Most modern academic works on crime and punishment are written from the point of view of the criminal. A society is judged on how humanely the violent, selfish, and dishonest are treated after they have been caught. This might seem odd, given that the professors who write these volumes are about as unlike criminals as it is possible to be. In fact, it is odd. Yet it is so, and we should wonder more actively about why it is so.


Partly it is because the modern social conscience, which judges a man by his opinions, despises all the important attributes of kingship, especially the need to defend peace and order with the civil sword unflinchingly and resolutely. Realism in this matter is generally defined as barbarism or cruelty by the secular liberal mind, which is afraid of any responsibility involving firmness and resolution.


Partly it is because crime does not often burst into the lives of academics in modern Western societies. For the moment, they live at a great distance from it and see it only in the form of statistics. It is generally the poor and ill-educated whose peace and security are torn and smashed by their criminal neighbors. It is also the case that most people who work in the criminal-justice industry—who are the main customers for modern penological thought—meet lawbreakers after they have been arrested, tried, and sentenced. By this time, the burglar who burst terrifyingly into the bedroom by night, the robber who held a knife to the woman’s throat, and the drug-stupefied oaf who beat or hacked a stranger to death have been cleaned up, detoxified, tamed, and taught to dissemble in the hope of release or better conditions. It seems quite wrong that these people should now be harshly used, forced to eat plain fare, sleep on hard beds, and labor all day at dull, wearing tasks. It seems wholly intolerable that they should be put to death. It is very hard to see, in the quietly spoken, well-behaved prisoner in his cell, the fiend out of hell who tortured and killed an elderly pensioner for the pitiful contents of his cash-box.


This is a colossal failure of imagination, responsibility, and vigilance. Unchecked, it brings about an utter perversion of the criminal justice system, which seeks—usually vainly—to rehabilitate the individual criminal for his benefit, rather than to prevent and deter crime for the benefit of all, including potential and actual lawbreakers. It leads to the abandonment of the very idea of punishment or deterrence by the state—though criminals continue to employ these weapons among themselves, knowing them to be highly effective.


In this modern tradition of looking at crime through the wrong end of the telescope, comes this fascinatingly skewed piece of work from James Q. Whitman, Ford Foundation Professor of Comparative and Foreign Law at Yale University. Professor Whitman asks querulously why American punishment is so harsh, compared with the arrangements in France and Germany. Why would anyone want to know the answer to this question in the first place? Should we envy countries where criminals are better treated? Would it not be more sensible to pity them? Prison warders in Germany must knock on the doors of inmates before entering their cells. In France, guards must be careful to address convicts respectfully as “Monsieur.” Both countries refuse to execute murderers, however heinous, unrepentant, or calculating. Both engage in arbitrary mass releases of prisoners through amnesties, which are probably not all that welcome to the victims and neighbors of those thus freed. Professor Whitman does not dwell much on the differences in levels of crime and disorder in the three countries he studies, though he does mention sniffily that France recently gave birth to a democratic “law-and-order movement,” which suggests that there is some discontent among the citizenry despite the modish compassion of their political class. Recent anecdotal evidence from the former East Germany suggests that the Federal Republic, too, is no longer a paradise of order despite the dignity it affords to its prisoners. Yet every chapter of this book breathes disapproval of American harshness and a yearning for European continental mildness.


It is a great pity, by the way, that Professor Whitman did not include England in his comparison. English and American criminal justice methods spring from the same 12th-century Common Law origins. Both have jury trial, a practical presumption of innocence, habeas corpus, and other guarantees of liberty. But England, which has largely abandoned penal severity in the past few decades, now endures an unchecked pandemic of disorder and wrongdoing, and its prisons are simply unable to cope with the numbers of convicted criminals, despite increasingly desperate efforts to reduce sentences and release inmates early. France and Germany stand in the entirely different tradition of civil codes, centralized autocracy, and a long, almost unbroken tendency to imprison people for their politics.


Whitman’s interesting theory—much simplified—is that France and Germany have milder prisons precisely because they used to lock up respectable people in large numbers for holding the wrong opinions. These elite state prisoners were incarcerated in special, often luxurious conditions and treated as equals by their jailers. Whitman suggests that the gentler treatment of French and German prisoners results from a leveling-up process, in which common criminals have gained the privileges once granted to Voltaire and other illustrious prisoners of conscience. The U.S., never having had such elite prisoners, has always seen imprisonment as a deliberately degrading, enslaving experience. Being much given to equality, the American republic has spared nobody from shackles, uniforms, and general degradation.


