Corporal Punishment ("CP") of African Americans in the USA -- To help explain how we can cut the current American prison population in half:
The
corporal and capital punishments of African Americans became more arbitrary,
brutal and chaotic after the economic incentives of slavery and Union Army
governance disappeared.[1] Statutes and common law permitted
disciplinary legal CP of slaves, but prohibited or discouraged the “cruel, unusual
and excessive” punishment of slaves.[2] 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.”[3] Florida established up to 39 stripes of JCP or
the pillory as punishment for vagrancy and vagabonds on Jan. 12, 1866.[4] Less than a month after South Carolina
enacted a code authorizing the JCP of former slaves, Union Major General
Sickles of the Military District of South Carolina prohibited such punishment in
his general order of Jan. 17, 1866.[5] The Civil Rights Act of 1866, effective April 9, 1866, made
it a crime to subject former slaves to “different punishment, pains, or
penalties.”[6] A U.S. Senate bill was introduced to
authorize the president “to prevent the infliction of corporal punishment in
the States lately in rebellion.”[7] One House bill ordered printed on Jan. 28,
1867 equated JCP with a violation of the Eighth Amendment.[8] Union generals in command of Military
Districts throughout the South ordered the abolition of JCP shortly after
Congress passed the First Reconstruction Act on March 2, 1867.[9] Martial law abolished JCP, not for
ineffectiveness, but because JCP too powerfully promoted white supremacy in
labor relations, commerce, the bearing of arms, criminal laws and voting rights.
The South’s re-assertion of 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, just as the mafia in Southern Italy and
Sicily earlier arose as a secret internal police force to counter conquering
powers. Far worse than slavery, the
convict labor systems developed after the Civil War exploited convict labor without
any investment in the 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 only 8,417 prison inmates
of all races in the entire South, and the federal prison system did not yet
exist.[10]
While JCP 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.[11]
JCP
in the United States reminds
many of slavery or Jim Crow. Former
slaves interviewed during the Federal
Writers’ Project Slave Narratives
vouched for the effectiveness of just CP, most often imposed for not working
and stealing,[12]
just as they dreaded alcoholic and insane owners and overseers. A most 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.”[13] No blanket conclusion about the CP of slaves is
accurate, because each slave was an individual, each bondage experience unique,
a variety of whips were used, and the frequency and type of punishment varied
greatly in relation to positive reward mechanisms. A significant number of slave owners did not
whip their slaves.
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 imprisonment 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.[14] 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 had racial disparities of less than 5-to-1.[15] Social,
economic, political, biological, physical, religious and military forces drive
inequities, not punishment techniques.
The most respected American leaders, the four presidents carved into
Mount Rushmore, are all on record as favoring the use of JCP ("judicial corporal punishment") on white citizens,
and each favored racial freedom or equality more than the bulk of their
contemporaries.[16]
The only thing worse than corporal punishment is prison. That's right, the failed social experiment of incarceration needs reforming, but not with "get out of jail free" cards, not in any way that will be opposed by law & order interests, and not with greater government spending.
[1] Dick
v. State, 1 George 631, 1856 WL 2565 (Miss.Err.App. 1856)(slave who
confessed to rape of white woman given new trial); State v. Gilbert, 2 La.Ann. 244, 1847 WL 3357 (La. 1847)(at least
three trials required for slave who confessed under coercion to attempted rape
of white woman). 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).
[2] A
Missouri statute provided that, “every person who shall cruelly or inhumanly torture, beat, wound
or abuse any slave in his employment or under his charge, power or control,
whether belonging to himself or another, shall, on conviction, be punished by
imprisonment in the county jail not exceeding one year, or by fine not
exceeding one thousand dollars, or by both such fine and imprisonment.” State
v. Peters, 28 Mo. 241, 1859 WL 6600 (Mo. 1859). McCoy v. McKowen, 4 Cushm.
487, 1853 WL 3710 (Miss.Err.App 1853); Gillian
v. Senter, 9 Ala. 395, 1846 WL 254 (Ala. 1846)(owner sued overseer in
trespass for excessive punishment); Helton
v. Caston, 2 Bail. 95, 1831 WL 1475 (S.C.App. 1831)(owner sued lessee for
beating slave contrary to contract).
[3]
Act to Regulate Relation of Master & Apprentice, §3, Black Code of
Mississippi, Dec. 2, 1865, available at http://oll.libertyfund.org.
[4]
Edward McPherson, Political History of
the USA During the Period of Reconstruction 39 (1871).
[5]
Edward McPherson, Political History of
the USA During the Period of Reconstruction 36, 37 (1871).
[6]
Civil Rights Act of 1966, 14 Stat. 27-30, §2, effective April 9, 1866 (overcame
Pres. Johnson’s veto).
[7]
S.R. 153, 39th Congress, 2nd session (reported Feb. 2,
1867).
[8]
H.R. 1080, 39th Congress, 2nd session.
[9] On
Mar. 2, 1867, Congress passed the First Reconstruction Act, 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, 1867, in Edward McPherson, Political History of the USA during the Period
of Reconstruction 200, 201 (1871).
[10] U.S. Dept. of Justice, Bureau of Justice
Statistics, Historical
Corrections Statistics in the United States, 1850-1984, Table
3-2.
[11] 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.
[12] Federal Writers’ Project Slave Narratives: Mrs. Amanda Jackson, Georgia Slave
Narratives, Pt. 2, 292; Lucindia
Washington, Alabama Slave Narratives, 410; Aunt Mary Ferguson, Georgia Slave
Narratives, Pt.1, 329. All 2,300 Slave Narratives available at http://memory.loc.gov/ammem/snhtml/snhome.html. 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, suggesting
positive methods or the in terrorem
effect, not actual use of the whip, were more significant factors.
[13]
Henry D. Jenkins, Federal Writers’ Project
South Carolina Slave Narratives, Vol. XIV, Pt. 3, 23-26. The most common whips were one 18” long and
2” wide attached to a wooden handle or a 3-foot whip, not the bull-whip shown
in the movie Roots. John Hope Franklin & Loren Schweninger, Runaway Slaves –
Rebels on the Plantation 239 (1999).
[14] 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.
[15]
Id.
[16]
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.