Our Punitive Society: Political and Religious Factors[*]

Randall G. Shelden

 

 


[*]  Paper presented at the annual meeting of the American Society of Criminology, Philadelphia, November, 2009.  Portions of this paper appear in the author’s book, Our Punitive Society: Race, Class, Gender and Punishment in America. Long Grove, IL: Waveland Press, 2010.

 

 

 

 

 “In the east Texas town of Paris, amid allegations from black parents that the local schools and courts systematically discriminate against their children, a white judge sentenced a 14-year-old black girl to up to 7 years in a juvenile prison for pushing a hall monitor at her high school. The same judge sentenced a 14-year-old white girl, convicted of arson for burning down a house, to probation.”[1]

 

 “In his videotaped confession to the police, the eight-year-old boy sits in an overstuffed office chair and calmly describes how he shot his father and his father’s roommate to death with a rifle. . . . Prosecutors in Arizona, who could have sought to charge the boy as an adult, have charged him in juvenile court. . . . Only 16 states define an age at which a child is capable of forming criminal intent. . . . In North Carolina, the minimum age is six. Most of the other 34 states leave it up to prosecutors.”[2]

 

“[An ACLU report provides] the latest examples of a disturbing national trend known as the ‘school to prison pipeline’ wherein children are over-aggressively funneled out of public schools and into the juvenile and criminal justice systems. . . . Students in Hartford, East Hartford and West Hartford are being arrested at school at very young ages. . . . A majority of those arrested were seventh or eighth graders, but twenty-five were in grades four through six and thirteen were in grades three or below. Research shows that the earlier children are exposed to the criminal justice system, the more likely they are to commit crimes later in life. Relying primarily on arrests rather than other forms of behavioral intervention cements an unfortunate cycle of criminalization which, in the end, doesn't benefit our kids and doesn’t benefit our communities.”[3]

 

“For years, courts have treated the mentally ill with the same dispassion accorded any other defendant. The results have been devastating. More than twice as many people with mental illness live in prisons as in state mental hospitals. When they are confined to tiny cells, their conditions worsen, increasing their propensity to act out. As a result, the mentally ill face disproportionately harsher discipline than do other inmates behind bars.”[4]

 

 “Razor wire topping the fences seems almost a joke at the Men’s State Prison [in Hardwick, GA], where many inmates are slumped in wheelchairs, or leaning on walkers or canes. It’s becoming an increasingly common sight: geriatric inmates spending their waning days behind bars. The soaring number of aging inmates is now outpacing the prison growth as a whole. Tough sentencing laws passed in the crime-busting 1980s and 1990s are largely to blame. It’s all fueling an explosion in inmate health costs for cash-strapped states. . . . The graying of the nation’s prisons mirrors the population as whole. But many inmates arrive in prison after years of unhealthy living. . . . The stress of life behind bars can often make them even sicker. And once they enter prison walls, they aren’t eligible for Medicaid or Medicare, where the costs are shared between the state and federal government, meaning a state shoulders the burden of inmate health care on its own.”[5]

 

 

Introduction

 

The stories noted above are merely a small representative of the many cases of excessive punishments meted out in this society. The American system of punishment is filled with ironies. We spend more than $200 billion per year on the three major components of the criminal justice system: police, courts and the correctional system (which includes both probation and parole), plus several billion more in private security systems (security guards, gated communities, thousands of security devices, etc.). Yet the crime rate, especially violence, remains the highest in the world. 

Simultaneously, our system of punishment is a source of rewards for those working within it and for those who build and maintain the system. Terms such as “crime control industry,” “criminal justice industrial complex” and “prison industrial complex” describe the symbiotic relationship between criminal justice, politics, and economics. The shorthand description is that punishment pays and pays very well. Efforts to prevent crime, however, do not receive nearly the funding that punishment does, nor are the profits for private industry as high.

Politicians infrequently support prevention efforts, avoiding the risk of being labeled “soft on crime.” Calls for more cops on the streets and more prisons resonate with public fears about crime and criminals. Those fears highlight an irony: in what is touted to be the freest and richest country in the history of the world, we are not just the most punitive; we are the most fearful.[6]  Indeed, despite all the measures taken and money spent for security, the fear of crime remains high, no doubt reinforced by the multitude of crime shows on television (once study found that about one-fourth of all prime-time TV shows were devoted to crime).[7]

Embedded within the U.S. Constitution, the Bill of Rights and the Declaration of Independence is the assumption that people should have freedom of movement and freedom in decision making. These are assumed to be “inalienable rights.”[8] Punishment itself is not new, nor is the use of prison to produce pain for its inhabitants, which dates back as far as early Roman society.[9] What is new in modern societies is the length of prison sentences as an expression of the deprivation of liberty. Today we incarcerate more people than any other country in the world. “The United States has less than five percent of the world’s population, but about a quarter of its prisoners. We have more prisoners than China—a country with a repressive government and more than four times the population of the United States.”[10] In 1984 Japan’s population was half the size of the United States; there were 40,000 sentenced offenders compared to 580,000 U.S. prisoners. Twenty-five years later, Japan’s prison population was 71,000 compared to 2.3 million in the United States.[11] The U.S. incarceration rate is 762 inmates per 100,000 residents—four to seven times the rate of other western industrialized nations.[12] Five million people are on parole, probation, or some alternative sanction, meaning approximately one in every 31 adults in the United States is subject to correctional supervision.[13] How do we explain this?

