Academic journal article Stanford Law Review

Two Cultures of Punishment

Academic journal article Stanford Law Review

Two Cultures of Punishment

Article excerpt

Table of Contents  Introduction: The Great Divergence I.  Methodological Premises II. Immutable Criminality and Social Banishment     A. Four Formulas of Modern Banishment         1. Life in prison without parole         2. Stage-of-life sentences         3. Analogues to civil death         4. Capital punishment      B. Banishment and Recidivism III. Devaluation and Rights Forfeiture      A. Capital Punishment      B. Prison Conditions      C. Human Dignity and Democratic Dignity IV.  Evil and Dangerousness      A. Moralism and the Concept of Evil      B. Instrumentalism and the Concept of a Dangerous Being  V.  Causes: A Crime Wave and a Conflict of Visions      A. The Question of Causation      B. A Hurricane of Crime      C. A Moralistic Response      D. An Instrumental Response      E. Churches and Professionals in Europe Conclusion 

Introduction: The Great Divergence

For most of its history, criminal punishment in the United States was milder than punishment in continental Europe--and therefore, it was thought, more humane than Europe's, more enlightened, and more democratic. To American eyes in the Revolutionary era, European criminal law was "stain[ed]" and "disgraced" by its fixation on torture--a fixation that dated back to medieval times and would not be fully abandoned until the nineteenth century. (1) Blackstone captured the image of European punishment at the time: "[I]t will afford pleasure to an English reader, and do honour to the English law, to compare [English punishments] with that shocking apparatus of death and torment, to be met with in the criminal codes of almost every other nation in Europe." (2) Immediately after the American Revolution and well into the nineteenth century, the United States undertook a wave of "republican" criminal law reforms aimed at abolishing or limiting capital punishment, abolishing corporal punishment and mutilation, making prisons places of rehabilitative penance, and codifying the common law in such a way as to limit pockets of harshness, arbitrariness, or undemocratic control. (3)

There was a political philosophy connected to this: it was a standard tenet of Enlightenment belief that democracy and penal mildness were linked, as Hobbes, Locke, Montesquieu, Rousseau, Beccaria, and Tocqueville all had argued. (4) Enlightenment thinkers thought that democracies would tend to punish mildly because equal, rights-bearing citizens would object to the autocratic character of harsh punishment: "Severity in penalties suits despotic government, whose principle is terror," Montesquieu wrote. (5) They argued that a government grounded in a social contract, although it would defend itself, would never do so with cruelty or wantonness. Locke argued, for example (there are many examples), that the right to punish is "no absolute or arbitrary power to use a criminal," but only to secure natural right and positive law against someone who "declares himself to live by another rule." (6) Tocqueville added a psychological dimension: that when people are organized into castes, as in feudal and aristocratic conditions, empathy stops at caste lines, while equality and democracy foster a "general compassion for all members of the human species." (7) Tocqueville suggested as well that democratic citizens of the modern world simply feel differently about suffering, about the infliction of pain on their fellow creatures, than people of earlier eras, and he wonders about it: "Why is that? Are we more sensitive than our fathers? I do not know, but of one thing I am certain: our sensibility extends to a wider range of objects." (8) Tocqueville was not wrong about that. A deep change in attitudes to suffering and violence--a softening, a sentimental humanism more vital and basic than any articulate position--is among the Enlightenment's most mysterious and important legacies and one linked to democratic forms of life and government. (9) There was good reason to predict that democracy would pull penal mildness behind it. …

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