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August 25, 2020

If castration seemed like a good idea to Thomas Jefferson, why not consider it for Richard Graves?

JeffersonOne idea worth consideration as we explore theories of punishment is whether prison, which is our modern default punishment for all serious offenses, is really any good at advancing any of the traditional theoretical goals.  When pressed on this front, advocates of prison and modern mass incarceration often claim that prison is at least good at incapacitation.  But this claim fails to reckon with the fact that (a) many persons in prison can and do commit all sorts of crimes while in prison, and (b) there may be non-prison means to incapacitating at least somewhat effectively.  At the end of class, I mentioned that, for a person convicted of rape perhaps castration (either physical or chemical) could and would be an effective incapacitative punishment. (As a preview of second week topics, I encourage considering whether your view on this punishment might be significantly influenced if (a) Graves' victim urged this punishment, and/or (b) Graves himself embraced this punishment (perhaps in lieu of additional years in prison).)  

For those with a visceral negative reaction to castration as a form of punishment, I suggest reflection on Michel Foucault's astute insight 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.  Indeed, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson, "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital" suggests at least some Framers approved and endorsed castration as a punishment for some crimes.  Here is a taste:

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 wholly forfeit 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....

I highly encourage everyone to read 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.

August 25, 2020 in Alternatives to imprisonment, Death penalty history, Theories of punishment, Who decides | Permalink


I think drug sellers are the incredibly difficult to deter because the benefit they derive from their crime is financial. This basically, in my opinion, boils down to weighing how much money can I make selling drugs, versus how much I can make from doing something else. This plays out in various ways depending on where you are in the drug supply chain. On the manufacturing side you have programs that are designed to help farmers in south america transition away from growing illegal drugs, but the core problem is that they can make a bunch more money growing drugs, then legitimate crops. At the other end of the spectrum where the end consumer is purchasing from a dealer, that dealer is executing a cost benefit analysis which yields the result that they too, can make more money selling drugs than they can through legitimate means. I think I would like to do more research on supply-reduction policy, or other economic incentives along the drug supply chain designed to deter or lure individuals out of the drug trade, perhaps as a final paper!

Posted by: Chris wald | Aug 25, 2020 10:07:27 PM

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