth.124 While the architecture
acknowledges the need for punishment, it also encourages movement towards
rehabilitation.
Rehabilitation is chiefly encouraged, not only by these inanimate structures,
but also by the treatment of inmates. Halden is run under a system of “dynamic
security,” in which interpersonal relationships between prison staff and inmates
are seen as the primary factor in preserving safety. 125 Guards socialize with
inmates over meals or card games, and inmates often move unaccompanied by
guards and unwatched by surveillance. 126 Whereas static security—the system
generally employed in the United States—aims to create an environment that
prevents an inmate with bad intentions from carrying them out, dynamic
security—the system generally employed in Norway—strives to prevent an
inmate from developing bad intentions in the first place . 127 Static security
assumes antagonism; dynamic security extends trust. This trust is not without its
risks—almost “half of [the Halden prisoner population is] imprisoned for violent
crimes like murder, assault, or rape”128—but the risk of this trust bears out in the
results. Disciplinary measures such as an isolation cell with a restraining bed
have never been used in five years, prisoners instead responding to mild
measures such as the restriction of their television privileges. 129
Additionally, the principle of normality is encouraged not only through
guard-prisoner interaction, but also in daily prison life, which models life outside
Halden. Prisoners have access to board games and magazines, make waffles
once a week (a Norwegian ritual), play video games, and go to the grocery store
and stock their mini-fridges. 130 The similarities between life inside and outside
prison are especially striking when considering the furniture and kitchen
available to inmates. None of the furniture is specially designed to prevent it
from being reworked into a weapon and the kitchen contains plenty of potential
123
124
125
126
127
128
129
130
id
id
id
id
id
id
id
id
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THE PRISONER AS ONE OF US
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weapons in the form of silver utensils, glass and ceramic dishes, and even some
large knives (although these are tethered to the wall) . 131
By contrast, prisoners in the United States Penitentiary Administrative
Maximum Facility (ADX), the United States’ only federal supermax facility,
spend about twenty-three hours in solitary confinement—time that is often spent
working out to exhaustion or finding creative ways to inflict self-harm .132 Even
the warden admitted that the prison was not designed with rehabilitation in mind,
going so far as to say, “[t]his place is not designed for humanity.” 133 Although
the lack of rehabilitation does not necessarily unbalance the scales of
retributivism, which call for the punishment to match the crime, subjecting
prisoners to terrible treatment seems to be little more than thinly veiled
“indulgence of the noncriminals’ sadistic drive.” 134
The Norwegian prison conditions combat the dangerous ‘us versus them’
mentality that isolates prisoners and ex-prisoners from society more than any
physical separation imposed by prison walls. When prisoners feel that they are
not part of the ‘us’ of society, what motivation do they have to follow the laws
and norms of the society that has rejected them? Without that motivation, it is
highly possible that they will instead find identity and community within the
society of fellow prisoners, thus allowing their crime to define and refine them.
In the words of one prisoner, “I mean, you know, that’s why I have a problem,
because I always been [sic] rejected from society.” 135
Furthermore, when society views prisoners as ‘them’ rather than part of ‘us,’
what motivation does society have to want ‘them’ reintegrated as part of the
whole? When we, as a society, see prisoners as ‘them,’ we see them as
oppositional to ourselves and have no desire or need to help them. This attitude
only hurts society in the long run by perpetuating the antagonism between each
group, rather than uniting prisoners and non-prisoners.
Flowever, it is much more comfortable for non-prisoners to consider
prisoners as ‘them.’ If the prisoner is ‘them,’ then there is no problem in U.S.
society and no problem that needs curing. One author describes the U.S.
tendency to separate the prisoner into ‘them’:
131 id.
132 Mark Binelli, Inside America’s Toughest Prison, N.Y. TIMES M ag . (Mar. 26, 2015), http://www.
nytimes.com/2015/03/29/magazine/mside-americas-toughest-federal-prison.html? r=0.
133 Id
134 Duncan , supra note 13, at 145.
135 Bogira , supra note 112, at 47.
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It was so much easier to blame it on Them. It was bleakly depressing
to think that They were Us. If it was Them, then nothing was anyone’s
fault. If it was Us, what did that make Me? After all, I’m one of Us. I
must be. I’ve certainly never thought of myself as one of Them. No
one ever thinks of themselves as one of Them. We’re always one of
Us. It’s Them that do the bad things. 136
The Norwegian penal approach removes the isolating line between the ‘us’
of society and the ‘them’ of criminals. By eliminating this line, Norway
cultivates community. If both prisoners and non-prisoners see each other as part
of the same ‘us,’ then each has a reason to seek the preservation of society.
