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Two cultures of punishment.

Table of Contents

Introduction: The Great Divergence
I.  Methodological Premises
II. Immutable Criminality and Social Banishment
    A. Four Formulas of Modern Banishment
        1. Life in prison without parole
        2. Stage-of-life sentences
        3. Analogues to civil death
        4. Capital punishment
     B. Banishment and Recidivism
III. Devaluation and Rights Forfeiture
     A. Capital Punishment
     B. Prison Conditions
     C. Human Dignity and Democratic Dignity
IV.  Evil and Dangerousness
     A. Moralism and the Concept of Evil
     B. Instrumentalism and the Concept of a Dangerous Being
 V.  Causes: A Crime Wave and a Conflict of Visions
     A. The Question of Causation
     B. A Hurricane of Crime
     C. A Moralistic Response
     D. An Instrumental Response
     E. Churches and Professionals in Europe

Introduction: The Great Divergence

For most of its history, criminal punishment in the United States was milder than punishment in continental Europe--and therefore, it was thought, more humane than Europe's, more enlightened, and more democratic. To American eyes in the Revolutionary era, European criminal law was "stain[ed]" and "disgraced" by its fixation on torture--a fixation that dated back to medieval times and would not be fully abandoned until the nineteenth century. (1) Blackstone captured the image of European punishment at the time: "[I]t will afford pleasure to an English reader, and do honour to the English law, to compare [English punishments] with that shocking apparatus of death and torment, to be met with in the criminal codes of almost every other nation in Europe." (2) Immediately after the American Revolution and well into the nineteenth century, the United States undertook a wave of "republican" criminal law reforms aimed at abolishing or limiting capital punishment, abolishing corporal punishment and mutilation, making prisons places of rehabilitative penance, and codifying the common law in such a way as to limit pockets of harshness, arbitrariness, or undemocratic control. (3)

There was a political philosophy connected to this: it was a standard tenet of Enlightenment belief that democracy and penal mildness were linked, as Hobbes, Locke, Montesquieu, Rousseau, Beccaria, and Tocqueville all had argued. (4) Enlightenment thinkers thought that democracies would tend to punish mildly because equal, rights-bearing citizens would object to the autocratic character of harsh punishment: "Severity in penalties suits despotic government, whose principle is terror," Montesquieu wrote. (5) They argued that a government grounded in a social contract, although it would defend itself, would never do so with cruelty or wantonness. Locke argued, for example (there are many examples), that the right to punish is "no absolute or arbitrary power to use a criminal," but only to secure natural right and positive law against someone who "declares himself to live by another rule." (6) Tocqueville added a psychological dimension: that when people are organized into castes, as in feudal and aristocratic conditions, empathy stops at caste lines, while equality and democracy foster a "general compassion for all members of the human species." (7) Tocqueville suggested as well that democratic citizens of the modern world simply feel differently about suffering, about the infliction of pain on their fellow creatures, than people of earlier eras, and he wonders about it: "Why is that? Are we more sensitive than our fathers? I do not know, but of one thing I am certain: our sensibility extends to a wider range of objects." (8) Tocqueville was not wrong about that. A deep change in attitudes to suffering and violence--a softening, a sentimental humanism more vital and basic than any articulate position--is among the Enlightenment's most mysterious and important legacies and one linked to democratic forms of life and government. (9) There was good reason to predict that democracy would pull penal mildness behind it.

And it did, for nearly two centuries. When Tocqueville came to the United States in the early nineteenth century, the ostensible reason for his trip (and the basis for his funding from the French government) was to study America's innovative experiments in rehabilitative imprisonment. (10) He would later write: "In no country is criminal justice more benignly administered than in the United States." (11) When the nations of Europe engaged in vast criminal law reforms in the nineteenth century, they did so "as part of the process that led to the creation of the modern democratic states." (12) When parts of Europe became fascist, criminal punishment in those countries became harsh, and in the democratic era that followed, criminal law became milder along with the form of government. (13) By the middle of the twentieth century, a mild, rehabilitative, and individualizing penal philosophy prevailed in both Europe and America. (14) From the late 1920s through the early 1970s, the incarceration rate in the United States was low, roughly stable, and roughly equal to what it is in Germany, France, Italy, and Spain today. (15) Capital punishment in the United States was under a national moratorium and very nearly abolished between 1972 and 1976. (16) By comparison, Spain abolished it in 1978 and France in 1981. (17) America and Europe throughout most of the democratic era were pulling criminal justice in Western civilization along a certain track, and it was the same track.

But then something changed--changed in quite extreme and quite recent ways. Starting in the 1970s and picking up speed in the 1980s, (18) America adopted more and more severe criminal penalties as Europe adopted more and more mild ones, until today an enormous and startling chasm has opened up between the two. As Michael Tonry has commented, punishment in America today is "vastly harsher than in any other country to which the United States would normally be compared." (19) James Whitman writes: "[B]y the measure of our punishment practices, we have edged into the company of troubled and violent places like Yemen and Nigeria[,] ... China and Russia[,] ... pre-2001 Afghanistan[,] ... and even Nazi Germany." (20) Europe, meanwhile, has seen a series of successful political and legal movements in favor of greater mildness. (21) The resulting European/American differences in law and practice are complex: they involve multiple, intersecting factors, including not only the doctrine and practice of sentencing but also issues of what is criminalized, the substantive criminal law doctrine expanding or contracting criminal liability, the procedural rules governing charging and plea bargaining, and more. (22) But the various differences converge like spotlights on a stage to produce the most signal consequence of the divergence: American mass incarceration.

At its peak in 2007, 3.2% of the U.S. adult population--1 out of every 31 adults--was under some form of correctional control. (23) Per 100,000 residents, 756 adults were incarcerated (roughly 0.8% of the population or 1 adult per 132 people) (24) and another 2234 were on probation or parole (roughly 2.2% of the population or 1 adult per 45 people). (25) Among black men in 2007, the rate of incarceration was 3138 per 100,000 residents. (26) If ever it starts to seem as though the "crisis of American criminal justice" is exaggerated by alarmist or politicized academics, take a deep breath and think about those numbers. They are on a different scale than anything else in the Western world and anything preceding them in the United States itself. In 2007, the adult incarceration rate per 100,000 residents in Germany was 95; in France, 100; in Italy, 77; and in Spain, 147. (27) Historically, the American rate in 1930 was 105; in 1940, 132; in 1950, 110; in 1960, 119; and in 1970, 97. (28) It is not too much to say that an incarceration rate of approximately 100 adults per 100,000 residents--0.1% of the population or one adult per thousand people--is the rough standard for the economically advanced contemporary Western world, including, until recently, the United States. The American incarceration rate actually fell in the early 1970s to 95 per 100,000 in 1972--one of the lowest points in the century. (29) It then rose virtually every year to 170 in 1982, (30) 329 in 1992, (31) and 701 in 2002, (32) on the way to that peak of 756 in 2007. (33)

Since 2007, American punishment has been getting milder; the last decade has seen a clear downtick. But the incarceration rate in 2013 was 623 per 100,000, (34) which is, in historical and comparative perspective, just a drop from a dizzying height to a slightly less dizzying one. The divergence between American and European punishment, and with it the phenomenon of mass incarceration, is and remains a thing of our time--a thing of the 1970s to some extent, but mainly the 1980s, 1990s, 2000s, and the present. There is now arguably no respect--not even procedural--in which European and American law are more different, or more revealingly different, than in criminal punishment. As a matter of European/American comparative law and legal culture, nothing looms larger than this chasm, this great divergence.

