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49 No. 4 Crim. Law Bulletin ART 2; Westlaw. (c) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works Prison Overcrowding Cure: Judicial Corporal Punishment of AdultsCriminal Law BulletinSummer 2013, Volume 49, Issue 4, Criminal Law BulletinPrison Overcrowding Cure: Judicial Corporal Punishment of AdultsJohn Dewar Gleissner [FN1]I. IntroductionThe Supreme Court's 2011 condemnation of California's prison system in Brown v. Plata[FN2] underscores the national prison crisis. Except for incapacitation, research rates incarceration very poorly in achieving the goals of punishment. Prison overcrowding causes an array of negative consequences. Given the disastrous effects of massive incarceration in the United States, a question arises whether traditional public judicial corporal punishment[FN3] (“JCP”) would be held cruel and unusual if and when state legislatures or Congress enact legislation providing for JCP as an additional punishment option.[FN4]Imprisonment has become the principal and almost exclusive punishment for serious offenses in the United States, and cannot and should not be abolished, but suffers from numerous disadvantages, as shown in conditions of confinement litigation, prison riots, gang violence, recidivism, government expenses, post-confinement disabilities, prison-based gerrymandering, and overall negative economic and social impacts.[FN5] The United States now incarcerates a significantly greater percentage of its population than any other nation in the world.[FN6]Except for the huge scale of the modern prison population, prison problems are not new. Prominent political leader and diplomat William Eden, Baron Auckland wrote in his 1771 treatise Principles of Penal Law: “Imprisonment, inflicted by law as a punishment, is not according to the principles of wise legislation. It sinks useful subjects into burdens on the community, and has always a bad effect on their morals: nor can it communicate the benefit of example, being in its nature secluded from the eye of the people.”[FN7] The problems of expense, perverse socialization and seclusion still infest prison regimes across the world.In the nineteenth and twentieth centuries, prisoner-of-war and concentration camps in many countries proved the hazards of rapid large-scale internment, especially when motivated by war, revolution, racism, imperialism or politics. Internment on a vast scale by dictatorships usually leads to abuse, holocausts or misery, because detention is without trial, based on a disliked status and usually rapid to the point of overcrowding. Even democratic nations cause injustice in remote regions: The British established concentration camps during the Second Boer War, with disastrous results,[FN8] and later detained countless Kenyans under harsh conditions, including torture, during the Mau Mau Uprising.[FN9] King Leopold II's oppression of the Belgian Congo, including the most horrific corporal punishment and a holocaust, shows how seclusion fosters abuses. The internment of Japanese-Americans in remote areas during war hysteria, although not physically brutal, blatantly violated the Constitution in several respects.[FN10] Regardless of motivation or politics, when the number of prisoners increases, multiple problems inside and outside confinement usually worsen.The devastating social and economic costs of current U.S. incarceration policies justify Baron Auckland's conclusion today, as evidenced by California's ongoing correctional crisis.[FN11] “[W]ith one in 100 adults looking out at this country from behind an expensive wall of bars, the potential for new approaches cannot be ignored.”[FN12] In The Collapse of American Criminal Justice, Harvard law professor William J. Stuntz suggested, “Today's would-be reformers would do well to … consider the possibility that the best models for productive change may not come from contemporary legislation or court decisions, but from a past that has largely disappeared from our consciousness. Sometimes, the best road forward faces back.”[FN13]II. Traditional JCP and its Several VirtuesThe publicized 1994 caning of Michael Fay in Singapore generated debate for and against traditional JCP. New Mexico, New York, Mississippi, Tennessee, Maryland and Alabama introduced JCP legislation.[FN14] The New Mexico and New York bills intended to punish acts of graffiti, while the proposed Mississippi law applied to all crimes. None passed. Since 1994, the imprisoned and jailed population of the U.S. increased by about 800,000 prisoners, pushing correctional budgets up while state education budgets declined.[FN15]Christian religious orders historically governed with the use of legal corporal punishment.[FN16] The Rule of St. Benedict endorses corporal punishment in three of its chapters, and in chapter 30 states, “Every age and degree of understanding should have its proper measure of discipline. With regard to boys and adolescents, therefore, or those who cannot understand the seriousness of the penalty of excommunication, whenever such as these are delinquent let them be subjected to severe fasts or brought to terms by harsh beatings, that they may be cured.”[FN17]The Talmud contains detailed information and discussion of judicial flogging.[FN18] In the early middle ages, Jewish offenders were flogged by the Beth Din, the Jewish Court of Justice.