Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe
James Q. Whitman
Oxford University Press, $35 (cloth)
A man walks into a pro shop and tries to leave with several golf clubs stuck down his pants. Sounds like the beginning of a joke? Not for the unhappy perpetrator, who received a sentence of 25 years to life under California’s notoriously harsh “three-strikes-and-you’re-out” law. Another Californian was sentenced to 50 years to life for attempting to shoplift nine videos from a K-Mart.
The U.S. Supreme Court recently upheld both of these sentences, reasoning that lengthy sentences for repeat offenders are a policy choice reflecting the sound judgment of state legislatures and do not constitute “cruel and unusual punishment” prohibited by the Constitution. Such policy choices are popular these days in the United States. Along with enhanced sentences for repeat offenders, legislators and prosecutors vie with each other to support everything from new “super max” prison facilities to mandatory minimum sentences and other curbs on judicial leniency to post-sentence “civil” commitment for “sexually violent predators” to criminal prosecution for increasing numbers of juvenile offenders to capital punishment for the most serious offenses, whatever the age of the perpetrator.
Meanwhile, on the other side of the Atlantic the average sentence served in French prisons reached a measly high of eight months in 1999, up from a mere 4.3 months in 1975. German convicts work at real jobs while incarcerated—and even receive four weeks of paid vacation each year! On any given day in Paris (or Amsterdam, Geneva, or Berlin) one can find dedicated human rights activists working grimly to forestall yet another execution—usually in Texas. While the U.S. execution rate has soared over the past 25 years, the death penalty has been abolished throughout Western Europe, with the Western European countries pulling in many of the former Soviet bloc countries by requiring abolition as a precondition for eligibility to join the European Union.
In Harsh Justice, legal historian James Whitman explores this striking divergence between American and Western European penological practices since the 1960s. His topic is important and timely. The potential cost to the United States of its harsh penological regime—in terms of wasted lives, possibly wasted dollars, and the unforeseen long-term consequences of mass incarceration, especially of racial and ethnic minorities—is as serious as any public policy issue that the country now faces. Moreover, the way we address the issue may have serious consequences for international diplomacy and cooperation post–9/11, as some of our allies begin to balk at extraditing suspects to a country that does not share their assumptions about appropriate limitations on criminal punishment.
Whitman’s approach to the question of why we’re so tough on crime at the turn of the millennium is one of broad historical and sociological sweep. He compares the United States (with reference to our debt to England and the “Anglo-American” tradition) to France and Germany over a period of several hundred years. Whitman thus covers a wide canvas, and he necessarily paints with a very broad brush, covering three countries (four if you count England as well) over a period of more than 200 years in about 200 pages (minus notes).
Whitman’s basic thesis is that in the course of the last two centuries both Germany and France (and much of the rest of Europe) have extended to everyone the special “high status” punishment practices that used to be accorded only to aristocrats, thus ensuring that notions of “dignity” in the treatment of offenders and “normalcy”—that the lives of prisoners should approximate as much as possible the “normal” lives of non-incarcerated citizens—remain central aims of criminal punishment. Americans developed a different view, what Tocqueville described as “a depraved taste for equality, which leads the weak to desire to draw the strong down to their level,” and distinguished from “a manly and legitimate passion for equality that excites men to desire that they should all be strong and esteemed.” In the United States, home of the “depraved” leveling-down form of equality, we have seen the proliferation of degrading, “low status” punishment practices for all.
Whitman also contrasts the “power” and “autonomy” of the French and German states with the populism that pervades American politics and argues that this difference helps to account for differences in punishment practices. French and German institutions help to insulate the state bureaucracies from popular demands for retribution and to maintain a strong tradition of mercy as dispensation from de haut en bas. It is not entirely clear how this secondary thesis relates to the central claim about the importance of different conceptions of equality, if indeed it is meant to do so. In any case, the first thesis gets the lion’s share of sustained historical and sociological argument.
Whitman’s whirlwind tour of the punishment practices of three countries over the last two centuries is well worth the price of admission. He has a deep pool of knowledge and an eye for the telling detail—a picture, a turn of phrase, or a small historical event—that helps to advance his thesis. In one telling vignette Whitman depicts his own astonishment upon witnessing, during a trip to France in the summer of 2000, a political debate on prison reform in which French politicians attempted to outdo one another with their professions of concern for the rights and dignity of convicts. The incident captures well the sense of culture shock that Americans and Europeans alike can experience when confronted by the other’s divergent discourse (and practice) of criminal punishment.
