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What’s Justice Got to Do with It?

Visits to Icelandic Prisons Shine Light on America’s Complacency Toward the Suffering of Incarcerated People

After 40 years of an inter-partisan tougher-on-crime-than-you arms race, sentencing reform (and a desire to reduce prison costs) is one issue that now brings Republicans and Democrats together. No other advanced democracy has locked up its citizens at the rate and resulting breadth of brutalizing negligence that we commonly see in the United States. In this moment, essays and articles comparing ours with benign and truly rehabilitative Nordic prisons regularly pose the question, Why can’t Americans become more humane in dealing with people who have offended? But even the will to reduce prison populations and DOC budgets by shortening sentences, diverting people away from lockup, or supporting reentry doesn’t suggest a will to make life inside a whit less degrading. Current conditions make that obvious.

Northern European and U.S. prisons stand not only geographically but philosophically continents apart. After 13 years of teaching inside U.S. prisons, 11 years of collecting and archiving non-fiction essays by incarcerated people, and after walking through nearly identical hallways and laundry rooms, kitchens and work places inside 18 Swedish and Danish, Norwegian and Finnish prisons, I can attest to the difference in atmospheres: U.S. lockups are walled villages under military occupation; Nordic prisons are supervised communities—a contrast shaped by disparate histories, cultures and politics, and tangible again on a gray day here in Iceland.

Officer Birgisson asks if we’d like to see the surveillance center. Close to retirement, years line his eyes as he exhales vape against a sky the color of granite. My wife Jennifer and I nod yes as we tramp across a wet gravel yard. Behind a double layer of green chain link, southern shore break meets volcanic rock.

So far, we have toured the mess hall where staff and the confined eat together. We’ve spoken to an amiable thief who has racked up 23 years in short stints and now paints license plates for a nation boasting fewer citizens than Wichita. Under the glare of a man with a two-inch FUCK tattooed above a Guns N’ Roses collar, we walked through an echoing shop where men build picnic benches or wash the cars of the 569 surrounding citizens. Later today we will visit an open prison: Winding up through lush pastures, we’ll meet a road bar without adjoining fences and rouse a rooster and a flock of panicked hens as we park beside two men repainting the white rim around a small fountain. We will see this day nothing out of the norm for prisons throughout the Nordic countries, other than a scale so small as to make comparisons with the U.S. all the more laughable. With a clientele of 65, Litla Hraun (Little Lava) high-security prison houses half of all incarcerated Icelanders.

Mounting pressures from immigration and violent gang activities threaten to bring ugly changes in Nordic penal practice. Non-natives who break the law in these countries are already being subjected to harsher treatment. For now, though, as political economist Nicola Lacey documents, consensus-based social democracies remain qualitatively less punitive than those whose criminal justice polices are driven by sensational headlines and mob-pleasing, winner-take-all politics. Some American professionals are now studying these differences and gleaning what lessons they can apply to incarceration in the U.S. But if we hope to use Northern European models not only to reform but fundamentally to transform American criminal justice, we need detailed measurement of the yawning gaps between continental practices.

Officer Birgisson blows mist again before we enter the prison’s blue and white central building. Walking up a flight of metal stairs, we meet two bearded men at a narrow turn. Amused apologies fill the landing as tightly as our shuffling bodies. In a U.S. prison, these men would be ordered to grab a wall.

Sheer scale is the first factor that separates American and Nordic models. Rikers Island at its height held over three times the prison population of Sweden. All incarcerated Danes would fit comfortably inside San Quentin. Kansas confines more people than all five Nordic countries combined. (A large prison in these countries might reach up to 400 incarcerated people.) Nordic countries incarcerate at one-tenth the rate of Americans; and that rate operates on a five-nation population smaller than that of Texas. And the fewer people you incarcerate, the more you can afford to spend on each (if you have the collective wisdom to do so): nearly three times more ($90,000 v. $33,000), resulting in staff to incarcerated ratios commonly as low as 1/1.

Officer Birgisson addresses men, who are wearing their own clothing, by their first names. He deals with individuals rather than a defaced mass of identically uniformed threats. U.S. prisons run both at mass scale and on the cheap. Violence flourishes where outnumbered staff operate under siege, meting out swift retaliation for the smallest infractions. “How else,” George Jackson asked in 1970, “could a small group of men be expected to hold and rule another much larger group except through fear?” Those incarcerated in the U.S. must negotiate the arbitrary and often ad lib rules set by officers who both wield power without accountability and are understandably afraid of losing control. One result is that American prison guards die a decade and a half younger than other Americans. Officers are stabbed. They are beaten. But such victims are rare, and they at least earn outraged sympathy, unlike the silent body counts of officers killed by stress-induced hypertension, the effects of PTSD, alcoholism, and an epidemic of suicides among men and women charged only to discipline and punish—work that earns them none of the social capital granted to police outside.

