Judicial Corporal Punishment: An Update Research Paper

Introduction

The question of just and effective punishment continues to occupy legal minds and thoughtful citizens. On both sides, one submits, debate rests on the essential humaneness and concern for civil rights that impels American society. At the same time, much of what we have resolved for ourselves about corporal punishment in the judicial arena conflicts with what is practiced in home and school settings. The same sense of fair play goads us when facing outward to wonder whether the examples of enlightened penology in northern Europe are worth emulating, sweep the terrorist inmates at Guantanamo under the rug by thrusting them on other nations, and fuels a quiet rage that other cultures can be so wantonly backward inflicting corporal punishment on offenders and protesters alike.

Historical and Cultural Contexts

An Age-Old Practice

Corporal and capital punishment are inextricably linked because in the entire recorded history of mankind, being forced to drink poison (Socrates being the most famous example) and whipping were the least painful punishments imposed on criminals. Most forms of capital punishment were deliberately cruel, inflicted a long drawn-out death, lent themselves to public spectacles so as to deter others, and generally defined justice in terms of retribution by the affected community. Examples of these include breaking the criminal on the wheel, boiling to death (a particularly drawn-out execution, favored by Chinese and Japanese), flaying, disembowelment, crucifixion, impalement, slow death by the “thousand cuts” (Chinese), crushing, stoning, burning at the stake (e.g. Joan of Arc or the numerous suspected heretics, many being forced Muslim converts, during the time of the Inquisition), dismemberment, sawing, live burial, decapitation, scaphism (the Persian practice of binding offenders to a trough, covering his head and exposed limbs with honey and letting exposure to the sun and numerous insect bites cause a gradual death), or necklacing (Time, 1983).

Nor are these gruesome practices always judicial and ancient. Necklacing was invented in an era of vigilantism and inter-tribal violence in South Africa that lasted from 1985 to the early 1990s. The practice consisted of throwing a rubber tire around the victims head, dousing it with gasoline and setting it on fire. Death by inhalation of noxious rubber fumes was likely near-instantaneous and merciful.

Such is the recency of cruel and unusual capital punishment that, as late as 1878, the Supreme Court was forced to abjure capital punishment employing drawing and quartering, dissection/disemboweling, or burning at the stake (Wilkerson v. Utah, 1878). It was not the Salem witch trials of 1692-93 that remained fresh in the minds of justices then (the nineteen convicted were executed by hanging) but the long period from 1484 to the 1830s when the Catholic Church sentenced devil-worshippers and, by definition, witches to burning at the stake. Late in the period, English, Swiss, French and German Protestants continued the tradition but resorted to hanging.

“Barbaric” practices are not the preserve of backward peoples, either. Time magazine tells of a 19th century French tourist who witnessed a criminal in India dragged around a city by an elephant and executed by having the elephant stamp on a rock placed on the hapless victim’s head (2003). In 17^th century Massachusetts, a suspect died while being tortured by rock crushing.

In the Middle Ages, impalement was reportedly popular in Asia and Europe. Being impaled with a long stake – the entry point varying from mouth to rectum or the sides of the torso – and then raised for all to see was ostensibly a form of torture but it was invariably fatal, as was crucifixion during the Roman era.

The “breaking wheel” was merely a convenient rack to which the convict for public execution was tied. The executioner then broke every bone he could each with an iron hammer. Death resulted from dehydration and shock (Classic Encyclopedia, 2006).

Historical Origins

Wilson (1999) found that instances of educational and judicial corporal punishment may be found in the earliest annals of human civilization, in Greece, Rome, Mesopotamia and Egypt. For example, the first known codified laws, the Hammurabi code (circa 1780 BC), is best known for its straightforward injunction, “an eye for an eye”. But it was also the first instance where penalties of death were explicitly imposed for such offenses as perjury, theft of royal property, draft evasion, criminal negligence of irrigation dikes, breaking and entering or stealing slaves (Hooker, 1999).