Whitman’s thesis is strongest in accounting for the multitude of small differences in the nature of the prison experience that add up to a genuinely different style of incarceration. On the whole, French and especially German prisons accord their inmates a degree of respect and privacy that is starkly different from American practice. According to Whitman, inmates in France and Germany wear their own clothes rather than prison jumpsuits; they are addressed as “Monsieur” or “Herr” followed by their last name; they are allowed significant privacy in their cells and bathrooms; they are permitted conjugal visits; and they are given real jobs with the aforementioned paid vacations. In both countries the principle of “normalcy” has real practical importance. Whitman persuasively traces this current attitude toward incarceration to the treatment of “high status” offenders over the last few hundred years. He convincingly argues that modern incarceration in France and Germany—from Voltaire’s convivial stay in the Bastille in the 18th century to the debauched highlife enjoyed by the debtors and political prisoners in Sainte-Pelagie in 19th-century Paris to Hitler’s strolls in the gardens of the Fortress Landsberg in the 20th century—derives many of its defining aspects from efforts to generalize the style of incarceration that was historically the privilege of French and German elites.
While 19th-century imprisoned French debtors and journalists were whooping it up in their Latin Quarter quarters, Americans were building new penitentiaries and incorporating flogging, branding, and forced labor into the prison experience. Tocqueville, otherwise an admirer of the 19th-century American innovation with cellular incarceration, disapproved of these brutal practices and hoped that his countrymen would follow the new penitentiary trend without the “infamy” of corporal chastisement. Tocqueville’s hopes were realized in both respects: cellular incarceration is now the norm throughout Europe and the United States, but apparently it takes a much gentler cast in France and Germany than it does here. While we no longer approve of floggings and brandings, prison conditions are notoriously harsh in the United States, as exemplified by a Phoenix sheriff’s proud declaration that he runs “a very bad jail.” In contrast to the principle of normalcy, Americans seem to aim for something like the Nazi proposition that punishment should be an “empfindliches Übel”—“something nasty enough to make them hurt,” in Whitman’s translation.
Whitman’s thesis and historical exposition do a nice job of explaining and tracing these different approaches to incarceration, but his broad argument is less persuasive in accounting for several other features of the current divergence in punishment practices between America on the one hand, and France and Germany on the other. The huge bump up in the American incarceration rate of the last three decades, the revitalization of capital punishment during the same period, and the increasing willingness to charge juvenile offenders in criminal court are all evident features of the current harshness of the American penological regime, as Whitman quite correctly observes. But they are also all completely the products of the decades since 1970.
The American incarceration rate, after growing somewhat in the first six decades of the 20th century, dropped sharply during the 1960s. Then it exploded, placing us now first in the world in our per capita rate of incarceration. Same with capital punishment. Executions slowed to a trickle during the 1960s and then came to a halt for the five years preceding the Supreme Court’s temporary abolition of capital punishment in Furman v. Georgia (1972). Only after the Court reinstated the death penalty in 1976 did executions begin again, and then they, too, exploded, now reaching levels not seen in fifty years. Likewise, the idea that increasing numbers of juvenile offenders should be punished in prison rather than rehabilitated through the juvenile justice system is very recent, even a bit more so than the general run up in the incarceration rate.
Not only are these developments very recent, one does not find their seeds (or seeds of France and Germany’s contrasting approaches) in the history of the last few centuries. There is no suggestion in Whitman’s book that, prior to the 1970s, America’s incarceration rate was unusually high. Indeed, he cites historical evidence from the early 19th century of a liberal use of pardons to let people out of prison early in their sentences in the United States. Moreover, Whitman explains that debtors, journalists, and other political prisoners were far more commonly incarcerated in France and Germany than in the United States for most of the 19th century. If incarcerating lots of people is a sign of “harshness,” and if “harshness” is the product of a longstanding embrace of degradation rather than dignity in punishment, then why do we not see signs of mass incarceration before the last quarter of the 20th century?
The history of capital punishment is even less amenable to Whitman’s thesis. In America as in Europe there were roughly similar curves in the use of capital punishment over past two centuries: a slow decline in the use of capital punishment was evident from the late 19th century to the mid-20th century, bottoming out in the 1960s. Only in the decades after 1970 did a clear divergence emerge, with America embracing capital punishment as Western Europe abolished it. Even more tellingly, there was one other historical period in which the American approach to capital punishment diverged from that of France and Germany. During the mid-19th century, powerful movements for abolition swept the United States, resulting in significant narrowing of capital statutes in many states, legally mandated waiting periods between conviction and execution, and wholesale abolition in several states. Tocqueville, whom Whitman cites frequently on other matters throughout his book, was struck by the lax American attitude toward capital punishment, declaring, “In no country is criminal justice administered with more mildness than in the United States. . . . The Americans have almost expunged capital punishment from their codes.” If the current American enthusiasm for capital punishment is a reflection of its continuing acceptance of degrading punishments, how can we explain America’s flirtation with abolition well before the earliest European countries’ or the similarities in the use of capital punishment on both sides of the Atlantic?
