How Do We Justify Judicial Corporal Punishment?

     Many people today are appalled by the idea of whipping a human being, but a couple hundred years ago, that's what they often did rather than lock people up in prisons.  The prison as we now know it was unknown when the U.S. Constitution was written and the 8th Amendment later adopted.  Generally speaking, prison has failed of its original purposes everywhere they've tried it -- and judicial corporal punishment has worked nearly everywhere they've used it.  Please consider what the following ex-slaves said about a subject they knew well:  

    

     One of the most successful ex-slaves was landowner Henry D. Jenkins of South Carolina, who credited his later success to the discipline of the whip: “Henry D. Jenkins lives in a four-room house, which he owns . . . on a tract of land containing four hundred and eighty (480) acres, which Henry also owns. . . . ‘Yes sir, I doesn’t deny it, I got many whuppins. Dere’s not much to a boy, white or black, dat don’t need a whuppin’ sometime on de way up. When you break a wild spirited colt, they make de best hoss or mule. I can do more work today, than most of dese triflin’, cigaret young mens. . . You bet yo’ life, my white folks was de bestest in de land.”742 We don’t often hear the voices of slaves who approved of corporal punishment. “If a nigger was mean,” Texan William Byrd said, “Marse Sam give him 50 licks over a log the first time and 75 licks the second time and ‘bout that time he most gen’rally had a good nigger.”743 This account, given before the N-word reached its current derogatory meaning, is substantiated by modern professional observance that, even though they posture as “tough guys,” criminal personalities are often intolerant of pain and fear appearing weak.744 William Byrd’s bold practical statement squares with the most advanced scientific terminology: “Processes of desistance have emerged that are common across a variety of problem behavior areas, including crime (Fagan, 1989). First, the decision to stop appears to be preceded by a variety of negative consequences . . .”745

Good masters applied the whip, too, not just mean ones.

    

Julia Cole was owned by John Grant, of the family who gave Grant’s Park to Atlanta, and said, “Marse John was too good to evvybody for his slaves to want to cut up and run ‘way and do things to make de paddyrollers hunt ‘em down. Dey didn’t have no jails ‘cause dey didn’t need none on our place. Sometimes Marse John made a colored man named Uncle Jim Cooper give ‘em a good whuppin’ when dey needed it.”746  Whippings were used for reasons other than punishing blatant disobedience. Some slaves were whipped for fighting with each other: Uncle Everett Ingram said, “I ‘members dat de overseer useta whip mammy an’ pappy, ‘ca’se dey fight so much.” 747 Some masters imposed 100 lashes if a slave wanted a divorce from another slave, which cut down on divorce. If the slaves were in the wrong, they would usually accept whipping. Only unjust or arbitrary whipping made them mad.748 In many instances, corporal punishment was administered to vindicate the rights and dignity of other slaves. A bully or assailant might be restrained or punished. Some masters whipped sex offenders, rowdy malcontents, those who harmed or offended other slaves, and those who shirked work and forced it onto the shoulders of reliable workers. A few tried to discourage adultery. Masters established law and order in the slave quarters, even when the masters were nowhere in sight. Above all, their owners made sure that their servants were not harmed by other slaves. In slavery days, there wasn’t much black-on-black murder, which is something to ponder when considering the long battle in Los Angeles between the Crips and the Bloods. “’Niggers” didn’t kill one ‘nudder much in dem days,” Sarah Fitzpatrick said. “Dere’s mo’ killin’ ‘mong “Niggers” now dan I ever he’red of. Back dere “Niggers” jes’ had fights ‘mong de’selves, ef dey got too bad white fo’ks whup’em. . . . When a “Nigger” kilt anudder “Nigger” an’ run ‘way, de white fo’ks sont an’ got’im an’ brung’im back an’ beat’im an’ make’im work dat much harder.” 749   It was in the slave population’s interest to have discipline and order. Offenses like truancy, lateness, laziness, disobedience, disorderly conduct, vandalism, theft, and gross negligence harmed the other slaves by imposing on them to finish the work of the plantation. The majority of slaves condoned just punishment of other slaves.By one count, out of 331 references to masters in the Federal Writers' Project Slave Narratives, 86% referred to their masters as “good” or “kind.”753  Some narratives indicated certain masters allowed no corporal punishment at all, though the mere possibility was enough to have an effect. Whipping was usually just and known to do some good. Jane Holloway said,“Our oberseer was good, too. He had to whip some of dem sometimes, but dey wouldn’t work. Dey brung it all on deyselves.”754 Mrs. Amanda Jackson agreed: “Dey usually got whipped fer not workin’.”755 If a slave was guilty of theft, assault, cruelty, child abuse, arson or other crimes, sending the slave to prison cut into the owner’s profits, so whipping was the preferred method of chastisement. Susan Bledsoe said, “Yes, they had to whip a slave sometimes, but only the bad ones, and they deserved it.”756 Minnie Davis agreed: “I don’t recall any certain reason why the slaves were punished; they needed it, I’m sure of that. Some folks need to be punished now.”757 In many cases, the whippings were administered to children or teenagers, to whites and blacks alike, to teach them a lesson. As Aunt Adeline said, “Sometimes I was whipped for things I should not have done just as the white children were.”758 Tom Douglas admitted the need for his punishment: “I wuz whipped once or twice, but I needed it then or ol’ master wouldn’t a whipped me an he never did leave no stripes on me.”759 Slaves received whippings “most of all for stealin,’” according to Lucindia Washington.760 Aunt Mary Ferguson, when asked about being whipped, gave it credit for making her honest, saying, “Yes, and thank God fur it, fur ole Miss taught me to be hones’ an’ not to steal.”761 “Some of de slaves jus’ had to be whupped,” Easter Huff said, “‘cause dey wouldn’t behave.”762 Some of the ex-slaves remembered arbitrary or unjust whipping, which occurred from time to time, but which tended to harm production. Many wrongdoers among the slaves, just like today, characterized their own punishment as unjustified. Some planters only whipped in extreme cases. Mose Davis’ master Colonel Davis did not believe in corporal punishment, preferring to deprive slaves of privileges and give them extra heavy work, but when Mose’s cousin forged Colonel Davis’ name to a check, the forger was whipped.763 Likewise, Robert Heard, who was an adult during the War, didn’t see any of the 120 slaves on his plantation whipped, except “but one slave an’ dat wuz caze he got rowdy drunk.”764 Mothers whipped some of the younger slaves. Jasper Battle said their own mothers “stropped us ‘til de skin was most off our backs” if the children were caught with tobacco.765 Charles Williams, who ended up writing an autobiography, wrote that his mother, also an ex-slave, drove him to school after freedom with a cowhide whip.766

