MASS INCARCERATION PARADIGM SHIFT? CONVERGENCE IN AN AGE OF DIVERGENCE.

• Author: Jouet, Mugambi

INTRODUCTION 705 I. DIVERGENCE: AMERICAN EXCEPTIONALISM AND MASS INCARCERATION 713 II. CONVERGENCE: AMERICAN PENAL PHILOSOPHY INCHES TOWARD HUMANITARIAN NORMS PREVALENT IN OTHER WESTERN DEMOCRACIES 727 A. Human Dignity 729 B. Proportionality of Punishment to Culpability 735 C. Legitimacy of Penal Purpose 738 D. Hope for Rehabilitation and Release 743 E. American Path Dependence or Western Convergence? 747 III. IMPERMANENCE: A COMPARATIVE THEORY ON THE EVOLUTION OF AMERICAN JUSTICE 750 CONCLUSION 765 INTRODUCTION

Mass incarceration has been such an enduring and extraordinary phenomenon that it has profoundly shaped the notion that justice in the United States is inherently harsher than in Europe, where more humane conceptions of punishment are influential. Because prison population explosion emerged approximately four decades ago, (1) many jurists have known no other penal system in America. The Supreme Court's reasoning only reinforced this image. As America faced imprisonment levels on a scale virtually unprecedented in global history, (2) the Court recurrently concluded that the Eighth Amendment's bar on "cruel and unusual punishments" effectively does not cover draconian prison terms. (3) These circumstances came to obscure how conceptions of justice in America have historically been impermanent, ebbing and flowing between repressive and humanitarian approaches.

Despite the extensive scholarly focus on America's divergence from Europe in the mass incarceration era, (4) a remarkable measure of convergence has received scant attention. American penal philosophy may be inching toward penal norms that have checked ruthless prison terms in modern Europe: dignity, proportionality, legitimacy, and rehabilitation. As the Supreme Court recognized these norms in landmark decisions limiting juveniles' eligibility for life without parole--Graham v. Florida, (5) Miller v. Alabama, (6) and Montgomery v. Louisiana (7)--the evolution of juvenile justice overshadowed how these are non-age-dependent sentencing principles that could also protect adult prisoners. The way that American jurists increasingly think of juveniles' rights resembles the way that European jurists tend to think of the rights of both juveniles and adults. Yet, prior to Graham, dissenting Justices had already advanced these principles in controversial 5-4 decisions affirming life sentences inflicted on nonviolent adult offenders. (8) A difference of one vote would therefore have led to earlier convergence, (9) further calling into question essentialism about the inherent harshness of American justice. Strikingly, in the Graham line of decisions, the Court adopted multiple sentencing principles that it once rejected and that are the norm in Europe. (10)

This Eighth Amendment paradigm shift may be a microcosm of broader developments in American penal philosophy. After decades of relative indifference, mass incarceration has become the object of greater public concern, thereby leading to diverse state and federal reforms benefiting both juveniles and adults. (11) While scholars have downplayed the Supreme Court's role in penal reform by emphasizing that criminal justice is primarily run at the state and local levels, they have neglected how a symbiotic relationship can exist between its interpretation of the Eighth Amendment and state reform movements. (12) Tellingly, state reformers nationwide invoked the Supreme Court's reasoning in Graham, Miller, and Montgomery as a justification to make their juvenile justice systems less punitive. (13) As of October 2019, twenty-two states had abolished life without parole categorically for juveniles--providing them more protections than what the Eighth Amendment requires--a four-fold increase in the number of abolitionist states since 2012. (14)

Overlooking the broader view of the Graham, Miller, and Montgomery trilogy, jurists have largely reduced these cases to a narrow "juveniles are different" doctrine. Focusing on neurological and social science that the Justices cited to support their conclusion regarding the diminished culpability of immature teenagers, (15) experts have mainly identified the Graham line of cases as stepping stones toward expanding the rights of juveniles, not adults. (16)

