Part of what sets Europe apart in this respect is the degree to which its criminal justice system operates free from democratic input. The United States is more or less the only advanced democracy that elects its prosecutors. As the legal scholar William Stuntz points out, those electorates often draw from an entire county, which includes urban and suburban areas, so that predominantly white, middle-class-to-affluent suburban voters are choosing who will prosecute the largely poor black people arrested by the police. The idea of electing prosecutors, as we do in the United States, strikes most European jurists as sheer madness. In almost all cases, the continental criminal justice system is far more bureaucratic, more insulated from electoral politics than our own.
But there’s a philosophical difference, too. In 2003 law professor James Whitman laid out an argument for why the U.S. criminal justice system compares so poorly to those of continental Europe—France and Germany specifically. For most of his analysis, Whitman explicitly puts race to one side (about which more in a moment), but in looking at the development of the continental system versus the U.S. system, he comes to a surprising and compelling conclusion: that it is the strong anti-aristocratic strain in the American legal tradition that has made our punishment system so remorseless and harsh.
In the German and French systems, he explains, punishment long existed along two separate tracks: degradation and humiliation for low-status prisoners and relative comfort and hospitality for high-status ones. The United States, on the other hand, maintained a more egalitarian ethos of punishment (for white people, anyway). Since the American Revolution, we viewed punishment as a great equalizer; no special kinds of punishment was reserved for lords and for peasants. Thus the system of punishment that developed found equality in a race to the bottom: everyone got punished harshly as an expression of a core belief that no man stands above another.
In Europe, as it democratized over time, the move was to push everyone into the category once reserved for the nobles: the sphere of humane treatment was widened until it included everyone. “Over the course of the last two centuries,” Whitman writes, “in both Germany and France, and indeed throughout the continent of Europe, the high-status punishments have slowly driven the low-status punishments out. . . . These countries are the scene of a leveling-up egalitarianism—an egalitarianism whose aim is to raise every member of society up in social status.”
The United States, which never had a separate, formal aristocratic form of justice and punishment, one embedded in deference to the perpetrator’s core humanity, has, instead, been subject to the opposite push:
Where nineteenth-century continental Europeans slowly began to generalize high-status treatment, nineteenth-century Americans moved strongly to abolish high-status treatment. From a very early date, Americans showed instead, at least sporadically, a typical tendency to generalize norms of low-status treatment—to level down.
Whitman traces the historical currents that produced these twin impulses, but part of what made “leveling up” possible on the continent was a solidarity that flourished in postwar Europe, binding societies with a shared ethnicity and language. The person you may feel an impulse to degrade is your fellow Frenchman, after all.
In the United States, the bulk of the populace cleaves apart perpetrators and victims, attributing criminals to one racial group and victims to another. The statistics don’t bear out this division—thanks in no small part to the pervasive segregation of American life, almost all crime in the United States is committed intraracially. White people are most likely to be victimized by other white people, black people are most likely to fall victim to other black people.
But this is not the way crime is communicated publicly. It is communicated in the language of war: with the enemy criminals on one side, and victims on the other. And so when we speak of the politics of crime over the last three decades, we are speaking, almost without exception, of the politics of crime victimization. Politicians in their stump speeches tell hagiographies of victims and vilify the perpetrators. The last several decades have seen a concerted movement on behalf of victims to carve out a larger role in the criminal justice system, instituting victim impact statements, for instance. In many ways this has been salutary, as the trauma of violence for victims and survivors is profound and long-lasting, and the criminal justice system, to this day, still fails to adequately support them.
But a crime discourse that focuses on the evil of the acts has ruinous political consequences, especially for any attempt to create a system that values the humanity of the people who commit crimes.
George H. W. Bush’s 1988 presidential campaign ran an infamous ad about an incarcerated black man, Willie Horton, who participated in a weekend furlough program, escaped, and then went on to rape and murder. With its grainy photo of Horton, it was effective because it spoke to potential voters who could imagine themselves as his victim. This scary black man might come and find you or someone you love and kill them. Do you want to vote for the candidate who would let someone like that out on the loose?
But tens of thousands of other people participated in similar furlough programs across the country and never committed any kind of infraction. After Horton was apprehended, a group of his fellow lifers in a Massachusetts prison wrote to legislators pleading with them not to apply the lesson too broadly. “We ask that you treat [Horton’s] case as it is, which is an individual case and does not and should not reflect on the . . . people who have accepted the responsibility . . . and are serving their time in a very positive and productive manner.”