The most natural question to ask about the great divergence is why it happened, what caused it. Scholars have generated a legion of explanations, which are, for the most part, not so very different from the explanations that come up in any intelligent living room conversation on the issue: they focus on American racism, European fascism, American populism, European secularism, and so on. I will survey these possibilities in Part V and suggest a historical-causal proposal of my own--to add to the mix rather than to displace what is already there--but this Article does not aim primarily to explain what brought the great divergence about. The two most important facts about the historical-causal explanations presently on the table are how numerous they are and how exceedingly difficult they are to prove. The explanation one believes inevitably says more about oneself than about the world. And there is another, no less important question in the wings.

Criminal justice is not just a form of policy to be instrumentally perfected like any other form of policy. Criminal justice is culture-bearing. It is the site at which cultures negotiate certain kinds of issues connected to wrongdoing and community, social order and violence, identity, the power of the state, and the terms of collective ethical life. (35) That is why criminal law is the one area of law that is also a genre of literature, from Euripides's Oresteia to Dostoyevsky's Crime and Punishment to Kafka's The Trial to David Simon's The Wire. And if criminal law is culture-bearing in this sense, it follows that the great divergence represents a cultural dispute between two of the torchbearers for the modern Western world. European and American criminal justice today present two cultural visions, two possibilities for the modern West, and the question they present besides the historical-causal one is: What are those two cultural visions? Put another way: How should we understand the ideas at work in American and European criminal punishment? Put another way again: if one takes as a premise that law carries expressive content, European and American criminal punishment have come to carry starkly different expressive content. What is that expressive content?

The answer turns on the ideas implicit, embedded, or immanent in the law. To know them requires engaging interpretively with legal doctrine and practice. This Article thus interprets the doctrines and practices of punishment that characterize American severity and European mildness. As the following pages will show, American punishment is not just harsher than European but harsher in ways that suggest a distinctive constellation of ideas about crime and criminals, and European punishment is not just milder but milder in ways that suggest its own distinctive constellation of ideas about crime and criminals. There are patterns in the harshness and mildness, and this Article interprets those patterns. Part I explains the methodological premises behind this sort of comparative interpretation.

The thesis is this: American and European criminal punishment express a conflict of moral visions. They represent two views of wrongdoers, of what wrongdoing means for participation in social life, and of what wrongdoing means for the moral humanity on which rights depend. Implicit in American punishment is the idea that serious or repeat offenses mark the offenders as morally deformed people rather than ordinary people who have committed crimes. Offenders' criminality is thus both immutable and devaluing: it is a feature of the actor, rather than merely the act, and, as such, it diminishes offenders' claim to membership in the community and loosens offenders' grip on certain basic rights. Implicit in European punishment is an insistence that no offense marks the offender as a morally deformed person. Criminality is always mutable and never devaluing, actors are kept at a distance from their acts, and even the worst offenders enjoy an undiminished claim to social membership and rights. Parts II through IV, below, advance this thesis.

Part II focuses on immutability and social membership. It makes, alongside the interpretation of European and American punishment, a theoretical point about the nature of punishment. Philosophers and social theorists have traditionally understood punishment by reference to two organizing concepts: hard treatment and control. Hard treatment in the philosophical tradition is part of punishment's definition, (36) and control, at least for utilitarians, is punishment's function. Social theorists in the Foucauldian tradition have doubled down on the concept of control: it was Foucault's insight to see more fully than anyone before him punishment's character as a technology of power over offenders' souls and therefore a form of control beyond hard treatment. (37) I would like to suggest a third organizing concept to add to this list. Punishment is not just about hard treatment or control; it is also about social membership. Punishment is among other things an instrument of communal self-definition and social exclusion, an element in an ongoing societal conversation about the terms of social life. (38) Serious crime presents questions of social membership because serious crime by its nature attacks the norms on which social life is based and thus raises questions about whether the offender can accept the social contract. (39) No society could permanently include someone who permanently refuses to abide by that society's most basic rules. Indeed, an offender who permanently refuses the social contract--whose criminality is immutable, a settled feature of his lasting self--is in a certain sense necessarily a nonmember because accepting those terms is part of what membership means. At the same time, it is obvious that the vast majority of offenders are not permanent enemies of the social order; they are people who have committed crimes, not people who, in a totalizing sense, are criminals. Thus the dynamic of inclusion and exclusion is always linked to judgments that cross the act/actor divide, judgments about the criminal standing behind the crime.

Part III focuses on devaluation and the foundations of rights. Like Part II, it makes a theoretical point about punishment alongside the interpretive point about Europe and America. The theoretical point is this: criminal punishment is one of the locations at which a society demonstrates its conception of the foundation of rights because a criminal system has to decide--it cannot but decide--what to do about the people who commit the most inhuman crimes and exhibit the most depraved characters. If even the worst wrongdoers retain a moral humanity that prohibits subjecting them to extreme forms of hard treatment, then a society has chosen to base rights on humanity simpliciter, on the fact of being human. The worst offenders have rights against extreme hard treatment, the thought goes, because to be human is to be a thing of great value or worth; in religious terms (and these issues, as a cultural matter, are often religious), to be human is to be made in the image of God. Human beings therefore cannot be subjected to treatment inconsistent with being the bearer of great value or worth or being made in the image of God. By contrast, if the worst wrongdoers are subject to extreme forms of hard treatment--not just for reasons of necessity but as a claim of justice--then the society that so treats them does not ground rights in humanity simpliciter. If rights against extreme hard treatment are forfeit for wrongdoing, those rights' foundation must be something that wrongdoing can uproot. Such a society might still regard people in other contexts as having dignity, preciousness, and rights, but the dignity or preciousness in question is not human dignity or preciousness and the rights are not human rights. They are the rights of the citizen, of the morally upright or decent, or of the member of the social contract who upholds the bargain. Societies cannot avoid these philosophical positions: a society commits to a position, consciously or not, when it decides how to punish the worst offenders, and every society must make some choice in that regard. We decide on the foundations of rights when we punish. Part of the reason punishment is of such perennial interest in scholarship and culture, why it breaks the bounds of the academic subfield known as "the theory of punishment," is because punishment speaks, as all can sense, to who has rights and why.