The story of the increasing transfer of juvenile offenders to criminal courts follows a similar chronological pattern. For most of the 20th century it was penological orthodoxy in the United States that juvenile offenders presented a special case and needed special courts, procedures, and treatment options. Juveniles who committed offenses that would be crimes had they been committed by adults were considered the product of their environments; with the right intervention from the state, such delinquents could be straightened out. Hence the ubiquitous development of juvenile courts and departments of youth services; hence the famous plea of the teenage gang members to Officer Krupke in West Side Story (1957): “I’m depraved on account of I’m deprived!” Only in the last few decades—mostly the 1980s and ’90s—has there been a substantial shift away from this orthodoxy toward criminal prosecution for juvenile offenders. This recent shift cannot plausibly be attributed to deep cultural attitudes about punishment.
If Whitman’s thesis does not account for these recent turns toward harshness in American penal policy, what does? In my view, several other phenomena, which Whitman either discounts or neglects entirely, have much more explanatory force. I will briefly sketch four of these alternative explanations, which I will call “politics,” “crime rates,” “racism,” and “law.”
First, politics. Here, I embrace Whitman’s own secondary thesis about what he calls the relative “strength” and “autonomy” of the French and German states. European politics in general is much less subject to populist influence than American politics, and the criminal justice systems in both France and Germany are much more of an elite bureaucracy than their American counterpart, in which prosecutors and judges are often elected and lay juries decide many important issues. Whitman, however, treats these differences as subsidiary to his main thesis, failing to recognize that they in fact undercut rather than support it. If highly educated, elite bureaucrats ran the American criminal justice system, it probably would look a lot more like the European one—after all, consider the positions of the American Bar Association or the American Law Institute on issues like sentencing reform, the death penalty, or juvenile justice. Or if populist politics dominated France and Germany, there might well be much tougher criminal sentences or a renewed interest in capital punishment—consider the widespread support that the death penalty enjoyed in France for decades after its abolition. The political differences between Europe and the United States suggest that maybe we’re not so different after all; maybe it’s more of a question of who’s calling the shots.
Second, crime rates. Rather astonishingly, Whitman leaves out almost entirely from his explanation of America’s turn to penological harshness what any reader of newspaper headlines would surely identify first: the large rise in American crime rates. Starting in the early 1960s, the crime rate in general and the homicide rate in particular began to climb precipitously, reaching and maintaining a level that far exceeds the rate in France, Germany, or any other Western European country, even after the declines in crime that America enjoyed during the 1990s. This phenomenon is so striking that many observers would stop there and declare the mystery solved: America has harsher penal policies because America has more, and more serious, crime.
Such an attitude is far too simple, not least because many Western European countries experienced fairly similar relative spikes in their crime rates at around the same time (without reaching the same absolute peaks), and they did not respond with the same penological harshness. Yet it would be a mistake to discount the importance of crime rates in influencing American public policy over the last three decades; crime, after all, is the engine that drives the populist politics discussed above. Moreover, the juvenile crime rate, especially the juvenile homicide rate, went through the roof during the 1980s—a fact that was at the forefront of debates about transferring more juveniles for prosecution in criminal courts. For example, from 1984 to 1993 the rate of homicides committed by juveniles aged 14 to 17 increased more than 250 percent! This fact seems more centrally salient to the growing willingness to charge juveniles as adults than the more generalized desire, identified by Whitman, to extend the criminal law to more “classes of persons” like politicians and white-collar offenders.
