A Historian’s Perspective on Criminal Justice Reform
The history of the growing divide in the Atlantic world of the last quarter century does not tell us how punishment always evolves, but it does suggest what forces are always at work. … Our traditions of authority—really, our traditions of opposition to authority—have given us a criminal justice system long on degradation and short on mercy. This may be the way we want it. If it is not, there is certainly nothing to stop us from trying to overcome the traditions that have brought us to this point—though it is hard to be confident that we can really transcend them. If mildness comes to America, it seems more likely to come from a different quarter entirely: from our Christian tradition. What Tocqueville and Beaumont observed a hundred and seventy years ago has the ring of truth once again: “In America, the movement that has shaped reform has been essentially religious,” and any progress of reform in the immediate future is likely to be Christian in tone. … For the moment, in any case, real change does not loom; and real change would mean change, not just in punishment practices but in much grander American cultural traditions. It would be foolish to think that such change is coming soon.
— Yale law professor James Q. Whitman, in Harsh Justice: Crimianl Punishment and the Widening Divide between America and Europe (Oxford UP, 2003), p. 207. (And here’s a review of Harsh Justice from longtime Berkeley professor Jerome Skolnick.)
Whitman published this less-than-optimistic coda seven years ago—what do you think? Is it still foolish to think that change might be coming for America’s criminal justice system?