Two cultures of punishment.

• Author: Kleinfeld, Joshua
• Position: Introduction: The Great Divergence through II. Immutable Criminality and Social Banishment A. Four Formulas of Modern Banishment 2. Stage-of-Life Sentences, p. 933-964

Table of Contents Introduction: The Great Divergence I. Methodological Premises II. Immutable Criminality and Social Banishment A. Four Formulas of Modern Banishment 1. Life in prison without parole 2. Stage-of-life sentences 3. Analogues to civil death 4. Capital punishment B. Banishment and Recidivism III. Devaluation and Rights Forfeiture A. Capital Punishment B. Prison Conditions C. Human Dignity and Democratic Dignity IV. Evil and Dangerousness A. Moralism and the Concept of Evil B. Instrumentalism and the Concept of a Dangerous Being V. Causes: A Crime Wave and a Conflict of Visions A. The Question of Causation B. A Hurricane of Crime C. A Moralistic Response D. An Instrumental Response E. Churches and Professionals in Europe Conclusion Introduction: The Great Divergence

For most of its history, criminal punishment in the United States was milder than punishment in continental Europe--and therefore, it was thought, more humane than Europe's, more enlightened, and more democratic. To American eyes in the Revolutionary era, European criminal law was "stain[ed]" and "disgraced" by its fixation on torture--a fixation that dated back to medieval times and would not be fully abandoned until the nineteenth century. (1) Blackstone captured the image of European punishment at the time: "[I]t will afford pleasure to an English reader, and do honour to the English law, to compare [English punishments] with that shocking apparatus of death and torment, to be met with in the criminal codes of almost every other nation in Europe." (2) Immediately after the American Revolution and well into the nineteenth century, the United States undertook a wave of "republican" criminal law reforms aimed at abolishing or limiting capital punishment, abolishing corporal punishment and mutilation, making prisons places of rehabilitative penance, and codifying the common law in such a way as to limit pockets of harshness, arbitrariness, or undemocratic control. (3)

There was a political philosophy connected to this: it was a standard tenet of Enlightenment belief that democracy and penal mildness were linked, as Hobbes, Locke, Montesquieu, Rousseau, Beccaria, and Tocqueville all had argued. (4) Enlightenment thinkers thought that democracies would tend to punish mildly because equal, rights-bearing citizens would object to the autocratic character of harsh punishment: "Severity in penalties suits despotic government, whose principle is terror," Montesquieu wrote. (5) They argued that a government grounded in a social contract, although it would defend itself, would never do so with cruelty or wantonness. Locke argued, for example (there are many examples), that the right to punish is "no absolute or arbitrary power to use a criminal," but only to secure natural right and positive law against someone who "declares himself to live by another rule." (6) Tocqueville added a psychological dimension: that when people are organized into castes, as in feudal and aristocratic conditions, empathy stops at caste lines, while equality and democracy foster a "general compassion for all members of the human species." (7) Tocqueville suggested as well that democratic citizens of the modern world simply feel differently about suffering, about the infliction of pain on their fellow creatures, than people of earlier eras, and he wonders about it: "Why is that? Are we more sensitive than our fathers? I do not know, but of one thing I am certain: our sensibility extends to a wider range of objects." (8) Tocqueville was not wrong about that. A deep change in attitudes to suffering and violence--a softening, a sentimental humanism more vital and basic than any articulate position--is among the Enlightenment's most mysterious and important legacies and one linked to democratic forms of life and government. (9) There was good reason to predict that democracy would pull penal mildness behind it.

And it did, for nearly two centuries. When Tocqueville came to the United States in the early nineteenth century, the ostensible reason for his trip (and the basis for his funding from the French government) was to study America's innovative experiments in rehabilitative imprisonment. (10) He would later write: "In no country is criminal justice more benignly administered than in the United States." (11) When the nations of Europe engaged in vast criminal law reforms in the nineteenth century, they did so "as part of the process that led to the creation of the modern democratic states." (12) When parts of Europe became fascist, criminal punishment in those countries became harsh, and in the democratic era that followed, criminal law became milder along with the form of government. (13) By the middle of the twentieth century, a mild, rehabilitative, and individualizing penal philosophy prevailed in both Europe and America. (14) From the late 1920s through the early 1970s, the incarceration rate in the United States was low, roughly stable, and roughly equal to what it is in Germany, France, Italy, and Spain today. (15) Capital punishment in the United States was under a national moratorium and very nearly abolished between 1972 and 1976. (16) By comparison, Spain abolished it in 1978 and France in 1981. (17) America and Europe throughout most of the democratic era were pulling criminal justice in Western civilization along a certain track, and it was the same track.