In sum, we incarcerate more people than any other country in the world.  The sentences we hand out are the harshest by far. We execute more people, save certain Third World dictatorships (another irony is that we are in many ways more punitive that these countries).  There are many different explanations and these are explored in some detail in my most recent book.[14]  Here I would like to pursue the following related factors: conservatism, religion and politics.

 

Why Are We So Punitive?

 

The Conservative Philosophy 

 

The huge increases in imprisonment rates in this country beg for an explanation, for there is a lot more going on.  The “war on drugs” is obviously one culprit, but it goes much deeper than that, for we must also ask why such a “war” has been declared in the first place and why we have become so punitive.

We need to look deep into the American culture to understand this high degree of punitiveness.  One major source for this can be found in the conservative philosophy that has become so dominant in this country.  At the heart of this philosophy is a simplistic view of the world, a world divided into rigid categories of “good” and “evil.” There is a strong belief in “rugged individualism,” meaning that people succeed largely through their own efforts.  Behind this view is a view of the family that can be described as the traditional nuclear family with the father in control as the major breadwinner.  There is, under this system, a “strict father morality” which is based in part upon the belief that in order to become a “good” and “moral” person a child must learn to obey the rules and respect authority.  Proper behavior is taught through the use or threat of punishment.  Within such a system Athe exercise of authority is itself moral; that is, it is moral to reward obedience and punish disobedience.”[15]  

According to this view, this system of rewards and punishments has a higher purpose operating here, namely, that in order to survive in a dangerous world children must learn discipline and build character.  Punishment, according to this philosophy, is the only way to become a self-disciplined and moral person.  To be successful requires becoming self-disciplined.  More importantly, rewarding someone who has not earned it by developing self-discipline is immoral.  This is why conservatives are constantly complaining about various forms of welfare, affirmative action, lenient punishments and the like, for they see this as rewarding deviance, laziness, etc.[16]  Of course, this does not apply when we consider various kinds of “corporate welfare” and all the other benefits that accrue to someone born into wealth and privilege.  There is an erroneous assumption that those who are rich and famous did so through their own efforts, with little or no help from others.  Luck and the privileges of birth are not mentioned within this conservative philosophy.

According to the conservative view, there is a “morality of strength.”  Moral strength can be seen as a metaphor.  The metaphor suggests that the world is divided into “good” and “evil” and in order to stand up to evil one must be morally strong; and one becomes morally strong through a system of rewards and punishments which teaches self-discipline.  A person who is morally weak cannot fight evil.  If one is too self-indulgent he or she is immoral.  Welfare is immoral, as is crime and deviance, and therefore should be punished.  Therefore, it logically follows that crime and deviance are the result of moral weakness.  Teenage sex, drug use and all sorts of other “deviant” behaviors stem from lack of self-control.  A person with proper self-discipline should be able to “just say no” and those who do not must be and deserved to be punished.[17]

It should be pointed out that the entire criminal justice system (and to a somewhat lesser extent, the juvenile justice system) is based upon a similar punitive philosophy, generally known as deterrence.  Such a view argues that the best way to deter - that is, prevent - crime from occurring is the threat of punishment or the fear that one will be caught and punished.  There are two kinds of deterrence.  General deterrence is aimed toward the population as a whole.  Thus, you punish one person in the hopes that others will “get the message” and refrain from committing crime.  Special deterrence is that you punish a specific individual in the hopes that he or she will “learn their lesson” and not do it again.  It is based in part upon the idea that all humans are rational with free will and seek to minimize pain and maximize pleasure.  Thus, the pleasure of committing a crime should be offset by the pain of punishment.  It can certainly be debated whether or not humans actually behave in this manner.  What cannot be debated, it seems to me, is that increasing the punishments for crimes has not worked very well.  Yet we seem to keep sounding the same horn, louder and louder, saying to those who might be tempted to commit crime “we’re sending you a message that you will be caught and punished to the full extent of the law if you keep doing this.”  The same messages are constantly coming from the Bush administration to so-called “Rogue nations” that if you don’t stay in line we will use our military might to force you to behave and we are proving this with our “preemptive war” in Iraq.