In the name of public safety (with marginal effects on crime), a 40-year habit of retributivism and an unwillingness to fund much beyond containment and incapacitation have created prisons that damage everyone who lives and works inside. Add the accelerant of a viral epidemic, such as COVID-19, and mass incarceration’s slow-motion killing machines are exposed as what they have always been: manufactories of legalized mass death. Given the racial makeup of U.S. prisons, these deaths under state control are analogous to the collective white attitudes represented by a white police officer kneeling not just on one Black man’s neck for more than eight minutes but on hundreds of thousands of necks for cumulative centuries.

While maintaining order, Officer Birgisson also fills rehabilitative roles. He’s a professional respected both by the public and by his wards. If the vape doesn’t kill him, he’ll live as long as anyone, as will the men he watches over. Across Europe, while there have been several riots and hunger strikes protesting health conditions threatened by the virus, the most common response has been the release of pre-trial or “remand” prisoners, stoppage of prison admissions, and making phone calls free to men and women denied family visits.  

Immigration has placed daunting pressures on social welfare and criminal care systems across Europe, but divisions of class and race have not yet created the kinds of gaping social distances that give comfortable white Americans voting power over punishments meted out largely against poor people of color. Homogeneity of race, class, and religion have produced sentencing practices that assume that law abiding and law-breaking people are different in circumstance, not in kind. Across the EU, even collecting data on ethnicity is difficult or barred—a lesson taken from the Holocaust, when ethnic identification and detention led to extermination. The U.S., born from documents written to protect against legal encroachment on the freedom to make property of human beings, has social distance incorporated into the very marrow of its bones.

Equally foreign to U.S. carceral thinking as racial indifference, the political histories of Nordic nations since WWII have been based in consensus. Social democratic programs that join small populations into a sense of shared community have created trust in government as a material aid to the quality of collective life. Populations without extreme inequalities of income are bound together by high levels of common-curriculum education, leading to shared confidence in research and expertise. In place of the anti-government, anti-intellectual, anti-science defaults that undergird U.S. politics (never so apparent or perilous as at this moment), public servants commonly consult with academic researchers, whose recommendations are regularly put into practice, rather than allowing mob-rousing, research-immune politicians, prison-staff unions, and the prison industry to shape judicial and penal policy.

Together these differences render Nordic professionals capable of distinguishing pain from justice.

This is a distinction that American penal professionals understood and sought to maintain until it collapsed in the early seventies. After WWII, with the public convinced that—as it had been through the Depression and war—government could improve the daily lives of Americans when evidence-based research was applied to social issues, states and the federal government sought out sociologists and other professionals to inform public policy, including prison practice; they tried to create prison regimes that, as Jonathan Simon writes, “would seem distinctly modern and progressive.” This new, therapeutic prison certainly hosted serious abuses, including lobotomy, electroshock, make-work programming by jaded practitioners, as well as the malign negligence that has plagued U.S. lockups since walls first went up to keep public scrutiny out and lawbreakers in. Yet as David Garland observes, these were years in which the term punishment became taboo among penal professionals; as in Nordic criminal confinement today, the prison was seen as a site of public aid rather than of public vengeance.

This benign professional ethos waned in the same years that Nixon’s infamous Southern strategy invited white Dixie Democrats into a decades-long backlash against the Civil Rights movement: his law-and-order platform lumped urban rioters, Black Power activists, and all civil rights movements into one ugly smear against (Black) urban unrest. Confirmed by the rise and murder of George Jackson, the Attica Rebellion, and other acts of prison resistance, the Black radical became the new public image of the incarcerated: men and women who deployed historically conscious critiques of every dimension of U.S. criminal justice. Why waste rehabilitative efforts on people who rejected American legal order itself? These years also coincided with a string of high-profile serial killers, such as Charles Manson, David Berkowitz, and Ted Bundy. What else could one do but lock such people up for life?

Democrats quickly joined in as crime rates rose and politicians learned they could win votes by promising longer sentences and harsher conditions. Black communities and Black voters, who felt the actual damaging effects of rising street-level crime and became desperate to escape daily violence, pushed along with their White counterparts, though they also sought jobs programs, addiction treatment and other proactive supports that never materialized.

