By Matthew Pate
Both in my academic and journalistic lives I regularly write about punishment. As a sideline, I read a lot about the idea of human progress. Recently, the two streams crossed in a discussion with my research partner, Jeff Hubanks. Jeff and I are working our way through a history of prisons in Arkansas.
Chatting outside the local library, Jeff made a very incisive observation about the ebb and flow of punishment in our home state. Paraphrasing, he retrospectively marveled at what had passed for “prison reform” over the course of the last century or so.
Lately, we’ve been looking at an episode one 19th century journalist deemed “Hell in Arkansas.” Back then convicts were leased out from the state to private companies. One company used the prisoners as mine workers. The title of Matthew Mancini’s book on the topic sums it nicely: “If One Dies, Get Another.” By some accounts, as many as 20 percent of the prisoners died in a given year. So brutal was the treatment, the camp warden fled to Texas when his excesses were revealed.
Eventually convict leasing was banned in Arkansas. Progress, right?
In the early 20th century, inmates were moved to a pair of repurposed plantations. While likely better than the treatment given by private contractors, the discipline and compulsory labors were witheringly harsh. Order was maintained primarily by “trusty” inmate guards and a fellow with the ominous job title of “whipping boss.”
By the middle of the 20th century, the tide started to turn against whipping prisoners. In a series of cases that shaped correctional practice well beyond Arkansas, we again get the opportunity to ask whether this was progress.
In 1965, the case of Talley v. Stephens clarified that corporal punishment was permissible, but required that certain safeguards be implemented to curb the temptation toward excess. Just three years later another case, Jackson v. Bishop, was heard by then-appellate judge Harry Blackmun. Blackmun ruled that corporal punishment as a mechanism of prison discipline runs afoul of the Eighth Amendment.
The court held corporal punishment was inherently cruel and unusual. Again, progress?
The social science explanations of our move away from corporal punishment are typified by the “March of Progress” paradigm. David Garland, a leading proponent thereof, writes, “Gross violence, deliberate brutality, the infliction of physical pain and suffering, all these are felt by many people to be intolerably offensive in themselves and to have no legitimate place within the public policy and legal institutions of a civilized nation.”
My co-author, Laurie Gould, and I take on this canonical assumption in our forthcoming book, “Corporal Punishment Around the World.” We dispute the association of bodily punishments with uncivilized society (and their subsequent replacement with mass incarceration). This march of progress — from the whip to the cell — fails to address a basic question: If the march of progress position is correct, why is corporal punishment still used in several countries otherwise characterized as being “civilized” or “modern?”
Corporal punishment as the exclusive purview of barbarian societies also begs the question assailed by Blackmun — whether it could be imposed in a “civilized” manner. While the subject is too broad to fully explore here, we can get at the heart of it by considering two obliquely related scenarios. First, if given the choice, would you rather endure a hundred lashes or 10 years in prison? Second, how is 23 hours per day in solitary confinement with little access to humanity or sunlight inherently more humane than being whipped?
When positioned in those terms, the line of relative cruelty gets awfully blurry. The philosopher Michel Foucault famously asked how imprisoning a man teaches him to live in the free world. I’m not certain that either corporal or carceral punishment — at least in the ways we have tended to do them — teach much about living among the rest of us.
To be sure, we must have an effective way to punish criminals. Criminals should know for certain they’ve been punished. Concomitantly, we should know that the punishments are a vehicle to rectitude and law-abiding life, not merely punishment for its own sake. That would be progress.
Matthew Pate is a former law enforcement executive who holds a doctorate in criminal justice from the University of Albany and who has advised police agencies around the country. He writes from Pine Bluff, Ark. Contact him at firstname.lastname@example.org