It should be pointed out that this conservative philosophy has become a more dominant force in American culture in recent years, beginning with the Reagan years.[18]  Underscoring this development has been the concomitant growth in the number of conservative “think tanks.”[19] Add to this the increasing politicization of crime, referring to the fact that starting in the mid-1960s “law and order” entered into national political races with the Republican Barry Goldwater in 1964.  Since this time it seems as if Republicans have had a corner on the market of “crime control” as a key issue. To be sure, their platforms have consisted of simplistic slogans like “don’t do the crime, unless you can do the time” or “go ahead, make my day.”  Nevertheless, such simplistic bromides have resonated with many voters, especially white Southerners.

Part of this philosophy comes from religion, as you might guess. In fact, the conservative view is more likely to stress the importance of religion than science (the recent debate about evolution highlights this well) to explain human behavior.[20] More specifically, it derives in part from the famous “Protestant Ethic” which refers to a belief system that one must make sacrifices, be thrifty, and engage in “hard work” in order to be successful.[21]  It is certainly no accident that some of the most conservative people in the country are extremely religious, especially those that lean toward a fundamentalist religious orientation.  Since religion is a big reason behind extreme punitiveness I will explore this subject in more detail.

 

The Role of Religion

 

Given the dominance of conservatism in American politics and the heavy influence of religious fundamentalism it is not hard to understand the turn toward harsher forms of punishment in recent years.  The increase of fundamentalist religious beliefs has been truly phenomenal, with the majority of the American public claiming to have such beliefs.  In fact, a recent study found that the extent of fundamentalist religious beliefs in America is rather astounding, with about three-fourths of Americans believing in miracles, clear majorities believe in the devil, and more than half believe some humans possess psychic powers (they don’t); less than 10% believe in Darwin’s theory of evolution; almost half believe that the world was created six thousand years ago. The percentage of adults who believe that “the Bible is the actual word of God and it is to be taken literally, word for word” is five times higher in the America than in Britain. Also, church attendance is about four times higher in America than in Britain.[22]  Many even believe that dinosaurs and humans co-existed![23]  According to one recent poll, “Religious devotion sets the United States apart from some of its closest allies. Americans profess unquestioning belief in God and are far more willing to mix faith and politics than people in other countries.” The poll, which also included Australia, Britain, Canada, France, Germany, Italy, Mexico, South Korea and Spain, found that almost all American respondents “said faith is important to them and only 2 percent said they do not believe in God. Almost 40 percent said religious leaders should try to sway policymakers, notably higher than in other countries.”[24] The most recent Harris poll (February, 2003) revealed the following: 84% believe in miracles, 82% believe in heaven, 80% believe in the resurrection of Christ, 77% believe in the Virgin birth (Jesus born of Mary), 68% believe in the existence of the devil and 69% believe hell exists and even 51% believe in ghosts.[25]  These beliefs exist even though there is no scientific basis for any of them.  Also, despite overwhelming scientific evidence, only 9% of Americans believe in evolution.[26]

Religion and religious leaders play a big role in politics today. The popular evangelist Pat Robertson issued a statement on his “The 700 Club” on August 22, 2005 suggesting that the United States should assassinate Venezuelan President Hugo Chavez.[27] Robertson claimed that Chavez is determined to export communism and Islamic extremism to America’s shores.  Robertson asserted that if Chavez “thinks we’re trying to assassinate him, I think that we really ought to go ahead and do it. It's a whole lot cheaper than starting a war.”  Another leading evangelist, Jerry Falwell, remains steadfast in his attack on anything liberal (in this specific case, Hillary Clinton) and his claim that “God is a Republican.”[28]

Another story is titled “Grooming Politicians for Christ.”[29] According to this story there are regular Monday meetings on Capitol Hill where aspiring politicians are taught by super-religious college professors and members of Congress to “mine the Bible for ancient wisdom on modern policy debates about tax rates, foreign aid, education, cloning and the Central American Free Trade Agreement.” It is here that “students learn that serving country means first and always serving Christ.” One of the opening prayers goes like this: “Holy Father, we thank you for providing us with guidance. Thank you, Lord, for these students. Build them up as your warriors and your ambassadors on Capitol Hill.”  The story notes that this puts these students “at the vanguard of a bold effort by evangelical conservatives to mold a new generation of leaders who will answer not to voters, but to God.”  The seminars are sponsored by an organization called the Statesmanship Institute, led by the Rev. D. James Kennedy (an estimated 3.5 million).  Kennedy is quoted saying that “If we leave it to man to decide what's good and evil, there will be chaos.”

