By Benjamin Welton
The modern penal state is geared towards keeping its prisoners institutionalized, which is to say totally conditioned to the rhythms, desires, and goals of the penal state itself. This process supports the penal state, for institutionalized men and women usually commit more crimes once they return to the outside world. While low intelligence and poor impulse control can explain many cases of recidivism, they cannot explain all cases.
The state and its private prison contractors make more money off of full bunks and crowded cells. Ergo, stringent laws and the growth of the criminal justice system benefits the state at every level. For liberty to exist, this prison-industrial complex must be destroyed. The simplest method for accomplishing this is to return to the pre-modern punishments that the prison-industrial complex replaced. For more serious crimes, exile and outlawry could be reintroduced. For lesser offenses, a return to judicial corporal punishment is a superior alternative to the dehumanizing penal state. Let us explore the history of judicial corporal punishment, make the case for bringing back such punishments, and deal with likely objections.
A History of Violence
In the opening passage of his influential book Discipline and Punish, left-wing philosopher Michel Foucault characterizes pre-modern punishment as a gory spectator sport:
“On 2 March 1757, Damiens the regicide was condemned ‘to make the amende honorable before the main door of the Church of Paris,' where he was to be ‘taken and conveyed in a car, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds’; then, ‘in he said cart, to the Place de Greve, where, on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses'...”[1]
The brutal evisceration of Damiens was meant to purge the body politic of one man’s infection. In Foucault’s telling, pre-modern punishment was personal and designed to be didactic (thus the importance of the punishment being seen). Pre-modern punishment was also based around the monarch. For instance, Foucault talks about the ceremony of punishment and how pre-modern kings usually spoke of crime as an assault on them, the office of the sovereign, and, by extension, God. Modern leaders, by contrast, usually speak of crime as aassault on and debt owed to society.
Such public humiliation was not confined to the Old World. Prior to the American Revolution, public executions and lesser punishments such as branding were undertaken by colonial authorities acting on behalf of both the British king and their colonial charters. In Puritan Massachusetts, “scolds” and “brawlers” were placed into the cucking stool. Most commonly associated with witchcraft trials, cucking stools were simple machines whereby guilty parties were repeatedly dunked into “purifying” waters. Elsewhere in colonial New England, bickering couples or fornicators were sentenced to the pillory, where, side-by-side, they were subject to the violent whims of the community that they had angered with their “ungodly” behavior. Property crimes in colonial New England prompted similarly harsh treatment. Those who committed tiefen, or the theft of livestock, food, or clothing from farms, had their ears removed. Counterfeiters suffered the same fate until new laws were established in 1806. Arsonists typically met with a noose.[2]
Popular history has remembered the Puritans as stern and superstitious provincials who saw the Devil peeking around every corner. However, they were a law-abiding society that utilized sharp punishments because of their unusual mixture of theocracy and republican virtue. Namely, every New England citizen was encouraged to spy on each other in order to ensure good behavior. If one local man left his barn door open or if a local woman talked too much, then the delicate covenant with God could be broken. Puritans protected this covenant like they protected their homes against Indian raids—with violence and prejudice.
The colonial South differed very little from New England in terms of its approach to corrective justice. 17th century Virginia saw criminals branded or mutilated in some way. As for prisons, the first one in American history may have been the English ship Susan Constant, the very same vessel that carried Captain John Smith and the Jamestown settlers to the New World.
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References:
- Foucault, Michael (1977). Discipline and Punish: The Birth of the Prison. Random House. p. 3
- Mofford, Juliet Haines (2012). “The Devil Made Me Do It”: Crime and Punishment in Early New England. Globe Pequot Press.