These years also saw the end of Warren Court decisions that had offered legal backing for the constitutional rights of criminal suspects and incarcerated people. In response, politicians and a quickly growing prison industry and its unions championed the rights of (white) crime victims, using their pain to present voters a sympathetic face. As Marie Gottschalk notes, capital-case courtrooms in particular became “morality plays” where the role of the state was minimized: Victims’ pain became the measure of pain due to perpetrators and thus the measure of justice. Judges, marked as soft on crime, saw their discretion stripped away by legislatures that instituted mandatory sentences, ending human assessment of the complex social situations of lawbreakers, victims, and communities. Prosecutors, now in the power seat, brought felony charges and sought mandated prison terms at unprecedented numbers. Economics met politics to accelerate this growth. Overseas flight of unionized factory work created urban employment vacuums that sucked in drugs, guns, and police forces militarized by wars on crime and drugs.

The resulting “punishment wave” lengthened prison life far beyond American and international norms; the Rehnquist Supreme Court then stepped in to insist that what rights imprisoned people could enjoy were best decided by prison administrators. “When the purpose of prison shifted explicitly to the infliction of pain,” writes psychologist Craig Haney, “then doing hurtful things to prisoners appeared less questionable or problematic. Indeed, pain had become the raison d’etre of the experience.” Recidivism rates pushing 75% became the measure of this system’s power of planned failure and self-perpetuation.

Little wonder that visiting Nordic prisons can seem like visiting another planet.

• • •

Inside a small surveillance center, we meet two round officers leaning back in spring chairs. Around a picture window onto the gravel yard, security screens show men talking in a dorm-like hallway, men washing cars, the kitchen crew and an officer eating a late breakfast, and two men in aprons at a workbench. As his colleagues swivel toward us, Birgisson jokes that the Americans have come to see all the “hot action” at Litla Hraun. One laughs. The other points and chuckles at a wallet-sized caricature of Donald Trump taped to a white wall. The joke is on us as we spiral up a metal staircase onto the observation platform.

The platform deck is no longer used, Birgisson explains, since the fences went up. (Men kept walking away. Attempting to escape from prison is not a crime in Iceland.) We can see the whole of the prison grounds and beyond: surrounding pastures, a few gardens, more patches of volcanic rock, scattered houses and seashore. Plump horses with ZZ-Top manes graze between fences and homes. Birgisson points to a modest one-story house.

“I grew up there,” he says with a mix of satisfaction and chagrin. “I didn’t move far.”

Jennifer asks, “What do you think is the greatest problem in the system?”

He glances toward the sea, then back: “Politicians should think in the long term. Ex-prisoners should get more support. You can’t expect people will suddenly survive on their own.”

I ask, “No matter the crime?”

He shrugs, “Giving no support only leads to more offense.”

His words locate us a universe away from staff that commit half of all prison sexual assault, and parole officers who send people back to prison for arriving late for appointments.

“What about escapes?” I ask.

“They don’t try often. If they do, we talk, to find out what made them leave.”

We offer a pained laugh.

Birgisson asks what’s funny.

Nordic prisons simply are not prisons in any sense that Americans can understand. If institutional equivalency is the question, it would make as much sense to ask why Nordic prisons cannot match the cure rates of American hospitals (or their own): both are restrictive, rule-bound institutions committed to the betterment of their wards. Confusing pain with justice, race with criminality, and incarceration with crime fighting for nearly half a century, has driven the U.S. into a lethal moral underworld beneath the penal continuum of other developed democracies.

Back on the gravel yard, our final stop is a low-ceilinged workshop where dumpsters hold bouquets of vacuum-tube monitors, motherboards, and keyboards. Two men in canvas aprons work over a greasy workbench. One uses pliers to extract parts from a circuit board, the other hammers green plastic from a metal plate. Both turn, eyeing us briefly, before Birgisson says, “They are Americans.”

“Phew!” the taller man says. “Thank you for not you locking me up!”

Then, with a mix of outrage and the relief of a close escape, he recounts scenes from a National Geographic series on U.S. prisons. Then the shorter man, in frameless round glasses, turns to me: “How long for twenty grams of meth?”

“Twenty in state systems. Maybe life for a federal offense.”

He pokes his glasses higher on his nose and says to Birgisson, “I got two. Maybe I don’t feel so bad,” and we all laugh.

