Why Was Judicial Corporal Punishment Abolished?
Why Was Judicial Corporal Punishment Abolished? by John Dewar Gleissner, Esq.
Throughout history, the lowest ranks of society provided the majority of
criminals. Punishments often varied by
social class or caste, officially or unofficially, and JCP most often was reserved
for or primarily given to slaves and those with little status, money or
property.[1] Thus, JCP is generally abolished in advanced societies
as a by-product of greater equality or democracy, because it is a relic of
lower-class status that newly enfranchised citizens dislike.
JCP is unpleasant to administer, sometimes
causes publicized deaths,[2] seems
barbaric when incarceration holds out false promises of rehabilitation or
humane treatment, and does not conceal society’s most despised members. As a community punishment, JCP was overwhelmed
by urbanization and centralization.
But
JCP in some ages gains acceptance by entire societies. Gustav Radbruch demonstrated that corporal
punishments in Germanic law started out as domestic slave punishments and over
the centuries were made applicable to all offenders.[3] Changes in punishments are the rule, not the
exception. Punishments continually vary
over the centuries with changes in social structure, economies, revolutions,
public order, religions, technology and wars.
The punishment of transportation was invented out of the need for labor
in the New World and stopped when that need decreased.[4] Galley slavery arose from the military need
for rowers and the difficulty of inducing free men to serve; it ended with
improvements in sail technology.[5]
Criminology had little to do with these
changes in punishment. Applied social science
still plays a surprisingly small role.
Penal institutions in particular are slow to change because their
subjects have little voice in society and the punishment is concealed.
JCP was perceived as ineffective
because it was administered to the mentally ill component of the criminal
population, for whom it is ineffective or much less effective.[6] The reintroduction of JCP presupposes that
the mentally ill would be diagnosed and then treated or punished differently
than regular criminals. Our current judicial
and correctional systems often perform poorly in this regard, but localized
decision-making would attend to this needed screening with greater diligence. Like the invention of the penitentiary, the
de-institutionalization movement in the later twentieth century was supposed to
help the mentally ill, but it resulted in more incarceration for them. Medical supervision of JCP ought to include
both mental and physical aspects of JCP.
In France, JCP ended with the French
Revolution and France’s citizen army, a reform Prussian General Scharnhorst
then advocated for the Prussian Army in response.[7] In Prussia, JCP ended in 1848, when ordinary
Prussians received the right to vote.[8] Russian peasants, who had long played a role
in punishment at the village level, feared fines and imprisonment more than
flogging when JCP was abolished by the Tsar in the 1860s,[9] at
the time serfdom was abolished in Russia.
In a similar way, villages or tribes in India retained JCP when it was
outlawed generally throughout India.[10] Starting in the late seventeenth century,
England increasingly relied upon JCP as a substitute for the death penalty in
cases of grand larceny.[11] In Britain, JCP was abolished in 1947,
although its re-introduction was debated in 1961.[12] In Canada, JCP was abolished in 1957.[13]
Significantly, JCP in the U.S. was
abolished by legislatures, not the courts, in favor of untested incarceration,
without the benefit of modern behavioral science or studies, and without
knowing how much the prison population would later increase. Precipitous abandonment of JCP in favor of
incarceration was personified in New York by Thomas Eddy, a devotee of
Beccaria, who worked against harsh punishments and tried to be a humane warden
of Newgate Prison after JCP was abolished – but who was forced to resign in 1804 after frequent prison riots.[14] Large prisons arose gradually in the
nineteenth century, concurrently with the gradual abandonment of JCP. In time, the conditions of incarceration,
including corporal punishment administered to prisoners as discipline by prison
authorities, generated an increasingly large volume of litigation under the
Cruel and Unusual Punishments Clause.[15]
In accordance with the pattern of
other nations, JCP declined in the U.S. in two stages, after the American
Revolution and again after the Civil War ended chattel slavery and granted
freed slaves the right to vote. The punishments of whipping and of standing
in the pillory were abolished by Congress in 1839; imprisonment at hard labor
was substituted for nearly all other ignominious non-capital federal offenses,[16]
although today relatively few prisoners work hard. Work in prison decreased markedly after state
and federal legislation made the sale or transport of prison-made goods
illegal.[17]
The
corporal punishment of African Americans became more arbitrary, brutal and
chaotic after the economic incentives of slavery disappeared.[18] Black Codes passed after the Civil War, such
as the one adopted by Mississippi to assign orphaned and unsupported
“apprentices,” supposedly drew the distinction between “moderate corporal
chastisement as a father or guardian is allowed to inflict on his or her child
or ward at common law” but prohibited “cruel or inhuman punishment.”[19] In 1867, Union generals in command of Military Districts in the South during
Reconstruction ordered the abolition of corporal punishment shortly after
Congress passed a law to that effect.[20] The South’s attempt to re-assert white
supremacy though Black Codes resulted in the Fourteenth and Fifteenth
Amendments. The Ku Klux Klan then
illegally and secretly punished African Americans with whips, lynching and
intimidation outside the legal system. The
convict labor systems developed after the Civil War were far worse than
slavery, because the exploiters of convict labor had no investment in their
workers. As bad as convict leasing was,
the numbers involved in convict leasing and incarceration at the time are
dwarfed by modern correctional populations.