Prisoners are taught to see themselves as part of society, and thus may lose their
identities as antagonists against it. Non-prisoners are taught to see prisoners as
never having lost their place in society, and thus prisoners are not forgotten about
upon incarceration but are expected to return to society. As we leam from the
experience of Pip in Charles Dickens’ Great Expectations, “When . . . we can
call the convict ‘my convict,’ . . . then at least we will be able . . . to act
wholeheartedly as we endeavor to cope with criminal behavior.” 137
Compared to the United States, Norway’s penal system may seem radical.
One Norwegian political party leader admitted, “[t]oday’s prison conditions can
seem like pure holiday accommodation for many of the foreign criminals.” 138 In
addition to prison conditions, treatment at trial is also shaped by the principle of
normality. For example, the Norwegian correctional authorities, while denying
Breivik permission to wear a combat uniform in all public appearances, acceded
to his demand to wear a Lacoste sweater instead. 139 By contrast, ir_ the United
States, prisoners commonly show up to court in orange jumpsuits unless the
defense makes a specific request to the judge that his client be allowed to wear
civilian clothes and the judge finds that prison garb would be unduly prejudicial
to the jury . 140
136 Terry P ratchett, J ingo 214 (1997) (emphasis in original).
137 D uncan , supra note 13, at 117.
138 Su-Syan Jou, supra note 9, at 294.
139 Robert Mendick, Norway Massacre: The Real Anders Behring Breivik, TELEGRAPH (July 31,2011,7:00
AM),
http://www.telegraph.co.uk/news/worldnews/europe/norway/8672801/Norway-massacre-the-realAnders-Behring-Breivik.html; see Ben Quinn, Stop Anders Breivik Wearing Our Clothes, Lacoste Reportedly
Ask Police, GUARDIAN (Sept. 9, 2011, 6:13 PM), http://www.theguardian.eom/world/201l/sep/09/andersbreivik-clothes-lacoste-police.
140 Brett Snider, Can an Orange Jail Jumpsuit Prejudice a Jury?, F indL aw Blotter (May 7, 2014, 8:54
AM), http://blogs.findlaw.com/blotter/2014/05/can-an-orange-jail-jumpsuit-prejudice-a-jury.html.
2017]
THE PRISONER AS ONE OF US
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As aforementioned, Breivik has been kept in solitary confinement since his
trial concluded.141 At one point, he had access to a whole unit of rooms,142 a
PlayStation 2, and video games, in addition to receiving weekly benefits the
equivalent of about forty-three U.S. dollars.143 This is more than many
Americans, criminal or otherwise, own or have access to. Yet Breivik threatened
a hunger strike because he did not have the latest PlayStation 3 console, more
“adult” games, and a doubled weekly benefit.144 Failure of the Norwegian
Correctional Services to provide these conditions amounted to, in the words of
Breivik, “torture” and “treating [him] worse than an animal.”145 In addition to
his amenities, Breivik has not lost his rights or the freedom to exercise them.
Education is a right of all Norwegian citizens146 and Breivik was recently
allowed to study political science at nearby Oslo University.147 This course of
study exposed Breivik to concepts that are radically different from the
prejudicial beliefs that motivated his attack, such as the benefits of
multiculturalism in Europe.148
This treatment of Breivik, while kind, is not blind to the need for protective
and disciplinary measures. Breivik is banned from sending or receiving any
letters.149 Due to disruptive behavior in prison, Breivik has now been isolated to
only one room for twenty-three hours a day, and his studies have been
interrupted.150 While this treatment is similar to the solitary confinement that
U.S. prisoners experience,151 it is crucial to note that this type of punishment is
not standard practice in Norway. In fact, it was an extra measure, employed only
after Breivik continued to be disruptive. The base level of punishment is aimed
at returning prisoners to society, but disciplinary measures are still utilized. In
141 Huggler, supra note 93.
142 Inmates in Norway Prison Are Not Happy with Breivik’s Conditions, supra note 96.
143 Bacchi, Anders Breivik Threatens Hunger Strike, supra note 1.
144 Id
145 Id.; see also Huggler, supra note 93 (noting that Breivik compared his prison conditions to a “mini-Abu
Ghraib.”).