Many Americans accept our carceral state as natural, inevitable, and somehow informed by evidence-based notions of what works to change lives. But as criminologist Michael Tonry explains, “American imprisonment rates did not rise because crime rose. They rose because American politicians wanted them to rise.”

As late at the early 1970s people sentenced to “life” could apply for parole after as few as ten years (as is commonly the case in Nordic countries today). Any human being, it was believed, could change for the better. “Americans saw the essential nature of the criminal as separable from the criminal act,” Anne-Marie Cusac reminds us. “Now the crime is the essence of the criminal.” Few saw it coming, but “The punishment wave…hit with such force,” Haney writes, “that it has ripped us from the ethical moorings that once held this punitive system in check, kept us from straying beyond the moral outer limits of state-inflicted pain, and ensured that the course we set as a society for our crime control policy was guided, among many other things, by some minimal humanitarian considerations.”

Over nearly a half century, we have forgotten the rationale that once stood behind humane responses to crime—a rationale that brought curious Europeans to study our prisons in the nineteenth century. What we have lost is the thinking that inspired the nation’s founders and Philadelphia Quakers to conceive of the penitentiary, and that Officer Birgisson assumes without question: The past cannot be changed for the better, but the future can be better than the past.

Throughout the five Nordic nations, what we call (hypocritically) departments of correction are called departments of criminal care. If these systems offer one lesson that a nation unable to uncouple justice from pain might aspire to, it is to get our prisons out of the business of justice.

• • •

Officer Tryggvason is a large, lightly bearded man. He struggles with his English. So when he says, “This is a friendly prison,” I wonder if he intends the apparent oxymoron. We’re standing behind glass, looking down a sweeping green hill running to the village and sea. Litla Hraun is a set of boxes in the distance. The twenty-two men and women housed in Sogn Open Prison work in the stables halfway down the slope or at jobs in the village. They return at night if they are not on home furlough. The staff here also number twenty-two.

A little over two hours ago we were shaking Officer Birgisson’s hand. He noted that they don’t get many visitors but “It’s good to see things in new eyes.” Just outside Litla Hraun’s gates, we stood boxed in by the windows of the small lobby-reception. Surrounded by panels of glass, a ghostly infinity effect stretched our three silhouettes across a patch of volcanic rock to the west, and a neat summer garden to the east. Our bodies appeared mere points of density between what where we had been and where we might be going.

“Everything in the place felt so sadly optimistic,” Jennifer said over lunch. That idea hung in the air as we walked past yet more decently appointed rooms featuring TVs, cellphones and sound systems, then through an even smaller mess hall.

In 1893, French scholar and social scientist Emile Durkheim observed that legal punishments bind a society by exclusion: We confirm who we are by those we condemn and confine. A society that most values affluent white lives will inevitably lock up poor people of color. At its most primitive and disingenuous, justice is the name we apply to the confinement or execution of those who threaten in-group identity.

Nordic countries have tried to purge criminal sanctions of such moral panics through policies and practices that inoculate state agents from populist demands for vengeance. Penal policy has traditionally been separated from politics and left to professionals, who in turn share a cultural conviction that imprisonment is the most socially costly and undesirable way to address unlawful behavior. Police and prison offices are better educated and trained than in the U.S. Judges are not elected and so do not make decisions to please the voting public. The daily work of Nordic prosecutors looks much like that of a social worker—gathering information not to win a conviction, but in order to determine what will best serve the interests of all parties concerned. What Nordic criminal practice recognizes is that, although we know when we feel we have witnessed justice or injustice (a chill across the scalp, a pounding heart), as in opposing fans at any sporting match, such feelings can be raised or crushed by a single outcome. At its lowest level, the seat of what one calls justice can lie in whether one was the bully or the bullied on the playground, or whether one identifies with a group that feels embattled.

To echo Tina Turner, What’s justice got to do with it? What is justice but a second-hand emotion?

And like many actions taken out of emotion (including many crimes) we’re often not prepared for what we thought we wanted. When laws are created on the basis of temporary public outrage—often in the wake of headline crimes—they tend to yield harsher results than people expect. California, for example, helped lead the way to life sentences for a third felony; it also led the retreat when that third strike was a crime as trivial as stealing Christmas videos for the perpetrator’s children.

European nations living in the aftermath of WWII and the death camps have seen what can happen when fact-defying and emotionally grounded belief moves a people and government to action. (Children end up in cages.) In Nordic penal thinking, an ethical separation is required even if you can’t document that benign sanctions yield less crime. The late and legendary Norwegian criminologist Nils Christie claimed that, in all cases, we should either punish as little as possible, or not at all.