In 1890, there were still only 8,417 prison inmates of all races in the
entire South, and the federal prison system did not yet exist.[21]
While corporal punishment was linked
to racism and banned by the winning side, incarceration caused an enormous tragedy
on both sides. Prisoner-of-war camps in
Andersonville, Georgia, Johnson’s Island, Ohio, Richmond, Virginia, and
“Hellmira,” New York fully revealed how terribly two American governments
handled their prisoners-of-war. An
estimated 56,000 Union and Confederate prisoners died as a result of disease,
poor shelter and malnutrition.[22]
JCP
in the United States reminds
many of slavery or Jim Crow, even though whites were commonly whipped from the
founding of the colonies until the modern incarceration regime arose. Former slaves interviewed during the Federal Writers’ Project Slave Narratives vouched for the
effectiveness of fair corporal punishment, most often imposed for not working
and stealing,[23]
just as they dreaded alcoholic and insane owners and overseers. Today, as a percentage of population, the
South incarcerates far fewer African Americans than the North compared to the
number of whites incarcerated in those states. The greatest incarceration disparities today in
favor of whites and against blacks are in the North, in the very same states
that took the strongest stances against slavery and whose representatives
banned JCP in the South.[24] Iowa, Vermont, New Jersey, Connecticut, and
Wisconsin had the greatest racial disparities as of 2005, all over 10-to-1,
while the Deep South states of Alabama, Arkansas, Mississippi, Louisiana, Georgia,
South Carolina, and Texas all had racial disparities of less than 5-to-1.[25] Almost
without exception, the states of the old Union incarcerate significantly greater
percentages of African Americans compared to the percentage of whites incarcerated
– about twice as many – than the states of the old Confederacy.[26] Clearly, the abolition of JCP did not usher
in an era of equal treatment in the use of incarceration on either side of the
Mason-Dixon Line. Eventually, the
supposed colorblind administration of justice without JCP culminated in huge racial
disparities in America’s prisons and entire correctional population.
JCP is just a technique; inequities
are driven by social, economic, political, biological, physical, religious and
military forces. The most respected
American leaders, the four presidents carved into Mount Rushmore, are all on
record as favoring the use of JCP, and yet each favored racial freedom or equality
more than the bulk of their contemporaries.[27]
One of the last uses of American JCP
was to vindicate the rights of battered wives.
This specific use harkens back to Beccaria’s idea that crimes of
violence should be punished corporally.[28] In Springfield, Illinois, Abraham Lincoln as
a vigilante with friends caught and restrained an alcoholic wife-beater, who
Lincoln had previously threatened with a whipping should he beat his wife
again, and then allowed the wife to whip her husband with a tree branch.[29] Despite threatening retaliation, the
chastened wife-beater did not later offend against his wife.[30] U.S.
courts did not until the 1870s overturn the common law principle that a husband
had the right to physically chastise his wife.[31] In 1882, Maryland was the first U.S. state to
make wife-beating a crime.[32] The Maryland statute provided for JCP (and/or
incarceration) as a punishment, and as of 1895, JCP was said to be effective in
reducing this crime.[33] A whipped wife-beater said he would not make
himself subject to the penalty again, and that the disgrace of JCP was worse
than the physical pain.[34] Maryland acted long before the World Health
Organization spoke on the issue of domestic violence and recommended in 2005
that, “those convicted need to be appropriately punished. Flexible sentencing or alternative sanctions
should be explored, where possible, to deter further violence.”[35] As in most modern literature concerning
punishments, words such as “alternative,” “community,” “flexible,” and unspecified
“sanctions” are code words admitting two things: Incarceration is not the answer,
but we do not know what else to do or if the public will pay for it. The suggestion of traditional JCP in lieu of
incarceration is almost never one of the unspecified “alternative sanctions”
considered. Advocates of change hope for
more expensive programs, therapies, treatment, renewal and rehabilitation and
do not consider JCP as encouraging, assisting and supporting such methods. Experimentation might reveal that JCP is the
“bottom” substance abusers need to hit before they decide to stop abusing
substances.
Economic, political, religious and
popular forces, not the science of criminology, determined through history what
punishments were used in a given era.