146 Benko, supra note 52.
147 Dominic Gover, Anders Breivik: Norway’s Anti-Muslim Mass Killer to Study Multiculturalism, INT’L
Bus. T imes (Sept. 13, 2013, 2:05 PM), http://www.ibtimes.co.uk/breivik-murder-rights-education-norway505941.
148 Id
149 Huggler, supra note 93.
150 Richard Orange, Mass Killer Anders Breivik Threatens to Go on Hunger Strike in Protest at Prison
Conditions, T elegraph (Sept. 30, 2015, 11:32 AM), http://www.telegraph.co.uk/news/worldnews/europe/
norway/11901031/Mass-killer-Anders-Breivik-threatens-to-go-on-hunger-strike-in-protest-at-prisonconditions.html.
151 FAQ, supra note 95.
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EMORY INTERNATIONAL LAW REVIEW
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the United States, where the base level of punishment is harsh, there is little
recourse when prisoners act out. Either there is no further level of punishment
and the prisoners, knowing their treatment cannot become worse, may act
without fear of consequences, or the next level of discipline is even harsher, even
more brutal, even more inhumane.
The treatment of both Breivik and the prisoners at Halden is justified by the
Norwegian principle of normality. Halden certainly looks like the world’s most
humane prison; it hardly looks like a prison at all. However, Norway’s low
incarceration and recidivism rates demonstrate that something is working.
Prisoners are less removed from society, and that treatment eases their return
and avoids the harms that can come with isolation. 152
While the principle of normality ought to be imported into the United States’
penal system, the United States should not lose the proportionality called for by
retributivism. A balance between retributive treatment and rehabilitative
treatment is necessary. The Norwegian example suggests that “a poor
environment fosters criminality, a benevolent environment overcomes it.” 153 If
the punitive environment of U.S. prisons is made to also be rehabilitative, the
United States could experience a decline in its incarceration and recidivism rates.
In the words of one of the survivors of Breivik’s slaughter, “[i]f one man [sic]
hatred can cause so much damage, think of all the good so many people [sic]
love can create in return .” 1”4 Perhaps the better approach to prisoners is love, not
hate.
III. R eh a b il it a t iv e R etr ib u tio n — A P r o pe r A ppr o a c h to P u n ish m en t
a n d its E ffec ts
A. The Problem: Punishment as Overreaching
Inmates emerge from prison in various ways, depending on both their
treatment and their personal choices. Some may use their time behind bars for
l5‘ Examples similar to Halden have played out in other countries. For example, in 1840, Alexander
Maconochie took control of Norfolk Island, where Britain’s worst convicts were housed. Duncan, supra note
13, at 162-63 (citing Christopher Hibbert, THE ROOTS OF Evil 149 (reprint 1996)). Although Norfolk Island was
designed to be a place of “the extremest punishment, short of death,” Maconochie overhauled that bleak focus
by establishing indeterminate sentences, allowing prisoners to earn credit on their sentences for good behavior,
building churches and schools, and allowing prisoners to cultivate gardens. Id. His reforms worked. “Only three
percent of the 1,450 prisoners discharged during Maconochie’s tenure are known to have been reconvicted.” Id.
153 DUNCAN, supra note 13, at 54.
154 Su-Syan Jou, supra note 9, at 302.
2017]
THE PRISONER AS ONE OF US
351
personal reflection and growth. Others, however, may return to society “more
socially isolated, embittered, and committed to a criminal lifestyle.” 155
Imprisonment carries a unique risk of exacerbating the very problem it seeks to
solve. While society cannot dictate an individual’s choice, it can encourage
choices that follow positive pathways. Society does this by making certain
actions illegal, creating treatment programs, and maintaining societal
expectations and behavioral norms.
When offenders are segregated from society for years with no one to
socialize with but other offenders, is it any wonder that criminal behavior is
reinforced, rather than positive behavior, which must be taught as a new
alternative to previous actions? Isolation from society causes prisoners “to fall
deeper into their own negative patterns and cause[s] feelings of alienation from
the rest of society.” 156 “Peer pressures to fail from within the deprived,
segregated community are especially hard to overcome” and are the cause of
much recidivism . 157 Furthermore, the longer an offender is separated from
society, the more difficult the return. 158 Without reintegration into society,
release may be, in the words of one prisoner, merely “going from one prison to
another, from a cell to a cage .” 159 That cage keeps prisoners from society and
within the cycle of recidivism. With its intractable problems of incarceration and
recidivism, the United States has much to learn from the Norwegian model.