[FN19] Talmudic due process mandated no less than three judges, and one view held that 23 judges were necessary to impose JCP.[FN20] Talmudic JCP was administered at the community level, in or near the synagogue.[FN21]At least 30% of the world's nations now utilize JCP as a legal sanction for juvenile or adult offenders.[FN22] Stable, prosperous nations employing JCP (Singapore, Saudi Arabia, Qatar, etc.) enjoy much lower crime rates than those in the United States.[FN23] Per capita, the United States has, for example, exponentially more burglary, rape, robbery, theft and major assault than Saudi Arabia. Generally, the U.S. had over 25 times more crime per capita than Saudi Arabia in 2000.[FN24]A little bit of JCP goes a long way. Most Western observers acknowledge the effectiveness of hand amputation in Saudi Arabia, a form of JCP. Saudi Arabia amputates the hands of thieves in addition to whipping some types of offenders,[FN25] but amputates very few hands, none in some years. Almost two-thirds of convict workers in the penal colony of New South Wales never received more than one whipping during their sentences.[FN26] The experiences of British seaman and U.S. slaves similarly revealed unwillingness, naturally, to take the punishment multiple times. Public JCP in all forms is effective in deterring those who have never offended. Witnesses to the pain of others experience profound neurological effects,[FN27] facilitating what they learn and always remember about a shameful criminal punishment.Incarceration rates in the Muslim world typically run from about 8% to 30% of the American incarceration rate.[FN28] For comparison in numerical terms, if the United States had the lower Saudi confinement rate, approximately 1,700,000 Americans would leave confinement.[FN29] Obviously, more factors are at work than just JCP, including prevailing culture, religion, family structure, poverty and attitudes, but generally Islamic countries have far less crime than the United States. The unmistakable power of JCP to limit theft in particular contrasts markedly with the highest recidivism rates in the U.S. A massive study on recidivism found that, “Released prisoners with the highest re-arrest rates were robbers (70.2%), burglars (74.0%), larcenists (74.6%), motor vehicle thieves (78.8%), those in prison for possessing or selling stolen property (77.4%), and those in prison for possessing, using, or selling illegal weapons (70.2%).”[FN30]In countries that punish alcohol consumption with flogging, consumption of alcohol is non-existent or rare, a miniscule fraction of the alcohol consumed on a per capita basis in other parts of the world.[FN31] This proven ability to suppress alcohol consumption contrasts sharply with the spectacular failure of the United States when attempting the same thing from 1920 to 1933. Hailed a progressive change when adopted in 1920, the Eighteenth Amendment did not stop the manufacture, sale and transportation of intoxicating liquors. Without question, existing legal sanctions did not assure compliance with the Eighteenth Amendment and the National Prohibition Act, commonly called the Volstead Act. If the Volstead Act had been strongly supported by JCP, attacking both the supply of and demand for alcoholic beverages, the Eighteenth Amendment might have succeeded. Western nations now ignore the potential of JCP to reduce illegal drug use. JCP can attack demand for illegal drugs in addition to failed efforts to eliminate the supply. JCP provides a valuable stimulus to evoke the response of sobriety, filling addicts with the powerful resolve to recover through treatment or on their own. JCP would punish and reduce the large number of drug-based technical violations, diverting large numbers of offenders from returning to prison.[FN32]Multiple American states punish sexual offenses with chemical castration and allow chemical or surgical castration in lieu of prison time.[FN33] Surgical castration of sex offenders virtually eliminates recidivism by castrated offenders; chemical castration is also effective.[FN34] Thus, JCP has already been re-introduced, though not in its traditional American form. Compared to capital punishment, whipping, amputation, castration and mutilation are lesser punishments some death row occupants would prefer.III. Judicial Corporal Punishment in American HistoryColonial America, heavily influenced by religion, accepted JCP as mandated in the Bible.[FN35] Biblical JCP contains noteworthy safeguards: JCP is administered proportionally, in public, in the presence of the sentencing judge, with the offender lying down, and in deference to human dignity, only to a maximum of 40 lashes.[FN36]Historically, the law sanctioned corporal punishment to discipline soldiers, seamen, scholars, slaves, serfs, apprentices, wives and children.[FN37] In the military, maritime, academic, slavery, apprenticeship and family contexts, the “judge” was the superior officer, courts martial, shipmaster, schoolmaster, slavemaster, tradesman, husband or parent. American colonies judicially punished in a variety of forms, including whipping, stocks, the pillory and the ducking stool.[FN38] In the seventeenth and eighteenth centuries, whipping posts were considered indispensable in American and English towns.[FN39] Starting in 1776, Gen. George Washington strongly advocated and utilized JCP in the Continental Army, with due process protection, obtaining in 1776 authority from the Continental Congress to impose 100 lashes, more than the previous limit of 39.