With 2.2 million Americans incarcerated and nearly 7 million under some form of correctional supervision, the problem of mass incarceration has gained increasing visibility with policymakers and the public over the past decade. Scholarship on this issue has tended to be constrained by national boundaries, largely examining the phenomenon through the lens of American politics and history. The potential pitfalls of such an approach were recently outlined by a number of scholars from across the subfields of political science, who noted, “If we cannot articulate what is both common and distinctive about a political phenomenon, how it is similar to and how it differs from varieties of the same phenomenon elsewhere, what hope do we have of observing it clearly, measuring it precisely, or explaining it convincingly?” (R. C. Lieberman et al., “Trumpism and American Democracy: History, Comparison, and the Predicament of Liberal Democracy in the United States,” 2017, https://ssrn.com/abstract=3028990, p. 12). Marc Morjé Howard’s Unusually Cruel stands as a welcome contribution to fulfill this need for greater international comparison in the literature on the American carceral state.
Howard flips the prevailing notion of American exceptionalism on its normative head, arguing that the punitiveness and reach of the American criminal justice system is perhaps the best representation of real American exceptionalism. The distinctiveness of the American system is highlighted through qualitative comparative case studies with the United Kingdom, France, and Germany. The benefits of this historical comparative approach are immediately evident, as Howard convincingly demonstrates that the incarceration boom that began in the mid-1970s not only was a distinctive development in American history but also represented a break with comparative norms. Prior to the mid-1970s, the United States had a prison population that, though high, was roughly similar to those of other advanced democracies, but since that time matters have changed dramatically.
Unusually Cruel goes beyond the simple comparison of incarceration rates, however, providing comparative data on the many facets of the criminal justice system. The analysis unfolds in two steps: an evaluation of the “life cycle” of the criminal justice system from sentencing through reentry, followed by a sustained comparison with the case study countries. This comprehensive approach demonstrates that the extraordinary cruelty of the American criminal justice system extends well beyond the numbers of individuals behind bars.
The first step examined in the life cycle of the criminal justice system is plea bargaining. In Chapter 2, Howard highlights the prevalence of plea bargaining and the distinctive power of the American prosecutor. In the United States, roughly 95% of criminal cases are settled through plea bargaining, a percentage that dwarfs that of France (4%) and Germany (25%). Although the United Kingdom has a plea bargaining rate similar to that of the United States, it has substantially less prosecutorial discretion and provides better representation for defendants, which typically leads to less punitive results. Chapter 3 traces the political developments in the 1970s that pushed the United States far outside the comparative norm in terms of sentencing. The implementation of determinate sentences, mandatory minimums, and habitual offender enhancements helped raise the mean prison sentence in the United States to nearly 6 years. In contrast, the vast majority of convictions in European countries result in either no prison time or sentences of less than a year.
The comparative approach also shows with devastating clarity the particularly inhumane conditions of prisons in the United States. Over the past several decades, aided by tremendous court deference to prison officials and the curtailing of the rights of prisoners to challenge their living conditions, American prisons have become significantly more crowded, cramped, unhealthy, and violent than prisons in other countries. Attributes such as severe overcrowding, long-term solitary confinement, complete isolation from the outside world, and dangerously substandard health care make American prisons “some of the harshest and scariest places in the democratic world” (p. 62). Chapter 4 persuasively makes the case for the need to look beyond incarceration rates when considering punitiveness, as ruthless prison conditions are clearly another marker of American punitive exceptionalism.
Chapter 5 turns toward a consideration of the role of penology. Howard argues that the abandonment of the goal of rehabilitation offers a partial explanation for both the rise of mass incarceration and American divergence from European counterparts. Social science studies in the 1970s critical of the effectiveness of rehabilitative penal policies struck a nerve with a public concerned with rising crime rates and an emergent “tough on crime” rhetoric from political leaders. No such abandonment occurred in the European context, where the commitment to rehabilitation has been strengthened in recent years. Despite strong evidence of the failure of the tough-on-crime policies to reduce recidivism and recent studies demonstrating more promising results for the rehabilitative approach, the disenchantment with rehabilitation that facilitated the punitive turn in the American criminal justice system remains a central feature of American penology.