B. The Norwegian Solution
The Norwegian model fights prison’s negative effects by applying the
principle of normality, utilizing members of the community to provide services
for prisoners, and sentencing offenders to shorter terms. The principle of
normality and the import of members of the community ensure that prisoners do
not feel more segregated from society than their imprisonment necessarily
requires. They are physically removed from society, but not relationally
removed. They avoid the downward spiral away from society that can increase
crime—for there is little incentive for an individual to follow the laws of a
155 Petersilia, supra note 24, at 37.
156 Reid, supra note 71, at 47; see Ken Strutin, Incarceration in the United States: Issues in America’s Jails
and Prisons: The Realignment o f Incarcerative Punishment: Sentencing Reform and the Conditions o f
Confinement, 38 WM. MITCHELL L. REV. 1313, 1320-21 (2012) (confirming the difficulties faced when
offenders return to society after years of de-socialization).
157 Weinstein, supra note 77, at 350-51.
158 Reid, supra note
159 Duncan , supra note 13, at 38 (citing Edgar Smith, Life in the Death House, in GETTING BUSTED:
P ersonal E xperiences of A rrest , T rial , and P rison 339-M6 (Ross Firestone ed., 1970)).
352
EMORY INTERNATIONAL LAW REVIEW
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society that has rejected him. Lower sentencing reduces the impact that even the
minimal separation may have. Most prisoners are not removed from society for
long enough that they can think of themselves as separate from it. The return to
society is inevitable and quick.
The Norwegian model offers guidance to the United States, a country
plagued by high incarceration and recidivism rates. Admittedly, some aspects of
the Norwegian model cannot cross the Atlantic. For instance, the United States
is not a social welfare state and will always face the effect of economic disparity
on its prison population rates more heavily than Norway. Other parts of the
model that may look inapplicable are actually quite attainable. More than
$93,000 is spent on each inmate at Halden per year and this already staggering
amount looks all the more outrageous when compared with the $31,000 average
spent in the United States per prisoner each year.160 However, if the incarceration
rate in America were adjusted to that of Norway, the United States could spend
the same amount per prisoner as Norway and save more than $45 billion per
year.161 If the United States were able to effect change and lower its incarceration
rate, it could perhaps employ an even larger part of the Norwegian strategy. The
question then becomes how to achieve that lower rate.
C. Rehabilitative Retributivism: A Proposed Solution
As this Comment has explained, the U.S. penal system focuses on
retributivism, whereas Norway’s penal system focuses on rehabilitation. In order
to emulate the effective rehabilitation system in Norway, the U.S. penal system
must incorporate both purposes of punishment. A penal system that operates on
the basis of rehabilitative retributivism would be a greater asset in addressing
the United States’ incarceration and recidivism problems than either penal
purpose on its own.
In the United States, retribution, not rehabilitation, is the goal of
punishment.16’ Instead of seeking to prevent further evils from arising,
retributivist punishments seek to address evils already done.163 The mere fact
that evil is done catches the eye of the justice system. Retributivism is not
160 Benko, supra note 52.
161 Id.
162 Reid, supra note 71, at 74 (quoting Richard J. Terrill, World Criminal Justice Systems: A
Comparative Survey 252-53 (8th ed. 2013)); see Van Ness, supra note 71, at 100.
163 Don E. Scheid, Kant’s Retributivism, 93 Ethics 262,268 (1983).
2017]
THE PRISONER AS ONE OF US
353
revenge as revenge takes pleasure in another’s suffering. 164 Instead, it is only
“[t]he fact that a person has committed a legal offense [that] is the necessary and
sufficient condition for the just imposition of punishment on that person.” 165
Philosopher Immanuel Kant’s categorical imperative prohibits punishment for
any consequentialist means, such as deterrence, restraint, or rehabilitation. 166
Such a consequentialist focus would lead to both over-inclusive results— as any
aberrant or in-need individuals would be imprisoned—and under-inclusive
results—as those criminals who committed crimes but showed adequate remorse
and returned to society’s norms and rules would not be imprisoned.
Kant’s retributivism also includes the idea that punishment, in order to be
just, must be proportionate to the crime committed. 167 It is this idea that fuels
the offense at Breivik’s complaints about not having the latest video game
system . 168 It is this idea that, when applied, prevents prisoners from receiving
better provisions and utilities than non-criminals. It is this idea that demands that
there be punishment and that it match the harm done to society, not that prisoners
be made better off for their crimes. This proportionality principle is thus not
entirely compatible with the Norwegian model; however, it fits within the U.S.
model. It is also this idea that recoils in disgust at the treatment in ADX, where
a prisoner who attempted suicide by slashing his throat was forced to clean up
his own blood . 169 It is this idea that views twenty-three hours in solitary
confinement as inhumane. Neither Norwegian treatment nor U.S. treatment is
entirely proportionate.