This analysis of extreme hard treatment suggests an interpretation of Europe's concept of "human dignity," which is also presented in Part III. That concept is one of the mysteries of comparative law and politics: it is pervasive in Europe's constitutional culture but often puzzles American onlookers, especially American lawyers, to whom it frequently seems vague and rhetorically overwrought. The above line of thought about extreme hard treatment and the foundations of rights suggests a way into the concept. "Human dignity" in Europe is a secularized version of the claim that human beings are made in the image of God. The claim is metaphysical insofar as it asserts a core of value, worth, preciousness, or moral importance possessed by all human beings by virtue of their humanity simpliciter. The claim is functional insofar as it grounds all other claims to basic rights. Every society needs some conception of the thing at the end of the moral road, of the reason why people matter from a moral point of view. "Human dignity" is the term Europe uses to name that reason. This raises the interesting question of what America's parallel concept is. America clearly believes in rights, but it does not commonly identify its conception of the foundation of rights by name and does authorize extreme hard treatment for the worst wrongdoing. I suggest in Part III that the foundation may be something like "democratic dignity." It is the quality of being a person who behaves decently enough and sufficiently abides by the terms of the social contract to participate in democratic community with others. Again, these conceptions of who morally matters and why are not merely speculative. Societies are compelled to stake out a position on them for reasons of action: criminal punishment will not let a society avoid the choice. A society might not be aware of its choice. It might even lie to itself. But the truth is what we do.

Part IV--the final part of this Article's interpretive argument--claims that these ideas about immutability and devaluation can be integrated into larger, more comprehensive moral outlooks. On the American side, there are actually two such outlooks, both consistent with the evidence, both deeply rooted in American culture. One is moralistic: the criminal is evil; his criminality is immutable and devaluing because he is evil, because his crimes expose the truth about who he is. The other comprehensive American outlook is instrumentalist: the criminal is dangerous, and not merely dangerous for the moment, but pervasively dangerous--a dangerous being--who must therefore be put under pervasive control. The instrumental view does not directly claim that criminality is immutable or devaluing; immutability and devaluation are, as it were, a side effect of regarding the offender as someone properly subject to totalizing forms of control. (I characterize the instrumental view as a moral one because it has unstated moral premises. For example, it does not accept the idea that the criminal's humanity stands in the way of efficiently exerting control over him. But its moral ideas are subsurface; its defining features are its welfarist goal and its instrumental rationality.) Meanwhile, European punishment does not let criminality penetrate so deeply. The serious or repeat offender is an us, not a them--a, fellow student who is flunking the class and needs some extra tutoring, a musician who needs practice but is not tone-deaf. The European perspective also permits two versions, one instrumentalist, the other moralistic. On the instrumental view, the term "evil" is meaningless--just a relic of primitive patterns of thought--and the idea of a "dangerous being" is, if not meaningless, an unhelpful and equally objectionable relic of fascist thought. Criminals are people with particular difficulties in need of effective treatments. On the moralistic view, "evil" is a meaningful concept but real criminals are not evil; they are fundamentally good.

Parts II through IV are interpretive; they make no claims as to what, causally, brought the great divergence about. Part V is a causal coda that suggests that the ideas developed in Parts II through IV--ideas of immutability, devaluation, evil, and dangerousness--were causal factors in bringing the great divergence about, though not the sole factors at work. The suggestion is that, confronted with a crime wave of unprecedented proportions, Americans in the second half of the twentieth century commonly reacted in one of two ways, which correspond to the two comprehensive moral outlooks discussed in Part IV. One reaction was stridently moralistic. The view was that the worst criminals are bad people, not normal people who commit a crime, and such criminals deserve to be condemned in totalizing ways. The other reaction was narrowly instrumental. The view was that criminals are predatory people who need, for the sake of safety, to be removed, surveilled, and controlled, and for the sake of efficiency, to be removed, surveilled, and controlled as cheaply as possible. These are very different outlooks, but they happen to agree on policy: the crime problem, both views hold, is a criminals problem, and the primary solution is to cage criminals. The alliance between these two groups, moralists and instrumentalists, inscribed the ideas of immutability and devaluation into American criminal law. Indeed, this toxic mixture of moralism and instrumentalism is, I submit, familiar to any observer of America's politics of crime.

Europe, meanwhile, experienced an uptick in crime in the second half of the twentieth century, but the uptick was mild relative to the American crime wave; the experience of daily life never came to feel fraught and dangerous as it did in the United States. Thus Europe was insulated from the problems that made American moralists and instrumentalists so politically influential on matters of crime and punishment. Europe's politics of crime were instead driven by religious reformers and professional civil servants acting on ideas of forgiveness, dignity, and solidarity. Their alliance inscribed into European law the idea that no crime reaches the roots of character.

I. Methodological Premises

Certain aspects of this Article's argument--the European/American comparison, the distinction between interpreting a legal system and explaining it causally, etc.--might give rise to questions or objections that threaten to derail the argument before it gets started. Some methodological premises are therefore useful at the outset.

First, "American" criminal law is multijurisdictional and enormously diverse, as is "European" criminal law. Generalization of the sort my thesis requires is obviously difficult in the face of these vast, internally divergent groups. But in my view, the strong form of this objection--the claim that one simply cannot speak of "American" criminal justice or "European" criminal justice at all (40)--has a sort of faux sophistication but is ultimately implausible. American law considered and rejected a blanket prohibition on the death penalty because the U.S. Supreme Court interpreting the U.S. Constitution considered and rejected that prohibition; (41) European law (through both the Council of Europe and European Union) prohibits the death penalty as a matter of European constitutional law. (42) Criminal law in continental Western Europe has common points of origin (such as the civil law tradition), is shaped by common experiences (such as World War II), and is increasingly brought together by the European Union, Council of Europe, and European Court of Human Rights, among other transnational institutions. Criminal law in the United States also has common points of origin, is shaped by common experiences, and is brought together by the federal system and U.S. Constitution. Above all, America has a sufficiently shared national culture, and continental Europe, particularly continental Western Europe, has a more limited but still sufficiently shared supranational culture, to make the comparison illuminating. If that were not so, there could be no such thing as harsher "American" or milder "European" punishment at all. One could not speak of the European/American divergence but only, say, a France/Texas divergence or even a Paris/Dallas divergence. We would presumably be barred from other European/American contrasts as well--say, that "Europe" has a more substantial welfare state than "America." Surely such hyper-specificity would be an affectation; anyone talking that way would be mentally substituting "Europe" and "America" for the particulars. At some point, greater exactitude detracts from more than it adds to knowledge.

