Gentle Europe, Tough America

Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe By James Q. Whitman, Oxford University Press, 311 pages, $35.00

This past March, a sharply divided Supreme Court upheld the constitutionality of California's "three strikes" law requiring long prison terms for third felonies. In the specific appeals before it, the Court let stay a sentence of 25 years without parole for Gary E. Ewing, who stole three golf clubs from a pro shop, and 50 years for Leandro Andrade, who took videotapes from a Kmart store. The Court's majority ruled that imprisoning shoplifters for so much (if not all) of their remaining lives did not constitute cruel and unusual punishment.

Like the continued reliance on capital punishment in the United States, the three-strikes decision underlines the American pattern of "harsh justice" that James Q. Whitman sets in contrast with milder European practices in this bold, erudite and sure-to-be-controversial book. Whitman, a professor at Yale Law School, traces the trans-Atlantic disparity to deep political and cultural roots. He argues that since World War II, and especially since 1975, the Europeans have extended to all prisoners the old custom of treating high-status prisoners with respect while American punishment during the same period has become not only more severe but also more degrading.

According to Harsh Justice, broad political differences between western Europe and the United States help to explain the pattern. Drawing on the work of sociologist David Garland, Whitman argues that penal systems correspond to a nation's welfare policies. As welfare capitalist states, France and Germany treat prisoners as if they were low-income clients. In contrast, as a society that reveres the free market, the United States treats its criminals harshly just as it grudgingly provides only a minimal social safety net for the poor and the disabled.

But Whitman's story begins long before the rise of modern welfare policies. He first unfolds his thesis with a subtle history of the ideas animating theories of punishment, especially tracing the influence of Cesare Beccaria, a classical criminologist of the 18th century whose influential essay On Crimes and Punishments appeared in 1764. Whitman argues that Beccaria, often thought to be a proponent of deterrence, was more important as an advocate of equality of punishment, regardless of social status.

By the end of the 19th century, however, the philosophy of individualization began to take hold; in this view, criminal justice should focus on the offender rather than the offense. Both theories -- individualization or equal punishment based on the crime -- may be gentle or harsh. The merciful strain of individualization favored rehabilitation. The harsh strain, which Whitman calls "incorrigibilist," advocated incapacitation or destruction of the dangerous or "genetically" inferior. The harsh strain was especially favored by fascists.

Yet the merciful strain produced its own flaws. Criminals who committed the same acts might be punished quite differently depending on their racial and economic status. Beccaria proposed that the peasant and the marquis should suffer the same punishment for the same crime. American liberals such as the influential writer and Judge Marvin Frankel also thought that every American -- rich or poor, black or white -- should receive equal treatment. As so often happens, reforms inspired by these egalitarian ideas generated unanticipated consequences. Intended to reduce racial disparities, the federal sentencing guidelines, adopted in 1987, imposed severe penalties on such crimes as street sales of crack cocaine. And while the guidelines treated all such sellers alike, the penalties have fallen most heavily on young black males.

Contrary to Alexis de Tocqueville, who thought that America would develop milder systems of criminal punishment because it lacks an "aristocratic element," Whitman argues that the key to understanding contemporary punishment in France and Germany is precisely to be found in their history of aristocratic distinction. Whitman contends that Tocqueville failed to apprehend the most significant connection between hierarchy and harshness. Aristocrats were punished with dignity while commoners were "degraded." America, by contrast, degraded its high- and low-level offenders with comparable severity.

As partial evidence of Europe's tradition, Whitman offers a drawing (from 1718) portraying Voltaire, confined to the Bastille, writing his epic poem on toleration, La Henriade. Similarly, we see a photograph of Hitler, decked out in Bavarian tracht, meeting with a Nazi follower in a garden at the Fortress Landsberg, where he was confined after the unsuccessful Beer Hall Putsch of 1923. Hitler composed Mein Kampf during these months of detention. Ironically, he was able to pour his vitriol into words only because of the privileges German prisons extended to high-status inmates.