The great prison reformer John Howard disparaged the punishment of
transportation to colonies, yet that punishment over time had the best record
of rehabilitation, especially for descendants of transported criminals. As a practical matter, it is extremely
difficult to perform long-term follow-up studies evaluating the efficacy of
punishments. Obstacles to rational
evaluation increase when prisoners are released years after the imposition of
punishment and enter a large population of citizens. These assessment difficulties suggest the
greater ability of those at the village, military unit and community level to apply
effective punishment. Punishment
administered at the family level also benefits from this familiarity, but lacks
the rationality, publicity and accountability of JCP and hence more often
results in misuse due to emotional components.
[1] As
Justice Douglas observed in Furman v.
Georgia, punishment is known to increase in severity as social status
diminishes. Furman v. Georgia, 408 U.S. 238, 255 (1972) (Douglas, J.,
concurring); Laurie A. Gould & Matthew Pate, Discipline, Docility and Disparity, 50 Brit. J. Criminology 185, 196 (Mar. 2010) (JCP statistically
correlated with economic disparity throughout the world). See
Acts 22:25-29.
[2]
Opposition in Britain arose after a mentally imbalanced soldier’s death from
150 lashes in 1847, Vol. V., No. 1, The
London Lancet 88 (1847); and a student’s death from punishment
administered by his schoolmaster in 1860. New
World Encyclopedia – Corporal
Punishment.
[3] J. Thorsten Sellin, Slavery and the Penal
System 30, 177 (1976).
[4]
Georg Rusche & Otto Kirchheimer, Punishment and
Social Structure 58-62 (Transaction Edition, 2003) (1939).
[5]
Id. at 53-58.
[6]
The mentally ill compose some 16% of the modern U.S. prison population. Paula M. Ditton, Bureau of Justice Statistics, Special Report – Mental Health
and Treatment of Inmates and Probationers (1999) available at http://www.bjs.gov/content/pub/pdf/mhtip.pdf. The mentally ill were always represented in
criminal populations throughout history.
“In Sixteenth Century England, one
prescription for insanity was to beat the subject "until he had regained
his reason." Deutsch, The Mentally
Ill in America (1937), p. 13. In America, "the violently insane
went to the whipping post and into prison dungeons or, as sometimes happened,
were burned at the stake or hanged," and "the pauper insane often
roamed the countryside as wild men and from time to time were pilloried,
whipped, and jailed." Action for Mental Health (1961), p. 26. As stated by
Dr. Isaac Ray many years ago: "Nothing can more strongly illustrate the
popular ignorance respecting insanity than the proposition, equally
objectionable in its humanity and its logic, that the insane should be punished
for criminal acts in order to deter other insane persons from doing the same
thing." Treatise on the Medical
Jurisprudence of Insanity (5th ed. 1871), p. 56.” Robinson v. California, 370 U.S. 660, 668 (1962) (Douglas, J.,
concurring).
[7] Beatrice Heuser, The Evolution of Strategy –
Thinking War from Antiquity to the Present 158 (2010).
[8] Georg Rusche & Otto Kirchheimer, Punishment and
Social Structure 100 (Transaction Edition, 2003) (1939).
[9] Pieter
Spierenburg, The Practice of
Punishment in Western Society, in
Oxford History of the Prison 213-214 (Norval Morris & David J. Rothman eds., 1995). In time, Stalin’s massive remote state
slavery fully justified the pessimism of the Russian peasants. Centralization of punishment usually carries
disadvantages for the punished and their families; it is administratively
convenient for the punisher.
[10]
Global Initiative to End all CP of Children, India – Country Report available at http://www.endcorporalpunishment.org.
[11] John Briggs, Christopher Harrison, Angus
McInnes & David Vincent, Crime and Punishment in England – An Introductory
History 80 (1996).
[12]
It was abolished under the Labour Party.
Margaret Thatcher supported in the House of Commons a 1961 criminal
justice bill providing JCP for those under 21; it was said to have overwhelming
public support. Hansard HC Standing Committee B [551-600] available at http://www.margaretthatcher.org/document/101088;
See also, HL Deb 01 May 1961 vol 230 cc1082-170 available
at http://hansard.millbanksystems.com/lords/1961/may/01/criminal-justice-bill-1.
[13] State of Delaware v. Cannon, 5 Storey
587, 596, 55 Del. 587, 596, 190 A.2d 514, 518 (1963).
[14] U.S. v. Blake, 89 F.Supp.2d 328, 342-343
(E.D.N.Y. 2000).
[15] Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 NYU L.
Rev. 881 (2009). See, for example, Brown v. Plata, 563 U.S. __ (2011); Austin v. Hopper, 15 F.Supp.2d 1210 (M.D. Ala. 1998) (chain gang,
“hitching post,” visitation & toilet facilities).
