Patterns of Punitiveness

Published date01 March 2006
DOIhttp://doi.org/10.1111/j.1468-2230.2006.00584.x
Date01 March 2006
REVIEWARTICLE
Patterns of Punitiveness
David Nelken
n
JamesWhitman,Harsh Justice: Crimin al Punishment and the Widening Divide
between America and Europe,Oxford: Oxford University Press, 2003, 311pp, pb
d10.9 9.
INTRODUCTION
As has recently been noted, ‘punishment and crime have little to do with each
other. That observation is a commonplace for most European criminologists,
some North American criminologists, and very few politicians and ordinaryciti-
zens anywhere.
1
But if crime and punishment each go their ownway, both illegi-
timate andlegitimated violence will require explanation. In fact there are separate
disciplines ^ criminology and penology ^ that seek to unravel the relevant social
factors at work in each case.The debateover how bestto explain the current high
level of American punitiveness as compared to that in other modern Western
societies provides a good illustration of this point.
2
The level of crime in the
USA, whilst higher for some crimes of violence, is within the norm for most
property crimes, and even relatively low outside the main cities. So crime itself
cannot makesense of this pattern of punitive behaviour. But the search fora more
satisfactory explanation raises a number of trickyquestions about therelationship
between punishment, society and culture.
A good example of a sophisticated approach to these questions is represented
by James Whitmans Harsh Jus tice, which is all the morevaluable becauseit o¡ers a
rare example of a detailedcomparison of theUSAwith Continental Europe.
3
The
book will become a source of scholarly reference for writers across a range of
¢elds as di¡erent as legal history and the study of sentencing. Interestingly,Whit-
man writes neither as a criminologist nor as a sociologist. His background is that
of a distinguishedYale historian and comparativist who specialises in highly ori-
ginal excursions into the di¡erent cultural sensibilities that are re£ected in and
n
University of Macerata, Italy; Research Professor of Law, Universityof Wales, Cardi¡; Honourary
Professor of Law, LSE.
1 M. Tonry,‘Whyare Europe’s Crime Rates Falling?’ ESRCNewsletter,July2005,8.
2 Concern about current trends to greater harshness in punitiveness is characteristic of academic
commentary in manyWestern societies, see J. Pratt et al, TheNew Punitiveness:Trends,Theories, Per-
spectives (Cullompton;Willan, 2005).There is also evidence of a worldwiderise in the use of prison
amongst societies at variouslevels of economic development, see M. Pavarini,‘Processi di ricarcer-
izzazione nel mondo (ovverodel dominio di un certo ‘puntodi vista’)’ (2004) 2^3 QuestioneGiusti-
zia 415, who argues that prison rates are not correlated with levels of crime. The American case,
however, stands out as extreme.
3 J.Q.Whitman, HarshJustice: Criminal Punishmentand theWideningDivideBetween Americanand Europe
(Oxford:Oxford University Press,20 03). References to‘Whitman’are to this work.
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(2) MLR262^277
reproduced by legal practices.
4
In Harsh Justic e he spends little time in considering
the level of crime as a plausible explanation of the high level of punishment in
America as compared to that in France and Germany. Instead, his interpretation
of the sources of relative harshness in criminal justice follows on from earlier
work on long-standing di¡erences between the meaning of honour and respect
in the USA and Continental Europe as they show themselves in libel law and
other types of private law. He o¡ers us a fascinating, if controversial, historical
account that focuses on the social, political and cultural causes and conditions of
contrasting sensibilities towards punishment.
A book with a sub-title that speaks of ‘the widening divide between America
and Europe’ is highly topical given the explosion of the US prison population as
well as the expansion of American military order-maintenance abroad. But, of
course, there is no lack of other studies that also seek to explain the ugliness, futi-
lity, as well as the racism involved in the American response to crime.What may
be considered the more mainstream approach can be found in the work of Lois
Wacquant. In a recent paper, for example, Wacquant identi¢es three main causes
of currentAmerican practices of punishment.
5
Thrsthedescribesasthe‘string
of internal changes in the judicial systemtied to the decline of the ‘‘ideal of reha-
bilitation’’ and a correlative hardening in the mode of sentencing’.The second is
‘the mutation in the political and media uses of criminality in response to the
protest movements of the1960s’.The third factor is ‘theway that the penal system
has in part replaced and in part supplemented the ghetto as a mechanism of racial
control’. In Wacquant’s view, ‘[t]he over-development of the penal sector is in
e¡ect the necessary counterpart tothe decline of the welfare state during this per-
iod.What has changed is not the frequency and character of criminal activity but
the attitude of the authorities faced with delinquency and its principal source,
urban poverty concentrated in the big ci ties.
6
Wacquant, likemost other commentators on imprisonment in the USA,is try-
ing to explain the explosion in its penal archipelago over the last twenty-¢ve
years. His question is why have things changed in the US with respect to the pre-
vious period.Whitman, by contrast, argues that current patternsbuild on funda-
mental di¡erences between the USA and Europe that can be traced back to the
very beginnings of the American republic. For him, the American revolution
represented a condemnation of European forms of government and society, a
refusal that still in£uences behaviour today. His argument, in a nutshell, is that,
in Europe,‘low status’punishments ^ ie the cruel punishmentsreserved for people
of low social standing ^ graduallycame to be rejected because they were seen as
survivals of an inegalitarian past. Inthe USA, on the other hand, status di¡erence
was attacked head on, and so punishmentscan be humiliating withoutreminding
Americans ofold status hierarchies, or thinking of this as inegalitarian. It follows
4 See J. Q.Whitman, ‘Enforcing Civility and Respect:Three Societies’ (200 0) 109 Yale Law Journal
1279. See also J. Q. Whitman, ‘The TwoWestern Cultures of Privacy: Dignity versus Liberty’
(2004) 113 Yale LawJournal1151.
5 L.Wacquant,‘Crime and Punishment in America from Nixon to Clinton’, in Pratt, n 2 above.
6ibid 15^19.
David Nelken
263rThe Modern LawReview Limited 2006

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