Most countries in Europe, as well as the United States, Canada and Australia, have similar legal and penal systems, which is not surprising given their several centuries of overlapping cultural traditions
Nonetheless, significant differences exist in the various systems, especially with respect to the use of mandatory-minimum sentencing schemes and sentencing guidelines.
Compared to other Western countries, the United States chooses incarceration more often than other alternatives, such as fines or community service. Out of every 100,000 people in the United States, 645 are in prison. The next highest ratio is 145 per 100,000 population in both New Zealand and Portugal. At the low end of the incarceration scale, Greece, Finland and Norway all have only 55 citizens in prison per 100,000 population.
What's more, sentences are generally harsher in the United States than in most Western countries.
Most notably, the United States continues to use the death penalty and life sentences without the possibility of parole, while the rest of the Western world has abandoned the death penalty and rarely imposes sentences longer than 10 years.
"But there are many more differences than this," write Michael Tonry, director of the Institute of Criminology at Cambridge University, and Richard Frase, a professor of criminal law at the University of Minnesota. "In some countries, for example, Germany and Austria, prison sentences shorter than six months are regarded as destructive and serving no valid penal purpose and are therefore strongly discouraged. In others, including Sweden and Finland, certainty of punishment is seen as important, but not severity, and, as a result, many sentences of days or weeks of imprisonment are imposed.
And there is wide divergence in the use of community punishments. Community service is a commonly used prison alternative in England, Scotland and the Netherlands, but it is seldom used as a primary punishment in many other countries. Fines are often imposed in Germany and much of Scandinavia but are not used at all in both English-speaking and other countries (e.g., the Netherlands) and only sparingly in still others (e.g., France).
Most other Western countries also have refrained from adopting the "get-tough" policies introduced in the United States in the 1980s and '90s.
"There are few legislatively imposed mandatory-minimum prison sentences outside the United States, and many of those that exist are either short (by U.S. standards) or were not truly mandatory," Frase and Tonry write. "Second, all Western jurisdictions outside the United States retained parole-release discretion (although a few have partially adopted the U.S. concept of 'truth in sentencing') by limiting or abolishing sentence reductions for 'good conduct' in prison. Third, no jurisdiction outside the United States has adopted legally binding sentencing guidelines of the type found in U.S. federal and some state courts."
Instead, other countries use "more flexible means" to limit sentence disparities, including sentencing guidelines and procedures. Dutch courts, for example, must explain their rationale for imposing a sentence exceeding the prosecutor's recommendation or for refusing a defendant's offer to perform community service instead of going to prison.
Other Western countries also are generally more reticent about "enhancing" sentences in light of prior records or multiple offenses.
Although some U.S. states limit consecutive prison terms, most allow the judge broad discretion to impose cumulative punishments from related offenses up to the statutory maximum for each offense.
"But in Germany, consecutive sentences may not exceed a total of 15 years and must also total less than the sum of the maximum terms allowed for each charge," Frase and Tonry write. "In the Netherlands, a defendant found guilty of multiple offenses can only receive an enhancement of up to one-third of the maximum allowed for the most serious offense; a similar rule also applies in Sweden. In France, no enhancement is allowed above the maximum authorized for the most serious offense, whether sentenced in a single trial or serially."
There are signs, however, that some Western countries may be moving more in the direction of U.S. penal policies, a trend bemoaned by many scholars. "Unfortunately, 'bad' ideas have also spread across national boundaries—mandatory-minimum penalties, three-strikes laws and prison boot camps, although widely rejected by U.S. scholars and judges, have recently been adopted in England and Australia," according to the two criminologists.
But Tonry and Frase view the trend toward U.S.-style justice as motivated by politics rather than by the desire to find appropriate responses to social and criminal issues. "The evidence is clear: National differences in imprisonment rates result not from differences in crime but from differences in policy," they write.
Tonry, Michael , Sentencing Matters, Oxford University Press, 1996.
An international expert on sentencing offers a readable overview of sentencing issues, mainly focused on the U.S.
Tonry, Michael, and Richard S. Frase , eds., Sentencing and Sanctions in Western Countries, Oxford University Press, 2001.
A collection of essays comparing sentencing in the United States, England, Australia and Europe. Tonry is director of the Institute of Criminology at Cambridge University; Frase is a professor of criminal law at the University of Minnesota.
Wicharaya, Tamasak , Simple Theory, Hard Reality: The Impact of Sentencing Reforms on Courts, Prisons and Crime, State University of New York Press, 1995.
A criminologist explores the history and impact of sentencing reforms in the United States.
Berman, Douglas A. , "A Common Law for This Age of Federal Sentencing: The Opportunity and the Need for Judicial Lawmaking," Stanford Law and Policy Review
, 1999, p. Vol. 11:1.
An Ohio State University law professor criticizes the federal sentencing system and urges more discretion for federal judges.
Jones, Bill , "Why the Three Strikes Law is Working in California," Stanford Law and Policy Review
, 1999, p. Vol. 11:1.
California's secretary of state argues that the law he helped create should not be watered down.
Marion, Samara , "Justice by Geography? A Study of San Diego County's Three Strikes Sentencing Practices from July-December 1996," Stanford Law and Policy Review
, 1999, p. Vol. 11:1.
A law professor at Santa Clara University finds that most convictions in San Diego are for non-violent crimes and that most of those convicted are over 30.
King, Ryan S., and Marc Mauer , "Aging Behind Bars: Three Strikes Seven Years Later," Sentencing Project, August 2001.
An assessment of three-strikes legislation finds it tends to imprison criminals whose careers are winding down.
Lyons, Donna , "State Crime Legislation in 2001," National Conference of State Legislatures, 2002.
A useful compendium of the states' legislative action regarding sentencing and incarceration.
U.S. Sentencing Commission, "Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System," August 1991, p. 6.
A useful history of sentencing reforms and policies in the United States.