[James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe. Oxford University Press: 2005. ISBN-10: 019518260X. pp. 336. USD 19.95.]

In his 1835 work, Democracy in America, Alexis de Tocqueville argued that the distinction between American and European culture was a consequence of America’s historic lack of social hierarchy or “aristocratic element” and that such an increasingly egalitarian society would inevitably have milder criminal punishment.  A half-century later, sociologist Emile Durkheim predicted that harshness in punishment was linked to any given society’s degree of “contractualization.”  Durkheim’s hypothesis similarly anticipated that America would embrace mildness in criminal punishment, on the basis that market-oriented societies would have restitutive rather than penal regulation.  Yet as Whitman and many other scholars before him have recognized, American punishment practices are markedly harsher than continental Europe’s.  In the face of allegations of torture and human rights violations committed against American detainees in Guatanamo Bay, the relevance of the divergence of American criminal justice values and practices from its western world counterparts is of great importance.

In Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe, Professor James Whitman of Yale Law School refines Tocqueville’s original premise and argues that America’s susceptibility to degradation and harsher punishment practices is precisely linked to America’s historic lack of an “aristocratic element.  To Whitman, the critical flaw in Tocqueville’s and Durkheim’s reasoning is their failure to understand the link between traditions of social hierarchy and the dynamic of degradation in punishment.  Though Whitman has the advantage of hindsight, he nonetheless presents a convincing argument that the social and political traditions that shape continental Europe’s milder punishment practices are precisely those that America rejects; namely a close connection to norms of social hierarchy in conjunction with powerful and autonomous state apparatuses. The distinct historical experiences with stratification are argued to motivate the abolishment of low status treatment and the generalization of high status treatment in continental Europe and the generalization of low...