A better approach is to acknowledge that European and American criminal law are two complex and internally divergent sets, but also to recognize that they are sets with some common characteristics, and cross-cultural generalization is useful provided one goes about it with reasonable care. Comparative analysis is well suited to that purpose because it permits generalization in the face of exceptions. As James Whitman writes: "No absolute descriptive claim about any legal system is ever true.... It is precisely because they deal in relative claims that comparative lawyers can walk the high road to the understanding of human legal systems, as they have been trying to do since Montesquieu." (43) Thus the points of comparison throughout this Article will be the various jurisdictions comprising continental Western Europe (which, for readability, I will typically refer to simply as "Europe") and the various state and federal systems comprising the United States (which I will typically refer to as "America"). Germany and France take pride of place on the European side, as they are Europe's most populous countries and by far the continent's most influential legal systems, though I'll touch on Italy, Spain, and other countries as well. (44) I leave out the United Kingdom, as its punishment policies are distinctive in ways that fit neither the European nor the American model.

Second, a further word is in order about the distinction drawn above between an interpretation of the great divergence and a historical-causal claim about how the great divergence came about. To get a grip on this distinction, consider a more familiar case: the philosophers of tort law who argue that "our current tort practices can be understood as expressing an ideal of justice," because the doctrine and procedural structures of tort law "fundamentally implicate the notion of corrective justice." (45) Is that a causal explanation? No; it is an interpretation designed to reconstruct the implicit or immanent logic of tort law from an internal point of view. The parallel, causal claim--which the tort theorists typically do not make--would be perhaps that those who created and sustained tort law's doctrine and structures were motivated by the ideal of corrective justice and fashioned the tort system they did because they were guided by that ideal. That latter claim is extremely difficult to establish and to some extent does not matter. Perhaps the lawyers and judges who fashioned tort law were inspired by ideals of corrective justice and perhaps they had no more elevated motivation than lining their pockets. Either way, they fashioned a social system that, because it is consistent with certain ideas, has come over time to stand for those ideas. Interpreting the values at work in the law simply does not turn on the motives of the lawmakers. The same is true of nonlegal social practices and institutions. If some historian showed that jazz improvisation came from musicians trying to fill the time when they ran out of sheet music, it would nonetheless be the case that jazz improvisation today represents a set of values associated with individuality and spontaneity. The idea that to understand a social practice or institution is wholly or simply to understand the psychology of the people who brought it about is wrongheaded.

Third, my "two ways of looking at a criminal" thesis is meant to capture two models or ideal types, rather than two exceptionless generalizations. That it oversimplifies is a feature, not a bug. Max Weber developed the concept of the "ideal type" as a tool with which to go about certain kinds of conceptual sociology. The ideal type is "an attempt to capture what is essential about a social phenomenon through an analytical exaggeration of some of its aspects." (46) It is formed, Weber explains, by the "one-sided accentuation of one or more points of view and by the synthesis of a great many diffuse, discrete, more or less present and occasionally absent concrete individual phenomena" to fashion "a unified analytical construct." (47) The point is precisely to elide the complexities and exceptions that crowd almost any complex social phenomenon so that we can see taxonomic aspects of that phenomenon more clearly. The "market economy," for example, is an ideal type; there may be no pure market economies in the world, but the concept enables us to understand central features of actual economies. Obviously, there will be many instances of criminal punishment in both America and Europe that do not reflect the "two ways of looking at a criminal" contrast that is this Article's thesis. The ideal types, if they are valid, are valid because they get at something important about American and European criminal punishment and because they are comparatively true, not because they are exceptionless.

Fourth, my claim about the European/American conflict of moral visions is descriptive, not normative, despite the fact that the terms of discussion are moral ones. This Article aims to establish a descriptive claim about moral life as culturally lived. The interest is in "studying morality as a phenomenon or as a set of concepts, rather than in preaching." (48) As Emile Durkheim (a model for the mode of thought at work throughout this Article) puts it: "Moral reality, like all reality, can be studied from two different points of view. One can set out to explore and understand it and one can set out to evaluate it. The first of these problems, which is theoretical, must necessarily precede the second ..." (49) This Article is about the anterior problem. The goal is cultural excavation. Consequently, the methodology is not pure moral or political philosophy but rather philosophy as a tool with which to examine the character of social life--philosophy as social theory.

II. Immutable Criminality and Social Banishment

The thesis of this Article is that European and American criminal punishment express different pictures of the criminal standing behind the crime and thus different understandings of when, if ever, a person's crimes deprive him of membership in the community and devalue him as a human being. This Part focuses on the immutability and social membership piece of this broader thesis. American punishment treats an offender who has committed a serious crime or engaged in a pattern of repeat offenses as having exposed the truth about who he is--about his enduring character. The criminal system thus crosses the line separating actor from act, and the crime or series of crimes is taken to justify, not just imposing hard treatment on the offender, but banishing him from social life. European punishment, by contrast, is structured quite precisely to deny that criminality is ever immutable and therefore to refuse ever to cut the ties that bind the offender to social life.

A. Four Formulas of Modern Banishment

Whatever happened to banishment? It is one of the fundamental forms punishment can take--from Cain's punishment after he killed Abel ("And the Lord said unto Cain.... [A] fugitive and a vagabond shalt thou be in the earth.") (50) to Homer's epics ("Just like you, I too have left my land--I because I killed a man....") (51) to Great Britain's penal colonies in America and then Australia (where the last convicts set sail up the Swan River in 1868). (52) The examples date from earliest antiquity to the nineteenth century, which shows banishment to be among the most basic instruments with which the law has responded to major crime--alongside execution, fines, violence, and shame, and far above loss of liberty. Did this ancient practice just fade away as the world filled up? It did not; it has simply taken modern forms.

To see this, consider a prior question. Why would a society banish its worst offenders? What would be the justification? Not rehabilitation, at least in a reintegrative sense: banishment is for people society has given up on. The reason could be merely retribution or deterrence: banishment does indeed take something of value from offenders, and that sort of deprivation or infliction is, conceptually, at the core of both retribution and deterrence. But banishment is quite rich in expressive content. It does not just inflict or deprive; it excludes. Exclusion is at least as much about what a community wants for itself as it is about imposing hard treatment on an offender. Perhaps, then, the reason for banishment is incapacitation? Yet banishment does not just prevent; it removes. It is indeed incapacitation, but incapacitation of a distinctive kind. The traditional accounts of punishment do not fully explain it. They leave a remainder.

