Where European and American Punishment Practices Diverged

In the U.S., there are over 200,000 people serving life sentences or life-equivalents. Compare Germany, where fewer than 100 people in prison are serving more than 15 years. 

How have we ended up in such a different place than our counterparts in Europe? To answer that, I’ve been reading The Two Cultures of Punishment by Joshua Kleinfeld, about different punishment practices in the U.S. and Europe. Some excerpts: 

By the middle of the twentieth century, a mild, rehabilitative, and individualizing penal philosophy prevailed in both Europe and America. From the late 1920s through the early 1970s, the incarceration rate in the United States was low, roughly stable, and roughly equal to what it is in Germany, France, Italy, and Spain today…. But then something changed—changed in quite extreme and quite recent ways. Starting in the 1970s and picking up speed in the 1980s, America adopted more and more severe criminal penalties as Europe adopted more and more mild ones, until today an enormous and startling chasm has opened up between the two. 

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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. 

In other words: in Europe, if you commit a crime, you did a bad thing. In the United States, if you committed a crime, you are revealed to be a bad person. The article, which I recommend reading, goes on to investigate the basis of dignity in these two cultures. In Europe, the grounding of dignity is being human - if you’re a human being, congratulations, you have dignity. In the U.S., according to Kleinfeld, the basis of dignity is “democratic dignity,” which he defines as “the quality of being a person who behaves decently enough and sufficiently abides by the terms of the social contract to participate in democratic community with others.” As such, it’s something that can be taken away, or which one can lose by one’s actions.   

Why did this frame emerge in the U.S.? In my view, the answer is clearly slavery. There are numerous things to read on this topic; a good place to start is Bryan Stevenson’s essay on mass incarceration in the 1619 Project. Here’s an excerpt:

Soon American slavery matured into a perverse regime that denied the humanity of black people while still criminalizing their actions. As the Supreme Court of Alabama explained in 1861, enslaved black people were “capable of committing crimes,” and in that capacity were “regarded as persons” — but in most every other sense they were “incapable of performing civil acts” and considered “things, not persons.”

Maintaining a large category of people as “non persons” means that human dignity cannot rest on the fact of being a human person. And in the U.S., the criminal justice system served the function of stripping dignity, justifying a person’s “social death.” Quoting Bryan Stevenson’s 1619 essay again:

The 13th Amendment is credited with ending slavery, but it stopped short of that: It made an exception for those convicted of crimes. After emancipation, black people, once seen as less than fully human “slaves,” were seen as less than fully human “criminals.” The provisional governor of South Carolina declared in 1865 that they had to be “restrained from theft, idleness, vagrancy and crime.” Laws governing slavery were replaced with Black Codes governing free black people — making the criminal-justice system central to new strategies of racial control.

So why doesn’t the prison system massively expand immediately after the civil war? I haven’t seen that exact question posed by scholars, but there have been numerous books and articles looking at the trajectory of slavery to mass incarcreation from many angles. Here’s a very truncated narrative: there were other legalized systems of social control, such as Jim Crow. The civil rights movement and passage of civil rights laws in the 1960s weakened or destroyed those other systems.  Fueled by the political interests of Nixon and many other politicians, the criminal justice system adapted to the new situation, growing massively to absorb millions of people who previously had been denied dignity and citizenship by other means. This is a contentious history, and the main point of my post isn’t to persuade you of the mechanisms that translated slavery to mass incarceration, but rather to give some context for the split between the U.S. and Europe on the question of dignity. 

The viewpoint that people with criminal convictions, and especially people in jail and prison, are morally deformed and unworthy of dignified treatment or concern is used to justify all kinds of horrible treatment. It also contributes to a pernicious policy of valuing the lives of tens of thousands of people less than a person on the outside who might hypothetically suffer a crime if, for example, a person is released on parole. (Of course, crimes are committed in prison all the time, often by guards against prisoners, but those crimes are not counted as important in this calculus). If we valued the lives of people with convictions and people in jail and prison and treated them as if they had full dignity, how much would change about our systems of justice? A lot!