The Systems Are Weaker than Men

The two sides of the Atlantic had significantly different reactions to the Dominique Strauss-Kahn affair. For the French, the state of the American criminal system is just as scandalous as the accusations against him — this hypocritical system that humiliates a defendant supposedly presumed innocent, first by parading him in handcuffs (the “perp walk”) in front of the media from around the world, then by refusing a generous bail and finally by incarcerating him with common thieves and dangerous criminals on Rikers Island.

For Americans, however, the second scandal is linked to the silence of the French elite, those who know DSK’s tendencies and escapades well and who have dared to describe an act of pure sexual aggression as simply the doings of a “womanizer.” At the same time, a certain self-satisfaction seems to accompany the two alleged scandals: The French boast of a penal system that protects the dignity of the accused, while the Americans are proud to show that, in the United States, the rich and the poor are equal in the eyes of the law.

A form of national pride is certainly appropriate, but France, like the United States, would do better to look at things through the eyes of the other. Americans — or, to be more specific, American feminists — should welcome a revolution in how rape victims are treated. Less than 20 years ago, their accusations, if they were heard at all, were considered to be pure lies, acts of retribution or shame related to sexual consent.

Now, however, as demonstrated by the speed with which DSK was arrested, the accusations of a lower-class worker from Africa claiming to have been raped in a luxury hotel are, justly, considered equally as credible as those of rich European tourists who report robberies in Central Park.

For their part, the French are right to point out that their criminal justice system treats the accused with a certain respect for their humanity — something that’s sorely lacking in the overcrowded and increasingly privatized American prisons, which contain their share of lost souls.

Moreover, the Americans would do well to observe through French eyes the cruelty and the degradation of their justice system. I know from having taught criminal law that even educated Americans are sometimes surprised to learn that the incarceration rate in the U.S. is six to 10 times higher than the rate in any other developed nation — with rates of crime that themselves are comparable only to the weakest states.

If the removal, 25 years ago, of a discretionary sentencing system allows for a certain racial equality in sentencing, the parallel use of prison as the primary tool the fight against drugs has created one of the most racially biased prison populations on the planet. Thus, in the United States, as pointed out by sociologist Bruce Western, a young black man is more likely to go to jail than he is to graduate from college or join the military — nearly eight times more likely than a white person.

Therefore, the triumphant arrest and exhibition, as if he were a trophy, of a rich white man — French, to boot — subject to accusations from a poor black woman and to a swarm of reporters from around the world, mustn’t blind Americans to the flaws in their criminal justice system. The American penal system, with all its glitz and glamour, in reality supports resentment and legitimizes massive injustice, not to mention the lewd excitement hidden behind the term “transparency.” If this is La Rochefoucauld’s definition of hypocrisy, we must not confuse cruelty generously disseminated with a tribute to equality.

In France, the precautions surrounding an accused protected from the worst insinuations of the press respect the noble principle of Article 6 of the Declaration of Human Rights, which guarantees the equality of all citizens before the law. The application of this concept of dignity, derived from the privileges of the aristocracy, to all humanity, is undoubtedly one of the greatest achievements of the Enlightenment, although its practical implementation was more unequal in France and elsewhere.

If this principal of equal treatment came late to the French penal system, it is clearly present now. As stated by the renowned legal historian James Whitman, the universalization in Europe of criminal treatment formerly reserved only for aristocrats highlights a major difference from the American system, which, itself, has only managed to universalize the treatment formerly reserved for slaves on plantations.

However, the DSK affair underscores that commitment to dignity, even with an egalitarian façade, still leaves room for unequal treatment of dignities. Regardless of the truth of the accusation against DSK, it is already clear to many journalists and politicians that he could never save face with such behavior even if he had been a brilliant political man and an economist dedicated to using international finance to improve the lives of the poorest.

Meanwhile, the trivialization of his brutal behavior highlights the best-kept secret in French politics: An elitist tolerance for corruption and bad conduct, which is almost as horrid as the U.S.’s penchant for prison farms. Thus, the Americans weren’t wrong to see the resurgence of a certain “lordly right” hidden behind this scandal.

This story has already left many victims in its wake — not only victims of rape or harassment (or, if the conspiracy theories prove correct, the calculated death of an innocent man) but also the victims to come if the progressive policies of the International Monetary Fund were to fail. Maybe we should take this opportunity to confront certain difficult truths about sins of our systems themselves and not just those of our politicians.