The remainder is this: punishment is traditionally regarded as an instrument of hard treatment and control, but, as argued above, (53) what both hard treatment and control overlook is punishment's character as an instrument of communal self-definition and social exclusion. Punishment affirms shared values and creates taboos, and it says who, in virtue of seriously or persistently violating those values and taboos, is not merely errant but an enemy of the social order. Punishment draws lines, and the lines it draws are always connected to judgments about the person standing behind the crime. Banishment's significance is that it tracks this exclusionary aspect of punishment. It draws a line between the offender and the community, a "him" and an "us," and says to all: "There is something wrong with this offender--not just with what he has done but with the kind of person he is--that makes him morally unfit or simply too dangerous to live among law-abiding people." The reason banishment's meaning outruns retribution, deterrence, rehabilitation, and even incapacitation is that those justifications all turn on hard treatment or control, while banishment is the sign that a system of punishment has decided that the offender is an "other" who must be excluded.

The claim below is that American criminal punishment routinely banishes serious and repeat criminal offenders while European criminal punishment never wholly does. To defend this claim, I propose four formulas of modern banishment: life in prison without parole, sentences lengthy enough to constitute a stage of an offender's life, collateral consequences systematic and substantial enough to constitute an analogue to civil death, and capital punishment. (54) All four, I argue, have an exclusionary nature (they remove the offender permanently or semipermanently from social life), are major parts of American punishment, and are as nearly as possible eradicated in Europe. I doubt any society could do wholly away with banishment, but Europe has come close.

1. Life in prison without parole

The function and meaning of imprisonment is flexible. Holmes argues that in legal history "[t]he customs, beliefs, or needs of a primitive time establish a rule or a formula," which persists long after "the custom, belief, or necessity disappears" until eventually "[t]he old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received." (55) To speak of "rules or formulas" is to speak of legal doctrine, which is too small a container for Holmes's insight: the point holds for practices and institutions no less than for legal doctrine. The prison finally is just a persistent institutional fact about modern societies, faithful to no one function or meaning; it is a shell or vase into which a variety of different ideas can be poured. Some prisons are meant to inflict suffering. Some are simply cages meant to hold. During America's progressive experiments of the nineteenth century, prisons were reconceptualized as penitentiaries--places of penance--geared toward saving souls. (56) Insofar as prisons take something of value from offenders, they are well suited to the functions of retribution and deterrence, both of which turn on deprivation or infliction. Insofar as prisons surveil and control, they are, as Foucault showed, well suited to rehabilitation and incapacitation, both of which turn on control. (57)

An additional function for which prisons are exceedingly well suited is that of banishment within territorial limits, and the paradigmatic example of such banishment is a sentence of life in prison without parole (LWOP). Even its name captures the banishment idea: "life in prison" accomplishes nothing that "one hundred years in prison" would not but articulates the idea that the whole of a life, whatever its term of years, is to be spent apart from ordinary people. This function or meaning is intuitive and culturally intelligible. As defense counsel in a California capital case argued to the jury:
   Mr. Bradford will die in prison. That is no longer an issue.... In
   chapter 4 of Genesis, the Lord said to Cain, "Your brother's blood
   cries out to me. You shall be banished from the land on which you
   spilled your brother's blood. You shall become a restless wanderer
   in the wilderness." ... Today there is hardly a place we call a
   wilderness. Instead we have to build our wildernesses. We call them
   maximum security prisons. The mark we put on people who have
   committed such crimes is a sentence of life in prison without the
   possibility of parole. Our banishment. (58)

The attorney is right: LWOP is functionally identical to Cain's punishment. It is a way of casting a person out of the city and into a built wilderness--a modern banishment. (59)

Europe and America's disagreement over the death penalty sucks so much air out of the room that the depth of the European/American disagreement over LWOP is comparatively overlooked. But the countries of Europe have been working their way toward LWOP's elimination for decades and, in 2013, it was banned on a constitutional basis throughout virtually the whole continent. The process began with the German Federal Constitutional Court, which ruled in 1977 that sentences of life without parole violate the constitutional principle of human dignity. (60) That same year, a Council of Europe committee opinion declared that "it is inhuman to imprison a person for life without any hope of release." (61) In 1987 and 1994, respectively, Italian and French courts held sentences of life without parole to be unconstitutional because of the fundamental character of the right to be considered for release and the cruelty of forcing offenders to live without hope of release. (62) An idea was on the move in Europe, and it culminated in the European Court of Human Rights's (ECHR) 2013 case, Vinter v. United Kingdom. (63) Vinter held that LWOP violates the prohibition on "inhuman or degrading treatment or punishment" in Article Three of the European Convention on Human Rights. (64) The ECHR's rulings are not advisory (65): they are binding upon the parties to the case, constitute an authoritative interpretation of what the Convention requires, and have some legal effect throughout the forty-seven member states of the Council of Europe (66) Thus LWOP has been essentially unconstitutional throughout virtually the whole of Europe for the last three years.

The Vinter opinion says a great deal about how Europe looks at criminals, but its arguments are initially puzzling. Holding a life-sentenced offender "without any prospect of release and without the possibility of having his life sentence reviewed" creates "the risk that he can never atone," no matter how "exceptional his progress towards rehabilitation." (67) "Atone" here seems to mean "be forgiven": what the court sees as problematic is that a rehabilitated offender cannot be forgiven. But what is wrong with that? The court states that such a sentence could not possibly be "just" or "proportionate," (68) but what concept of justice or proportionality does the court have in mind (obviously not an eye for an eye)? The court's key move turns on the concept of human dignity: imprisoning a person "without at least providing him with the chance to regain that freedom one day" violates the "dignity" that is the "very essence" of the European human rights system. (69) But (to ask the routine American question in these contexts) what does this concept of "dignity" mean? It does not seem to explain why LWOP is wrong so much as shift the question to another rhetorical ground. Europe's dignitary tradition is often associated with Immanuel Kant, but Kant would never have supported a decision like Vinter. For Kant, "dignity" is not about soft treatment but about human beings' capacity for reason and freedom, in virtue of which a human being must always be treated as a person rather than a thing, "as an end, never merely as a means." (70) To have the capacity for reason and freedom--to have agency--is to be responsible as well as rights-bearing: rights and responsibility flow from the same well. Thus, Kant argued, holding people responsible for their actions is part of treating them with dignity, and to punish wrongdoing to the extent of the wrongdoing is a moral imperative. (71) It is morally imperative, for example, to put a murderer to death. (72) European law's concept of dignity might have some genealogical connection with Kant's, but it has drifted far away from Kant's in substance.

