Two cultures of punishment
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. * Associate Professor of Law and Philosophy (by courtesy), Northwestern University. My thanks to James Q. Whitman, whose work on comparative punishment inspired this Article, and to skeptical readers of a previous version of this Article, now abandoned, whose questions led me to a different thesis than the one I initially believed and a far better argument than the one I initially constructed. Thanks also to the Normative Orders Excellence Cluster and the Justitia Amplificata Centre for Advanced Studies, whose support during several years of life and study in Germany immeasurably enriched my understanding of European law and culture. Two Cultures of Punishment 68 STAN. L. REV. 933 (2016) 934 Table of