Eighth Amendment
- WHEN CANING MEETS THE EIGHTH AMENDMENT
- Whipping Offenders in the United States
- by Daniel E. Hall
- Widener Journal of Public Law, Widener University School of Law, Vol. 4, No. 2 (1994), pp.403-460
- Review by Kevin
Daniel E. Hall, an assistant professor of Criminal Justice and Legal Studies at the University of Central Florida in the United States, penned this legal analysis of the prospects of American judicial corporal punishment in the wake of the caning of Ohio teenager Michael Fay in Singapore in 1994.
Many elements of the U.S. public - to the horror of Fay's friends and parents - endorsed the sentence and called for similar sentences in America, but in light of the eighth amendment to the U.S. Constitution prohibiting "cruel and unusual punishments," others said that such sentences would be not only wrong, but illegal. There were bills introduced at the state and local level authorizing such judicial punishments as paddlings and canings, though apparently none were approved.
Mr Hall, who has a law degree from Washburn University in Kansas, did a lawyerlike and scholarly analysis of the potential legality of judicial corporal punishment under the American constitution, and his work was accepted for publication into the public law journal of the law school at Widener University, an accredited if not extraordinarily well-known institution.
His conclusion is that the framers of the Bill of Rights to the Constitution, two centuries ago, did not intend to forbid corporal punishment through the Eighth Amendment, and that even under a contemporary interpretation of the dramatically flexible Bill of Rights, such punishment is not necessarily unconstitutional. He adds that the facts of each individual case will determine whether a whipping sentence is proportional to the offense.
Mr Hall adds that the likelihood that corporal punishment will survive constitutional scrutiny will be increased if the case presented for that scrutiny possesses ten attributes:
1) public opinion, expressed through legislation, approves of the corporal punishment;
2) corporal punishment is authorized, but not mandated, by legislation;
3) the legislative decision to whip offenders is supported by scientific data and reports evincing that recidivism is reduced, the public is generally deterred, or that some other sound penological purpose is served;
4) the legislation enabling the punishment limits corporal punishments to classes of offenses that are serious or where a sound penological purpose for using them can be shown;
5) the corporal punishment is ordered by a sentencing court after considering all of a defendant's circumstances, both mitigating and aggravating;
6) the defendant is present when the sentencing is considered and made;
7) the legislation prohibits "extreme cruelty" in the execution of the sentence, which the author defines to include breaking of the skin and Singapore-style caning;
8) the legislation provides for stays of execution in case a defendant becomes mentally or physically unfit for corporal punishment after the sentence has been imposed;
9) the corrections officials responsible for carrying out the punishment are trained in the proper method and supervised in the execution of a sentence, and,
10) the punishment is medically supervised and the supervising physician is empowered to suspend the sentence if that is medically necessary.
(His third and seventh requirements, that there be demonstrated effectiveness but not even any breaking of the skin seem a bit contradictory, considering that the punishment would have to be strong and bad enough to punish bad people for bad crimes. However, the prison strappings in Canada as late as mid-century were said to be nasty and effective while stopping short of breaking the skin.)
Basically, Mr Hall's analysis is careful and thorough. Most notably, he recognizes the fluid and dynamic nature of Constitutional interpretation, and realizes it is insufficient to say that since whippings were occurring at the time of American independence from Britain and not specifically blocked by the Bill of Rights, that such punishment is automatically still valid under the Constitution. Instead, he establishes that whippings did occur in those days, but then goes on to consider whether societal changes since then have made them cruel now. He concludes with some qualifications that the answer is "no."
He also correctly points out how incarceration, widely used today, could be called at least as harsh as some corporal punishment, but clearly is constitutional.
His case-citations and footnotes are impressive, though he seems a bit quick to dismiss the effects of Jackson v. Bishop, the 1968 federal appellate court ruling that blocked the use of the strap in state prisons.
Mr Hall's analysis would make the start of a fine brief for a Supreme Court argument on the legality of corporal punishment in the U.S., but it would be a mistake to think that because the logic is legally thorough and sound, it would automatically prevail. Lawyers on the other side would submit equally strong points and the outcome would be known only when the Supreme Court finally rendered the decision. In the meantime, there would be considerable uncertainty and delay, and many offenders under sentence bragging about delays and concluding they'd never feel the strap - hardly swift and certain punishment.
Even if such punishment were found legal under guidelines such as those Mr Hall suggests, there would still be the possibility of long delays on each individual case as its particular characteristics is considered - not unlike the delays that continue on American capital punishment cases long after the Court has allowed executions under certain guidelines. The swift-and-certainty of punishment characteristic of other legal systems will always be a bit elusive in the U.S. because of legal protections which have otherwise served the Americans so well.
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