Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe

by James Q. Whitman

Criminal punishment in America is harsh and degrading--more so than anywhere else in the liberal west. Executions and long prison terms are commonplace in America. Countries like France and Germany, by contrast, are systematically mild. European offenders are rarely sent to prison, and when they are, they serve far shorter terms than their American counterparts. Why is America so comparatively harsh? In this novel work of comparative legal history, James Whitman argues that the answer lies in America's triumphant embrace of a non-hierarchical social system and distrust of state power which have contributed to a law of punishment that is more willing to degrade offenders.

Genres: Law, Nonfiction, History, Crime

336 pages, Paperback

First published March 27, 2003

About the author

James Q. Whitman is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School. His books include Harsh Justice, The Origins of Reasonable Doubt, and The Verdict of Battle. He lives in New York City.

Reviews

[Conor Ahern · Rating 2 out of 5]

This dryasdust work, written by an eminent Yale Law professor, has an interesting premise: because the United States, unlike Continental Europe (as exemplified by the modern states of Germany and France), never had an aristocracy and was founded on Republican ideals of egalitarianism, the former and the latter developed radically different approaches to dignity in imprisonment. Essentially, the United States never had tiered punishments, and things that tended to be high-status crimes in Europe (political dissent, bankruptcy) were not even illegal in the United States. A modernizing impulse on mainland Europe led to a gradual equalization of punishments, first with the extension of the guillotine and beheading (in the West, beheading was the punishment meted out to the elite, while hanging was a form of debasement and defilement left to the lowborn), and then with an extension of perquisites formerly only enjoyed by the rich and well connected. In America, however, our general allergy to aristocracy retarded the modernizing impulse, and then for a variety of reasons we stuck with an egalitarianism of low punishment rather than embracing a more clement approach for all.

A few gripes: Whitman probably doesn't get to his main points until around page 170. In a normal book this wouldn't be too much of a burden, but this book was only 210 pages, and it took me weeks to read, it was that dense and dry, so I felt that it was a bit unnecessary. Also, perhaps because it is focused on almost to the exclusion of all other potentially explanatory phenomena (including this book's thesis!), Whitman really fails to address the role of race and slavery in his assessment of America's decision not to "level up" status punishment instead of our decision to leave degradation as the common trait among all our forms of punishment. Finally: man this book needed an editor; so many typos and mistakes.

[Devon]

i think i finished this on the 24th? could have been the 23rd
ill write something realer after we discuss this text in class but
the nazi prison comparison was certainly interesting

[Trashy McRubbish · Rating 3 out of 5]

Whitman presents a compelling argument on the nature, origins, and prospects of the American penal system. It's an exceedingly well-conceived case and deserves to be more widely pondered.

Sadly, it's also unreasonably poorly written. I genuinely checked multiple times to make sure it was the actual book I was looking for, and that I hadn't been misled as to the publisher. Then I checked if the book had been translated from a foreign language. It had not. I actually cannot get my head around how it made it to print with so many grammatical errors. Those errors might seem trivial but for the wall-of-text formatting and almost no chapter breaks.

I genuinely don't want this to discourage anyone from reading this book -- it is a compelling argument from someone that has clearly researched this topic exhaustively. Just be ready for a long slough through it.

[The American Conservative]

'Professor Whitman does not dwell much on the differences in levels of crime and disorder in the three countries he studies, though he does mention sniffily that France recently gave birth to a democratic “law-and-order movement,” which suggests that there is some discontent among the citizenry despite the modish compassion of their political class. Recent anecdotal evidence from the former East Germany suggests that the Federal Republic, too, is no longer a paradise of order despite the dignity it affords to its prisoners. Yet every chapter of this book breathes disapproval of American harshness and a yearning for European continental mildness.'

Read the full review, "Crime & Punishment," on our website:
http://www.theamericanconservative.co...

[Ietrio · Rating 1 out of 5]

Academic paper pushers usually get so self absorbed they start to see themselves as some sort of demi gods. And the more ignorant they are the more skillful are at captivating the attention of the uninformed.

Europe is somehow larger than France or Germany. Not that Bonaparte or Bismark would have disagreed with this bureaucrat, but a lot of people seem to see things more nuanced.

As for his comprehension of the States, well, what is the temperature now in USA? Many places with many views and many customs. Still, simple minds need simple realities, so Whitman knows "this" is American and "that" is Europe. Damn the rest of the world where the White folks are few!

[Brian · Rating 3 out of 5]

Whitman has an interesting take on why we differ from Europeans in our willingness to imprison people for so long, for such a wide range of offenses. His answer, depressingly enough, is American egalitarianism: we "leveled down," purging our society of "aristocratic" mildness, while the Europeans "leveled up," extending mild punishment to all sectors of society. American harshness has deep roots, in Whitman's view, so we may be stuck with our current prison crisis for a long time.

NB: the editing is sloppy, which is distracting at times.

[Eliane · Rating 3 out of 5]

Why has the incarceration rate in the United States in 2006 reached 750 per 100 000 inhabitants when the average rate in Europe is 90 ? James Whitman offers some interesting theories to explain the phenomenon, some more convincing than others. He believes that harshness is ingrained in American culture. Highly debatable. This book should be read at the same time as Popular Justice, A History of American Criminal Justice, by Samuel Walker, which puts things in historical perspective.

[Steven · Rating 5 out of 5]

Outstanding.