[FN40] In his 1778 Bill for Proportioning Crimes and Punishments, Thomas Jefferson provided up to 15 lashes for witchcraft, at the jury's discretion; castration for men guilty of rape, polygamy or sodomy, and a minimum half-inch hole bored in the nose cartilage of women convicted of those sex crimes.[FN41] In 1781, Washington requested legal authority from the Continental Congress to impose up to 500 lashes, as there was still a punishment gap between 100 lashes and the death penalty.[FN42] The Founders believed whipping and other forms of corporal punishment effectively promoted pro-social and discouraged anti-social behavior.The Fifth Amendment's Double Jeopardy Clause—“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”—reflects traditional acceptance of severe bodily punishments, including amputation.[FN43] In his influential treatise written 20 years before the Constitution, Cesare Beccaria, an enlightened opponent of torture, endorsed the use of JCP for crimes against the person and appreciated the simple proportionality facilitated by JCP.[FN44] Beccaria believed that punishments should match “the state of the nation,” meaning that unruly nations require greater punishments and orderly nations less severe punishments.[FN45] America's Founders received English common law along with ideas from the Enlightenment. Sir William Blackstone listed whipping among other accepted corporal punishments in Commentaries on the Laws of England.[FN46] JCP was the practical punishment for those without money to pay fines, property to confiscate or status to lose.The Eighth Amendment to the U.S. Constitution, taken from the English Bill of Rights,[FN47] states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The English Bill of Rights did not condemn methods of punishment.[FN48] The Framers of the Bill of Rights intended the Cruel and Unusual Punishments Clause of the Eight Amendment to prohibit torture and barbarous punishment, but not public whipping.[FN49] In the debate about the Bill of Rights at the First Congress, New Hampshire representative and jurist Samuel Livermore foretold several future questions over the constitutionality of whipping:“The clause seems to express a great deal of humanity, on which account I have no objection to it; but, as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.”[FN50]Without question, JCP was not considered cruel and unusual on Dec. 15, 1791, the date the Eighth Amendment became part of the U.S. Constitution.[FN51] The original meaning of constitutional provisions has never ceased to inform jurists in the interpretation and application of those provisions. The first U.S. Crimes Act of 1790 punished by whipping the crimes of “stealing or falsifying records, fraudulently acknowledging bail, larceny of goods, or receiving stolen goods.”[FN52] The acts of the First Congress are persuasive in constitutional questions.[FN53] In 1808, Justice Livingston found JCP on ships salutary, often necessary and proper, and that “without it, it would be impossible to navigate our vessels.”[FN54] The U.S. did not provide by statute for imprisonment at hard labor until 1806, with additional crimes added in 1825.[FN55]The Eighth Amendment limits all three branches of government: the sentences of courts, the constitutional validity of legislation and actions of the executive branch. No American court has ever held as a matter of constitutional law that JCP in the form of whipping violates the Cruel and Unusual Punishments Clause of the Eighth Amendment.[FN56] To the contrary, state and federal courts uniformly over the years upheld sentences of traditional JCP against constitutional challenge.[FN57] In Weems v. U.S., U.S. Supreme Court Justice McKenna observed that as of 1882, whipping was upheld in Maryland as a punishment for wife-beating.[FN58] In 1963, the Supreme Court of Delaware in State of Delaware v. Cannon unanimously upheld the constitutionality of whipping as a criminal punishment.[FN59] The Supreme Court of Delaware simply found that punishments are determined to be cruel and unusual only by the will of the people as expressed through their legislatures.[FN60]IV. Why Was JCP Abolished in Different Contexts?A. Abolition of JCP in “Modern” NationsThroughout history, the lowest ranks of free society provided the majority of criminals. Punishments often varied by social class or caste, officially or unofficially. JCP and legal corporal punishment most often were reserved for or primarily given to serfs, soldiers, sailors, slaves, students, wives, prisoners, criminals and others with little status, money or property.[FN61] Thus, JCP is generally abolished as a by-product of greater equality or democracy, including the abolition of slavery and colonialism, because it is an ignominious relic of lower-class status that newly empowered citizens dislike and elites, including judges, associate with backwardness, degradation or unwanted publicity.Authorities through the years had reason to dislike public punishments, because they sometimes caused sympathy, reactions or riots in favor of the convict.[FN62] A public accustomed to “the spectacle of the scaffold” regarded it as their right to witness punishments and might applaud or denounce the punishment, rendering public judgment on the criminal, crime, court, sentence and proceedings.