Kant’s idea of proportionality necessarily leads to rehabilitation.
Rehabilitation must be sought as a means to “prevent and neutralize the
unwanted harmful side effects of [the state’s] own punitive intervention,” which
includes the social deprivation of the offender. 170 Although retributivism
repudiates a forward-looking approach that would find justification in the
164 Alec Walen, Retributive Justice, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (June 18, 2014),
http://pIato.stanford.edu/entries/justice-retributive/.
165 Scheid, supra note 163, at 262; see Reid, supra note 71, at 50 (explaining the “backward looking” nature
of retributivism).
166 See I m m a n u el K a n t , G rou ndw ork for the M eta ph y sics of M ora ls 4 6 ^ 7 (Allen W. Wood ed.
and trans., Yale Univ. Press 2002) (1785) (“Act so that you use humanity, as much in your own person as in the
person o f every other, always at the same time as end and never merely as means.”).
167 Scheid, supra note 163, at 263; see Reid, supra note 71, at 50 (citing the proportionality principle as a
main feature of retributivism).
168 Bacchi, Anders Breivik Threatens Hunger Strike, supra note 1.
169 Binelli, supra note 132.
170 Edgardo Rotman, Criminal Law: Do Criminal Offenders Have a Constitutional Right to Rehabilitation?,
77 J. C r im . L. & C rim inology 1023,1028 (Winter 1986).
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EMORY INTERNATIONAL LAW REVIEW
[Vol. 31
consequences of punishment, one must not forget the consequences of
punishment altogether. Rehabilitation prevents the consequences of punishment
from swelling over-and-above the proportionate punishment imposed. While
retributivism asks the question, “how do we punish?”171 rehabilitation asks,
“how do we prevent more harm from being done?” Rehabilitation is not properly
a part of punishment, but something that happens concurrently with and
consecutive to the punishment. Rehabilitation is fueled by the hope that
criminals can be reformed for the better while being punished so that, at the end
of their punishment, they may re-integrate with society and not reoffend.172
Though rehabilitative efforts may occur at the same time as retributive
punishments, the two are more properly thought of as separate approaches with
separate goals.
Some state constitutions within the United States are already providing for
rehabilitation by writing provisions mandating that their penal codes or the
administration thereof be based upon purposes of reformation.173 However,
provisions on paper do not always translate to practice. U.S. recidivism rates
alone show that reintegration into society is not being fully achieved. When
asked about rehabilitation within the United States, one prisoner stated,
“[rehabilitation works; it is just expensive and time-consuming, two factors
which work against it in a society dominated by politicians who want immediate
results to gloat over and a public that is accustomed to 15 minute solutions.”174
If the United States were willing to make the necessary changes in its penal
system now, bearing the investments of time and money, it could achieve lower
incarceration rates as well as save billions of dollars down the road.175 Society
would be better off, even if the means to achieve the end result are difficult.
Delayed gratification is better than no gratification.
D. Practical Application: An End to High, Fixed Sentences
Practically speaking, what should the United States do? First, the United
States should return flexibility and discretion to its sentencing, while at the same
time lowering sentencing structures. As was shown, when the United States
171 Judah & Bryant, supra note 48, at 1 (quoting RESTORATIVE JUSTICE: CONTEMPORARY THEMES AND
(Jim Consedine & Helen Bowen eds., 1999)).
172 Reid, supra note 71, at 64.
173 Rotman, supra note 170, at 1062-64 (listing Oregon, Indiana, Wyoming, Alaska, and Illinois).
174 Reid, supra note 71, at 66-67 (quoting JOHN M. BURKOFF & RUSSELL L. WEAVER, INSIDE CRIMINAL
L a w : W h a t M a t t e r s a n d W h y 6, 8 (2008)).
175 See Benko, supra note 52.
PRACTICE
2017]
THE PRISONER AS ONE OF US
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introduced determinate sentencing, it experienced a spike in incarceration rates
from which it has not recovered.176 In the 58th Benjamin N. Cardozo Lecture
about the role of judges, Jack B. Weinstein reminded listeners that, “[sentencing
is the point where the heart of the law . . . is most clearly revealed.”177 Right
now, the heart of the law is cold, harsh, and often refuses the application of
particularized discretion to treat the individual standing before it.