Well, it is a point of view with the virtue of originality. Whitman largely rejects the most obvious explanation for current European penal laxity, the memory of the Nazi, Fascist, and Vichy eras. This period robbed most of the continental states of any moral legitimacy. The German and French states either engaged in lawless savagery themselves, or they shamefully collaborated with it. On what basis can they now claim enough moral superiority over mere criminals to punish them? No wonder German prison warders must knock before they enter cells. Their trade has a lot to live down. It is a genuine difficulty and one of the many reasons to avoid falling into tyranny or being subjugated by it. But that is not the professor’s position, since he rather prefers the Franco-German methods to American ones.


He acknowledges that American democracy has prevented liberal theorists from softening the penal system there. But he is not pleased by this. One can almost hear his lips pursing as he says, “The punishment system in the United States is more given over to democratic politics—which is often to say demagogic politics.” He almost tumbles over into absurdity when he later declares, “When the topic is ‘primitive’ retributivism , the resemblance between fascist and contemporary American punishment practices is too close, and too disturbing, not to be discussed.” He precedes this with a sort of disclaimer: “Let me emphasize that I do not want to say something that only the stupid and ignorant would say: that we have fascism in America.” That would indeed be stupid and ignorant, but then what precisely does he wish to say? He cannot keep away from this theme for long, and within two pages has declared, “We are like the Nazis up to a point. Like the Nazis we too have become committed to the proposition that punishment should be an ‘empfindliches Uebel’—‘something nasty enough to make them hurt.’ But for the Nazis the underlying traditions of de haut en bas indulgence remained strong and tended to cabin somewhat the drive toward harshness. There is, by contrast, little that holds us back.” This, by the way is a reference to the bizarre fact that regularized probation was introduced into Germany under Hitler in 1935.


National Socialist Germany had no Bill of Rights, no independent police forces, no juries, no habeas corpus, no free press to expose miscarriages of justice, no presumption of innocence. It employed secret administrative detention and hidden state murder. Where it granted trials, they were parodies of justice. It perverted the law into an instrument of racial persecution and massacre. It made it a capital crime to be born a Jew. What kind of mind could suggest a comparison between Hitler’s lawless apparatus of murder and hatred and the U.S.’s penal system, even with all its acknowledged faults? Hitler’s Germany was harsh to criminals. The modern U.S. is harsh to criminals. But so what? How does this make modern Americans “like the Nazis up to a point”? You might as well suggest that Hitler’s enthusiasm for full employment discredits social democracy, that his hatred of smoking makes California a Nazi state, or that his embrace of the Autobahn taints with the stain of tyranny every nation that builds freeways.


Whitman is actually not a fool. He comes maddeningly close to a truly persuasive explanation for the immense difference between the Anglo-American and the Euroland concepts of criminal justice. But he shuffles round it. He points out that the European system has many repellent aspects, rightly citing the (current) German requirement for all citizens to register with the authorities, and the sordid practice of “investigative detention” in which arrested suspects are held in danger and squalor for long periods while the authorities try to pressure them into confessions. He observes that penal mildness is often a characteristic of strong states, though he does not explore the possible connection between systematic repression and surveillance and the enforced order they bring about. It is easy to have a society that is tyrannical and orderly or to have one that is free and disorderly. The difficult trick is to create a country in which freedom and order coexist, though this was achieved in England within living memory and much of the U.S. has at times come close to it. The great danger, on the other hand, is to make such a mess of the business that the result is a dreadful combination of repression and disorder, which is the future now facing England and possibly the United States as well.

Punishment does have a role to play, especially in truly free societies. The citizen may choose to obey the acknowledged law of the land or to break it. If he obeys it, the state must leave him alone. But if he breaks it, then it must impose public penalties on him in the hope that he will behave in the future and that others, seeing his fate, will refrain from offending. Yet this is both purposeless and ultimately futile unless the law is based upon an accepted universal moral code that allows the authorities to punish without shame or reluctance and that allows the potential or convicted criminal to recognize that punishment as just. That code, which has for centuries provided an invisible web of civility and self-restraint is failing in all the nations of the once-Christian world. If it is allowed to die, no law, no apparatus of repression, and no system of punishment will be able to save us from chaos. That is the real issue upon which all other parts of this debate depend.  

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Peter Hitchens is a columnist for the London Mail on Sunday. His most recent book, A Brief History of Crime, was published in May.