But then something changed--changed in quite extreme and quite recent ways. Starting in the 1970s and picking up speed in the 1980s, (18) America adopted more and more severe criminal penalties as Europe adopted more and more mild ones, until today an enormous and startling chasm has opened up between the two. As Michael Tonry has commented, punishment in America today is "vastly harsher than in any other country to which the United States would normally be compared." (19) James Whitman writes: "[B]y the measure of our punishment practices, we have edged into the company of troubled and violent places like Yemen and Nigeria[,] ... China and Russia[,] ... pre-2001 Afghanistan[,] ... and even Nazi Germany." (20) Europe, meanwhile, has seen a series of successful political and legal movements in favor of greater mildness. (21) The resulting European/American differences in law and practice are complex: they involve multiple, intersecting factors, including not only the doctrine and practice of sentencing but also issues of what is criminalized, the substantive criminal law doctrine expanding or contracting criminal liability, the procedural rules governing charging and plea bargaining, and more. (22) But the various differences converge like spotlights on a stage to produce the most signal consequence of the divergence: American mass incarceration.

At its peak in 2007, 3.2% of the U.S. adult population--1 out of every 31 adults--was under some form of correctional control. (23) Per 100,000 residents, 756 adults were incarcerated (roughly 0.8% of the population or 1 adult per 132 people) (24) and another 2234 were on probation or parole (roughly 2.2% of the population or 1 adult per 45 people). (25) Among black men in 2007, the rate of incarceration was 3138 per 100,000 residents. (26) If ever it starts to seem as though the "crisis of American criminal justice" is exaggerated by alarmist or politicized academics, take a deep breath and think about those numbers. They are on a different scale than anything else in the Western world and anything preceding them in the United States itself. In 2007, the adult incarceration rate per 100,000 residents in Germany was 95; in France, 100; in Italy, 77; and in Spain, 147. (27) Historically, the American rate in 1930 was 105; in 1940, 132; in 1950, 110; in 1960, 119; and in 1970, 97. (28) It is not too much to say that an incarceration rate of approximately 100 adults per 100,000 residents--0.1% of the population or one adult per thousand people--is the rough standard for the economically advanced contemporary Western world, including, until recently, the United States. The American incarceration rate actually fell in the early 1970s to 95 per 100,000 in 1972--one of the lowest points in the century. (29) It then rose virtually every year to 170 in 1982, (30) 329 in 1992, (31) and 701 in 2002, (32) on the way to that peak of 756 in 2007. (33)

Since 2007, American punishment has been getting milder; the last decade has seen a clear downtick. But the incarceration rate in 2013 was 623 per 100,000, (34) which is, in historical and comparative perspective, just a drop from a dizzying height to a slightly less dizzying one. The divergence between American and European punishment, and with it the phenomenon of mass incarceration, is and remains a thing of our time--a thing of the 1970s to some extent, but mainly the 1980s, 1990s, 2000s, and the present. There is now arguably no respect--not even procedural--in which European and American law are more different, or more revealingly different, than in criminal punishment. As a matter of European/American comparative law and legal culture, nothing looms larger than this chasm, this great divergence.

The most natural question to ask about the great divergence is why it happened, what caused it. Scholars have generated a legion of explanations, which are, for the most part, not so very different from the explanations that come up in any intelligent living room conversation on the issue: they focus on American racism, European fascism, American populism, European secularism, and so on. I will survey these possibilities in Part V and suggest a historical-causal proposal of my own--to add to the mix rather than to displace what is already there--but this Article does not aim primarily to explain what brought the great divergence about. The two most important facts about the historical-causal explanations presently on the table are how numerous they are and how exceedingly difficult they are to prove. The explanation...