It is interesting to note that private groups are allowed “to hold events in the Capitol as long as they are noncommercial, nonpolitical and do not discriminate based on race, creed, color or national origin.” The irony is that no one seems to be batting an eye that tax dollars are paying for what amounts to religious indoctrination.[30] 

Myal Greene, deputy press secretary for a Republican congressman from Florida (the Times story does not give his name), has learned a great deal by attending these seminars.  He learned, for instance, that many of the earliest schools in the country were run by ministers. After that revelation, he now vows to fight “for history lessons on the Founding Fathers’ faith, science lessons drawn from the Book of Genesis and public school prayer.” A fact that Green curiously omits to mention is that the majority of the Founding Fathers were called “Deists” (belief that God created the earth but has no role in its everyday functioning, a sort of “absentee landlord”) and ministers in those days called them atheists (Ben Franklin was a self-admitted atheist).[31]

One lecture was given by bioethicist Nigel Cameron, a professor at Chicago-Kent College of Law, who believes that “federal law should be based on biblical precepts.” Some of these religious fanatics are serious about this.  For instance, there is a movement in South Carolina by a small group that hopes to establish a “Scriptures-based government one city and county at a time,” according to a story in the Los Angeles Times.[32]  These people are part of a “Christian Exodus” which aims to “take control of sheriff's offices, city councils and school boards. Eventually, they say, they will control South Carolina. They will pass godly legislation, defying Supreme Court rulings on the separation of church and state.”  Although this strategy seems unlikely to succeed, it nevertheless reveals the role of religion in our degree of punitiveness.[33]

It is no accident that the ascendancy of the conservative movement and the election (or should I say “appointment”) of George W. Bush as president stems in large part from the influence of the religious right and the growth of fundamentalist beliefs.  His lead in the presidential race is due in no small measure from the widespread support from very religious people.[34]  Bush even suggested that we are in the middle of a “Third Awakening” that has corresponded with the “war on terrorism,” which he and other conservatives describe as a war between “good and evil.”[35] 

We also know how powerful religion can be with regards to punishment.  Need I say that virtually every religion uses fear and guilt to keep people in line?  In fact, the earliest form of law in this country was shaped by puritan religious beliefs and most laws back in colonial times were almost direct quotes from the bible. In the Massachusetts Bay Colony, Governor John Winthrop expressed a desire to build “a City upon a Hill, meaning a society that would serve as “an example of godliness to the world.”  Under the Puritan society of New England, in fact, “Puritanism” viewed the state as legitimate “because it was a government confirming to what God had decreed.”  The Puritans in fact viewed themselves “as being chosen by God to represent Him on earth.”  More importantly, however, they viewed their leaders “as being ordained by God” and both the governor and the magistrates “were granted power through devine authority.”[36] Not surprisingly, many laws were taken almost literally from the Bible, including those prohibiting idolatry, blasphemy, bestiality, sodomy, and adultery, all of which were punishable by death.  Even after the American Revolution, which stressed a separation of church and state, many religiously based laws remained on the books, some of which were known as “Sunday Laws” and “Blue Laws.”[37]

Much has been written about the “Christian Right” in recent years.  A recent book that examines this phenomenon is titled American Fascists.[38] Here the author argues, with plenty of illustrations, that this “Christian Right” movement is eerily similar to fascist movements in Italy and Germany in the 1920s and 1930s.  The author describes this movement “is marked not only by its obsessions with conspiracy theories, magic, sexual repression, paranoia and death, but also by its infatuation with apocalyptic violence and military force.”  They have visions of a “holy war” led by “messianic warriors” who are “ready to die for Christ.”  A group called BattleCry is one among many examples of this.  This is a fundamentalist youth movement led by a man named Ron Luce who founded “Teen Mania” in 1986.[39]  Luce calls it a “war” and says that “Jesus invites us to get into the action, telling us that the violent – the ‘forceful’ ones – will lay hold of the kingdom.”  A rock group called Delirious plays such lyrics as “We’re an army of God and we’re ready to die…We see nothing but the blood of Jesus…”[40] 

The connection between religion and the support of violence is illustrated by the recent killing of George Tiller.[41]  Many in the “pro-life” movement praised the suspect as a “hero” and considered Tiller a “mass murderer.”  One such organization is called the “Army of God.”  A cursory look at their web site is revealing, to say the least.[42]  The connection between religion and violence is also illustrated by a bumper sticker I saw recently in Cedar City, Utah, which reads as follows: “You Take Obama, I’ll Take God and Guns.”

Some of your most punitive people are also very religious and they have substituted legal punishment for punishment by God.  In short, one way to see why we are the most punitive nation in the western world is to simply examine our religious beliefs.  In fact, one could argue that orthodox religions are inherently punitive.  This argument has been persuasively made by Helen Ellerbe in her book The Dark Side of Christian History.  She argues that “orthodox Christianity is embedded in the belief in a singular, solely masculine, authoritarian God who demands unquestioning obedience and who mercilessly punishes dissent.” Those who adhere to this belief also believe that “fear is essential to sustain” a “divinely ordained hierarchical order in which a celestial God reigns singularly at a pinnacle.”[43]

