Daniel Statman


James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe. New York: Oxford University Press, 2003. Pp. 311. $40.

America perceives itself and is perceived by others as part of the liberal West. Yet, at least in the area of punishment, argues James Whitman from the Yale Law School, America no longer belongs in this liberal company. Because of its "tough-on-crime" ideology and practice in the last twentyfive years, America has edged its way into the embarrassing company of countries like Iran, Nigeria, China, and even Nazi Germany. The comparison with Nazism might sound to the reader as exaggerated, yet, argues Whitman, one cannot ignore the analogy between the Nazi turn towards retributivism and the current direction in America. At least with regard to ordinary criminals (unlike political dissidents, Jews etc.), "there was a shade more of a drive toward dignity, and even mildness, in punishment in Nazi Germany, than there is in America today"!'

I start with this provocative claim to give the readers a sense of the depth of the divide between America and Europe in their attitudes towards punishment. The difference is expressed not only in the American attitude towards capital punishment, an issue with which everybody is familiar, and in the new "shame sanctions," penalties which would be unthinkable in Europe. Harshness of legal systems can express itself in various forms and on different levels and, on Whitman's view, America's legal system is harsher than Europe's in all respects: America criminalizes a wider variety of conduct than Europe does (especially in the realm of commerce and sex); it subjects more classes of people to potential criminal liability (especially minors); the punishments it imposes are far less flexible and less individualized; its punishments are far more severe (American convicts serve sentences roughly five to ten times as long as their French counterparts); America is far less sensitive than Europe to the dignitary needs of inmates (e.g. privacy); and finally, the granting of pardons is much less common in America than in Europe.