For two centuries, but especially during the past 25 years, Whitman argues, European criminal justice has been "leveling up" to treat its low-status offenders with the dignity formerly accorded those of high status -- so much so that German and French prisoners today must be addressed as "Herr" and "Monsieur." Meanwhile, America's criminal-justice system has been casting an ever wider and increasingly callous and degrading net of punishment, mostly to the poor and minorities but even to white-collar criminals, despite "Club Fed" sentencing.

Acknowledging that his story will seem unconvincing to many readers, Whitman devotes much of the book to responding to possible objections. Germany presents a special and "delicate" case. How does one incorporate the regime of the Nazis with a sociocultural tradition of increasingly humane punishment? Whitman's counterintuitive argument is that the Nazis treated prisoners according to a centuries-old tradition of "honor." While not denying the Holocaust, he simply avoids discussing it.

Contemporary European dignity, he argues, has much more continuity with the fascist period than most Europeans are willing to acknowledge. He says that even the Nazis showed mildness to political prisoners, making frequent use of amnesty, as indulgence is "the act of the sovereign as seigneur, of the sovereign as merciful patron." But what does that mean? Racially pure Germans who disliked or criticized the regime, even privately, were convicted and imprisoned but then sometimes released "in ancien régime fashion," on Hitler's birthday or to celebrate the Anschluß of Austria in 1938. Yet to attribute "mildness" and "grace" to a Nazi regime that engaged in genocide against Jews, imprisoned non-Jewish German opponents and then released them on a tyrant's birthday is scarcely a convincing use of the concept of "grace."

Whitman does not rest his rich and complex argument, however, on one factor alone. European mildness in punishment, he suggests, largely follows Norbert Elias' theory of a "civilizing process" whereby the social norms of the nobility have drifted downward to the populace. These courtly civilizing tendencies, Whitman argues, are far less applicable to the United States and, together with Europe's more benign and encompassing welfare policies, account for the Europeans' milder treatment of prisoners.

In explaining America's harsher tendencies, Whitman rightly maintains that popular justice may place more emphasis on retribution than justice dealt by autonomous bureaucracies insulated from popular pressure. California's three-strikes law, adopted by the state's voters in a 1994 referendum, illustrates the pattern. But is this harshness attributable to an American tradition? Before 1975, California's indeterminate sentencing system, with its rehabilitative values, had been a model of progressive prison policy. The state's sentencing system turned severe only in the past quarter-century.

And that severity may be diminishing. Under a recent ballot initiative, addicts in possession of drugs are supposed to be given treatment rather than punishment. Jerry Brown, governor in 1975 and now mayor of Oakland, has expressed regrets about his earlier support for determinate sentencing. California voters and lawmakers may be inconsistent, even eccentric, but the state does not have a tradition of prisoner degradation.

American prison policy resists easy generalization. In a dissent from the Court's three-strikes decision, Justice Stephen Breyer called the 25-year sentence for golf-club thief Ewing "virtually unique in its harshness." Although many other states have three-strikes laws, most require that the third offense be a violent or at least serious felony. According to Justice Breyer, Ewing could have received no more than 10 years in 33 states, and only 12 to 18 months in the federal system. Franklin Zimring argues in his recent book, The Contradictions of American Capital Punishment, that American state systems of criminal justice are not stamped from a common sociocultural tradition. Those with vigilantism in their background have high rates of execution while those without have low rates. Minnesota's criminal-justice policies and capital-punishment rates resemble Australia's more than they do those of Oklahoma or Texas. No single state's approach can be considered America's, and the punishment pendulum seems to be swinging back even in California.

There is much in Harsh Justice to quarrel with, but much more to savor. Its combination of elegant writing, deep erudition and bold theorizing make the book a terrific read. Indeed, it ought to be required reading for anyone interested in how a society comes to punish the way it does -- and how it should.