Third, race. Whitman explicitly puts to the side the impact on punishment of American racism (as he also brackets the impact of the distinctively American brands of Christianity). Indeed, he goes further and expresses doubt that American racism could explain the growing willingness to criminalize juvenile offenders, because racism predates the move to such criminalization and because Europeans are surely no strangers to racism themselves. But Whitman neglects the distinctive story of American racism in the second half of the 20th century. Two important things happened just before the turn toward harshness in American punishment. First, there was a large migration of many rural, Southern blacks to big Northern cities. This influx, combined with residential segregation, the flight of white residents, jobs, and services from the inner cities, and a growing socioeconomic gap between whites and Blacks, created the kind of urban ghettos—from the South Bronx to the South Side of Chicago to South Central Los Angeles—that are such familiar blight on the American landscape now and that drive many of our most extreme law enforcement initiatives, such as “zero tolerance” policing and the war on drugs. Second, the civil rights movement extirpated Jim Crow laws and other less formal means of racial subordination that had dominated the American South and many other parts of the United States since the Civil War. The increased use of the criminal law—whether through the criminal prosecution of juvenile offenders, the aggressive policing of inner-city drug markets, the long-term incarceration of drug offenders and repeat offenders, or the increased resort to capital punishment—have no doubt been driven in large part by the identification, part real and part mythic, of America’s crime problem with the problem of controlling poor, Black, urban youth.
Fourth, and finally, law. Whitman—ironically for a law professor—neglects the role of law and legal institutions in explaining the harshness of American criminal justice. But legal considerations plausibly have a great deal to do with increases in incarceration, capital punishment, and criminal prosecution of juveniles. As Whitman observes, American law is far more protective of defendants’ procedural rights than of their rights to be free from excessive punishments. The Warren Court in the 1960s “constitutionalized” American criminal procedure, giving defendants across the country rights to suppress illegally seized evidence and to receive Miranda warnings, among many other new rights—few of which have analogs across the Atlantic Ocean. The provision of these new procedural rights, however, raised the costs to prosecutors of investigating and proving criminal cases. As Bill Stuntz, an influential scholar of American criminal justice institutions, has observed, legislatures thus have new incentives to give prosecutors “bigger sticks,” in the form of harsher penalties with which to threaten defendants in order to keep the costs of criminal prosecutions down through plea bargaining. This legal/institutional account of mandatory minimum sentences (and the increased levels of incarceration they create) works better than a cultural argument to explain why such increased criminal penalties emerged precisely when they did.
A similar story can be told about juvenile courts. The Warren Court tried to help juveniles, much as it tried to help poor and minority defendants, in its distinctive way—by according them more procedural rights. In 1967 the landmark case of In re Gault more or less converted the famously informal juvenile court proceeding into something very much like a criminal trial. As a number of scholars of juvenile justice have observed, this procedural formalization of the juvenile court helped to undercut its already increasingly fragile rehabilitative mission and replace it with a more strictly adjudicative and therefore punitive goal. Once juvenile courts came to look and act more like ordinary criminal courts, the formal criminal prosecution of juvenile offenders became much less of a conceptual and institutional leap.
As for capital punishment, the United States came very close to permanent abolition in 1972, when the Supreme Court overturned, in Furman v. Georgia, then-current death penalty laws. After a huge backlash from the South, already feeling beleaguered by the Court’s civil rights decisions, the Court blinked four years later and reinstated the death penalty after considering five new capital statutes from Florida, Georgia, Louisiana, North Carolina, and Texas, striking down two of them and upholding three. The Supreme Court has since embarked on an almost three-decade-long regime of constitutional regulation of capital punishment, which many critics—myself among them—have declared less than successful. But one of the pernicious, unexpected consequences of this regulation has been that the Court has placed its constitutional imprimatur on the practice of capital punishment while also perpetuating the (false) perception that the practice is closely regulated by the courts.1 These by-products of the Court’s stance on capital punishment have made it far more unlikely that capital punishment can or will come to be viewed as a “human rights” issue in the United States, as it has in Europe in the past few decades, given the role of our constitution and our Supreme Court in adjudicating fundamental rights.
Whitman’s cultural/sociological account does not, then, have the kind of explanatory power that he seems to wish for it. The punitive turn in America is not the unfolding of a longstanding cultural predisposition to impose degrading discipline, but the result of the confluence of many factors and many different kinds of factors, some of them quite contingent. I should say, in closing, that the multi-factored, contingent account fits with my political convictions. Like Whitman, I am deeply troubled by the prevailing trends in American penal policy. I wish they were different and cling to the hope, also bolstered by history, that penal policy moves like a slow pendulum and that a period of relative mildness lies ahead for us, and I resist to my core the notion that deep cultural differences between the United States and Europe doom us to embrace degradation over dignity in our punishment practices. I’m not that old, and yet I was born before the pendulum began its current swing. I hope to live to see it swing back.
1Carol S. Steiker and Jordan M. Steiker, “Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment,” 109 Harvard Law Review 355 (1995).