There is, then, a principle at work in Vinter that falls under what the court calls "dignity," that makes LWOP qualify as "inhuman or degrading," but the substance of which is not clear from the majority opinion. Consider, then, Judge Power-Forde's concurrence:
   [W]hat tipped the balance for me in voting with the majority was
   the Court's confirmation, in this judgment, that Article 3
   encompasses what might be described as "the right to hope"....
   Those who commit the most abhorrent and egregious of acts and who
   inflict untold suffering upon others, nevertheless retain their
   fundamental humanity and carry within themselves the capacity to
   change. Long and deserved though their prison sentences may be,
   they retain the right to hope that, someday, they may have atoned
   for the wrongs which they have committed. They ought not to be
   deprived entirely of such hope. To deny them the experience of hope
   would be to deny a fundamental aspect of their humanity and to do
   that would be degrading. (73)

There are three ideas at work in this passage. First is that every human being, no matter what he has done or who he has been, retains a core of goodness and the potential for goodness. This "fundamental humanity" in virtue of which all people "carry within themselves the capacity to change" (74) represents a direct denial of the idea that criminality might be immutable, a settled fact about the criminal's enduring self. Second is that taking away an offender's hope of release is cruel; hard treatment should never be that hard. This is the "right to hope," (75) and it is connected to the previous denial of immutability: the cruelty lies in treating someone who is fundamentally good (whatever wrongs he may have committed) as if he were immutably criminal. Third is that rehabilitation is always possible and is so much the point of punishment that punishment must end when rehabilitation is achieved. As the majority puts it: "[T]here is ... now clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved" because striving toward rehabilitation is "constitutionally required in any community that established] human dignity as its centerpiece." (76) Given the ECHR's authority over the meaning of the European Convention on Human Rights, it is not too much to say that rehabilitation is now part of the binding constitutional law of Europe. By the same token, banishment is effectively unconstitutional. If every offender is potentially rehabilitable and it is a constitutional right to be released upon rehabilitation, then the threads that bind the offender to the community can never wholly be cut.

What this amounts to in sum is that Europe's constitutional order requires nothing less than faith in the potential goodness of all human beings and treatment of criminal offenders in ways consistent with that faith. "Dignity" in this context means that no action, no matter how wrongful, marks the actor as a morally ruined human being. And as no one is a morally ruined human being, no one may be permanently barred from social membership. Notice that the claim is not that the community can accommodate those who incorrigibly attack the foundations on which the social order is based. No community could accommodate that. The claim is that there are no such people. Or at least, Europe is determined to act as if there were no such people, in a show of faith that seems at once naive and valiant. Criminality, Europe insists, is never immutable. And note that the court did not impose these ideas on Europe purely from above: Vinter echoes principles articulated in the 1977, 1987, and 1994 rulings of the German, Italian, and French high courts, respectively. (77) These are principles that Europe has been collectively working through for thirty-five years.

Now the American side: Approximately 50,000 prisoners are currently serving LWOP sentences. (78) Forty-nine states and the federal government provide for LWOP sentences (Alaska is the only exception), and forty-eight states and the federal government actually impose LWOP sentences (Alaska and New Mexico are the exceptions). (79) Juveniles are not immune: approximately 2500 of those 50,000 prisoners received LWOP for a crime committed while they were juveniles, and although the Supreme Court has recently struck down some of those sentences, it remains possible to sentence a juvenile to LWOP. (80) Offenders also get LWOP for a wide variety of reasons. Homicide is one major reason--about two-thirds of LWOP sentences are for homicide--but most of the remaining third are for other crimes of violence, and six percent are for drug or property crimes. (81) Recidivism is another reason (three-strikes laws are a major cause of LWOP sentences, especially for nonhomicide offenses), but people can and do get LWOP on a first offense. (82) In other words, America cuts ties of social membership with a lot of people for a lot of reasons.

Two elements of this European/American contrast--besides the sheer scale of it--are particularly striking. First, the very existence of parole is controversial in the United States and has been eliminated or curtailed under federal law and in twenty-seven states. The federal government substantially eliminated parole with the Comprehensive Crime Control Act of 1984. (83) Supervised release remained, but it is different, and different in a philosophically significant way. "Parole" typically refers to the discretionary release of prisoners prior to the end of their sentences because some decisionmaker (usually a parole board) finds them to be sufficiently rehabilitated as to make further imprisonment unwarranted. (84) "Supervised release" is part of the original sentence and simply splits the sentence into a term of imprisonment and a term of post-imprisonment supervision. (85) Parole implies that rehabilitation is the point or part of the point of punishment; supervised release does not carry that implication and if anything suggests the opposite: that even after release, offenders must be watched. The federal government acted again in 1994 with the Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants program, which provided incentive grants to the states to build or expand jails and prisons on condition that violent offenders serve no less than eighty-five percent of their prison sentence. (86) Essentially the federal government requested that the states curtail parole and offered to pay for the extra jails and prisons the curtailment would require. By 1999, twenty-seven states qualified for the federal grants and at least fourteen had essentially eliminated discretionary parole altogether. (87)

The political forces at work in these developments were complex; the story isn't wholly one of punitive emotions or the explicit belief that serious criminals are unsalvageable people. Some of those opposed to parole were skeptical of rehabilitation and opposed to leniency (parole was seen as making prisons a "revolving door" and parole boards were seen as soft on crime), but some parole opponents were motivated by values of horizontal equity and governance by rules--the values that helped give birth to the determinate sentencing movement and, through it, state and federal sentencing guidelines. (88) Indeed, the 1984 Act is remembered today not mainly for eliminating parole but for creating the Federal Sentencing Guidelines. (89) Parole had to give way, not necessarily for the sake of harsh punishment, but for the sake of rule-governed punishment--that is, determinate sentencing. And the determinate-sentencing movement was highly diverse: some supporters were law-and-order conservatives, but others were rule-oriented lawyers acting on a certain conception of the rule of law, and some were liberals who thought determinate sentencing would make punishment milder and more equal (i.e., less influenced by race and class). (90) Thus, ironically enough, law-and-order conservatives, rule-of-law lawyers, and some racial-justice or soft-on-crime liberals all had a hand in parole's demise.

