Idea: Re-introduce corporal punishment for criminals

by Alan Cohen

Some of my colleagues seemed quite offended by this idea over the lunch table the other day. I hope it will be provocative and stimulate lots of comments! (The picture, by the way, is me undergoing corporal punishment from my mother-in-law on my last trip to Korea 😉 )

My starting point is that the criminal justice systems in most developed countries spend a huge amount of money on trials and incarceration, and appear to get relatively little benefit in terms of deterrence. How do we know that there’s little benefit? Look at how low crime rates are in places like Japan or Austria. I doubt these countries are punishing murderers much more harshly than in the US, where murder rates are 10-fold higher, or than Honduras, where they are more than 100-fold higher. Rather, cross-country comparisons (in my crude, quick view) appear to show that low crime rates are largely due to a combination of social cohesion, community values, and limited poverty.

In addition, the US constitution (and probably some other constitutions – I’m not sure) explicitly prohibits “cruel and unusual punishment.” The problem with this phrase is that once any punishment becomes unusual, it can never be re-introduced (it will always be unusual thereafter), so over time the number of potential punishments in the arsenal of law enforcement becomes limited. Currently, incarceration and fines seem to be the only real punishments available. Fines will get you only so far – many criminals are too poor to pay or too rich to care – and so effectively incarceration is all we can do to deter most major crime. And, as I just mentioned, this appears to be quite expensive and not very effective. Going to jail appears increase the probability of becoming a repeat offender.

So why not institute a system of corporal punishment to complement the system of incarceration?

The main reason most people would cite against corporal punishment is that it is barbaric. Perhaps, but so is our current prison system, and so is pretty much anything that will effectively deter hardened criminals from committing crimes. I suspect many criminals would prefer corporal punishment to incarceration, which should be sufficient reason to consider it less barbaric. A simple test of this would be to offer criminals a choice between the two. If no one chooses corporal punishment, I will concede that perhaps it is too barbaric for the modern age.

Much of my thinking on this subject is due to portrayals of corporal punishment in historical novels, notably the excellent portrayal of life in the British Navy in Patrick O’Brian’s Aubrey/Maturin series. Yes, in the hands of abusive captains, such punishment could be quite cruel, but when administered in an even-handed way it was also recognized as an important tool for maintaining order, even by the sailors who might eventually be subject to it. While these novels are not explicitly scholarly work, the research behind them is clearly extensive, and the portrayal is ultimately quite believable.

Additionally, looking at the trial of Anders Breivik in Norway for hate-filled mass murder, I was struck that he may be found insane, even though he himself does not want to be found insane, and the primary justification for this finding appears to be that anyone who could commit such horrible acts must be insane. Ultimately, we are free to define “insane” however we want to, but it seems absurd to have the possibility of criminal proceedings for crimes that could, by definition, only be committed by someone insane. And if conditions in mental facilities are substantially better than in prisons, we may effectively eliminate most of our capacity to deter the most heinous crimes.

So, more precisely, what am I advocating here? Whipping? Caning? Being beaten by one’s victims? And how much is appropriate? How do we measure a beating so that it is carried out equivalently for all criminals? These are important questions, and I only have a few answers. First, in the US, I certainly think whipping should NOT be allowed. This is primarily because of the history of whipping slaves and the preponderance of African-Americans in the US criminal justice system. The symbolism of this would be simply unacceptable, regardless of any practical merits.

Second, I don’t think corporal punishment is appropriate for all crimes. It should be used primarily when keeping a criminal off the street is less important. Pedophiles, career criminals, and serial killers must be incarcerated in order to prevent them committing more crimes. Good candidates for corporal punishment might include crimes of passion, domestic violence, first-time drug offenses, first-time theft and robbery offenses. More generally, corporal punishment seems particularly suited to first-time offenses, where there is a good chance the criminal is not yet hardened and might be saved from a life of crime by keeping him (or her) out of prison; repeat offenders, by contrast, have more-or-less demonstrated that incarceration may be necessary.

Anyway, it all comes back to how we can design a criminal justice system that is effective at deterring and preventing crime, protecting the rights of both victims and the accused, and is feasible and affordable. I am not 100% sure that corporal punishment is the answer, but I don’t think dismissing it out of hand is very productive. It might be possible to use it to make everyone happier – from victims to criminals to tax payers – and if so, the option should be explored.