On Judicial Corporal Punishment

What follows has little to do with the anglosphere directly. It is rather the exploration of an idea I have been thinking about for some time, the infliction of physical pain as a form of punishment for those convicted of a crime. I call this Judicial Corporal Punishment to distinguish it from parental corporal punishment.

Today, the punishment for crimes consists chiefly of fines, imprisonment, and forms of probation. While some anglosphere states do have capital punishment, it is infrequently applied and thankfully only for the most serious offenses.

The problems with the current system are as follows: it is expensive, it is often to lenient on first offenders, it is often to harsh on multiple offenders, it is not as effective a deterrent as it could be because it often fluctuates wildly between excessive leniency and excessive harshness.

The current system of incarceration is expensive and its expense is in a sense an injustice against law abiding citizens. There is no way of getting around the fact that jails cost money and so do jail guards. That the prisoner must be feed, clothed, etc. is an additional expense. That prisons are needed for certain types of offenders, is undeniable. Murderers who are not put to death, rapists, strong arm robbers, those who have committed assault with a deadly weapon, and multiple offenders all need to be incarcerated for the protection of the public and as a form of punishment. However it must be remembered that incarceration, being expensive inflicts a harm on the public.

Because there is no intermediate form of punishment between fines and imprisonment under the current system, many first offenders are treated with excessive lenience, they are sentenced to the term that the crime they have committed calls for, but the sentence is suspended on the condition of good behavior. While this may deter some criminals, because they don’t want their suspended sentence imposed, it is important to remember that the criminal mentality is often a short term and concrete bound one. That is to say, they see not the punishment that hangs over them if they re-offend, but the lack of punishment. Also for a concrete bound mentality, the psychological pain of imprisonment is fairly abstract, especially if never previously experienced.

The excessive harshness of the system on some multiple offenders is a result of the excessive leniency. Firstly, the punishment for first misdemeanor offenses being basically nothing, often not much effort is put into catching those who commit them. Then when the lack of punishment has not deterred a budding young criminal and he or she commits a felony often the sentence is still only a suspended one. The lack of punishment having encouraged further malefaction, the book is now thrown at the criminal. In the worst instances this may even include the “three strikes and you’re out law.” In this most serious instance, the criminal has never been effectively punished until society is stuck with paying for his life incarceration. To call such a system absurd is to be polite. Even when the “three strikes law” does not come into play, a criminal must be incarcerated for two long terms of imprisonment, the one suspended and the one for the new felony. (As for the nonsense of concurrent sentences, don’t get me started.)

This is clearly not an effective way to deal with criminal justice. It does not deter, and often it is not just. Not to the public who has to pay for long prison stays that might have been prevented and not to the criminal who might have learned the error of his ways had his early crimes been meet with appropriate punishment. I believe that corporal punishment could be an effective intermediate punishment between fines and imprisonment which would solve the problem of over leniency and over harshness.

Corporal punishment has a number of benefits. First, it is cheap compared incarceration. Secondly, it is a deterrent that even concrete bound minds can understand. Third, it allows for fine gradations of punishment. Fourth, it does not ruin the criminals life the way even a two or three year prison term could. Fifth, it allows the person punished to benefit society by acting as an example for others.

Even if we had to buy a new whip for each person, corporal punishment would be cheaper than even a short six month prison sentence. Since it is the innocent who pay for the penal system, cheapness is not to be despised. By saving money, corporal punishment is more just than incarceration.

A real problem with suspended sentences and the incarceration model is that for a concrete bound mentality, it is not a very strong deterrent. In contrast everyone knows that pain isn’t fun. We all try and avoid it. Corporal punishment is therefore a practical form of punishment.

Like incarceration, corporal punishment allows for gradations of punishment with minor crimes receiving a lesser punishment and serious ones a harsher penalty. For example, misdemeanor crimes could be punished by up to 12 strokes of the lash, lesser felonies by up to 24 strokes and serious felonies by up to 36 strokes. With in these broad categories, even finer gradations could be made. This allows the punishment to fit the seriousness of the offense which of course is just.

Unlike incarceration, corporal punishment does not ruin the life of the convict. A person thrown in jail for any substantial period of time has his life thoroughly ruined. Youngsters can’t finish school. Prisoners lose their job and possibly all their material positions. Single parents lose custody of their children. These ill effects do not fall only on the convict, but effect spouses, children and society at large. Corporal punishment punishes the convict without the side effects that harm others. Because it does not cause the side effects, corporal punishment is more just than incarceration.