In Rome and Sparta, corporal punishment had a heavily martial slant. The Spartans used what McCole terms cruel punishment to instill discipline, willpower and physical training in citizen-sons who would be warriors on growing up. The Roman Empire gives us our first recorded example of judicial corporal punishment, 40 lashes with a whip applied to the back and shoulders or with the “fasces” (a bundle of 8-10 willow rods used to carry the mace as symbol of authority into battle) inflicted on the buttocks being the maximum penalty under Roman law. These punishments were also the first recorded instances of legal sanctions being carried out in public to serve as a deterrent could draw blood, and were frequently inflicted in public (McCole, 1999).

In the Middle Ages, the fact that the Catholic Church encouraged self-flagellation as penance and expiation for sins (e.g. the practices espoused by St. Francis of Assisi) first led to the adoption of corporal punishment in schools, a practice that continues to this day in diverse countries around the world.

From the 16^th century onward, such attitudes caused a regression to public whippings as judicial corporal punishment and public spectacle “’pour encourager les autres” (from Voltaire’s ‘Candide’, meaning to serve as an example to others). By the 18^th century, however, Bentham (1983) reports that reform-minded legal luminaries and philosophers began to question whether merely inflicting pain on criminals was efficient in deterring recidivism in the long run. Thus did the idea of reform rather than retribution begin to take hold.

As the Age of Enlightenment flourished in Europe and North America in the 19^th century, attitudes about judicial corporal punishment began to mellow. This was helped along by widely-publicized scandals of inadvertent deaths caused by military flogging and educational corporal punishment (Middleton, 2005). Late in the century, courts in the United States and the UK also overturned the long-cherished principle that husbands had the right to visit domestic violence on “errant” wives (Calvert, 1974; R. v. Jackson, 1891).

Judicial Corporal Punishment

The Eighth Amendment and Present-Day Domestic Practices

Protection from judicial abuse and arbitrary application of “cruel and unusual punishments” is enshrined in the Eighth Amendment to the Bill of Rights and dates back just fourteen years after the Declaration of Independence. Proscribing excessive bail, fines and “cruel and unusual punishment,” the amendment is nearly identical to the corresponding clauses in the Bill of Rights that the English Parliament promulgated in 1689. The Fourteenth Amendment, passed along with other Reconstruction Amendments after the Civil War, carried a due process clause that made the Eighth operative no matter what state law held.

Having already included the prohibition against cruel and unusual punishment in the “Virginia Declaration of Rights of 1776,” state delegate Patrick Henry argued for a similar supplement to the Constitution and thereby revealed the enduring rationale for proscribing cruel and unusual punishment: “What has distinguished our ancestors [presumably both the early American settlers and the British]?–That they would not admit of tortures, or cruel and barbarous punishment…” (Schwartz, 1992, p. 170; Elliot, 1888).

Not till the early 1970s, however, did the Court lay down guiding principles for judging corporal punishment “cruel or unusual”: a) “degrading to human dignity; b) wholly arbitrary in application; c) universally rejected by society; and, d) clearly and obviously unnecessary (Furman v. Georgia, 1972).

An obvious example of what is socially unacceptable is execution by drawing and quartering, dissection/disemboweling, or burning an offender alive. In contemporary times, the Supreme Court also exempted, as violative of the Eight Amendment, execution of either the mentally handicapped or minors (Wilkerson v. Utah, 1878; Atkins v. Virginia, 2002; Roper v. Simmons, 2005). An important distinction in all three rulings is that they held regardless of the crime committed.

On the other hand, the Court ruled that the following did not constitute “cruel and unusual punishment”: execution by musketry, lifetime imprisonment for minor theft, a life term with no possibility of parole for possessing a mere 675 grams of cocaine, and a life sentence with parole a possibility for a $150 shoplifting offense because of the aggravating circumstance of a third offense.

The “Evolving Standards” Test versus Established Precedent

Recall that the British precedent used by the Eighth Amendment of 1791 specifically referred to established practice, “…as their ancestors in like case have usually done…that…cruel and unusual punishments (not be) inflicted.” (Parliament, 1689). This has caused some scholarly debate about whether “contrary to long usage” should prevail over “evolving standards of decency” in deciding whether corporal and capital punishment violate the Eighth Amendment. Deciding in favor of the latter, the Warren Court ruled against inherently-cruel punishment or penalties grossly and “cruelly disproportionate” to the offense (Trop v. Dulles, 1958). Very recently, for example, the Court held that Louisiana could not impose the death penalty in a case of child rape (Kennedy v. Louisiana, 2008).