With the fall of the Roman Empire the Church took control and in the process instituted what amounted to a reign of terror by introducing the Crusades and the Inquisition.  The Protestant Reformation commenced to terrify people “with threats of the devil and witchcraft” while promoting the idea of one God, separate from earth and in complete control.  Orthodox Christians believed that “fear and submission to hierarchical authority were imperative,” and such a belief saw God as in control “from the pinnacle of a hierarchy based not upon love and support, but upon fear.”  Biblical quotes back up such a belief system, with statements like: “Fear God, and keep His commandments: for this is the whole duty of man”[44] and “Fear Him, which after He hath killed hath power to case into hell; yea, I say unto you, Fear Him.”[45]  More importantly, perhaps, is that they believe people should also “fear their earthly ruler as they fear God.” Mere mortals could only learn about the teachings of Christ from those few who had supposedly witnessed his resurrection, namely the Apostles, or men who were appointed as their successors. “This confined power and authority to a small few and established a specific chain of command.”[46]  It is eerie to think that in the early years of the 21st century we have a U.S. President who was “elected” with the strong support of fundamentalist Christians and who himself has said on many occasions that he takes his orders from God.

In the 4th Century St. John Chrysostom, in a statement that could easily provide the theoretical underpinnings of the Classical School of Criminology, stated that without magistrates “and the fear that comes from them,” entire nations would fall because there would be no one “to repress, or repel, or persuade them to be peaceful through the fear of punishment.”[47] In short, people will be able to co-exist only with the threat of punishment hanging over them.  Those who are non-believers or who believe in more earthly Gods or multiple Gods will be, and have been, punished severely.

I should also note that religion played a key role in the establishment of the first prisons.  It was not by accident that they were called penitentiaries, for they were established by Quakers and other religious groups in the late 18th and early 19th century, during a time when crime was still equated with “sin.”  These earliest prisons, often based upon what has been called the “Pennsylvania model,” had prisoners locked up in solitary confinement almost 24 hours per day, with nothing to read but the bible and the only outside visitor allowed in was a member of the clergy. More interesting, however, was the fact that while locked up they would seek penance, since this was the origin of the word penitentiary.  Going to prison was supposed to be a “monastic experience.”[48]  As already noted, conservatives strongly believe in the reformative value of punishment.  In many ways the old “Pennsylvania model” has reared its ugly head, given the increase in the number of “supermax” prisons or areas within many prisons that lock people up 24 hours a day save for an hour outside for “exercise” (see chapter 3).

Religion has played a key role inasmuch as concepts like vengeance and retribution have dominated discussions of crime control policies.  Rational arguments against the death penalty, for instance, have fallen on deaf ears.  To most people, especially conservatives, the fact that the death penalty is not a deterrent, that it is more costly than life in prison and that it discriminates against racial minorities seems to be irrelevant.[49]  This last point, namely that the death penalty discriminates against racial minorities, needs to be emphasized.  As one writer has recently commented, it is much easier to impose severe punishments on people “with whom we have little in common or do not know in any personal sense’ and that the “more stratified a society, the easier it becomes for the well-off to advocate greater pain for those less fortunate.”[50]  The fact that well over half of all of those imprisoned today are racial minorities does not seem to create much of a public debate is revealing.  Can you imagine the reaction if the police suddenly began arresting middle and upper-class white youths and placing them in prison in numbers approaching the arrest and conviction rates for blacks?

It should be added that research has shown a strong correlation between fundamentalist religious beliefs and punishment.  One study found that respondents who categorized themselves as “Fundamentalist Protestant” were more likely to support corporal punishment in schools than other respondents.[51]  More important than religion per se is the degree to which people adhere to certain religious beliefs. One study found that the degree of religious devotion, belief in a punitive God and belief in the literal truth of the Bible) were significantly related to support for corporal punishment. What was perhaps most interesting from this study was that belief in the literal truth of the Bible was the variable with the highest correlation with support of corporal punishment, even when controlling for such variables as gender, race, age and amount of education.[52]

 

We’re the Tough Guys

 

We live in what might be termed a “macho culture.”  Within this culture there is a belief that “might makes right.”  American history is filled with examples of our invasions of foreign countries, as thoroughly documented in several scholarly studies, such as William Blum’s Killing Hope: U.S. Military and CIA Intervention Since World War II and his follow-up Rogue State.[53]  This is also documented by two scholars with impeccable reputations, Chalmers Johnson and Noam Chomsky,[54] plus a recent detailed study by noted scholar Stephen Kinzer.[55]  It seems to me that this mentality extends to our treatment of criminals (except of course the “good criminals” like corporate offenders and crimes of the state).  This punitiveness is in direct contrast with most European countries, as noted in a recent book by James Whitman.

The title of Whitman’s book is Harsh Justice.  The subtitle suggests what the book is about: Criminal Punishment and the Widening Divide Between America and Europe.[56]

          One theme Whitman explores 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” whereby the very “personhood” of offenders is ignored.[57]

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.” 

