Response to Garland
| Date | 01 October 2005 |
| Published date | 01 October 2005 |
| DOI | 10.1177/1462474505057115 |
| Author | James Q. Whitman |
| Subject Matter | Articles |
04_whitman_057115 (jk-t) 2/9/05 9:11 am Page 389
Copyright © SAGE Publications
London, Thousand Oaks, CA
and New Delhi.
www.sagepublications.com
1462-4745; Vol 7(4): 389–396
DOI: 10.1177/1462474505057115
PUNISHMENT
& SOCIETY
Response to Garland
JAMES Q. WHITMAN
Yale University, USA
My book is not about capital punishment in contemporary America. I talk a great deal
about historic forms of capital punishment; and I certainly do mention the fact that
the death penalty is sometimes imposed in the USA today. Nevertheless, when it comes
to contemporary American law, I focus overwhelmingly on other punishment practices,
as David Garland half acknowledges at a few points in his thoughtful critique. There
is a reason for this. The social dynamic of capital punishment is quite distinctive. Death
is associated with peculiar anxieties, and triggers peculiar and complex religious
responses. There is good reason to expect the death penalty to develop somewhat differ-
ently from other forms of punishment, as I said (perhaps too cryptically) in my book,1
and so I deliberately chose to ignore most of the literature on American capital punish-
ment in doing my study. My book is mostly about other matters: practices of impris-
onment, concepts of criminal liability, the law of non-capital sentencing. It is about the
broad array of workaday legal doctrines that make life so much harsher for ordinary
American offenders than it is for their German or French counterparts.
Nevertheless, many of Garland’s objections certainly do apply to the claims that I
did make, and I am glad to have the opportunity to respond.
My book offered the following arguments. American punishment is far harsher than
punishment in France and Germany, the dominant legal cultures of northern continen-
tal Europe.2 No sociology of ‘modernity’ can provide any explanation for this striking,
and often deeply disturbing, divergence. What can explain it? There are some possible
answers whose importance my book does not deny – notably answers having to do with
religious traditions and race relations. Leaving those possible explanations aside, though,
my book explores two others. First, American punishment is more degrading, in ways
that reflect a much broader American pattern: American law generally shows a compar-
ative lack of concern for personal dignity. This is as true of the law of tort as it is of the
law of punishment. Second, American law is unmistakably the product of a weaker state
tradition. In particular, where criminal justice remains largely the province of trained
bureaucrats in continental Europe, it has become highly politicized in the United States.
The book is devoted to investigating the significance and history of these differences.
With regard to degradation in punishment, it offers the following argument. Patterns
of degradation are fundamental to the working of punishment, in ways that have been
comparatively neglected. Punishment works largely through degrading the person
punished. Indeed, a disturbing urge toward degradation is always present whenever
389
04_whitman_057115 (jk-t) 2/9/05 9:11 am Page 390
PUNISHMENT AND SOCIETY 7(4)
humans punish, as the recent Abu Ghraib scandal suggested all too vividly (Whitman,
2004a). Even doctrines of criminal liability are deeply affected by the prevailing concepts
of social status in a given society. Patterns of degradation in a given society are also
closely linked to the measure of harshness in punishment: a society that regards its
offenders as social inferiors tends to punish them harshly. Indeed, harshness in punish-
ment is always partly driven by the gleeful pleasure that humans so often take in degrad-
ing each other. The patterns of degradation in a given society, finally, are frequently
associated with that society’s historical traditions of social status: when humans degrade
each other, they often do it by adopting the vocabulary and behavioral patterns that are
customarily associated with high and low status in their society.
My book focuses especially on the nexus between punishment practices and historic
traditions of social status. As I try to show, this is a nexus that can be traced with surpris-
ing clarity in the histories of the United States and continental Europe. Over the last
couple of centuries, historically high-status forms of punishment have been generalized
on the Continent. We can see this most dramatically in practices of imprisonment:
comfortable forms of confinement that were once restricted to aristocrats have today
become the lot of every inmate in both Germany and France, at least in theory. In the
United States, by contrast, historically high-status forms of punishment have generally
been abolished, and patterns of degradation have established themselves powerfully.
Continental Europe has been characterized by a leveling up, a tendency to extend
historical high-status treatment to the entire population; while the United States has
been characterized by a leveling down, a tendency to abolish historically high-status
treatment.
With regard to the traditions of state power, the book aims to show in some detail
why stronger states can, paradoxically, sometimes produce milder punishments. My
argument touches on several aspects of the application and ideological justification of
state power, including the exercise of mercy and the culture of bureaucracy. The book
does not claim to have uncovered any general laws of penal evolution, or anything of
the sort. On the contrary: I am quite careful to state that the study is narrowly limited
to three societies. The book claims only that patterns of status relations and...