On the other hand, Stinneford (2008) urges a return to the original thinking behind the Eighth Amendment, that long-standing practice is a more beneficial guide than evolving standards which are subject to fluctuating mores. This should effectively protect, he argues, against the tendency of government to invent new punishments that are more cruel. An example he cites is the fact that seven states already impose chemical castration on sex offenders and others seriously plan to introduce surgical castration, which England had already cast away as early as the 13^th century.

The International Scene: Disparate Traditions

In the modern, hopefully more enlightened era, judicial corporal punishment abroad differs primarily because of the effects of British colonization and the incredible throwbacks to medieval capital and corporal punishment that Muslim courts practice in countries that permit it.

Given that corporal punishment in UK schools was outlawed only within this decade and judicial corporal punishment sentences went on the decline only in the first half of the 20^th century, it stands to reason that many former British colonies that gained independence only after World War II retain caning as part of penology still skewed toward retribution. Examples are Botswana, Malaysia, Singapore and Tanzania. In Malaysia, Brunei and Singapore, such corporal punishment is meted only on male convicts but jointly with prison terms. Prisoners are stripped naked and rattan rods soaked in brine used to flay the buttocks. Being a family-run quasi-democracy, Singapore laws are more draconian than libertarian, as evidenced by capital punishment (hanging) being imposed for possession of any quantity of marijuana or psychotropic drugs and the public caning of an American teenager in 1994 merely for vandalism.

Many nations with Muslim majorities – among them Indonesia, Malaysia, Saudi Arabia, Iran, Sudan, northern Nigeria, United Arab Emirates, Libya, Yemen and areas in Afghanistan, Pakistan or Iraq where Taliban insurgents can temporarily hold sway – think it is perfectly alright to keep their people ruled by Koran-quoting mullahs and their judicial systems solely comprised of Sharia religious courts. Flogging, whipping or caning persists as judicial corporal punishment, augmented by amputation of thieves’ fingers and beheadings in Saudi Arabia. In the latter, public beheading is the penalty for murder, rape, drug trafficking, sodomy, armed robbery, apostasy (converting, say, to Catholicism) and other offenses. Men and women are equally liable for beheading sentences. The execution is always public. Eye gouging as penalty for participating in a public brawl is also an extant penalty in the Kingdom, imposed as recently as 2005 (Human Rights Watch, 2005).

In Iran, courts feel free to impose particularly barbaric chemical blinding and public stonings for both men and women, with severe whipping beforehand part of the punishment. The sexism rampant in Muslim societies surfaces even here. Men are buried up to their waists, which presumably allows them to cower and let muscle-bound backs take most of the thrown stones. If they somehow survive or manage to run away, no further judicial sanctions are applied. Women, on the other hand, can be sentenced to stoning for adultery and must be buried up to their necks. Females who survive that ordeal must serve a prison sentence as well (Select Committee on Foreign Affairs, 2005).

These are the same nations that repress women’s rights, practice female circumcision and fund terrorist action in “infidel” nations.

There is no lack of universal treaties and declarations to which the U.S. and these theocratic nations are parties. For one, Article 5 of the Universal Declaration of Human Rights passed by the UN General Assembly in 1948 exhorts, “No one shall be subjected to … inhuman or degrading treatment or punishment’). The same right (“No one shall be subjected to…inhuman or degrading treatment or punishment”) is invoked in Article Three of the European Convention on Human Rights of 1950, as it is in section 12 of the Canadian Charter of Rights and Freedoms of 1982, in Article 4 of the Charter of Fundamental Rights of the European Union of 2000 and again in Article 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. However, American diplomacy has apparently opted to prioritize democratic elections and freedom of speech ahead of concerns about abuse of judicial corporal punishment. Neither is the U.N. capable of ending cruel and capricious judicial sanctions abroad since it has no sanctions it can bring to bear on its own and voting is dominated by the Afro-Asian bloc to which the aforementioned Muslim nations belong.

References

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