Common Myths About Judicial Corporal Punishment

Our society lost its knowledge of judicial corporal punishment (“JCP”) on the way to full reliance upon the failed system of mass incarceration. Here are common myths many still believe:

It is used by dictatorships and oppressors. George Washington, the same person who presided over the Constitutional Convention, was a strong proponent of corporal punishment to keep his white troops in line. Dictators develop prisons and concentration camps to work or kill their enemies over the course of years, without scrutiny or publicity. Corporal punishment can easily be administered by a fair judicial system, faster, in public witnessed by the sentencing judge, and at much less cost.

It is abolished because it is backward and does not deter or punish crimes. Prison does not deter enough crime because it is hidden from the eyes of the public. We believe JCP is backward because Western society gradually prohibited it when adopting the failed system of incarceration. In fact, it was never abolished for ineffectiveness, but because it was a symbol of inequality for newly empowered citizens. Corporal punishment was used in all slave societies in history, which clearly means it works as discipline. Muslim nations still use judicial corporal punishment and have markedly less crime than the United States.

Parental corporal punishment can be abusive, so judicial corporal punishment is bad, too. Parental corporal punishment is often given out of anger, arbitrarily and too often. JCP in a democracy is given calmly, rationally and only after judicial due process. In fact, JCP is most effective as a deterrent if administered publicly, which would discourage abuses in its administration.

It is applied arbitrarily and for cultural reasons, not to stop harmful crime. In some countries, JCP is given for cultural or religious reasons, but it does not have to be that way. American judicial systems in the colonial period had plenty of experience fairly administering JCP. JCP should be decided upon and witnessed by a judge. Flogging clearly discourages crimes. Flogging is the gangster’s worst fear: appearing weak in public.

It is punitive and does not rehabilitate. In 1984, when Congress abolished parole in the federal system, Congress admitted in a statute that rehabilitation through prison time is a failure. Prison puts criminals in a hidden human cesspool for years and is very expensive. Politicians and the public do not want to spend money on rehabilitation after spending enormous sums to simply confine felons. Flogging does not take offenders away from their families, marriages, jobs, schools, communities and churches – and is thus a much better rehabilitative tool. Former slaves vouched for the effectiveness of corporal punishment in teaching them good values.

It is a relic of racial domination. Blacks were whipped in the plantation regime, but white people were whipped in the North and South. For several decades, slaves were whipped more than whites were, but that is a historical anomaly on the road to the complete abolition of JCP. As a practical matter, race has nothing to do with the pain or the effectiveness. Re-introduction of JCP would be on a racially neutral basis, and work to free many African-Americans from their imprisonment.

Bull-whips Are Cruel and Unusual Punishment. Cesare Beccaria, the Italian writer who influenced the Founders to prohibit cruel and unusual punishment, was against the death penalty but supported JCP because it was easily made proportional to the crime. Delaware did not outlaw JCP until 1972. Bull-whips are used in the movies, but the whips used most commonly to flog antebellum slaves in the United States were an 18″ long and 2″ wide strip of un-tanned leather attached to a wooden stick or a 3-foot whip. Variables include the number of lashes, type of whip, force applied, and whether given on bare skin or clothing. Whipping can be adjusted according to the age, weight, sex, crime, criminal record and physical condition of the criminal. Solitary confinement, on the other hand, is on the rise in the United States, causes mental illness and is considered cruel by psychiatrists. Many convicts, if given a choice, would opt for flogging. Nelson Mandela said that solitary confinement can be worse than a whipping.