While incarceration causes society additional harm in the form of the expense, corporal punishment has the potential to benefit society because its infliction can be used as an example to others. First offenders whose crime is not serious enough to merit the whip could be sentenced to watch it applied to another criminal. Further when a convict returns to his usual haunts, his healing wounds will bring before the eyes of his compatriots the penalty for breaking the law. Instead of the injustice of further harming the law abiding, corporal punishment includes an element of restitution.

While the forgoing points out defects of the current system and some of the advantages of corporal punishment, it does not address the belief of some that corporal punishment is so degrading that it is beyond the pale. My view on this is two fold. First of all, I am not convinced that the violence and ennui of prison life are any less soul destroying than a whipping. Secondly, punishment is supposed to be unpleasant, that is what, we hope, will deter people from committing crimes. I recognize that will not convince some, but I think most readers will see the sense in them.

If corporal punishment is a proper intermediate punishment, how is it to be used? I suggest the following as a starting point for discussion.

For first offenders who commit a misdemeanor, a sentence of between 2 and 6 strokes suspended on the condition of good behavior for the next 20 years plus a sentence of involuntary observation of between 24 and 48 strokes applied to other convicts. This would let the convict see with his own eyes what further malefaction would bring him and put a number of lashes hanging over his head like the sword of Damocles.

For second offenders who commit a misdemeanor, a sentence of between 4 and 12 strokes depending on the offence would be appropriate. This would be a strong punishment when added to his suspended sentence. Also the second offender should have an appropriate jail term imposed with all but a week of the sentence suspended on the condition of good behavior for the next 20 years. This would give the offender a weeks taste of prison, but leave most of the sentence as a deterrent against further crime.

For subsequent misdemeanor offences, a sentence of between 9 and 12 strokes of the lash depending on the offence and a jail term would be appropriate. This would be both a strong corporal punishment and for third offenders a relatively long jail term adding the suspended sentence. Hopefully these terms combined would be a taste of long term incarceration (i.e. 6 months to two years) that would warn off the criminal from further malefaction.

For first offenders who commit a lesser felony, a sentence of between 12 and 24 strokes and prison term of 1 to 4 years with half the lashes and all but a week of the prison term suspended on the condition of good behavior for the next 20 years would be appropriate. This would allow the felon to feel on his own back the consequences of continuing a life of crime and leave half his corporal punishment hanging over him along with the majority of the prison term.

For second offenders who commit a lesser felony, a sentence of 24 strokes and a prison term of 3 to 6 years would be appropriate. This would both be a very significant corporal punishment and would put the convict in prison for a relatively long time, especially if he had a suspended felony sentence.

For subsequent offenders who commit a lesser felony, a sentence of 24 strokes and a prison term of 6 to 9 years would be appropriate.

For first offenders who commit a more serious felony, a sentence of 24 to 36 strokes and a prison term of 6 to 9 years with half the lashes and two thirds of the prison term suspended on the condition of good behavior for the next 20 years would be appropriate.

For second offenders who commit a more serious felony, a sentence of 24 to 36 strokes and a prison term of 9 to 12 years would be appropriate.

For subsequent offenders who commit a more serious felony, a sentence of 36 strokes and a prison term of 12 to 18 years would be appropriate.

For the most serious non capital offences such as assault in the first degree, robbery in the first degree, rape, and manslaughter, the following would seem to me appropriate.

For first offenders 36 lashes plus a term of imprisonment of 15 years.

For second offenders 36 lashes plus a term of imprisonment of 18 to 21 years.

For subsequent offenders 36 lashes plus a term of imprisonment of 21 to 30 years.

The most serious crimes murder, treason, and slaving, are not in my opinion a fit topic for this post as they fall under the rubric of the debate over capital punishment, which I hope to write about at future date.

One thing that I have not mentioned thus far is the limits of corporal punishment. I certainly don’t think that it can eliminate crime. People have freewill; therefore some will chose to live by violence and parasitism, rather than by productive work. The only hope I put forward is that a more rational system of punishments might teach some that a life of crime is not the right course. For just this reason, I believe that there must be a limit to corporal punishment. The purpose of corporal punishment is to punish and teach, not to torture.

Thus those who are demonstrably unteachable (i.e. habitual offenders) should not receive corporal punishment. They must instead receive long prison sentences so that the public is protected from their predation. Thus something like the “three strikes” law is necessary, though I believe that a more complex approach is needed. Likewise people sentenced to life in prison or to death, should not receive corporal punishment as it will accomplish nothing.

So there it is, my proposal for reforming the penal system in as far as non capital crimes are concerned. I am sure some will denounce me as a fascist, but what the heck, I have been thinking about this for some time and it seams to me this is an idea whose time has come.