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"Prisoner Degradation Abroad--and at Home"--A Commentary by Prof. James Q. Whitman


(This essay was originally published in the May 10, 2004, edition of the Washington Post.)

Prisoner Degradation Abroad -- and at Home
By James Q. Whitman, Ford Foundation Professor of Comparative and Foreign Law

It has emerged that two of the MPs implicated in the Abu Ghraib prison scandal have worked as corrections officers in the United States. One hopes and prays that nothing like the horrors of Abu Ghraib happened on their watches at home. Nevertheless, the very fact that American prison guards were involved in such barbarism abroad raises a question that ought to disturb all of us: Is what happened in Iraq in any way typical of what happens in domestic American punishment?

This is not a question many of us want to face at the moment: Our sense of shame and horror is quite overwhelming enough when we focus only on Iraq. But the sad truth is that we have every reason to take the question seriously. When it comes to degradation in punishment, it's not just a question of Iraq. It's about degradation at home as well. We will not be able to digest the lessons of Abu Ghraib unless we understand as much.

Over the past few years, I have been studying the forms of criminal punishment in America and abroad, and I have learned that the American attitude toward degradation in punishment has become dramatically different from that in other countries. Americans simply do not understand how shocking our forms of punishment can seem to foreign observers.

Take Germany and France. Degradation is regarded as so unacceptable in those countries that they have generally banned the use of prison uniforms -- a far cry from stripping prisoners naked to humiliate them. And that is only the beginning. Prisoners are supposed to be treated like ordinary human beings in continental Europe, entitled to ordinary respect. Thus inmates have privacy rights in Europe -- which means, for example, that they are not housed behind barred doors. Certainly continental inmates are not obliged to use toilets in the open view of guards of the opposite sex, as they may be in America. In a country such as Germany, ordinary labor law applies to prison inmates, giving them the same kinds of protections accorded workers in the outside world. There are even rules requiring that prisoners be addressed respectfully, as Herr So-and-So.

Imagine how America looks to punishment professionals from such countries. It 's not just about the photos of grinning MPs engaged in gleeful forms of humiliation in Iraq. It's not just about our previous international scandal of this kind -- the one surrounding photos of prisoners taken in Afghanistan, chained and blindfolded on an airplane floor as they were carted to Guantanamo Bay. It's not just about ostentatiously degrading practices such as the chain gang. It's about everyday American criminal punishment, in ordinary American prisons.

What has happened in our country? There was a time when America was regarded as a model of civilized punishment. A century and a half ago, de Tocqueville was convinced that America would always be a model of mildness. In 1945 Americans could still look upon Germany and feel pride that we had not succumbed to the German sort of barbarism. Today things are very different. We incarcerate at a rate staggeringly higher than other Western countries. We criminalize a far wider range of conduct. We are a country known worldwide for our exceptionally punitive practices -- not least when it comes to degradation.

Terrible evil has come out of the Abu Ghraib scandal for America. It's hard to imagine how the damage to our international standing can be repaired. But some good can come from it if it brings us to recognize the barbarity of any punishment system, abroad or at home, that does not recoil from practices of degradation.

The writer is professor of comparative law at Yale Law School and the author of "Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe."