Stanford Law Review Volume 68 May 2016 ARTICLE Two Cultures of Punishment Joshua Kleinfeld* Abstract. 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. 933 Two Cultures of Punishment 68 STAN. L. REV. 933 (2016) Table of Contents Introduction: The Great Divergence ........................................................................................................ 935 I. Methodological Premises ...................................................................................................................... 944 II. Immutable Criminality and Social Banishment ...................................................................... 948 A. Four Formulas of Modern Banishment ............................................................................. 948 1. Life in prison without parole ......................................................................................... 950 2. Stage-of-life sentences ........................................................................................................ 958 3. Analogues to civil death .................................................................................................... 965 4. Capital punishment ............................................................................................................. 971 B. Banishment and Recidivism ..................................................................................................... 974 III. Devaluation and Rights Forfeiture ................................................................................................. 984 A. Capital Punishment ....................................................................................................................... 986 B. Prison Conditions ........................................................................................................................... 996 C. Human Dignity and Democratic Dignity ....................................................................... 1003 IV. Evil and Dangerousness ....................................................................................................................... 1006 A. Moralism and the Concept of Evil ...................................................................................... 1008 B. Instrumentalism and the Concept of a Dangerous Being ....................................... 1013 V. Causes: A Crime Wave and a Conflict of Visions ................................................................. 1015 A. The Question of Causation ...................................................................................................... 1017 B. A Hurricane of Crime ................................................................................................................. 1020 C. A Moralistic Response ............................................................................................................... 1026 D. An Instrumental Response ...................................................................................................... 1030 E. Churches and Professionals in Europe.............................................................................. 1032 Conclusion ............................................................................................................................................................. 1034 934 Two Cultures of Punishment 68 STAN. L. REV. 933 (2016) 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 1. JOHN H. LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 340-42 (2003). In fact, European torture had more to do with criminal procedure than criminal punishment. Id. at 339-41. 2. 4 WILLIAM BLACKSTONE, COMMENTARIES *370-71. 3. See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 63-82 (1993) (describing the early American ideal of “republican criminal justice” (emphasis omitted)); see also DAVID GARLAND, PECULIAR INSTITUTION: AMERICA’S DEATH PENALTY IN AN AGE OF ABOLITION 36-37 (2010) (describing the largely successful effort to abolish the death penalty in Michigan, Rhode Island, and Wisconsin in the 1840s and 1850s); JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE 171-73 (2003) (describing the “revolutionary history of American punishment that bridges the decades of the 1790s and the decades of the 1830s”). 4. See Matthew A. Pauley, The Jurisprudence of Crime and Punishment from Plato to Hegel, 39 AM. J. JURIS. 97, 120-31 (1994). 5. MONTESQUIEU, THE SPIRIT OF THE LAWS bk. VI, ch. IX, at 82 (Anne M. Cohler et al. eds. & trans., Cambridge Univ. Press 1989) (1748). 935 Two Cultures of Punishment 68 STAN. L. REV. 933 (2016) 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