[FN63] The worst abuses in the administration of corporal punishment were hidden from the eyes of the people, arbitrary and capricious, and not administered by a fair legal system.Together with the false promise of rehabilitation, excessive or abusive use of corporal punishment led to its abolition. Opposition to JCP and legal corporal punishment in Britain arose after a mentally imbalanced soldier's death from 150 lashes in 1847,[FN64] and a student's death from punishment administered by his schoolmaster in 1860.[FN65] The imposition of 250 lashes on a Brazilian sailor in 1910 triggered the one-week Revolt of the Whip in Rio de Janeiro by largely Afro-Brazilian seamen.[FN66] Led by seaman Joao Cándido, the son of former slaves, against the all-white officers on four Brazilian Navy ships, the Revolt ended naval corporal punishment in the Brazilian Navy, just as it had recently been curtailed in the British Navy.[FN67] Brazilian slavery had only been abolished in 1888, and the Brazilian mutineers regarded the punishment as a relic of slavery.[FN68] In the prison, naval, educational and domestic contexts, legal corporal punishment was limited, regulated or abolished because it was not strictly judicial, but instead too often arbitrarily imposed by a single person rather than a judicial body.[FN69]JCP is unpleasant to administer. In fact, the deterrent value of public JCP stems from its horrific aspects. It seems barbaric when incarceration holds out false hopes of rehabilitation, perfectibility, leniency or humane treatment. Today, common initial reactions to JCP include the labels “primitive,” “barbaric,” and “backward,” which are actually characteristics of modern incarceration. JCP does not conceal society's most despised members, but instead masks complex neurologic activity. In physical and economic terms, corporal punishment is easier to abuse than other forms of punishment, because it is fast, easy to administer, cheap, repeatable, not dependent upon location and extremely variable. Those same characteristics are advantages when due process and equal protection are accorded, which is to say they have not always been provided.Punishments continually vary over the centuries with changes in social structure, economies, revolutions, public order, religions, technology and wars. Changes in punishments over time are the rule, not the exception. In some ages, JCP gains acceptance by entire societies. Gustav Radbruch demonstrated that corporal punishment in Germanic law started out as domestic slave punishment and over the centuries was made applicable to all offenders.[FN70] The punishment of transportation was invented out of the need for labor in the New World and stopped when that need decreased.[FN71] Galley slavery arose from the military need for rowers and the difficulty of inducing free men to serve; it ended with improvements in sail technology.[FN72] Criminology had little to do with these changes in punishment. Applied social science still plays a surprisingly small role compared to economics and politics. Penal institutions in particular are slow to change because their subjects have little voice in society, punishment and offenders are concealed and prisons are government bureaucracies. In antebellum America, naval and educational corporal punishment were primarily opposed in the North and supported in the South, reflecting regional differences on the issue of slavery,[FN73] including the South's dependence upon corporal punishment to maintain the efficiency of its peculiar institution and economy.JCP was periodically perceived as ineffective because it was administered to the mentally ill component of the criminal population, for many of whom it is ineffective or much less effective.[FN74] The reintroduction of JCP presupposes that the mentally ill would undergo diagnostic mental health evaluation and then be treated or punished differently than other criminals. Our current judicial and correctional systems often place the mentally ill in prison. Modern standardized psychiatric assessment and screening tools and tests could assist judges to determine the suitability of JCP in a given criminal case. Like the invention of the penitentiary, the de-institutionalization movement in the later twentieth century was supposed to help the mentally ill, but it resulted in more incarceration for them, demonstrating the cyclicality and inevitability of intractable social problems. Medical supervision of JCP ought to include both mental and physical aspects of JCP, including perhaps individual pain sensitivity determined by fMRI or EEG.Foucault observed that societies moved from punishing the body to punishing the soul, even though the body is still heavily involved with incarceration.[FN75] This change necessarily reduced the speed, certainty, visibility and judicial control of punishment, and as Foucault wrote, created a host of extra-juridical decision-makers strung out over the dimensions and disciplines of time, distance, finance, psychology, education and medicine.[FN76]In France, JCP ended with the French Revolution and France's citizen army, a reform Prussian General Scharnhorst advocated for the Prussian Army in response.[FN77] In Prussia, JCP ended in 1848, when ordinary Prussians received the right to vote.[FN78] Russian peasants, who had long played a role in punishment at the village level, feared fines and imprisonment more than flogging when JCP was abolished by the Tsar in the 1860s,[FN79] at the time serfdom was abolished in Russia. In a similar way, villages or tribes in India retained JCP when it was outlawed generally throughout India.