By Rory Fleming
When only a single state or country does a thing, it is usually a reliable indication that the thing in question is not a very good idea. Until 2001, Hawaii set the age of consent at only fourteen; the legislature studied the issue and came to the conclusion that this was inappropriately low, in part by looking at how every other state increased the age. More recently, Oregon and Louisiana stubbornly used non-unanimous juries to convict people in felony criminal cases. The Supreme Court shot those laws down, implying that several decades worth of convictions are bunk and triggering a potential bureaucratic crisis in the process.
Of course, the United States, with its typecast obsession with hyperlocal democracy, has entire electoral bodies that do not exist elsewhere. Locally elected prosecutors are famously one of them. Interestingly enough, local school boards are another.
When Horace Mann was the Massachusetts Secretary of Education in the mid-1800s, he endeavored to find out whether this eccentricity had a negative impact by studying the educational systems and outcomes of other countries. This culminated in him traveling to Prussia to study schools there. What he found is that, while America struggled with the “poverty and ignorance of the masses,” Prussia had essentially ended illiteracy through a centralized system distinguished by compulsory school attendance and rigorous teacher training at the national level.
Mann was limited in how much he could accomplish to make America more like Prussia, at least in terms of its educational system, but he still managed to make Massachusetts “a model for taxpayer-funded schools and state-sponsored teacher training.” Would he have been able to do so without so clearly seeing how a competing nation’s system functions and how it achieved results? What we do know is that his peer educational leaders in the US failed to make the same strides he did.
When locally elected prosecutors like Baltimore City State’s Attorney Marilyn Mosby and Suffolk County (Boston) District Attorney Rachael Rolllins have attempted to put the same footwork into their jobs, like when they traveled with Fair and Just Prosecution representatives to Europe, they get clapped at by reactionaries. Such opinion-havers point to the alleged glamour of the trips, gasping that they were reimbursed for trips to Europe.
But just like Horace Mann needed to leave the country in order to see and understand that a different sort of educational system was leading to much better results, Europe just happens to be the place where prosecutors need to go if they want to see a land of less incarceration and crime, and especially violent crime.
In terms of the role of the prosecutor and how they learn to ethically do their jobs, Europe could not be more different than America. In the US, the vast majority of criminal cases are handled by local District Attorneys — not the state attorneys general or the Justice Department. The DAs are nearly free to do as they please. In the United Kingdom, our closest international neighbor politically and culturally, all prosecutors are employed by the Crown Prosecution Service. The CPS issues clear recommendations on how its prosecutors should use their discretion based on various diverging fact patterns. It also publishes its disciplinary procedure manual online, which lays out what is supposed to happen when prosecutors are accused of various forms of misconduct. Such policies are unheard of in the US.
Outside of office management and squarely into the realm of crime control, Europeans just do better with less. The UK incarcerates about 130 people of every 100,000 on its shores, with most European nations incarcerating even fewer people than that. America incarcerates 664 people per every 100,000. Meanwhile, the FBI estimated that there were 16,425 murders in the US in 2019, while the European Union — a political conglomerate with over 513 million residents — recorded only 3,875 intentional homicides that same year.
Some would attribute the difference in homicide rates to weak gun control in the US, but that does not fully explain rate differences for robbery, which happens just as well with a knife or a gun. In 2019, the US had 81.6 robberies per 100,000 residents, compared with only 52.5 robberies per 100,000 residents EU-wide during a similar period.
Just as Horace Mann discovered he couldn’t simply ignore the school boards, there are many obstacles to simply turning US justice into European justice. Setting aside cultural differences, the lack of governmental centralization is a glaring one. If guns are the main contributor, we can’t just temporarily ban all semi-automatic weapons like New Zealand Prime Minister Jacinda Ardern did with the snap of her fingers after the 2019 Christchurch attack. Sweeping changes are rare outside of Supreme Court mandates, leaving a patchwork approach to crime and justice.
Even so, our systems are not categorically incompatible. For example, individual local head prosecutors issue policy memoranda to their line prosecutors on issues such as charging discretion. In most states, they also have broad latitude to fire line prosecutors at will, let alone for misconduct. Thus, a DA learning from prosecutorial officials in a European nation could be shown a disciplinary matrix used to handle misconduct allegations, then implement a similar matrix with graduated consequences in-house.
Calling a hard-to-obtain crash course on how to reduce crime and incarceration is a waste is a massive stretch. Letting public officials receive compensation for travel expenses so they can learn to modernize and improve their profession is a cost that should pay dividends for society later on.
Rory Fleming is a freelance writer and licensed attorney.