          Our punitiveness may be perfectly illustrated in a recent case where the police were called to an elementary school in Florida because a five-year-old kindergarten girl was reportedly “out of control.”  The girl, who is black, was handcuffed by the police and taken away from school. It is interesting to note that the principal of the school, who called the police, is a former prison guard.  He was suspended by the school board.[58]  What is perhaps the most amazing about this case and illustrates how punitive we have become are comments posted on various web sites. Many are downright racist, with one person showing a poster that reads “Arrest black kids before they become criminals.” Another poster reads “Stop being a pussy, beat your kids.” Both of these were posted on a college web site called “CollegeSlackers.com.”  Here’s what one college student had to say:

 

1) How was the kid harmed by being handcuffed? No harm, no lawsuit. 2) We handcuff kids all the time. The only thing preventing it is if they are too small to fit in the cuffs. 3) If people are out of control, they should be restrained. 4) Some departments have a policy that says you shall restrain people. 5) Even though a kick from a 5 year old probably won't injure you, it hurts. I'm not going to get kicked by some kid because her mom doesn't want her to be restrained. Sure, the video is bad PR and PC, but nothing was done wrong. I have a friend who works for St. Petersburg PD.[59]

 

While on most web site discussion forums there were some who objected to such treatment, they were in the minority.  The following reflects the more typical views: “I'm sure if they didn't put the cuffs on her and simply tried to hold her still, she would have ended up with bruises on her arms/legs. Think of the cries of abuse that would generate! I think cuffing her was the best thing to do. Unruly little bitch!”[60] There were many blaming the parents (one blogger stated: “This child has the behavior of one born to a mother who took drugs during pregnancy [sic]. I pity teachers today. They are helpless”)and many others saying that this illustrates the lack of discipline within the school, talking nostalgic about the “good old days” when if kids got out of line the teachers were allowed to exact some punishment. One stated it this way:

This would have NEVER happened when I was in kindergarden [sic] or growing up in grade school. Our teacher would yell at us and/or line us up in the hall and paddle us. There was nothing wrong with that. The teacher wasn't being stern enough in letting the child know "that was not acceptable.” Maybe I'm just a mean old lady but I couldn't have been that teacher. I was watching the video and wanting to spank that brat myself![61]

 

Regardless of the outcome of this case (a lawsuit has been filed), the mere fact that the police were called and handcuffs were placed on the child, and that many people (judging from several Internet talk forums) have no problem with this kind of punishment, is illustrative of how acceptable this degree of punitiveness has become. One might reasonably ask: what’s next, handcuffing 2-year-olds?

 

Notes


 

[1] Witt, H. “Three Towns: The Past, The Present, The Future.” Chicago Tribune, December 26, 2007. http://www.chicagotribune.com/services/newspaper/printedition/tuesday/chi-122607racecoda-story,0,404932.story

 

[2] Searcey, D. “Eight and on Trial: Young Defendants Throw Criminal Justice into Confusion.” Wall Street Journal, December 11, 2008, p. A16.

 

[3] American Civil Liberties Union, “Report Reveals Arrests at Hartford-Area Schools on Rise.” November 17, 2008. http://www.aclu.org/racialjustice/edu/37776prs20081117.html

 

[4] Emma Schwartz, “A Court of Compassion.” U.S. News & World Report, February 16, 2009, vol. 144, #5, p. 39.

 

[5] Associated Press,  “Aging Inmates Straining Nation’s Prison System: Soaring Number of Elderly behind Bars Sends Costs Skyrocketing for States.” September 29, 2007 http://www.msnbc.msn.com/id/13415456/

 

[6] Glassner, B. (1999). The Culture of Fear. New York: Basic Books.

 

[7] Kopp, P.  2006. “Stereotypes of Law Enforcement in Television.” MA thesis, Department of Criminal Justice, University of Nevada-Las Vegas.

 

[8] Bortner, M. A. and L. M. Williams (1997). Youth in Prison. New York: Routledge, p. 175.

 

[9] Johnson, R. (2002). Hard Time: Understanding and Reforming the Prison (3rd ed.). Belmont, CA: Wadsworth, pp. 19, 27.

 

[10] Fathi, D. “America’s Prison Break: Lock ‘em up? It Costs You.” Chicago Tribune, April 1, 2009, p. 27.

 

[11] Webb, J. “Why We Must Fix Our Prisons.” Parade Magazine, March 29, 2009, p. 4.

 

[12]  U.S. rates are for both jails and prisons as of June, 2008.  West, H. C. and W.  J. Sabo (2009). “Prison Inmates at Mid-Year 2008 – Statistical Tables.” Washington: Bureau of Justice Statistics, March. http://www.ojp.usdoj.gov/bjs/pub/pdf/pim08st.pdf.  For international rates see: Hartney, C. (2006). “US Rates of Incarceration: A Global Perspective.” National Council on Crime and Delinquency, November: http://www.nccd-crc.org/nccd/pubs/2006nov_factsheet_incarceration.pdf.  

 

[13] Glaze, L. E. and T. P. Bonczar (2007). “Probation and Parole in the United States, 2006.” Bureau of Justice Statistics: http://www.ojp.usdoj.gov/bjs/pandp.htm.

 

[14] Shelden, Our Punitive Society.