[FN80] The Ottoman Empire abolished JCP in 1858, the year after abolishing the African slave trade, and Egypt abolished it in 1861; one scholar suggests those Islamic states abolished JCP in the mistaken belief confinement was more rehabilitative and to improve the image portrayed to the West.[FN81]Starting in the late seventeenth century, England increasingly relied upon JCP as a substitute for the death penalty in cases of grand larceny.[FN82] From 1877 to 1894, 418 adults were flogged in England, two for garroting and 416 for robbery.[FN83] Great decreases in the rum ration facilitated discipline without corporal punishment in the British Navy, as did better pay and treatment.[FN84] In Britain, JCP was abolished in 1947, although its re-introduction was debated in 1961.[FN85] In Canada, JCP was abolished in 1957.[FN86]Economic, political, religious and popular forces, not the science of criminology, determined through history what punishments were used in a given era. The great prison reformer John Howard disparaged the punishment of transportation to colonies, yet that punishment over time had the best record of rehabilitation, especially for descendants of transported criminals.“Penal theorists and criminal justice historians generally agree that modern nations rejected physical punishments not because they failed to rationalize them but because intentional physical harm disturbed sensibilities and conflicted with changing cultural norms about suffering, which included the pains of the punished as well as the distress of those performing or witnessing punishment.”[FN87]B. Abolition of JCP in the United StatesSignificantly, JCP in the U.S. was limited or abolished by legislatures and martial decree, never the courts, in favor of untested incarceration, lacking the benefit of modern behavioral science or studies, and without knowing how much the prison population would later increase and suffer a worse fate. The precipitous abandonment of JCP in favor of incarceration was personified in New York by Thomas Eddy, a devotee of Beccaria, who worked against harsh punishments and tried to be a humane warden of Newgate Prison after JCP was abolished—but who was forced to resign in 1804 after frequent prison riots.[FN88] Large fortress-like prisons arose gradually in the nineteenth century, concurrently with the steady abandonment of JCP. Abandonment of JCP followed prison construction.[FN89] The impressive architecture of prisons and isolation of the inner workings masked their imperfections and the difficulty of running them. Prisoners were always found to occupy the space available. In time, the conditions of imprisonment, including corporal punishment administered to prisoners as discipline by prison authorities, generated an increasingly large volume of litigation under the Cruel and Unusual Punishments Clause.[FN90]Legal flogging declined in the U.S. in different stages and contexts, after the American Revolution, after the Civil War ended chattel slavery and Union generals sought to enforce racial equality, and finally when merchant seamen escaped their unique brutal servitude. Urbanization, centralization, migration and the greater difficulties of knowing and keeping track of offenders lessened the effect of JCP. The shame of JCP—often said to be worse than the physical pain—diminished with the greater anonymity of urban life.[FN91]Early reformers opposed to legal corporal punishment in the naval, educational and penal contexts did not seek to abolish its use, but only make it a “last resort.”[FN92] The civilian punishments of whipping and of standing in the pillory were abolished by Congress in 1839; imprisonment “at hard labor” was substituted for nearly all other ignominious non-capital federal offenses.[FN93] Published in 1840, Two Years Before the Mast by Richard H. Dana, Jr. was the first of several books to publicize the brutal legal corporal punishment of merchant seamen by their masters (i.e., captains).[FN94] When the U.S. Navy enlisted foreigners and persons of low character, and daily issued rum or grog to sailors, an anonymous pamphlet entitled A Plea in Favor of Maintaining Flogging in the Navy was published and circulated, outlining unique naval circumstances.[FN95] Over 90% of the 84 U.S. naval officers surveyed objected to the abolition of flogging in 1850, the year Congress abolished its use in the U.S. Navy.[FN96] Through labor union pressure, the White Act of 1898 abolished the legal corporal punishment of seamen on American merchant vessels.[FN97] While we often associate flogging with American slavery, legal whipping of white citizens was first significantly curtailed only a few decades before the American Civil War and continued long afterwards in limited circumstances.Delaware was the last state to administer, in 1952, and then legislatively abolish, in 1972, JCP.[FN98] By coincidence, crime and incarceration rates rose steadily for several decades thereafter.C. The African American Experience with JCP AbolitionThe corporal and capital punishments of African Americans became more arbitrary, brutal and chaotic after the economic incentives of slavery and Union Army governance disappeared.[FN99] Statutes and common law permitted disciplinary legal corporal punishment of slaves, but prohibited or discouraged the “cruel, unusual and excessive” punishment of slaves.