There is a large conceptual reason for these complex politics. Although parole historically has been associated with leniency, its deeper link is to individualization, which might be lenient or severe, rehabilitative or incapacitative, as the case may be. Parole's opponents therefore included both those who wanted more severity and those who wanted more control by rules. (91) Yet diverse as these political forces were, their combined effect was to destroy the most important rehabilitative element in the criminal justice system and thus to build a system expressive of the idea that serious or repeat offenders are ruined people. The whole affair is a lesson in how political action can get away from us and the intentions in our minds fall to the wayside in understanding what we wrought with our hands. Hegel called all this the "cunning of reason," and it is part of why a socio-theoretic, interpretative approach to questions of social life can sometimes produce more insight than one focused on causes or motives. (92)

The other striking aspect of Europe and America's positions on LWOP is the division over constitutional law. The idea that LWOP might be unconstitutional is almost totally off the radar screen in contemporary American law. True, the Supreme Court has issued three decisions since 2010 limiting (although not eliminating) LWOP for juveniles, but the decisions are recent and cautious, and juvenile crime is a special case. (93) The idea that the Constitution might prohibit LWOP altogether is not on the American constitutional table. The difference is a matter of culture, not constitutions. There is no deep or intrinsic reason why the U.S. Supreme Court could not interpret the Eighth Amendment's provision on "cruel and unusual" punishment along the lines the European Court of Human Rights has interpreted the European Convention's provision on "inhuman or degrading" punishment, (94) unless one makes a fetish of the word "unusual" (and thinks everyone else does too). The two provisions are similar in form and purpose and their minor textual differences would not constrain the U.S. Supreme Court if it did not wish to be constrained. We are not different because we have different constitutions; we have different constitutions because we are different.

Seen in comparative perspective, parole in general and LWOP in particular turn out to be chock-full of symbolic meaning. They do not attract the kind of political or scholarly attention in the United States that, for example, capital punishment and three-strikes laws do, but they should. The cultural and moral stakes at issue with parole and LWOP are as high as almost anything else in the criminal justice system. The insistence on parole and the elimination of LWOP stand for the belief (or better, the commitment to believing--the faith) that all offenders are capable of leaving their criminality behind, nothing is unforgiveable, no one past saving, and no one forever excluded from the social world--that, in a word, criminality is mutable. The elimination of parole and insistence on LWOP stand for the belief or faith that some offenders are permanent criminals, that some wrongs are unforgiveable, and that some people who cannot be saved must be banished from the social world--that, in a word, criminality is potentially immutable. These organizing faiths reach even into the constitutions of both Europe and America.

2. Stage-of-life sentences

We ordinarily think of prison sentences as punishment along a smooth slope: to send someone to prison for three years imposes a measure of hardship and for twenty years simply a greater measure of hardship, as if all the differences were of degree and not of kind. But to interpret imprisonment in that way is to elide the distinction between terms of years and stages of a life. "I am the same person I was three years ago," one might think, "but a rather different person than I was ten years ago and a substantially different person than I was twenty years ago." A three-year prison sentence for a twenty-year-old represents simple deprivation; a twenty-year sentence for a twenty-year-old represents the remainder of his or her youth. It says, "This hot-blooded young person is banished; the middle-aged version may rejoin society." There are, in other words, prison sentences that constitute partial banishments, stage-of-life banishments. While of course it is impossible to specify precisely how long a sentence must be to constitute a stage-of-life banishment, ten years or longer without or before parole seems like a reasonable minimum. Sentences of such length are a second formula of modern banishment.

Part of the great divergence is a European/American disagreement over stage-of-life banishments. On the European side, German law is a useful model: it provides for sentences of ten years or longer, but they are exceedingly rare. The German penal code opens its section on "Imprisonment" by establishing fifteen years as the maximum allowable sentence for all crimes (including repeat offenses) except aggravated murder, for which a life sentence with the possibility of parole is available. (95) German law, then, provides for two stage-of-life sentences: ten to fifteen years and life with parole. The twenty-year and other multi-decade sentences that feature so prominently in American criminal punishment are missing, but Germany nonetheless authorizes stage-of-life banishments to some extent. The extent, however, is smaller than it might seem. As of 2013, out of a population of 81 million and a prison population of 56,000, there were only 691 prisoners serving sentences of ten to fifteen years and another 1994 serving sentences of life with parole for aggravated murder--about 2700 people total. (96) Now, 2700 people out of 81 million is a tiny group, but to understand how tiny--to understand how exceptional those stage-of-life prisoners are--some context is necessary.

In 1969, Germany began a process of massive penal reform oriented to making punishment milder, and it has been German policy ever since to reduce incarceration as much as possible. (97) Indeed, as a leading German criminal law scholar puts it: "Seen from the traditional viewpoint, according to which only custodial and probationary sanctions are genuinely criminal, Germany has indeed undergone a massive process of depenalization and now has a system of social control of norm violations relying almost exclusively on economic sanctions." (98) As a result, 82% of all German offenders are only fined and another 12% receive suspended sentences (prison sentences under two years are suspended two-thirds to three-fourths of the time). (99) Only 6% of convicted offenders actually serve time. Of that 6%, almost half serve less than one year; they are the leftovers from the group that did not get suspended sentences. (100) The remainder--3% of all offenders or slightly over 30,000 people--actually spend at least one year in prison. (101)

It takes a lot to get into that 3%. European imprisonment has "generally restricted itself to targeting violent offenders, and indeed only a proportion of those. In place of the broad-gauged harshness of the American kind, these northern European societies have seen a narrowly crafted harshness aimed at a relatively restricted class: violent offenders, terrorists, certain sex offenders, [and] drug dealers." (102) In Germany, that group is narrower still: to get a sentence of one year or more, generally the violent offenders must be highly violent and the sexual offenders must be rapists. (103) This was emphatically true between 1969 and 1998, when German law displayed what even by German standards was considered a "lenient attitude toward crimes against the person." (104) Attempted battery was not punishable, for example, where attempted property destruction was; simple battery was subject to a maximum of three years imprisonment, simple larceny to five; and even "a rapist could get off with six months in prison if there were extenuating circumstances." (105) When Gunter Parche stabbed tennis star Monica Seles in 1993, he received a sentence of probation and did no time, "[f]ollowing normal German practice." (106) In 1998, Germany toughened sentences for violent offenders, but substantial prison time for crimes against the person, including sexual offenses, still requires major violence or rape. (107) Indeed, the minimum penalties even for rape are still quite short. The minimum for sexual compulsion by force but without penetration is generally one year (six months in "less serious cases"), and the minimum for sexual compulsion by force and with penetration is generally two years. (108) Both sentences are short enough that the offender is theoretically eligible for a suspended sentence. (109) Only where the sexual compulsion involves a weapon or the risk of serious bodily injury to the victim does the minimum rise above the suspended sentence mark to three years. (110)