 

[15] Lakoff, G. (1996).  Moral Politics: What Conservatives Know that Liberals Don’t.  Chicago: University of Chicago Press, p. 67.

 

[16]  Ibid, p. 68. 

 

[17]  Ibid, pp. 74-75.

[18]  Mauer, M. (2001).  “The Causes and Consequences of Prison Growth in the United States.” Punishment and Society 3: 9-20.

 

[19]  Herman, E.  (1997) “Privatization: Downsizing Government For Principle and Profit.” 

Dollars and Sense (March/April), pp. 10-12.

[20] A court case in Pennsylvania reflects this controversy.  See, for example: Goodstein, L. “A Decisive Election in a Town Roiled Over Intelligent Design.” New York Times, November 10, 2005; “Court rejects 'intelligent design' in science class.” http://www.cnn.com/2005/LAW/12/20/intelligent.design.ap/, December 23, 2005.

[21] Weber, M.  (1958). The Protestant Ethic and the Spirit of Capitalism. New York: Scribner.

[22] Robinson, B. A. (2000). “Public Beliefs About Evolution and Creation.” http://www.religioustolerance.org/ev_publi.htm.

[23]  Chomsky, N.  (1995). Keeping the Rabble in Line. Monroe, ME: Common Courage Press, pp. 125-126.

[24]  Zoll, R. (2005). “Poll: Religious Devotion High in U.S.” Los Angeles Times, June 6. http://wid.ap.org/polls/050606religion.html

[25] “The Religious and Other Beliefs of Americans 2003.” Harris Poll, February 26, 2003.

[26]  http://www.religioustolerance.org/ev_publi.htm

 

[27] “Robertson: U.S. should 'take out' Venezuela's Chavez.” CNN News, August 23, 2005
http://www.cnn.com/2005/US/08/23/robertson.chavez/index.html.

 

[28]  Wallsten, P. “Falwell Says Faithful Fear Clinton More Than Devil.” Los Angeles Times, September 24, 2006.

 

[29] Simon, S. “Grooming Politicians for Christ.” Los Angeles Times, August 23, 2005.

 

[30]  Religious leaders were largely behind the passage of California’s Proposition 8 to amend the state constitution to ban same-sex marriages.  The Mormon Church donated a large sum of money to this effort, thus raising the question of whether or not their tax-exempt status should be repealed. McKinley, J. and K. Johnson (2008). “Mormons Tipped Scale in Ban on Gay Marriage.” New York Times (November 15). http://www.nytimes.com/2008/11/15/us/politics/15marriage.html?_r=1&partner=rss&emc=rss&pagewanted=all&oref=slogin. See also: Riccardi, N. (2008). “Mormon Church feels the heat over Proposition 8.” Los Angeles Times, November 16.

http://www.latimes.com/news/nationworld/nation/la-na-mormons17-2008nov17,0,3771395.story.

 

[31] Ibid.

 

[32] “Strategizing a Christian Coup d’Etat,” Los Angeles Times, August 28, 2005.

[33]  Not all evangelicals hold such conservative views.  A story in the Los Angeles Times noted that a study by Baylor University and the Gallup organization “found that nearly 40% of evangelicals surveyed did not agree that the Iraq war was justified and that 38% no longer had a high level of trust in President Bush. Other research has shown evangelical diversity of views on such issues as tax policy, the death penalty and the role of women in society.”  Pinsky, M. “Meet the New Evangelicals.” Los Angeles Times, September 16, 2006.

[34] For an analysis of the influence of fundamental religious organizations influencing the election and politics in general see the following: Hitt, J. (2005). Off the Road: A Modern-Day Walk Down the Pilgrim's Route Into Spain. New York: Simon & Schuster; Wallis, J. (2005). “Immorality of the Bush Budget,” Alternet, March 9 http://www.alternet.org/story/21426/; Danforth, J. (2005). “In the Name of Politics,” Los Angeles Times, March 30; Rich, F. (2005). “The God Racket, From DeMille to DeLay.” New York Times, March 25; Sugg, J. “A Nation Under God.” Mother Jones November/December 2005; Prothero, S. “A Nation of Faith and Religious Illiterates.” Los Angeles Times, January 12, 2005; Simon, S. “Evangelicals Branch Out Politically.” Los Angeles Times, January 31, 2006; “Evangelical ads target Frist in Iowa.” August 26, 2005 (http://www.cnn.com/2005/POLITICS/08/25/evangelicals.frist.ap/index.html); Simon, S. “Pastors Guiding Voters to GOP.”  Los Angeles Times, October 1, 2006.

[35]  Baker, P.  “Bush Tells Group He Sees a ‘Third Awakening’.”  Washington Post, September 13, 2006.

 

[36] Quinney, R. (1970). The Social Reality of Crime.  Boston: Little, Brown, p. 61.

