We’re the Tough Guys, Part I


I’ve been reading a fascinating book by James Whitman called Harsh Justice.  The subtitle suggests what the book is about: “Criminal Punishment and the Widening Divide Between America and Europe” (Oxford University Press, 2003).

            Although I have only read about half the book so far, the themes are intriguing.  One theme he is exploring is that during the past half century the American legal system has grown more punitive, while the European system has become more lenient.  Perhaps there is a lesson here, as the crime rate (especially violent crime) is much less in Europe.

            Although he focuses mostly on two countries, France and Germany, the results of his research can certainly be applied to the whole of Europe.  The leniency is illustrated in their movement away from the degradation and humiliation of offenders.  What they have done is to treat ordinary offenders of low social status with the dignity and honor formerly reserved for high status offenders.  Meanwhile, the American system of justice has gone in the opposite direction.  America instead practices “status degradation ceremonies” (veteran criminologists will recognize this phrase from an article written by Harold Garfinkel way back in 1956) whereby the very “personhood” of offenders is ignored.

We can see some of this in the extreme harshness of sentences, which are increasingly applied to all who commit a certain crime, regardless of individual differences.  It is a reflection of the emphasis on letting the punishment fit the crime rather than the offender.  This takes us back to the “Classical School” of criminology, where such 18th century “enlightenment” thinkers like Beccaria and Bentham proposed new methods of administering justice, making the system more “efficient” and “predictable.”  (Many people find it appalling that different offenders can receive far different sentences for committing the same crime, failing to realize that not every crime and not every offender is alike.)

Whitman notes the irony that while in Europe there has been a movement away from the harshness and meanness of the ultra-authoritarian punishments associated with Fascism and especially Nazi Germany, this has not been the case in America. Indeed, we have moved closer to a system of punishment that resembles Fascism.

What is unique about Whitman’s treatment of this subject is the way he operationalizes the term “harshness.” He does so through five dimensions of criminalization and three dimensions of punishment.  This is his method of describing a criminal justice system as either relatively “mild” or “harsh.”  Much of this has to do with the concept of “mercy” which is shown very frequently in Europe, but rarely in America.

First, harshness can be measured by the degree to which various behaviors are “criminalized.”  By this measure, the American system is extremely harsh.  All sorts of relatively minor offenses (especially those categorized as “morals” offenses) are prohibited by the law and those who violate these laws are often punished very severely. Moreover, it is not so much the behavior that is punished, but whole classes of persons who are punished (drug laws are a prime example). 

Although not discussed by Whitman, harshness is also reflected in U.S. foreign policies during the past 100 years.  We have been like the schoolyard bully, as we prance around beating our chest and invade any country we choose, mostly for “national interests” (read: corporate interests).  It has been well illustrated in such fancy catch-phrases of American presidents from Teddy Roosevelt (“speak softly and carry a big stick”) to George W. Bush (“Bring ‘em on.”) and in movie characters like “Dirty Harry” (“Go ahead, make my day”).

Second, harshness can be measured by the extent to which “numerous classes of persons” are subjected to “potential criminal liability.” Examples of this abound, ranging from treating minors as adults via certification to various forms of “zero tolerance.”

A third dimension of harshness is that of grading, such as considering an offense as either a felony or a misdemeanor or some other lesser offense.  One primary example is that the American legal system tends to grade offenses much higher than Europeans do.  For example, in America many drug offenses are considered as felonies, whereas in Europe they may be considered as misdemeanors.

A fourth dimension is in “inflexible doctrines of criminal liability” by which he means whether or not a criminal justice system treats ignorance of the law as an excuse.  Our system typically does not.

Finally, there is harshness in the enforcement of the law.  Criminal justice systems where the police often ignore violations of the law can be considered mild.

As for punishment, one measure of harshness is in the laws that carry various degrees of punishment.  Some systems may provide longer sentences of imprisonment than others.  A second is in the actual application of punishment.  Do they maintain harsh conditions within prisons or administer rough treatment at the station house or on the streets.  Thirdly, there is harshness in the inflexibility of punishment.  A system that is very harsh tends to apply the same punishment regardless of individual circumstances.

Whitman also distinguishes two forms of “mildness” of criminal justice systems.  One form is that of “respectful treatment,” such as addressing prisoners in a dignified manner, such as using “sir or madam” or avoiding such undignified customs like forcing them to use toilets that are exposed to the general inmate population.  A second form of mildness is the degree to which systems use pardons, amnesties and commutations.  Europe tends to show these two forms much more often than America does.

Whitman outlines this thesis during the introduction and first chapter.  He closes the first chapter by noting that the contrast between European and American punishment is not that America is harsh and Europe is mild.  Rather, the correct way to describe this contrast is to say that during the last 25 years or so “America has shown a systemic drive toward increasing harshness by most measures, while continental Europe has not.”  The topic of his book, says Whitman, is “to ask why some systems choose some forms of harshness, and others do not.”

I will continue reading this book and in subsequent installments of this brief series of commentaries I will report what I have learned.