In short, the 3% of German offenders who serve prison sentences of one year or longer are a select group of very serious criminals. And most of them nonetheless get paroled. German prisoners are entitled to be considered for parole after two-thirds of their sentence is served, and German courts "shall" grant parole provided certain conditions are met (including public safety but not including the seriousness of the original offense). (111) Even for those aggravated murderers putatively sentenced to life, the German penal code requires parole after fifteen years provided "the particular seriousness of the convicted person's guilt does not require [the punishment's] continued execution." (112)

So which offenders in Germany really serve stage-of-life banishments? Of the small group of about 30,000 very serious criminals who actually spend a year or more in prison, only the most extreme core--about 2700 people--serve even a putative sentence of ten years or more. (113) About 2000 of them face a life sentence specifically for aggravated murder and are eligible for parole after fifteen years. The remaining 700 face a ten- to fifteen-year sentence for other extraordinary crimes and are eligible for parole after roughly seven to ten years. In essence, Germany imposes stage-of-life banishments only on a tiny sliver of utterly extreme offenders.

This pattern of relatively short sentences even for significant crimes, sentences above ten years only in rare cases, and parole rules that undercut even those rare cases, holds throughout much of Europe. No Council of Europe country has LWOP, as discussed above. (114) Seven European countries--including Spain--do not allow for life sentences even with parole, and another six have zero prisoners serving a life sentence. (115) France is an interesting case study, as it is the continent's second-largest country and has one of its more severe systems of punishment. Like Germany, France generally metes out significant imprisonment only for "violent offenders, terrorists, certain sex offenders, [and] drug dealers," and to get into that group, the violent offenders have to do major violence; examples of extraordinary leniency toward violence like that of Gunter Parche can be easily multiplied in France as well as Germany. (116) Out of 67 million French people, approximately 5000 are serving sentences of 10-20 years, 2000 are serving sentences of 20-30 years, and 500 are serving sentences of life with parole (available in France only for crimes like leading a drug trafficking group, certain types of murder, torture, and kidnapping, and crimes against humanity). (117) Offenders in each group are ordinarily eligible for parole after serving half or two-thirds of their sentence or, for the lifers, fifteen years; (118) the standard for parole is their progress toward "social reintegration." (119) Italy is also one of Europe's larger and harsher jurisdictions. Out of 61 million people, about 5500 are serving sentences of 1020 years, 2000 are serving sentences of 20 years or more, 1500 are serving life sentences, and parole is generally available. (120) In sum, then, Germany, France, and Italy do issue sentences that amount to stage-of-life banishments, but only for exceptional cases of very serious crimes and criminals, amounting to less than 2700 people in Germany, 7500 in France, and 9000 in Italy ("less than" based on whatever number in each country gets paroled before the ten-year mark). (121)

Now the stark contrast: in the United States--even focusing on federal prisoners alone, a small minority of prisoners overall--approximately 47% or 87,000 people are serving sentences of at least ten years. (122) Provided they were sentenced after the Comprehensive Crime Control Act of 1984 took effect, they cannot be paroled. (123) Some of these sentences are for repeat offenses, (124) but even on a first offense, federal law imposes stage-of-life banishments for a much wider variety of crimes than does European law. Under the Guidelines, any crime that classifies as an offense level of thirty-two or higher carries at least a ten-year minimum, including: murder and aggravated forms of attempted murder, rape and aggravated forms of sexual abuse, kidnapping and related crimes, aggravated carjacking, aggravated forms of embezzlement, and a raft of drug crimes. (125) A crucial procedural point must also be taken into account: where a defendant has engaged in a single course of criminal conduct, prosecutors can charge multiple overlapping offenses so long as none is identical to or a subcategory of any other, and prosecutors can charge multiple counts of the same offense based on the number of victims or violations. (126) The effect is to lengthen the sentence for even minor crimes to major levels: someone who, say, illegally shares an album of music online might be charged with multiple counts based on the number of songs shared; if the offender then lies about it to investigators, the same lie might be charged as both a false statement and an obstruction of justice. To my mind, perhaps the most morally troubling feature in all of American punishment is that the people sentenced to stage-of-life banishments and other forms of social exclusion are not necessarily serious criminals.

Before closing this discussion, it is worth pausing over one European/American nondivergence, one similarity that arises in the context of stage-of-life imprisonment, in order to dispel a common misconception. Some people suppose that America's war on drugs is the chief cause of its harshness relative to Europe, or in expressive terms, that American criminal punishment demonstrates a puritanical attitude toward drugs, where Europe demonstrates liberal toleration. This may be a myth. It takes a great deal even to land in prison in Europe, but in Germany, 14% of all prisoners are there for drug offenses; in France, that number is also 14%; in Spain, 25%; and in Italy, 38%. (127) In U.S. state jurisdictions, which include the vast majority of all offenders, about 16% of prisoners are there for drug offenses (4% for possession, 12% for everything else). (128) That number rises to 50% for federal prisoners, but the reason is largely the federal government's special role in drug enforcement and the smaller overall number of federal prisoners. (129) Some suggest that Europe is tough with drug dealers but, unlike the United States, lenient with drug users. A deeper dive into the data would be necessary to confirm or disconfirm that contention. But at least with respect to drug dealers, America and Europe are arguably comparable in severity relative to their own baselines (Europe is more lenient across the board). I stressed above, for example, that only a small group of very serious criminals spend a year or more in prison in Germany. An even smaller group spends more than two years in a German prison, but of that group, drug dealers comprise almost 25%. (130) In a country that regularly gives no prison time or short sentences even to violent offenders, drug dealers who work in a gang context face a five-year minimum. (131) As a leading German criminal law scholar writes: "Because drug offenses carry heavy prison sentences under German law and courts do not hesitate to implement the mandate of the law, the rise in drug convictions goes a long way to explain why German prisons are (again) filled to capacity and beyond." (132) In France as well, drug dealers stand alongside aggravated murderers and terrorists as some of the only criminals subject to stage-of-life banishments. (133) The great divergence is not about drugs.

In the final analysis, European countries do engage in stage-of-life banishment and most though not all engage in conditional permanent banishment (that is, life with the possibility of parole). Again, I doubt any society in the world could do without banishment altogether. But Europe imposes these banishments as an extraordinary measure in response to a small group of extremely dangerous offenders. America imposes them as an ordinary measure in response to a wide variety of different kinds and degrees of offender.
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Title Annotation:Introduction: The Great Divergence through II. Immutable Criminality and Social Banishment A. Four Formulas of Modern Banishment 2. Stage-of-Life Sentences, p. 933-964
Author:Kleinfeld, Joshua
Publication:Stanford Law Review
Date:May 1, 2016
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