[FN100] Black Codes passed after the Civil War, such as the one adopted by Mississippi to assign orphaned and unsupported “apprentices,” supposedly drew the distinction between “moderate corporal chastisement as a father or guardian is allowed to inflict on his or her child or ward at common law,” but prohibited “cruel or inhuman punishment.”[FN101] Florida established up to 39 stripes of JCP or the pillory as punishment for vagrancy and vagabonds (i.e. wandering ex-slaves) on Jan. 12, 1866.[FN102] Less than a month after South Carolina enacted a code authorizing the JCP of former slaves, Union Major General Sickles of the Military District of South Carolina prohibited such punishment in his general order of Jan. 17, 1866.[FN103] The Civil Rights Act of 1866, effective April 9, 1866 over President Johnson's veto, made it a crime to subject former slaves to “different punishment, pains, or penalties.”[FN104] A U.S. Senate bill was introduced to authorize the president “to prevent the infliction of corporal punishment in the States lately in rebellion.”[FN105] One House bill ordered printed on Jan. 28, 1867 equated JCP with a violation of the Eighth Amendment.[FN106] Union generals in command of Military Districts throughout the South ordered the abolition of JCP shortly after Congress passed the First Reconstruction Act on March 2, 1867.[FN107] Martial law abolished JCP, not for ineffectiveness, but because JCP too powerfully promoted white supremacy in labor relations, commerce, the bearing of arms, criminal laws and voting rights. Disparate use of JCP, not the effectiveness of the punishment technique, caused its post-war demise.The South's re-assertion of white supremacy through Black Codes resulted in the Fourteenth and Fifteenth Amendments. The Ku Klux Klan then illegally and secretly punished African Americans with whips, lynching and intimidation outside the legal system, just as the mafia in Southern Italy and Sicily earlier arose as a secret internal police force to counter conquering powers. Far worse than slavery, the convict labor systems developed after the Civil War exploited convict labor without any investment in the workers.[FN108] As bad as convict leasing was, the numbers involved in convict leasing and incarceration at that time are dwarfed by modern correctional populations. In 1890, there were only 8,417 prison inmates of all races in the entire South, and the federal prison system did not yet exist.[FN109]While JCP was linked to racism and banned by the winning side, incarceration caused an enormous tragedy on both sides. Prisoner-of-war camps in Andersonville, Georgia, Johnson's Island, Ohio, Richmond, Virginia, and “Hellmira,” New York fully revealed how terribly two American governments handled their prisoners-of-war. An estimated 56,000 Union and Confederate prisoners died as a result of disease, poor shelter and malnutrition.[FN110]Former slaves interviewed during the Federal Writers' Project vouched for the effectiveness of just corporal punishment, most often imposed on young men for not working and stealing,[FN111] just as they dreaded alcoholic and insane owners and overseers.[FN112] No blanket conclusion about the corporal punishment of slaves is accurate, because each slave was an individual, pain sensitivity varies with the person, each bondage experience was unique, different whips were used,[FN113] and the frequency, intensity and type of punishment fluctuated greatly in relation to reward mechanisms. A significant number of American slave owners did not whip their slaves, which helps prove its deterrent effect in conjunction with reward systems. But the whip was indispensable to all slaveholding societies in history,[FN114] which qualifies its use as an evidence-based practice or at least practiced-based evidence.Today, as a percentage of population, the South incarcerates far fewer African Americans than the North compared to the number of whites incarcerated in each state. The greatest imprisonment disparities today in favor of whites and against blacks are in the North, in the very same states that took the strongest stances against slavery and whose military representatives banned JCP in the South.[FN115] Iowa, Vermont, New Jersey, Connecticut, and Wisconsin had the greatest racial disparities as of 2005, all over 10-to-1, while the Deep South states of Alabama, Arkansas, Mississippi, Louisiana, Georgia, South Carolina, and Texas had racial disparities of less than 5-to-1.[FN116] Social, economic, political, biological, physical, religious and military forces drive inequities, not punishment techniques.The most respected American leaders, the four presidents carved into Mount Rushmore, are all on record as favoring the use of JCP on white (and black) citizens, and each favored racial freedom or equality more than the bulk of their contemporaries.[FN117] African Americans today often compare mass incarceration and its effects to slavery and Jim Crow.D. Antidote for Wife-Beating & Child Abuse AbolishedU.S. courts did not until the 1870s overturn the common law principle that a husband had the right to physically chastise his wife.[FN118] In Springfield, Illinois, Abraham Lincoln as a vigilante with friends caught and restrained an alcoholic wife-beater, who Lincoln had previously threatened with a whipping should he beat his wife again, and then allowed the wife to whip her husband with a tree branch.