Penal Modernism in Theory and Practice

Abstract

This paper develops three observations triggered by Whitman's account of penal modernism; all relate to criminal law in the context of American politics and criminal justice. One suggests why "judicial conscience," which Whitman describes as playing a central role in penal modernism, may be more problematic in the U.S. than Europe. The second speculates that certain barriers to penal modernism in U.S. political and legal culture are less significant than they seem. Finally, I question the extent to which retributivism displaced penal modernism and suggest a lesson this may hold about criminal law theory in the political and policymaking arena.