08/26/2012 10:35 am ET Updated Oct 26, 2012

Our Hubris Over American Criminal Justice

A corollary of the great pride Americans feel for the basic principles of our criminal justice system, like the presumption of innocence and sentencing that is proportionate to the crime, is our disapprobation of foreign systems in which such features are absent. We were shocked, for example, to hear that Norwegian terrorist Anders Breivik, the impenitent mass murderer of 77 children at a summer camp near Oslo, was sentenced to 21 years in prison. A sentence of roughly three months per child is hideously out of line with our sense of justice and deterrence. At the same time, we are disdainful when we learn, as we often do in school, of the absence of a presumption of innocence in the criminal proceedings in European and other countries.

While our reactions in such cases reflect a laudable sense of balance and justice, the problem is that they're based on an abundance of misinformation. Blame the media, the educational system, excessive pride, or xenophobia, but our view of the criminal proceedings in other legal systems is sometimes seriously warped.

For example, while a mere 21 years of imprisonment -- the maximum in relatively peaceable Norway -- strikes us as inadequate for Breivik's atrocity, he'll almost certainly spend the rest of his days behind bars, as do the perpetrators of other horrific crimes in that country. Prior to the expiration of his sentence, however, his case will be reviewed under stringent guidelines prohibiting his release absent strong evidence that he's no longer a threat, a virtually unthinkable conclusion according to experts in Norwegian criminal justice in light of the monstrous nature of the offense and his grotesque impenitence. Indeed, such evaluation after decades of incarceration approximates the American practice of parole hearings. In the end, Norway's penal policies bear a greater resemblance to our own than any of the popular accounts of the Breivik case let on.

The widespread belief that criminal defendants in continental Europe are presumed guilty and must prove their innocence is equally inaccurate. Under the 1950 European Convention on Human Rights, for example, all European countries must, and do, provide that "[e]veryone charged with a criminal offense shall be presumed innocent until proved guilty." Perhaps the myth about the absence of the presumption traces back to the fact that, in many civil law regimes like France and Germany, the ultimate trial of a criminal defendant is preceded by proceedings designed, more than our own preliminary hearings, to identify innocent defendants and weed out weak cases. By the time a defendant reaches the final trial stage in these systems, much of what transpires in our criminal trials has already taken place and most who are innocent have been filtered out of the system. At this point, as in the latter portion of our own adversarial trials, the initial presumption of innocence can be overtaken by the weight of the evidence. The logic here is to identify innocence and futile prosecutions before defendants are subjected to a full-blown trial at significant cost to the state.

While criminal proceedings around the world are rife with barbarous abuses, myths about the inferiority of foreign justice abound. Our scanty understanding of other legal systems generates ugly misconceptions of foreign systems and cultures. While we are rightly proud of the fairness and balance built into our adversarial criminal trials, our satisfaction should be leavened with the knowledge that almost all criminal charges in our system are resolved through the crapshoot of plea bargaining. And we must take care that our pride not ferment -- as it has at times -- into hubris and chauvinism.

Jay Sterling Silver is a law professor at St. Thomas University School of Law in Miami Gardens, Florida who teaches and writes on criminal law.