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American Exceptionalism and the United States Prison Population

There has been a lot of debate in the media in the past year, or so, about American Exceptionalism.  Put simply, American Exceptionalism is the idea that the United States of America is fundamentally different than other nations.  The idea was popular during the midterm elections as a way for Republicans to try to show that they love America more than the President.  It’s perhaps more interesting to argue about that than the details of health insurance regulation.

I recently took my son to Philadelphia, to the National Constitution Center.  The museum starts with a seventeen minute live action play about our Constitution.  It’s hard not to buy into the idea and ideal of American Exceptionalism in Philadelphia.  If there’s a reason to think we’re different, and better, surely it has it’s roots in what happened in that city. (That said, a bit of distance to reflect on the idea of [insert nation here] exceptionalism may simply reveal that it isn’t meaningfully different than patriotism).

I do think America is qualitatively different than other countries.  I agree with a form of American Exceptionalism in three ways.  First, I think this country, unique among others, celebrates and encourages people to carve their own path in life.  Americans innovate and rally and strive.  In a deeply unquantitative and unscientific way, I think Americans do that more than other people.  That’s to be applauded.

Regrettably, America is exceptional in a second, more numerically verifiable way.  We have more people in prison than any other nation on the planet.  That’s not in relative numbers, but in absolute ones.  We have 2.3 million people in prison, compared with China’s 1.6 million.  Considering that China is four times the size of the United States, and is not, ahem, freedom loving, that’s stunning.

I have close relationships with a number of prosecutors, and, at times, I’ll ask them about their work.  The question I come back to is this – If the United States locks up more people than any other country on the planet, what does that same about America?  Are our citizens uniquely inclined toward criminal activity?  Are we, as a people, more deserving of prison time? 

I don’t think that’s the answer.  I think we can accept that it can be the answer (we’re not Australia, after all).  Rather, I think the answer, as David Simon has argued, is that the war on drugs has been a war on poor people.  Though I don’t think a prosecutor is allowed to agree (unless he or she thinks it’s ok for a country to declare war on poor people, which is a separate problem).

Rather, I think a third kind of American Exceptionalism explains how prosecutors react to our unconscionably high number of prisoners.  Years ago, I went to a talk by then Chief-Justice Rehnquist.  He was explaining that he was in Finland, meeting with the Attorney General of that country.  He asked her if the Supreme Court of Finland has the power to declare an act of parliament against the law in Finland.  The Attorney General consulted with her advisors and said that they could, but never had. 

To Rehnquist, this answer illuminated a key difference between Americans and the rest of the world – it is unthinkable for an American to have power and not test it’s limits.  We are, according to our late Chief Justice, a power-hungry people. 

I have talked to a number of prosecutors, and I can see the lure of the position.  One can walk into a lot of opportunities from a U.S. Attorney’s Office.  But I don’t know one yet who I’ve heard offer a thoughtful response to how dramatically out of whack our prison population is with the rest of the world.  I can see, though, how Rehnquist could offer an explanation why people who increase our prison population don’t stop to think much about its size.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.