This Article examines a hypothesis with wider implications: whether American penal philosophy is inching toward norms that protect all people from draconian prison terms in contemporary Western democracies. Under this hypothesis, approaches toward punishment are impermanent social constructs, as they tend to cyclically fluctuate between repressive and humanitarian concerns. Such paradigm shifts can lead to periods of international divergence or convergence in penal philosophy. After a lengthy period of divergence, American justice may thus be drawing closer to norms that have tempered punitiveness in Europe. While the emergence of the Graham, Miller, and Montgomery jurisprudence provides a lay of the land--an ecology of sentencing in modern America--the Article is not about doctrine but about a broader phenomenon in the evolution of penal philosophy. These cases illustrate the phenomenon, yet the Article's final section provides other examples, such as the evolution of the death penalty in America and the rest of the Western world. (17)

Moreover, alongside these cycles of divergence and convergence, another pattern may be at play: a long-term trend toward limiting or abolishing the harshest criminal punishments in the West. Scholars have often described the United States as an exception to this trend, and justifiably so given the harshness of its penal system. (18) Nevertheless, Supreme Court decisions and state reforms restricting the scope of life without parole, the polarization of American society over mass incarceration, the decline of the death penalty, and other social developments may reflect the long-term evolution of punishment in Western democracies. From this angle, America may be a laggard rather than the permanent exception in circumscribing the harshest punishments. (19) Even though the relative steadiness of this long-term abolitionist trend may appear incompatible with the unsteadiness of cyclical attitudes toward punishment, we will see that this is not necessarily the case after widening the historical lens. (20)

The Article therefore identifies two simultaneous historical patterns--cyclically and steadiness of direction--influencing criminal punishments in Western societies. It is not a historicist account affirming that the evolution of punishment follows rigid historical laws. (21) These patterns are amenable to change or reversal, as history does not inherently flow in a particular direction. Still, examining such patterns can help understand a given historical period. The magnitude of mass incarceration in the United States has at times eclipsed these historical undercurrents and fostered essentialism about the ruthlessness of American justice. While scholars have advanced insightful theories regarding the emergence of mass incarceration, (22) an intricate phenomenon defying a single explanation, (23) the patterns that this Article describes are another piece of the puzzle.

Avoiding a simple dichotomy between America and Europe, this Article also considers the rest of the Western world: Canada, Australia, and New Zealand. (24) Humanitarian sentencing norms appear to have gone the farthest in Europe, although they are influential in Canada and play a non-negligible role in Australia and New Zealand. (25) These circumstances suggest that humanitarian sentencing norms are not fundamentally "European" and are evolving in diverse Western societies. These developments are relevant to Emile Durkheim's sociological theory regarding the gradual expansion of prisoners' rights in liberal democracies. (26) We will accordingly examine the implications of Durkheim's century-old theory, particularly because it addressed the norm of "dignity," (27) which has gained traction in the United States and other modern Western democracies. (28)

Research on international convergence has primarily focused on a different matter: the U.S. Supreme Court's contentious citation of global standards as persuasive authority in several Eighth Amendment cases. (29) Scholarship has mostly ignored the dimensions of convergence I identify in this Article, including a revealing citation across the Atlantic. The European Court of Human Rights pointed to the Supreme Court's Graham opinion for support when abolishing life sentences with no possibility of release for European prisoners. (30) This is partly because Graham and its progeny recognized core principles resembling those in European penal philosophy: i) punishments must not violate human dignity; ii) punishments must be proportional to culpability; iii) punishments must serve a legitimate penal purpose; and iv) punishments should generally provide hope for rehabilitation and release.

First, this Article describes how justice in America and other Western democracies diverged tremendously for decades, which underscores the significance of subsequent developments. The Eighth Amendment's interpretation is a microcosm of this historical period. Between 1983 and 2010, the Supreme Court never found a prison sentence "cruel and unusual punishment." (31) As America faced mass incarceration on virtually world-record levels, a slim majority of Justices concluded that even inflicting life sentences on petty recidivists, such as shoplifters, was not "cruel and unusual." (32)

Second, I suggest that American penal philosophy may be converging toward humanitarian norms--dignity, proportionality, legitimacy, and rehabilitation--that are prevalent in European nations, Canada, and various other liberal democracies. Beginning in 2010, the Justices applied these principles in juvenile life without parole cases, but I present the hypothesis that these principles are not fundamentally...