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Joshua Kleinfeld, Two Cultures of Punishment, 68 Stanford L. Rev. 933 (2016).

In Two Cultures of Punishment, Professor Kleinfeld wades into one of the most debated subjects in criminal law and punishment and society: why have Europe and the United States–which began with so many similar penal values and practices at the end of the 18th century–begin the 21st century with such a wide divergence, especially when it comes to extreme punishments like Life Without Parole, capital punishment, and internal banishment through collateral consequences. This is territory in which some of the great scholars of punishment in our time, philosophers, historians, and sociologists have already spilled a lot of ink. To simplify somewhat, accounts tend to emphasize either culture embedded in history (James Whitman and Jeremy Waldron), political development rooted in institutions (David Garland and Nicola Lacey), or political economy (Loic Wacquant).

As an account of comparative European and US penal evolution, Kleinfeld has produced a productive original synthesis which combines many of the best features of historical, philosophical and political-institutional accounts. This synthesis, which has its deepest inspiration in the late 19th century theories of proto-sociologist Emile Durkheim, suggests that the US always had a different set of normative values rooted in its distinctive political economy. These differences, however, relatively latent in their effects on institutions until the “treatment effect” of rapidly rising violent crime rates in the 1960s–which remained high for much of the rest of the century–unlocked their potential to drive dramatic institutional change. (See Lisa Miller’s recent monograph, The Myth of Mob Rule (2016), which also treats rising violent crime rates as a significant driver of US penality in the late 20th century.) It has its weaknesses, one of which I will return to, but seen as a theory of late modern punishment and society trajectories it’s a major contribution which compels us to consider normative as well as social control explanations for extreme US penal practices.

In many respects, Kleinfeld’s central contribution in Two Cultures is not to explain European and US differences so much as to give them a philosophically informed interpretation. In short, American and European penal practices reflect very distinct but internally coherent ideas about the nature of crime, of people who commit crimes, and about the obligations of society and the state to those people. Kleinfeld suggests that the history of US/European differences can be told more cogently in terms of their very different responses to seven key ideas: immutability, devaluation, banishment, forfeiture, evil, dangerousness and dignity. Some of these ideas have their roots in religion, and others in modernist discourses like eugenics and social science, but Americans and Europeans respond to them very differently, thus the two cultures.

Dignity can serve as a summary for them all. Europeans, according to Kleinfeld have evolved a concept or value of human dignity in which basic rights of belonging inhere in the very humanity of people and thus cannot be forfeited. One only has to consider Norway’s treatment of mass murderer Anders Brevik, sentenced to 21 years for killing nearly 100 people and recently granted the opportunity to study for a university degree from his confinement. In his ground-breaking book, Harsh Justice (2003), James Whitman of Yale argued that America largely lacks a concept of dignity. Kleinfeld suggests that Americans do not lack a dignity idea, but instead have a different one, which he labels “democratic dignity.” If human dignity cannot be lost, democratic dignity can be lost rather easily, by any display of behavior or character trait that positions you as an enemy of the social peace and a betrayer of the social contract.

In my view the biggest weakness in Two Cultures is Kleinfeld’s failure to confront head on how much America’s history of slavery, colonial dispossession and anti-immigrant eugenic exclusion has shaped the construction of “democratic dignity”. To an important extent, these punitive and exclusionary features are not products of America’s democratic culture, but rather its deeply anti-democratic commitment to “whiteness as property” as Cheryl Harris brilliantly named it some years ago. To his credit, Professor Kleinfeld does not ignore the racial critique of American penality, but he seems to view it as an independent normative problem to the features he attributes to American democracy. Yet if we view “democratic dignity” as both democratic and racist in its construction we can question some of the causal significance Kleinfeld is inclined to give to violence. Are we really so different then Europe in having many more repeat or violent criminals? Or have we evolved racially normed institutions of social control that concentrate on the same populations generating the appearance of outsized recidivism rates? (See Elizabeth Hinton’s From the War on Poverty to the War on Crime (2016) for a plausible argument that concentrating on black inner city neighborhoods artificially raised the urban crime rate in the 1960s.)

Perhaps not surprisingly for a synthesis of sociology and philosophy undertaken by a criminal law scholar with a philosophical bent, the failings of Two Cultures lie in its historical and empirical sides. Fortunately, this a moment when superb scholarship on both is available (in addition to Hinton see recent books on mass incarceration by Mona Lynch (Hard Bargains: The Coercive Power of Drug Law in America’s Courts (2016)), John Pfaff (Locked In: The True Causes of Mass Incarceration — And How to Achieve Real Reform (2017)) and James Foreman (Locking Up Our Own: Crime and Punishment in Black America (2017)). Professor Kleinfeld is offering something relatively rare in contemporary legal academia: a jurisprudential methodology which can collaborate with the social science and humanities methodologies that often seem to dominate the criminal law field at this time. On this account, one which I also endorse, an important task of scholarship is to understand the ideas behind social practices and movements; not because they operate independently to shape the world, but because it is through understanding their conceptual nature that we can best trace their effects and displacements in the world. This is the sort of work that the philosopher and the historically informed interpretive sociologist or historian can do better working in collaboration then working separately.

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Cite as: Jonathan Simon, The Sources of American Punitiveness, JOTWELL (May 9, 2017) (reviewing Joshua Kleinfeld, Two Cultures of Punishment, 68 Stanford L. Rev. 933 (2016)), http://crim.jotwell.com/the-sources-of-american-punitiveness/.