What Happened to Tocqueville’s America?

James Q. Whitman What Happened to Tocqueville’s America? T H E R E W AS A T IM E W H E N A M E R IC A N C R IM IN A L P U N IS H M E N T W AS A m odel for the civilized world. That time, which now seems very long ago, was the early nineteenth centuiy. “The fame of the great advances that America had made w ith regard to prisons rang out,” as one German com m entator w rote in 1844. “Several governm ents sent delegates to the United States, in order to verify the extent and significance of these im provem ents, and the reports of those who returned from America spread the word widely” (von W urth, 1844: v). Indeed, the reputation of the early republic was high w hen it came to punishm ent—remarkably high, considering that Europeans of that era often viewed other aspects of American society with suspicion or contem pt.1 The 1820s and 1830s saw the publication of at least six significant books by foreign visitors to American penitentiaries, as well as num erous articles and parliam entary debates.2The m ost famous of the foreign visitors to m ake the long jour­ ney across the Atlantic was of course the young Alexis de Tocqueville, who arrived in May 1831 w ith his friend and collaborator Gustave de Beaumont. Tocqueville and Beaumont’s study, On the Penitentiary System in the United States and its Application in France, which appeared in 1833, was the m ost im portant contribution to the European debate. It was the study of America’s much-admired prisons that launched Tocqueville on his great career as the sociologist of democracy in America. In the early nineteenth century, America asserted its m oral leadership in the world for the first time, and it did so w ith regard to crim inal punishm ent. It is hard to look back on that era today w ith­ out feeling sorrow. Nobody thinks of America as a m oral leader any social research Vol 74 : No 2 : Summer 2007 251 longer. Certainly there are no European governments sending delega­ tions to learn from us about how to m anage prisons. Far from serv­ ing as a model for the world, contem porary America is widely viewed w ith horror. Michael Tonry, the most em inent student of comparative punishm ent, declared in 1998 that American punishm ent was “vastly harsher than in any other country to w hich the United States would ordinarily be com pared.”4 The situation has not improved since then, as the contributions to this issue attest at troubling length. Perhaps the m ost im portant acknowledgement ofAmerica’s sorry place on the far harsh end of the punishm ent spectrum came from the Supreme Court in 2005, w ith Justice A nthony Kennedy’s controver­ sial m ajority opinion in Roper v. Simmons. In that opinion, which abol­ ished the juvenile death penalty in the United States, Justice Kennedy observed that “only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each o f these countries has either abolished capital punishm ent for juveniles or made public disavowal of the practice.. . . In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty” (Roperv. Simmons, 543 U.S. 551, 577 [2005]). Thanks to Roper, w hich angered m any com m enta­ tors w ith its citations to foreign law, the juvenile death penalty is now gone. But there remains a host of other practices w ith regard to which the United States stands alone, especially w hen compared w ith other advanced industrial democracies. To take only one example, there is the prosecution ofjuveniles “as adults,” carried out in the United States in ways that regularly shock European observers. This American descent into harsh punishm ent is largely the work of the last several decades, which have seen...