Essays as Freedom Advances: Tbe Paradox of Severity in American Criminal Justice

According to the Enlightenment philosopher Montesquieu, "as freedom advances, the severity of the penal law decreases."' Montesquieu's notion is in the United States Constitution's Eighth Amendment, a provision that reflects a Montesquieuan faith that punishments acceptable today will become cruel and unusual tomorrow. Yet the United States in the year 2000 presents a serious challenge to Montesquieu's notion of the progress of freedom. The United States is simultaneously a leader of the "free world" and of the incarcerated world. We celebrate and export our commitment to free markets, civil rights, and civil liberties, yet we are also a world leader in incarceration and the death penalty. The last thirty years have seen an unprecedented increase in incarceration in the United States, and the number of persons executed each year has climbed steadily since the Supreme Court resurrected the death penalty in 1976. In our treatment of crime, we could not be more different from other "free" countries with which we generally associate ourselves. What explains this paradox? Was Montesquieu wrong? This essay examines the uneasy coincidence of freedom and severity in American criminal justice. Explaining social facts must always be a tentative undertaking, nowhere more so than in the sphere of criminal justice. Everything about our lives is over-determined, and therefore singling out one or more causes for a social phenomenon is notoriously difficult and inevitably reductive. In addition, social scientists have limited ability to conduct controlled experiments and are therefore left to draw infer-