Looking Back to See the Future of Punishment in America

Michael Tonry Looking Back to See the Future of Punishment in America LOOKED AT FROM INSIDE THE UNITED STATES, IT IS DIFFICULT TO SEE how different the Am erican system of punishm ent is from those in other W estern countries. Most practitioners and inform ed scholars know that the United States has the highest im prisonm ent rates in the world and is the only W estern countiy to retain and use capital punish­ m ent, but that is only the beginning. Here are other m ajor differences. In m any European coun­ tries, the age of criminal responsibility is 15 (in Belgium, 18); in m ost American states it is typically 10 or 12. In m ost W estern countries, only tiny num bers of young offenders are dealt w ith in adult courts;1in the United States, by contrast, autom atic transfers for serious crimes, low upper-age limits for juvenile court jurisdiction (15 is the lowest), and waiver laws result in tens of thousands of young people being tried and punished in adult courts each year.2 The contrasts for adults are even starker. In m ost European coun­ tries, the longest prison sentence th at may be imposed, except for murder, is 14 or 15 years; in the United States it is life w ithout possibil­ ity of parole (more than 35,000 prisoners now serve such terms, with more than 3,000 others on death row). In m ost W estern countries, a life sentence in practice means 10 to 15 years; in the United States, even w hen release is possible, tim es served are m uch longer. “Life” often means life. American-style m andatory m inim um and three-strikes laws© Copyright Michael Tonry social research Vol 74 : No 2 : Summer 2007 353 exist nowhere in Europe except w ith m inor and w eaker exceptions in England.3In m any European countries, prisoners are viewed as citizens behind bars. They retain the right to vote while in prison and resume norm al citizenship roles and rights afterward (W hitman, 2003). Except in Vermont and Maine, American prisoners are not entitled to vote. In m any states they are disenfranchised following release, and are forbid­ den to engage in num erous occupations or to exercise rights accorded other citizens (Manza and Uggen, 2006). It was not always so. As recently as the early 1970s, American im prisonm ent rates were com parable to, often lower than, those of other W estern countries, America was in the vanguard o f countries m oving away from the use o f capital punishm ent, m andatory m ini­ m um sentencing laws w ere in disfavor, and national com m issions appointed by Presidents Lyndon Johnson (President’s Commission on Law Enforcem ent and A dm inistration of Justice, 1967) and Richard Nixon (National Advisory Commission on Criminal Justice Standards and Goals, 1973) were calling for less use of im prisonm ent. American jurisdictions experim ented w ith com m unity service, other alternatives to im prisonm ent, and victim-offender reconciliation program s th at soon blossomed in other countries (but faded in the United States). In the 1950s and 1960s, nearly all prisoners were eligible for parole release early in their term s. Most sentencing laws and punishm ent practices were predicated on the ideas th at harsh m andatory sentences served no valid purpose, that decisions affecting offenders’ liberty should be insulated as m uch as possible from punitive public attitudes, and that a prim ary purpose of im prisonm ent was to rehabilitate prisoners (Tonry, 2004, chap. 7). The laws, practices, and beliefs of the 1950s and 1960s fell into disfavor in the 1970s, to be displaced by punitive ideas and repressive policies that launched America’s punishm ent system toward its tw en­ ty-first century future. For a time, people spoke of a possible paradigm shift in which a system of individualized, indeterm inate, consequentialist punishm ent, predicated at least officially on rationalist and hum ane values, was replaced w ith a system of uniform , determ inate, retribu­ 354 social research tive punishm ent, predicated at least officially...