Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe.

• Author: Demleitner, Nora V.
• Position: Brief Article - Book Review

HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE. By James Q. Whitman. New York: Oxford University Press. 2003. Pp. viii, 311. $39.95.

The spring 2004 release of the grusome pictures of sexual humiliation and torture at Abu Ghraib prison outside of Baghdad revealed how some U.S. troops, intelligence officers, and private contractors treated Iraqi prisoners taken during and after the war. High-ranking government officials may have condoned, if not encouraged, the abuses. Only reluctantly have they agreed to extend protections customarily accorded civilians and military fighters during a war to individuals detained in Iraq and Afghanistan. (1)

As Congressional investigations appear to have stalled, military inquiries have been manifold but resultless. Only a handful of low-ranking soldiers have been court-martialed, and a few have received relatively minor penalties. The public outcry has subsided, and no further charges or operational changes can be expected.

At least two of the soldiers charged in the scandal had been prison guards in their civilian lives. (2) The methods they used at Abu Ghraib, which focused on humiliating the prisoners and inflicting emotional and physical pain, were the same as those employed in our prisons and immigration detention facilities at home. In late November 2004, the Department of Homeland Security ordered the Passaic County Jail and other facilities holding immigrant detainees to stop using dogs around them. (3) The pictures of Abu Ghraib's snarling dogs burst into one's mind. To make matters worse, in both cases torturous tactics were employed against individuals not convicted of any offense. Many of the victims had been the targets of mandatory detention policies applicable to certain immigrants or of misunderstandings and baseless denunciations during the war.

Policies involving torture and abuse of those unfortunate enough to be caught in the U.S. criminal justice system or its equivalent abroad apparently will only change upon publicity and substantial public pressure. The latter has been virtually absent with regard to detainees held outside the continental United States. Accountability remains low. Contrast this with the following two torture scandals that have rocked Germany in recent years.

The first involved the former police vice-president of Frankfurt, Wolfgang Daschner. In October 2002, the Frankfurt police had arrested Magnus Gafgen, who was accused of kidnapping an eleven-year-old boy. Daschner allegedly ordered that Gafgen be threatened with physical torture to save the child. Gafgen admitted that the boy was already dead, and the threatened torture never occurred. Even though it took a few months until investigations of Daschner started, he was removed from his post and has been prosecuted. (4) Government officials, including the police, condemned the actions and vowed that torture would remain unlawful under all circumstances.

Even more highly publicized have been recent allegations of abuses and even torture within the German military. During training sessions, draftees and professional soldiers have been seriously injured, including through electroshocks, and have suffered substantial trauma. (5) Criminal investigations have been started, and the abuses have reinvigorated the debate about the draft in Germany.

As these cases indicate, the governmental responses to allegations of torture in the United States differ dramatically from those in Germany. In Germany, a public debate has surrounded the two cases, which have led to substantial investigations and ultimately criminal prosecutions. The government has frequently reasserted that, except in the most dire emergency, torture is impermissible and that even the threat of torture cannot be condoned. (6) In the United States, however, the torture debate has quickly subsided with no substantial changes resulting from the events. (7) Neither the abuses at Abu Ghraib nor continuing allegations about abuses at Guantanamo have brought about a heartfelt disavowal of methods of torture. (8)

What may explain these differences? Are they solely a function of the current political powers in place, or do they rather reflect a dramatically different attitude toward the treatment of individuals? James Q. Whitman's Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (9) sees divergent punishment practices in Germany and France on the one hand and the United States on the other as a reflection of long-standing historical differences. (10) His outstanding comparative account is required reading for anyone interested in penal practices in any of these countries, especially the United States. It can help explain the growth of the penal industrial complex in the United States and its increasing harshness. Not surprisingly, those attitudes explain the country's acquiescence in, if not approval of, torturous conduct toward prisoners and alleged insurgents and terrorists, which has been condemned by some of the United States' closest allies.