Copyright © SAGE Publications
London, Thousand Oaks, CA
and New Delhi.
www.sagepublications.com
1462-4745; Vol 7(4): 389–396
DOI: 10.1177/1462474505057115
PUNISHMENT
& SOCIETY
Response to Garland
JAMES Q. WHITMAN
Yale University, USA
My book is not about capital punishment in contemporary America. I talk a great deal
about historic forms of capital punishment; and I certainly do mention the fact that
the death penalty is sometimes imposed in the USA today. Nevertheless, when it comes
to contemporary American law, I focus overwhelmingly on other punishment practices,
as David Garland half acknowledges at a few points in his thoughtful critique. There
is a reason for this. The social dynamic of capital punishment is quite distinctive. Death
is associated with peculiar anxieties, and triggers peculiar and complex religious
responses. There is good reason to expect the death penalty to develop somewhat differ-
ently from other forms of punishment, as I said (perhaps too cryptically) in my book,1
and so I deliberately chose to ignore most of the literature on American capital punish-
ment in doing my study. My book is mostly about other matters: practices of impris-
onment, concepts of criminal liability, the law of non-capital sentencing. It is about the
broad array of workaday legal doctrines that make life so much harsher for ordinary
American offenders than it is for their German or French counterparts.
Nevertheless, many of Garland’s objections certainly do apply to the claims that I
did make, and I am glad to have the opportunity to respond.
My book offered the following arguments. American punishment is far harsher than
punishment in France and Germany, the dominant legal cultures of northern continen-
tal Europe.2 No sociology of ‘modernity’ can provide any explanation for this striking,
and often deeply disturbing, divergence. What can explain it? There are some possible
answers whose importance my book does not deny – notably answers having to do with
religious traditions and race relations. Leaving those possible explanations aside, though,
my book explores two others. First, American punishment is more degrading, in ways
that reflect a much broader American pattern: American law generally shows a compar-
ative lack of concern for personal dignity. This is as true of the law of tort as it is of the
law of punishment. Second, American law is unmistakably the product of a weaker state
tradition. In particular, where criminal justice remains largely the province of trained
bureaucrats in continental Europe, it has become highly politicized in the United States.
The book is devoted to investigating the significance and history of these differences.
With regard to degradation in punishment, it offers the following argument. Patterns
of degradation are fundamental to the working of punishment, in ways that have been
comparatively neglected. Punishment works largely through degrading the person
punished. Indeed, a disturbing urge toward degradation is always present whenever
389
04_whitman_057115 (jk-t) 2/9/05 9:11 am Page 390
PUNISHMENT AND SOCIETY 7(4)
humans punish, as the recent Abu Ghraib scandal suggested all too vividly (Whitman,
2004a). Even doctrines of criminal liability are deeply affected by the prevailing concepts
of social status in a given society. Patterns of degradation in a given society are also
closely linked to the measure of harshness in punishment: a society that regards its
offenders as social inferiors tends to punish them harshly. Indeed, harshness in punish-
ment is always partly driven by the gleeful pleasure that humans so often take in degrad-
ing each other. The patterns of degradation in a given society, finally, are frequently
associated with that society’s historical traditions of social status: when humans degrade
each other, they often do it by adopting the vocabulary and behavioral patterns that are
customarily associated with high and low status in their society.
My book focuses especially on the nexus between punishment practices and historic
traditions of social status. As I try to show, this is a nexus that can be traced with surpris-
ing clarity in the histories of the United States and continental Europe. Over the last
couple of centuries, historically high-status forms of punishment have been generalized
on the Continent. We can see this most dramatically in practices of imprisonment:
comfortable forms of confinement that were once restricted to aristocrats have today
become the lot of every inmate in both Germany and France, at least in theory. In the
United States, by contrast, historically high-status forms of punishment have generally
been abolished, and patterns of degradation have established themselves powerfully.
Continental Europe has been characterized by a leveling up, a tendency to extend
historical high-status treatment to the entire population; while the United States has
been characterized by a leveling down, a tendency to abolish historically high-status
treatment.
With regard to the traditions of state power, the book aims to show in some detail
why stronger states can, paradoxically, sometimes produce milder punishments. My
argument touches on several aspects of the application and ideological justification of
state power, including the exercise of mercy and the culture of bureaucracy. The book
does not claim to have uncovered any general laws of penal evolution, or anything of
the sort. On the contrary: I am quite careful to state that the study is narrowly limited
to three societies. The book claims only that patterns of status relations and...
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