President Obama has identified harsh sentencing as an area of the U.S.
criminal justice system in need of major reform, saying, “[fjor nonviolent drug
crimes, we need to lower long mandatory minimum sentences— or get rid of
them entirely. Give judges some discretion around nonviolent crimes so that,
potentially, we can steer a young person who has made a mistake in a better
direction.”178 Legislative, determinate sentencing results in “judges . . . being
directed to impose fixed amounts of pain on criminals in a machine-like
manner.”179 Mandatory sentencing results in spending millions of dollars for
years on low-level offenders who might be sentenced to shorter terms or
probation.180 With the current sentencing structure encouraging longer time in
prison, prisoners experience a longer period of separation from society, which
in turn makes the challenge of reintegration even more difficult to surmount.
Though prisoners with shorter sentences comprise the bulk of prison
admissions, total prison population is determined more by prisoners serving
longer terms.181 Accordingly, shortening the length of sentences would decrease
incarceration rates. However, the United States should not merely doctor
sentences to achieve a less startling statistic. It should make more sustainable
changes, which leads to this Comment’s second proposal for the United States.
E. Practical Application: Adoption o f the Norwegian Principle o f Normality
In addition to reforming its sentencing structure and returning discretion to
judges, the United States should institute the principle of normality within its
176 M auer , supra note 18, at 34.
177
178
2015,
prison
Weinstein, supra note 77, at 508.
Hudson, supra note 105; see also David McCabe, Senators Unveil Prison Reform Bill, H ill (Feb. 10,
2:44 PM), http://thehill.com/blogs/blog-briefing-room/232325-senators-unveil-prison-reform-bill (a
reform bill introduced in the Senate also proposes a reduction in mandatory minimums); D ep ’t OF
Justice , Smart on C rime : Reforming T he C riminal Justice System for the 21 st Century 4 (2013)
(affirming that alternatives to incarceration should be sought).
179 Mauer , supra note 18, at 49 (quoting Donald Cressey, Forward to Francis T. Cullen & Karen E.
G ilbert, Reaffirming Rehabilitation (1992)).
180 Mauer & Coyle, supra note 36, at 12.
181 M auer , supra note 18, at 39.
356
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prisons. The prisoner would then be viewed as someone expected to rejoin
society. 182 Halden provides an adequate example of what treatment of prisoners
under this principle could look like. While some of its applications would likely
offend ideas of retributivism and fairness, {such as punishment taking the form
of cell confinement without TV privileges) 183 the majority of measures
employed at Halden are feasible. Life inside Halden mirrors life outside.
Prisoners learn how to live in society rather than how to live in prison or among
a subset of society that rebels against it.
When life in prison is drastically different from that of the outside world,
release “immediately confronts [the ex-prisoner] with a variety of problems that
often shock and overwhelm him ,” 184 causing him to return to the life and
strategies he knows—the same life and strategies that resulted in his
incarceration. In the United States, the Justice Department has identified the
challenges of restrictions on travel and securing employment as just some of the
problems that impede a prisoner’s transition back into society. 185 Instituting the
principle of normality within prisons would prevent some of these shocks and
problems. The prisoner is less removed from society, and thus less shocked by
the return to society. Furthermore, explicit rehabilitative programs would give
prisoners the opportunity to develop a sense of purpose or self-worth, which are
much better collateral consequences than the destabilization and alienation that
are currently created by forced isolation in prison . 186 Rehabilitative treatment
would also allow the criminal justice system to be internally consistent. Because
part of the role of the criminal justice system is to protect society, rehabilitative
treatment becomes necessary for offenders who would otherwise re-offend when
released from prison . 187
During his Administration, President Obama addressed both prison
conditions and rehabilitation. He called for a change in prison overcrowding and
violence, as well as the institution of job training for inmates. 188 Likewise, a
182 See About the Norwegian Correctional Service, supra note 51.
183 Benko, supra note 52.
184 Edward V. Long, The Prisoner Rehabilitation Act o f 1965, FEDERAL PROBATION: A JOURNAL OF
Correctional Philosophy and P ractice, Dec. 1965, at 3. 4 (recommending work release for prisoners).
185 d e p ’t of J ustice, supra note 178, at 5.
