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January 14, 2014

How Thomas Jefferson would have sentenced Richard Graves

I suggested in Tuesday's class that, if incapacitation was a key goal/purpose when sentencing convicted rapist Richard Graves, that castration would seem likely much more effective than any term in prison. (Indeed, given ugly statistics concerning prison rape, a trip to prison might be the worst way to prevent Graves from raping again.) But I surmised that some (many? most?) members of the class have a visceral negative reaction to castration as a form of punishment. But why?

If you had a visceral negative reaction to castration, I urge you to read and reflect on Michel Foucault's astute insight (reprinted in Chapter 1 of the text) that, in modern times, we seem far more content to "torture the soul" through long terms of imprisonment than to "torture the body" through physical punishment. In addition, for those with a legalistic negative reaction that the US Constitution would never permit such a punishment, I suggest reflection on the fact that very few forms of punishment have ever been the subject of Supreme Court review.

Moreover, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson suggests at least some Framers approved and endorsed castration as a punishment for some crimes. This Jeffersonian document, titled "A Bill for Proportioning Crimes and Punishments," includes these notable passages (with my emphasis added):

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15, stripes....

I highly encourage everyone to read (and then comment upon) the entire Jefferson punishments bill: it provides not only a perspective on crime and sentencing at the time of the Founding, but it also spotlights the array of punishments used before the birth of modern prisons.

January 14, 2014 in Alternatives to imprisonment, Theories of punishment, Who decides | Permalink


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I think it's really interesting that, for the most part, Thomas Jefferson's suggestions seem to fulfill many of the different goals and theories of punishment better than our current system. Jefferson definitely considers the theory of retribution, which has a lot to do with proportionality. It's hard to think of more proportionate punishment than maiming a criminal in the same way that he maimed his victim. Jefferson's punishments are also much more effective at incapacitation (for example, castrating a rapist). He even mentions rehabilitation as a goal (stating that he doesn't want to cut off people who, "if reformed, might be restored sound members to society" and "might be rendered useful").

Jefferson's punishments are also probably more effective at general deterrence. I think this is worth talking about because this is where the visceral, negative reaction to corporal punishment comes into play. It's interesting to think about why we wouldn't allow this kind of thing. First of all, shouldn't we want punishments to be as deterrent as possible? People who might not be scared of a prison sentence might still think twice about committing crimes when the penalty could be castration, mutilation, or whipping. It seems like this visceral, fearful reaction is exactly the kind of thing that could deter people from breaking the law in the first place.

Second, this reaction assumes that physical punishment is worse than incarceration, but it might be worth asking whether that is really true. Like Professor Berman said, maybe he would rather be boiled in oil for a short time than spend his whole life in prison. This goes back to Foucault's point about torture of the soul. But, I think most people (myself included) still believe that physical punishment is somehow worse. I wonder if this has to do with the visibility of physical punishment. It's easy to see the pain of someone who is being castrated or whipped; it's a lot harder to really understand the emotional suffering of someone who is incarcerated. For society, it's probably easier to lock people away and forget about what they're going through than it would be to have to look at people who are clearly, visibly hurt.

Logically, I'm honestly not sure which type of punishment makes the most sense or best fits the theories of punishment. Viscerally, though, I won't be advocating for Jefferson's suggestions any time soon.

Posted by: Jen D | Jan 14, 2014 11:31:26 PM

Excellent insights Jen. And for the record, I would most prefer being boiled in dark chocolate, if I was to be boiled.

Posted by: Doug B. | Jan 15, 2014 1:03:42 AM

[Note: This post began far smaller than it is currently and ballooned significantly upon revision. Connections were made. Thoughts were had. It's a bit long. Apologies if that upsets the reader.]

In many ways our current punishments, mainly incarceration, are far more punitive than those listed here. Given the kinds of abuses that regularly occur in prison (by inmates and guards alike) physical abuse could be considered an inherent part of what I sarcastically call the "prison experience."

Prison is also a long way into the system, often the punishment for alleged transgressions against the law begins much earlier. Simply look at what happens when someone doesn't immediately and clearly obey the supposed officers of the peace.

[There's some blood in the lead photo, consider this a warning.]