[16] Ex Parte Wilson, 114 U.S. 417, 427
(1885). 10 U.S.C. § 855. Art. 55. Cruel and unusual punishments prohibited,
passed in 1956, prohibits flogging and other punishments in the Uniform Code of Military Justice.
[17] 18
U.S.C. §1761 & 18 U.S.C. §1762 prohibit the sale and transportation of
prison-made goods across state lines.
Each state is free to prohibit the sale of prison-made goods. Most prison-made goods today are only sold to
government entities. Governments possess
a triple monopoly over prison industries, labor and the sale and purchase of
prison-made goods. The resulting
uncounted unemployment of prisoners roughly doubles the direct costs (about
$25,000 per prisoner per year) because of the lost opportunity costs of the
unemployed prisoners. Prisoners are not
accurately counted as “unemployed” for statistical purposes, artificially
lowering the official unemployment rate.
[18]
For example, a slave lost value when
whip marks left permanent scars. See
Louis Hughes, Thirty
Years a Slave: From Bondage to Freedom: The Institution of Slavery as Seen on
the Plantation and in the Home of the Planter 8 (1897) available at docsouth.unc.edu. Alcoholic and mentally ill slave masters and
overseers account for much of the documented cruelty in the antebellum era. See
J.D. Gleissner, Prison & Slavery – A
Surprising Comparison 106 (2010).
[19]
Act to Regulate Relation of Master & Apprentice, §3, Black Code of
Mississippi, Dec. 2, 1865, available at http://oll.libertyfund.org.
[20]
On Mar. 2, 1867, Congress passed a law outlawing whipping in the former
Confederacy, and all the Military Districts in the South ordered whipping
stopped shortly thereafter: Public – No. 85, in General Orders, No. 26, Headquarters
Dep’t of the South, Charleston, S.C., March 8, 1967, in Edward McPherson, Political History of the USA during the Period
of Reconstruction 200, 201 (1871).
[21] U.S. Dept. of Justice, Bureau of Justice
Statistics, Historical
Corrections Statistics in the United States, 1850-1984, Table
3-2.
[22] Yancey
Hall, U.S. Civil War Prison Camps Claimed Thousands, National Geographic News, July 1, 2003,
available at http://news.nationalgeographic.com/news/2003/07/0701_030701_civilwarprisons.html.
[23] A
very successful ex-slave was landowner Henry
D. Jenkins: ‘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.” South Carolina Slave Narratives, Vol. XIV,
Pt. 3, 23-26. Also from Fed. Writers’ Project: Mrs. Amanda Jackson, Georgia Slave
Narratives, Pt. 2, 292; Lucindia
Washington, Alabama Slave Narratives, 410; Aunt Mary Ferguson, Georgia Slave
Narratives, Pt.1, 329. See J.D.
Gleissner, Prison & Slavery – A Surprising Comparison 157-170
(2010). Some slaves did not consider it
stealing when they took from their owners, because their whole people were
stolen from Africa and they were usually benefiting their owners’ property. A good number of slaveholders did not use the
whip at all.
[24] 154
Table 4 – Prison & Jail Incarceration Rates, 2005, by White Incarceration
Rates, Rates of Incarceration per 100,000 Population, in Marc Mauer
& Ryan S. King, “Uneven Justice: State Rates of Incarceration By Race and
Ethnicity,” The Sentencing Project, 2007 available at www.sentencingproject.org.
[25]
Id.
[26]
Id. Cf. Indiana’s rate is barely less than Virginia’s.
[27]
George Washington in the Continental Army; Thomas Jefferson in a statute; Abraham
Lincoln as the ringleader in the corporal punishment of a Springfield, Illinois
wife-beater; and Theodore Roosevelt in a message to Congress in 1904.
[28] Cesare Beccaria, An Essay on Crimes and
Punishments, Ch. XX, Of Acts of Violence (1764; A New Edition Corrected,
1872) available at
http://oll.libertyfund.org.
[29]
William H. Herndon & Jesse W. Weik, Herndon’s Life of Abraham Lincoln
151-152 (1889).
[30]
Id.
[31] R
Calvert, Criminal and Civil Liability in Husband-Wife
Assaults, in Violence
in the Family (Suzanne K. Steinmetz and Murray A. Straus, eds., 1974).
[32]
The New York Times, Jan. 13, 1895, available at http://query.nytimes.com/mem/archive-free/pdf?res=FA0614FD395911738DDDAA0994D9405B8585F0D3
[33]
Id.
[34] Id.
Obviously, isolated anecdotes are not scientific. Anti-JCP books have been written, full of
anecdotes emphasizing the worst aspects.
See George Ryley Scott, The History of Corporal Punishment
(1968).
[35] World Health Organization (WHO) Multi-Country
Study on Women's Health and Domestic Violence Against Women,
Recommendation 13 (2005).