Christie does not suggest bracketing the goal of justice. Rather, as Gottschalk and Bruce Western agree, criminal justice can truly be called just only once we achieve lasting social justice; that is, when  everyone has as much to lose by committing criminal acts, and as much to protect and maintain by refraining. What many Americans call criminal justice today is simply giving everyone a shot at a kind of immaculate retribution: politicians and prosecutors claiming to impose the will of the people, police simply ‘doing their jobs,’ elected judges ruling by mandatory sentences, prison guards meting out the pain they insist the condemned have asked for, and TV viewers thrilling over others’ blood and pain. “Everyone in the process,” Robert Ferguson writes, “has someone else’s convictions to fall back on.” Everyone gets to punish. No one bears responsibility. Except, of course, lawbreakers, whom we’ve convinced ourselves make informed, rational, and calculated decisions to commit crimes: decisions conveniently made disproportionately by the poor, people of color, the mentally ill, and addicts.

Mass incarceration evolved to bolster political careers and to patch over failures of political imagination in addressing rising crime from the 1960s to the early-1990s. That patch did little to improve public safely, and it widened inequality. Reducing prison populations is essential but will not alone solve the problems that prisons were used to mask.

As Angela Davis insists, the means for such change will emerge only from a transformation in our goals: We have to discover what we might mean by justice in a world without prisons. In the meantime, practical steps needed to improve the lives of incarcerated people are no mystery: reduce prison numbers not simply to reduce costs but to free up resources for better screening and professionalization of staff, for real oversight of staff behavior (ideally with promotion linked to the success of those released), for widespread programming that involves input from incarcerated people on design and implementation (including drug treatment and higher education), and for responsible, effective, and accountable medical and mental health treatment. The kind of comprehensive change that will lead to a world without prisons will require a paradigm shift, redirecting prison practice toward better futures rather than to meting out pain for acts that can never be undone.

U.S. prisons wall people into their criminal pasts, but Nordic prisons do not wall the past out. It is instead that, given a cold stone field or a garden, not many will choose stone. A few will stack up decades in short stretches. Others will continue as belligerent as an obscenity tattooed above a collar line. For the great majority, the key is the offer, and the support provided to those who take it.

But if we want to learn from Nordic methods, we need to act fast. Political tensions are rising; the press of immigration is already creating unequal treatment of immigrants convicted of crime and may well creep further into prison practice. In Denmark, so-called “ghetto children” are being removed from their homes for tens of hours each week to be re-educated in Danish culture. Harsher policies may be on the way. Mimicking American practices, longer sentences may be imposed for selected crimes when committed in specific neighborhoods, by specified people. “Right now, facts don’t matter so much,” Danish Social Democrat Yildiz Akdogan observes. “It’s only feelings. This is the dangerous part of it.” 

On this day, however, down the hill from where we stand behind glass, a tawny horse lifts a pale mane from a pompom of green. A thin man in a white T-shirt and blue jeans descends the slope. The horse nudges his hand. The man scratches under its chin before returning up the hill to resume digging a hole near a faucet. We were talking about what incarcerated Icelanders earn (the going wage outside). A lantern-jawed captain looked away from our conversation. He saw the man walking away from the prison, then turned back to us without comment or apparent second thought.

At Litla Hraun and Sogn, the opportunity for self-transformation is still the air breathed as naturally as Americans inhale crime and exhale suffering. Reports from the American archipelago, meanwhile, continue to come from minds and hearts like India Porter’s, struggling to rise above one of 6,000 U.S. citadels of pain.

“I am a woman who believes that she has made some bad decisions. Learned everything I could from my bad decisions and willing to do everything I can to never make decisions like the ones that caused me to come here. Am I wrong for wanting a second chance at life as a free woman while I am still young? Am I wrong for believing my life matters enough to deserve a second chance? And that I am capable of returning back to society, living a normal life … to use my experiences and lessons learned to do good in my community?”

After the officers scoff at my report that imprisoned people in America earn nothing, or pennies per hour, I summarize India Porter’s question for Officer Tryggvason and the others. Tryggvason’s brow rises in confusion. He speaks to the others in Icelandic. Jennifer tries to clarify.

A young female officer smirks. Another asks a question we cannot understand. Tryggvason’s bearded face twists up, like a tablecloth tugged from a spot above his left eyebrow, searching for a way to translate.