In this instance deterrence is served without any use of courts, or due process, or that nuisance we call fairness. Don't listen? Get a beating! I wish this were an isolated incident, but it really isn't. I could go into a more exhaustive list, but that would be overkill, this is merely the most recent noteworthy example.

Incarceration doesn't even occur until near the end of the process, and at that point, as far as society is concerned, the person disappears. When a person simply disappears, much of the supposed deterrent effect of the punishment disappears with them. Compare this to mandated (as opposed to implied and assumed) physical punishment through 15 lashes and 15 minutes in a pillory. A far more deterrent form of punishment (if that is indeed an important goal) that doesn't also make people afraid of the police. The offender may also be less likely to reoffend, because while there may be some stigma attached, it doesn't otherwise exacerbate the social conditions that often lead to criminal offenses in the first place.

Given a choice, I think most people would much rather be whipped and chained for an afternoon for practicing witchcraft by giving someone marijuana to expel their bad spirits than go to jail for 5 years for selling a single marijuana plant to the same person today to help them cope with their cancer treatments. Both punishments seem equally inhumane, and I believe ARE inhumane. Rehabilitation and restoration could go further and (in the case of prison) could very well be cheaper alternatives.

This is a bad example for purposes of illustrating the utility of restorative and rehabilitative justice (the utilitarian solution to the above example is to remove draconian substance prohibition laws), but when the ostensible solution to an act the legislature has deemed unlawful that causes no immediate harm, and is indeed consensual, is to cause harm to those doing it and remove what other value they have to society through incarceration, I think we are doing something not only harmful, but morally wrong.

So in our current system, all too often the punishment begins (mainly without oversight or review) with the police and continues on for a much longer time than could be considered proportionate to the harm caused. I think Jefferson's point w/r/t proportionality is a good one, and something we should consider in modern sentencing laws (which some say we do, but the evidence suggests otherwise).

There is a long history of the state using violence to coerce conformity. The question of "Why do we punish?" is instructive. Are we deterring future harm or deincentivizing nonconformity and punishing minorities? Are the police protecting the people from criminal acts within their midst and serving the public good, or are they protecting the power of the state and serving those with the money to influence the legislative process? Given the oft-coercive nature of the plea deal process, is due process of law an actual worry or something to which we only pay lip-service except for when it serves us to do otherwise? (A paragraph of useful hyperbole, but not as hyperbolic as I would like.)

None of these questions can be definitively answered one way or the other with adequate evidentiary support, I think, and that's a problem.

Punishing witchcraft with lashes seems insane today (I would hope, at least). What in our current system will seem insane in another 230-odd years?

Posted by: Matthew C. | Jan 21, 2014 2:36:24 PM

I tried to post this a bit ago, but apparently it didn't post right so my apologies if this shows up twice:

The U.S. Supreme Court in Skinner v. Oklahoma held that compulsory sterilization could not be implemented as a punishment. Justice Douglas's majority (8-1) opinion stated:

"We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of "equal protection of the laws is a pledge of the protection of equal laws." Yick Wo v. Hopkins, 118 U.S. 356, 369."

This seems to be based in large part on the permanency of the punishment, but I have a hard time squaring that logic with a nation that still has the death penalty.

On the issue of the death penalty, the issue in class was discussed today on why we do not like the idea of hanging people or putting people to death in gas chambers. I think the obvious reason is that there is a history behind those methods that is not so glamorous and that evokes strong emotions. Emotion has a nasty way of interfering with logic and reason. So while gas chambers may be effective, and hanging may take less time than a 25 minute injection execution, the history and emotion behind hanging and gas chambers is too strong to overcome (at least right now). Perhaps one day the same will be true about using a "medical" form of execution.

That being said, perhaps we should offer sex offenders the option to be voluntarily castrated. This may appeal to our (as I think Gus pointed out today) desire to be more "21st century" and also gives the offender the CHOICE to be treated this way. A study in Germany found a 46% recidivism rate in released sex offenders who were not castrated and only a 3% recidivism rate in released sex offenders who were castrated. Maybe the Germans have found out "what works" and maybe we should take a page out of their playbook.

Posted by: Katie W. | Jan 21, 2014 9:27:00 PM

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