The consequences of these developments are evident on the “back end” of the justice system as well. In Chapter 6, Howard argues that the turn away from rehabilitation and the rise of tough-on-crime politics resulted in the steady erosion of the percentage of prisoners released on parole. As states embraced punitive sentences, many also greatly curtailed discretionary parole, or abandoned it altogether. At the federal level, parole was abolished completely for all offenses committed after 1987. Comparatively, the United States stands alone in the reduction of parole. Parole in France, Germany, and the United Kingdom remains a relatively depoliticized process, and all countries maintain a strong commitment to parole and early release policies. The United States also stands alone in post-prison consequences for individuals caught up in the criminal justice system. Chapter 7 traces the obstacles faced by those leaving prison, including employment barriers, loss of access to housing and welfare benefits, felon disenfranchisement laws, and an array of fines and fees. In contrast, France, Germany, and the United Kingdom have criminal justice systems oriented around the view that punishment ends after time served.
After examining the life cycle of the criminal justice system, Howard leverages the historical comparative framework to offer explanations for why the United States is so punitive. Chapter 8 examines the mid-1970s as a critical moment for understanding the rise of mass incarceration, as this was the pivotal era of comparative divergence. Howard suggests four main causal factors that explain the rise of American punitive exceptionalism: race, religion, politicization, and business. After the Civil Rights movement, the punitive developments in criminal justice became a purportedly “race-neutral” way to maintain racial segregation and oppression. During the same time frame, the rise of the Religious Right introduced a powerful coalition that supported a harsher and more punitive view of crime and punishment into the national political arena. These developments contributed to the politicization of crime and the rise of the tough-on-crime movement, which created tremendous pressure on elected officials—especially judges and prosecutors—to support increasingly strict criminal justice policies. Finally, as policymakers were building the machinery of mass incarceration, they created several openings for private business to profit from the expansion of the carceral state. Although the “prison industrial complex” followed the growth of mass incarceration, it provides tremendous support for continued expansion and a substantial barrier to reform. Howard makes the case that all of these developments are distinctly American and align with the critical moment of divergence from European countries identified by his historical comparative framework.
The book offers a compelling account of American punitive exceptionalism. However, there are moments of tension within the analysis, particularly in the focus on rehabilitation. In an effort to “rehabilitate rehabilitation,” Howard calls for U.S. policymakers to reconsider rehabilitative policies still in use in European countries and supported by recent academic literature (p. 88). This research points to the potential success in reducing recidivism of policies that target known predictors of crime and provide behavioral treatment to change “faulty cognitive beliefs,” particularly for high-risk offenders (p. 95). However, this particular framing reinforces the notion that the incarcerated individual is a deviant in need of correcting, which much of the book problematizes by pointing to a myriad of policy choices and broader systemic reasons that account for incarceration rates.
Furthermore, some scholars have argued that rehabilitation and punitiveness are not mutually exclusive. Anthony Grasso argues that rather than abandon rehabilitation, the tough-on-crime movement exploited certain notions central to rehabilitative penology, such as the “incorrigible criminal,” in their efforts to push policy in a more punitive direction (“Broken Beyond Repair: Rehabilitative Penology and American Political Development,” Political Research Quarterly, 70[2], 2017). Others have noted that recent reforms in the United States that have attempted to expand rehabilitative programs have actually legitimized and expanded punitive incarceration (e.g., see Sarah Cate, “Devolution, Not Decarceration: The Limits of Juvenile Justice Reform in Texas,” Punishment & Society, 18[5], 2016). This scholarship cautions against placing confidence in a reform movement that centers its hope on a rehabilitative penology promising to reduce recidivism, particularly in the context of ascendant neoliberalism.
Unusually Cruel is a substantial contribution to the scholarship on the origins and extent of the American carceral crisis. The book also provides a framework for examining developments in the criminal justice system of other countries. Disturbingly, some of the similarities between the United States and the comparative case studies—particularly the United Kingdom—appear to be examples of other countries “borrowing” policies from the United States, although the degree of punitiveness for the time being remains significantly less. As scholars continue to research the carceral crisis, they would be well served to follow Howard’s lead and look beyond the boundaries of the United States for analytical leverage, as well as alternative visions of how things could be.