[FN119] Despite threatening retaliation, the chastened wife-beater did not later offend against his wife.[FN120]In 1882, Maryland was the first U.S. state to make wife-beating a crime.[FN121] The Maryland statute provided for JCP (and/or imprisonment) as a punishment, and as of 1895, JCP was said to be effective in reducing this crime.[FN122] A whipped wife-beater said he would not make himself subject to the penalty again, and that the disgrace of JCP was worse than the physical pain.[FN123] In his Dec. 6, 1904 State of the Union message, President Theodore Roosevelt observed:There are certain offenders, whose criminality takes the shape of brutality and cruelty towards the weak, who need a special type of punishment. The wife-beater, for example, is inadequately punished by imprisonment; for imprisonment may often mean nothing to him, while it may cause hunger and want to the wife and children who have been the victims of his brutality. Probably some form of corporal punishment would be the most adequate way of meeting this kind of crime.[FN124]JCP generally was almost extinct before American women obtained full voting rights in 1920. One of the last uses of American JCP was to vindicate the rights of battered wives. This specific application harkens back to Beccaria's idea that crimes of violence should be punished corporally.[FN125] JCP in the U.S. was mainly directed against males and physically counterbalanced obvious gender disparities to protect the rights of abused women and children. While condemning corporal punishment as prison discipline without statutory authority, in 1914 the Supreme Court of North Carolina observed, “Delaware and Maryland retain flogging, not as a part of their prison discipline, but as a court sentence for “wife beaters”—an admirable arrangement and a most just application of the lex talionis.”[FN126]V. Eighth Amendment Receptivity to JCPDifficulty would attend the effort to define with exactness the extent of [this] constitutional provision … but it is safe to affirm that punishments of torture … and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.[FN127][L]ike the other great clauses of the Constitution, [it] is not susceptible of precise definition.[FN128]A. Eighth Amendment Not Precise or Static.In his respected 1868 treatise Constitutional Limitations, Judge Cooley wrote:“It is somewhat difficult to determine precisely what is meant by cruel and unusual punishments. Probably a punishment declared by statute for an offence which was punishable in the same way at the common law could not be regarded as cruel or unusual in the constitutional sense. And probably any new statutory offence may be made punishable to the extent permitted by the common law for similar offences. But those degrading punishments which in any State had become obsolete before its existing constitution was adopted, we think may well be held to be forbidden by it as cruel and unusual. We may well doubt the right to establish the whipping-post and the pillory in States where they were never recognized as instruments of punishment, or in States whose constitutions, revised since public opinion had banished them, had forbidden cruel and unusual punishments. In such a case the public sentiment had condemned them as cruel, and they had not merely become unusual, but altogether ceased to be inflicted.”[FN129]In 1885, the U.S. Supreme Court distinguished “infamy” from “cruel and unusual,” acknowledged the original acceptance of whipping, but noted the changing view of punishments:“What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another. In former times, being put in the stocks was not considered as necessarily infamous. And by the first Judiciary Act of the United States, whipping was classed with moderate fines and short terms of imprisonment in limiting the criminal jurisdiction of the district courts to cases “where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted.” Act September 24, 1789, c. 20, § 9, 1 Stat. 77. But at the present day either stocks or whipping might be thought an infamous punishment.”[FN130]U.S. Supreme Court treatment of the Eighth Amendment has been likened to a “conceptual chameleon,” with multiple different unintended moral inquiries.[FN131] The Court's chosen Eighth Amendment ideal of human dignity[FN132] is vaguer than the Cruel and Unusual Punishments Clause itself, because all significant punishments contain some element of indignity. In defense of the Court, most of their Cruel and Unusual Punishments Clause decisions dealt with the inflexible dimensions of time, death and what some regard as the failed 200-year social experiment of criminogenic imprisonment.B. Dualism: Original Intent Versus Evolving Standards.As with other constitutional amendments, a dualism or tension exists within Cruel and Unusual Punishments Clause jurisprudence. In addressing the scope of the Eighth Amendment's prohibition on cruel and unusual punishments, the Supreme Court refers to traditional common law concepts[FN133] and attitudes which society has traditionally taken; procedurally under the Fifth and Fourteenth Amendments, they consider what has always been the law of the land and traditional ideas of fair procedure.[FN134]Justice McKenna in 1910 stated the constitutional goal of immortality regarding the Cruel and Unusual Punishments Clause:“Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, “designed to approach immortality as nearly as human institutions can approach it.” The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.”