186 Reid, supra note 71, at 86; see Long, supra note 184, at 7 (arguing that the work release program will
allow a prisoner to develop self-respect and thus become self-supporting).
187 Daniel J. Misleh & Evelyn U. Hanneman, Emerging Issues: The Faith Communities and the Criminal
Justice System, in C riminal J ustice : Retribution vs. R estoration 121 (Eleanor Hannon Judah & Rev.
Michael Bryant eds., 2004).
188 Hudson, supra note 105.
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THE PRISONER AS ONE OF US
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prison reform bill is making its way through the United States Senate that would
introduce programs, such as drug counseling or job training, to help prevent
recidivism among prisoners.189 These recent initiatives, though helpful, are not
sufficient. They decrease the destabilizing effect of prison and increase the talent
set of inmates, but they do not teach inmates how to function in society or
prepare them for reintegration. President Obama’s suggestions maintain an ‘us’
versus ‘them’ mentality that Halden does away with, a mentality that, as Norway
and Halden suggest, lies at the heart of reintegration and overcoming recidivism.
C o n c l u s io n
This Comment has examined the high incarceration rate of the United States
and its contributing factors. As previously mentioned, the United States had the
highest incarceration rate in the world as of October 2013.190 Its recidivism rates
bode no better. About three in four prisoners are re-arrested within five years of
release191 and over one-quarter of released prisoners are re-incarcerated.192
Norway, by contrast, does not suffer from similar issues. Its prison population
rate is dwarfed by the United States, at almost one-seventh the amount.193 Its
recidivism rate, at its highest, was around twenty-five percent.194
Penal policy is a complicated beast and the result of a great number of factors
in each country. Each country’s penal goals, structures, and laws show just why
these different rates have been realized. While the United States was moving
away from its origins of rehabilitation and toward retributivism, Norway was
striving for greater rehabilitative focus in its penal application. The United States
has a markedly harsher sentencing structure than Norway, focusing on
mandatory minimums and determinate sentencing while Norway has sought to
keep its sentencing low and to seek alternatives to imprisonment. Economic
disparity aggravates incentives for crime within the United States, whereas the
social welfare provisions of Norway both discourage crime and deter recidivism
as citizens are provided with the jobs, education, and healthcare they need.
However, the chief differentiating factor between the two countries’ penal
policy is likely the principle of normality that Norway espouses and the United
189
190
191
192
193
194
McCabe, supra note 178.
Walmsley, supra note 19.
Durose et al., supra note 49, at 1.
Benko, supra note 52.
Walmsley, supra note 19.
Benko, supra note 52.
358
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[Vol. 31
States lacks. By this principle, Norway seeks to reintegrate its offenders into
society. It is aware of the harmful effects of prisons and seeks to overcome them.
The United States has no comparable principle or application. Punishment in the
United States has expanded from the sentence. The prisoner suffers not only the
time served, but also what the time served does to them— removing them from
society, reinforcing bad habits, and making reintegration upon release nearly
impossible and recidivism inevitable.
The United States is at a crucial junction in its penal policy. Senators are
calling for change. 195 President Obama has called for change . 196 As a result, this
year, thousands of prisoners are being released early from federal prisons, more
than ever have been released at one time . 197 Of course, releasing every prisoner
could quickly remedy the United States’ high incarceration rates. However, the
question becomes: what will happen to these released prisoners? Will they
recidivate? Statistics suggest that if U.S. penal policy is left unchanged, a good
portion of them will reoffend. Furthermore, given the United States’ penal
culture and sentencing structure, those released prisoners’ empty cells will
quickly be fdled.
If, instead, the United States were to learn from the model of Norway, it
could stop the cycle of high incarceration and recidivism rates. By integrating
retributivism as adequate punishment with rehabilitation, the United States
could curtail the negative, unintended side effects of that punishment. To craft a
penal policy based on rehabilitative retributivism, the United States should seek
to lower its sentences and rid itself of harsh mandatory sentences that rob judges
of discretion and prevent particularizing the punishment to the individual.
Chiefly, the United States should incorporate the principle of normality into how
it treats its prisoners. Prisoners may then be properly reintegrated into society
after release and no longer pose a threat of recidivism. This change will help
195 McCabe, supra note 178.
196 Hudson, supra note 105.
197 Dara Lind, The Biggest Prisoner Release in US History, Explained, V ox (Oct. 7, 2015, 1:57 PM),
http://www.vox.com/2015/10/7/9470683/prisoners-released-early.