In a thoroughly researched book that draws on a wide variety of sources from all three countries, Whitman presents innumerable fascinating details about the historical development of sentencing at home and abroad and debunks a variety of myths in doing so. His excellent overall knowledge of sentencing developments on both sides of the Atlantic merges with his deep insights into other cultural, political, and legal traditions, especially in the areas of privacy and insult.

Whitman asserts that traditions of status and of state authority help explain the development of punishment practices. Social and political hierarchies have led to mild punishments in Europe while a weak state and egalitarianism have caused more degrading and harsh punishment in the United States. In France and Germany, the forms of punishment and types of treatment reserved for high-status individuals in the eighteenth and nineteenth centuries have been expanded to cover all criminal offenders. In contrast, low-status treatment, akin to the status of slaves, has become the norm for all criminals in the United States.

In his account, Whitman takes issue with sociological analysis. He notes that punishment practices in the United States have proven Emile Durkheim, one of the nineteenth century's foremost sociologists, wrong. Durkheim had hypothesized that contracts would replace status. As a result, punishment would turn milder. (11) False, according to Whitman. Even though contracts have changed human relations, they have not replaced status, as Durkheim had predicted. Status, and especially its distribution, remains crucial, Whitman notes. In the United States, the tide has turned against high-status treatment; in Continental Europe, "[there has] been a revolution in favor of social honor, in favor of generalizing high status" (p. 196). Whitman ascribes this development largely to the fact that the United States has never treated high-status persons as criminals (p. 197).

Part I of this Review will provide an overview of Whitman's book, his underlying assumptions, and analysis. Part II analyzes one of the most important and thought-provoking questions arising from Whitman's work: How do the current approaches to punishment fit with notions of democracy? Part III critiques Whitman's work for failing to explain sufficiently the reasons for the harshness disparity that began in the 1970s and has developed between France and Germany on the one hand and the United States on the other. If history is destiny, how can one account for the largely parallel trajectories until the early 1970s? In the end, Whitman's account may have erred by attempting a single explanation for a multifaceted issue. Despite their initial appeal, such theories "have a poor track record." (12) Finally, Part IV will explore the meaning of select themes for the future of leniency and harshness on both sides of the Atlantic.

1. JAMES Q. WHITMAN'S HARSH JUSTICE

   Harsh Justice contrasts harshness and degradation with mercy and dignity. While the former are increasingly associated with criminal punishment in the United States, the latter characterize sentencing in Europe. Since Whitman lays out the major themes of his work and summarizes his thesis in the Introduction, for the time-pressed reader those fifteen pages provide a cogent analysis.

   Somewhat surprisingly, Whitman situates Harsh Justice as a unique way of looking at punishment in the United States by strongly rejecting current (and past) sociological accounts of punishment as insufficiently comparative. Such accounts, to Whitman, are flawed as they overlook the crucial role status plays--a role only comparative analysis can reveal.

   1. Status: Crucial but Undefined

      According to Whitman, to punish a person means to treat her as inferior (p. 21); to degrade her means that punishment has become pleasurable and status elevating (p. 23). While punishment occurs in all three countries Whitman discusses, only in the United States has it turned into permanent degradation.

      The pictures documenting the abuse of Iraqi prisoners at Abu Ghraib are emblematic of degrading treatment. (13) The degradation of others, not unlike torture, corrupts all of society. That lesson, however, the United States has yet to learn; instead, it appears to export degradation. But degradation does not have to come solely in the form of individual abuse. Whitman deems the layout of American prisons a form of systemic degradation that denies both individualism and privacy (pp. 59-62, 64-65). (14) While Whitman does not suggest changes to American punishment practices, it is obvious that systemic degradation, rather than its individual instances, is much more difficult to attack, undermine, and destroy, in part because it has become a way of life. (15)

      For Whitman, degrading punishment is closely related to "traditions and practices of social status" (p. 26)...