 

[37]  Ibid, pp. 62-70.  Many states, especially in the South, continued to be “dry” (various prohibitions against the consumption of alcohol) well into the 21st century, all heavily influenced by religion. As the author has found out, if you want to purchase wine and liquor in Utah you must go to a state operated liquor store.  Curiously, you can buy beer at any grocery store.

 

[38]  Hedges, C. (2006). American Fascists: the Christian Right and the War On America.  New York: Free Press.  These kinds of social movements prey upon those going through personal crises, especially young people.  In one chapter called “Conversion” Hedges describes a process not unlike what a pimp does to recruit young girls.  It is very much like a cult.  Hedges cites the following book that describes this process: Singer, M. T. (2003).  Cults in Our Midst. San Francisco: Jossey-Bass.

 

[39]  For more information about this movement see the following web sites: http://www.acquirethefire.com/; http://www.ron-luce.com/.

 

[40]  Hedges, American Fascists, p. 30.

 

[41] Doctor who performed abortions shot to death.”  CNN, June 2, 2009. http://www.cnn.com/2009/CRIME/05/31/kansas.doctor.killed/index.html.

 

 

[42]  Army of God’s web site is: http://www.armyofgod.com/.

 

[43] Ellerbe, H. (1995). The Dark Side of Christian History. San Rafael, CA: Morningstar Books, p. 1.  Subsequent information is taken from this source.

 

[44] Ecclesiastes 12:13.

 

[45] Luke 12:5.

 

[46] Ellerbe, p. 9.

 

[47]  Ibid, p. 5.

 

[48] Foucault, M.  (1979). Discipline and Punish: The Birth of the Prison. New York: Vintage; Welch, M. (1999).  Punishment in America.  Thousand Oaks, CA: Sage.

 

[49]  Mauer, “The Causes and Consequences of Prison Growth in the United States,” p. 16.

 

[50]  Ibid, p. 15.

[51] Grasmick, H.G., Morgan, C.S., Kennedy, M.B. (1992). “Support for corporal punishment in the schools.” Social Science Quarterly, 73 (1), 177-187.
[52] Grasmick, H.G., Bursik, R.J. Jr., & Kimpel, M. (1991). “Protestant fundamentalism and attitudes toward corporal punishment of children.” Violence and Victims, 6 (4), 283-298; see also: Ellison, C.G. & Sherkat, D.E. (1993). "Conservative Protestantism and support for corporal punishment," American Sociological Review, 58, 131-144.

[53] Killing Hope was originally published in 1986 and the latest revision was published in 1995 by Common Courage Press.  Rogue State was published by Common Courage Press in 2000.  The subtitle of the latter is A Guide to the World’s Only Superpower.

 

[54]  Johnson, C. (2001).  Blowback: The Costs and Consequences of American Empire.  New York: Metropolitan/Owl Books; Johnson, C. (2004).  Sorrows of Empire: Militarism, Secrecy, and the End of the Republic.  New York: Metropolitan Books; Chomsky, N. (1988). The Culture of Terrorism.  Boston: South End Press and Chomsky, N. (2000). Rogue States: The Rule of Force in World Affairs.  Boston: South End Press.  Dozens of other examples could be listed, including Parenti, M. (1995). Against Empire.  San Francisco: City Lights Press.  All such interventions have at least two things in common: they were against countries (mostly in the Third World) that had rich resources that American corporations wanted and they were defenseless against the might of the American military.  Most of these countries were in turn ruled with an iron fist by dictators more or less appointed by the American government.  William Blum convincingly argues that there have been four imperatives that drives American foreign policy: “1) making the world open and hospitable for – in current terminology – globalization, particularly American-based transnational corporations; 2) enhancing the financial statements of defense contractors at home who have contributed generously to members of Congress and residents of the White House; 3) preventing the rise of any society that might serve as a successful example of an alternative to the capitalist model; 4) extending political, economic, and military hegemony over as much of the globe as possible, to prevent the rise of any regional power that might challenge American supremacy, and to create a world order in America’s image, as befits the world’s only superpower.”  Rogue State, pp. 13-14.

 

[55]  Kinzer, S.  Overthrow: America’s Century of Regime Change from Hawaii to Iraq. New York: Times Books, Henry Holt and Company, 2006.

 

[56] Published in 2003 by Oxford University Press.

 

[57] Veteran criminologists will recognize this phrase from an article written by Harold Garfinkel way back in 1956.  See Garfinkel, H. (1956). “Conditions of Successful Degradation Ceremonies.”  American Sociological Review 61: 420-424.

[58] “Video Captures Police Handcuffing 5-Year-Old Girl After She Disrupted Kindergarten Class.”  Associated Press, April 23, 2005.

[59]  http://www.collegeslackers.com/forum/index.php?showtopic=7438

 

[60] http://www.viperalley.com/showflat.php/Cat/0/Board/offtopic/Number/511702

 

[61] Both of these statements are from the following web site.  Notice the misspelled words. http://hyperculture.typepad.com/sarah/2005/04/local_5yearold_.html.