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prisoners, both those incarcerated and those released, and it will also help the
United States as a whole. It is time for change and Norway’s penal model
provides apt guidance for the form that change ought to take.
E m il y L a b u t t a *
‘ Executive Managing Editor, Emory International Law Review; J.D. Candidate, Emory University School
of Law (2017); B.A., Philosophy, English: Writing, cum laude, Wheaton College, IL (2010). The author would
like to thank Professor Martha Grace Duncan for her thoughtful advice in writing this Comment. The author
would also like to thank her parents, Robert and Melissa Labutta, for continuously modeling Christ-like love.
Copyright of Emory International Law Review is the property of Emory University School of
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P R I S O N
B R E A K
late one night in October 2015, North
Dakota prisons chief Leann Bertsch met
Karianne Jackson, one of her deputies, for
a drink in a hotel bar in Oslo, Norway. They
had just spent an exhausting day touring
Halden, the maximum-security facility
Time has dubbed “the world’s most humane
prison,” yet neither of them could sleep.
Halden is situated in a remote forest
of birch, pine, and spruce with an understory of blueberry shrubs. The prison is surrounded by a single wall. It has no barbed
wire, guard towers, or electric fences. Prisoners stay in private rooms with en suite
bathrooms and can cook for themselves
in kitchens equipped with stainless-steel
flatware and porcelain dishes. Guards and
inmates mingle freely, eating and playing
games and sports together. Violence is rare
and assaults on guards are unheard of. Sol-
itary confinement is almost never used.
By this point, Bertsch had been in charge
of North Dakota’s Department of Corrections and Rehabilitation, which includes
four adult prisons and one juvenile facility,
for more than a decade, and Jackson had
spent seven years as director of correctional
practices. They’d left Bismarck feeling pretty
good about their system, which prided itself
on its humane practices and commitment
to rehabilitation. But now, sitting in the
glassed-in bar of the Radisson hotel with
its view of the Oslo fjord, Bertsch began to
cry. “We’re hurting people,” she said.
It is worth noting that Leann Bertsch is no
pushover. With her ivory skin, flaxen hair,
and chiseled cheekbones, she comes across
as stoic and cool. She grew up on a farm in
the eastern part of the state and served 21
years in the National Guard (retiring as a
major) and eight years as a state prosecutor. She has run the prisons in this deep-red
state under three Republican governors, and
she moonlights as president of the Association of State Correctional Administrators.
“No one who has met Leann or seen her in
action would consider her a softie,” says
John Wetzel, the association’s vice president
and Pennsylvania’s secretary of corrections.
“I would describe her as ballsy. Corrections
has historically been a really misogynistic
field, so when you see a woman in charge of
a corrections system, and in charge of one
of the more influential organizations in corrections, you know she’s got to be strong.”
But in Oslo that evening, Bertsch was
uncharacteristically emotional. “It was definitely one of those moments where you’re
rethinking everything,” she recalls. “I had
always thought that we run a good system.
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ARTCREDIT TK
ARTCREDIT TK
North Dakota prison
officials Leann Bertsch,
left, and Karianne
Jackson aim to trim the
long list of rules that get
inmates in trouble “into
something more like the
Ten Commandments.”
Right: At the minimumsecurity prison known
as “the Farm,” inmates
can get private rooms
to ease their transition
to the outside world.
are coming to the realization that our approach is ineffective, costly, and cruel. Fred
Patrick, director of the Center on Sentencing and Corrections at the Vera Institute of
Justice, cites the nation’s staggering recidivism rate—77 percent of inmates released
from state prisons are rearrested within five
years. “Once you realize that this system isn’t
working well,” he says, “it’s fairly easy to pivot
to: ‘How do we do something different?’”
That’s where Specter’s field trips come
in. “To be so fricking optimistic that you
think you can take some knuckle-dragging
corrections guys like me over there and
it’s going to change their perspective—
you have to be a hippie to think that!” says
Wetzel, who toured German prisons with
Specter in 2013. But Specter’s ploy worked.
“It really screws you up, because it changes
you,” Wetzel adds. “I joke around with Don
Specter. I’m like, ‘Fuck you, man! I can’t believe you did this shit to me!’”
And so, when Bertsch and Jackson returned home, it was with a radical new goal:
“to implement our humanity.”
along the highways of North Dakota,
drivers are greeted by billboards advising
people to “Be Nice” or “Be Kind.” Fittingly,
the state’s incarceration rate of 240 prisoners per 100,000 residents is among the
…