Spencer Barnett said, “Mars Tom Williams wasn’t cruel. He never broke the skin.”737  One huge mitigating factor, not often considered in judging antebellum slavery, was that flogging slaves was a better alternative to incarceration. The jailing of slaves was temporary and relatively short in antebellum times. “They didn’t have no jail for slaves,” Charles H. Anderson remembered, “but the owners used a whip and lash on ‘em.’”738 The depiction of whipped slaves in the mass media should be offset by the knowledge that long prison terms, unlike today, were completely avoided. Most importantly, corporal punishment was administered without disrupting the offender’s marriage, family, social network, employment and support systems. The negative outcomes of social isolation were averted and the family otherwise preserved. The whip was a rehabilitative instrument, a sign that the offender’s behavior could be corrected, and not a symbol of rejection. The master’s interest in agricultural production would suffer if his slave sat idle in a cage for several years. While that is obvious, modern American laws do not recognize it and continue to subvert economic production by new age slaves.  Plantation justice in the form of corporal punishment avoided incarceration of slaves. According to Tom Douglas, “They had a ‘penetenture’ for the white folks when they did wrong. When we done wrong we was tied to that whipping post and our hide busted open with that cow hide.”739 Instead of impersonal forces deciding punishment, the slave’s chastisement was made by the people who knew the slave best, who had a stake in the slave’s well-being and who understood the social dynamics of the slave’s family and community. Punishment was tailor-made to accomplish goals through hard work. Planters did not detach punished slaves from society after punishment, a huge difference compared to modern prison sentences.  Modern released prisoners face their greatest risks in the days, weeks and months immediately following their release from prison. Released prisoners are 12 times more likely than average people to die in those initial weeks out of prison,740 when they are cast back into the free world, a world that has changed since they began their prison term.  Flogging as a system of behavior modification was superior to lengthy prison terms. Flogging was immediate, completed quickly and left powerful reminders: both mental and physical. According to eyewitnesses, flogging worked and did not result in the loss of liberty or property.