Two cultures of punishment

[Abstract:]

As American criminal punishment has become more severe and European more mild, the two systems of punishment have come to represent different cultural possibilities for the modern West. Implicit in American and European punishment are two visions of wrongdoing and wrongdoers, of the terms of the social contract, and of the foundations of rights. American punishment pictures serious offenders as morally deformed people rather than ordinary people who have committed crimes. Their criminality is thus both immutable and devaluing, a feature of the actor rather than merely the act. The forms of punishment deployed in response do not just exact retribution or exert social control, they expressively deny offenders' claims to membership in the community and to the moral humanity in virtue of which a human being is rights bearing. European criminal punishment expressively denies that any offense marks the offender as a morally deformed person. Criminality is always mutable and never devaluing, actors are kept at a distance from their acts, and the forms of punishment affirm even the worst offenders' claims to social membership and rights. These conflicting moral visions are not only implicit or immanent in European and American punishment but likely played a role - albeit not an exclusive role - in causing European and American punishment to diverge. After an enormous mid-century crime wave, two very different groups took hold of America's politics of crime: moralists who viewed criminals as evil and instrumentalists who viewed criminals as dangerous beings. Different as the two groups were, they agreed on policy: for both, the crime problem was a criminals problem, and the solution was to get rid of criminals. Their alliance inscribed the ideas of immutability and devaluation into American law. Meanwhile, insulated by its relatively low crime rate, Europe's politics of crime were driven by reformers and officials who believed in the intrinsic goodness of all offenders or thought acting on such a belief to be required by human dignity. They inscribed into European law the idea that no crime reaches the roots of character. [...]

[From the conclusion:]

Some readers might find Europe's mildness in punishment intuitively appealing, but I must say, I do not. It strikes me as utopian in ways that are both dangerous and offensive. The root of the whole system is the minimization of wrongdoing - both individual responsibility for wrongdoing and the wrong itself - rising ultimately to the denial of the very existence of human evil. Everything can be forgiven. No one is just a bad person. That view of human beings is to my mind both extremely naïve as a claim about human moral psychology and imprudent as a claim about policy: it encourages excessively weak responses to bad actors. [...]

American criminal punishment is in my view right in thinking that, among criminal offenders, some are bad and even evil people who need to be controlled and who warrant severe punishment. But the most striking feature of American punishment is how wildly reckless the country is about whom it puts in that category. America takes acts that could be grounded in deprivation, or outbursts of passion, or impulsivity, or desperation, or dissipation, or indeed a ruined character; lumps the offenders together; and treats them as if they were all the worst of the worst. In doing so, the country throws away tens or hundreds of thousands of lives that could be salvaged. As Europe has lost the concept of evil, America seems to have lost the concept of error. It is often said that American criminal punishment is too harsh. I think that charge, while true, is insufficiently specific. American criminal punishment is not too harsh because it reserves the ability to severely punish some people but because it metes out severe punishment to far, far too many people. American criminal punishment's essential moral failure is its recklessness about when and against whom to be harsh. There is in that reckless harshness something hardhearted and callous in a way that dishonors the entire tradition of Western democracy. To this, it must be added that American criminal punishment does not seem to work. We had a crime crisis; we created a punishment crisis. The key to understanding the punishment crisis lies in the expressive content of American punishment, in the immanent ideas of banishment and devaluation with which this Article has been concerned. Our criminal system says to serious offenders, "You are forever outside and beneath this community. You are ruined people." A society can afford to say that to a few people. It cannot afford to say that to large portions of the population. Punishment in America has essentially gotten some dangerous people off the streets at the cost of creating a permanent underclass and a massive breakdown in social solidarity. There is tragedy and irony in this. Crime is supposed to be antisocial; punishment should be prosocial. But American punishment has morphed into its own enemy: it has become antisocial itself. What we need is a punishment system that is European with respect to the vast majority of offenders and American with respect to the sliver remaining. Lacking that third option, forced to choose between European naiveté and American brutality, I would take the naiveté. But neither deserves full admiration. A plague on both their houses.

source: Article 'Two Cultures of Punishment' by Joshua Kleinfeld (Associate Professor of Law and Philosophy (by courtesy), Northwestern University); www.stanfordlawreview.org/wp-content/uploads/sites/3/2016/06/68_Kleinfeld_-_Stan._L._Rev._933.pdf; Stanford Law Review, Volume 68; May 2016