[FN135]In contrast to the traditionalist or originalist view, the courts consider evolving standards. Chief Justice Warren in 1958 opined, “the words of the Amendment are not precise, and … their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[FN136] Under this analysis, the courts determine the extent to which American standards of decency regarding criminal punishments have evolved and marked societal progress.Massive incarceration is not progress. American courts have found that various prison conditions and sentences constitute cruel and unusual punishment, including corporal punishment administered by prison guards. Incarceration per se is not necessarily more decent or less cruel than its predecessor JCP, because almost everything depends upon the circumstances of each.[FN137] A law may not be declared facially unconstitutional unless there is no set of circumstances under which the challenged law would be valid.[FN138]The constitutionality, cruelty and proportionality of JCP must be analyzed with reference to a specific sentence, the precise conditions of force under which it is executed, the crime for which it is administered and the characteristics of the offender. “The Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions.”[FN139] Eighth Amendment jurisprudence cannot be unidirectional, because society changes in diverse and unpredictable ways. Despite all efforts to eliminate it, human nature continually reasserts brutality in both hidden and obvious ways, and force is often necessary to contain it.C. Issues, Approaches & LimitsThe U.S. Supreme Court has confronted at least four issues under the Cruel and Unusual Punishments Clause, in sometimes overlapping ways: (1) whether the punishment was cruel and unusual as of 1791, the date the Bill of Rights was adopted, the originalist view; (2) whether the punishment is now cruel and unusual, under the “evolving standards of decency” view; (3) whether the punishment is excessive or disproportionate to the crime; and (4) whether the offense, behavior or status can be made criminal and punished.[FN140]According to the Supreme Court in Ingraham v. Wright,[FN141] the resolution of these issues circumscribes the criminal process in three ways:Limits the kinds of punishment that can be imposed on those convicted of crimes. No U.S. court has ever held whipping unconstitutional as JCP,[FN142] although arbitrary corporal punishment administered by prison guards or in prison has been found unconstitutional or without qualified immunity.[FN143] The only way JCP could be held unconstitutional per se is if evolving standards of decency now make JCP cruel and unusual. The evolving standards of decency argument against JCP must show that standards have actually evolved, and this necessarily involves comparisons with massive incarceration. The facts in Brown v. Plata, earlier conditions of confinement litigation, recidivism and deterrence statistics, and the public's unwillingness or inability to fund the total dependence of over two million prisoners, indicate those standards have not evolved for the better, despite the courts' insistence on reform and progress. There is plenty of room inside the Eighth Amendment and its jurisprudence to rationalize the will of the people as reflected in carefully drawn legislation. If all involved parties in a particular case agree to JCP in lieu of incarceration, appellate courts could not oppose JCP as a punishment method.Proscribes punishment grossly disproportionate to the severity of the crime. The Supreme Court has judged the constitutionality of prison terms by deciding whether a sentence was “grossly disproportionate” to the individual crime based on factors like crime severity and the offender's criminal history.[FN144] For over a century, JCP has not been tested under proportionality or excessiveness analysis. Proportionality analysis of JCP must wait until legislatures and courts adopt sentencing schedules for each crime punishable by JCP, including allowances for weight, age, gender, mental, medical and physical conditions and even pain sensitivity based on EEG or fMRI-determined “brain signatures.”Imposes substantive limits on what can be made criminal and punished as such. This factor has little bearing on the constitutionality of JCP for existing crimes.[FN145] JCP was administered in our culture for non-capital and mid-level offenses, for which prison and fines are now the standard punishments. Initial objections to JCP in the U.S. sometimes confuse JCP itself with the foreign values of countries that corporally punish behavior we do not consider criminal or serious.VI. The Brutality of IncarcerationDuring the great majority of recorded history, long terms of imprisonment were rare, reserved for hostages, prisoners of war, political prisoners, nobles held for ransom or others with some value. Jails held accused defendants awaiting trial, but the ultimate sentence was not generally lengthy incarceration. Prison sentences were sometimes tantamount to discreet death sentences from disease, starvation, mistreatment, neglect or concealed murder. In history, imprisonment was the anomaly, although in modern Western nations that perception is now reversed. During recent decades, the Eighth Amendment has not been used to judge the cruelty of whipping, a common punishment when the Eighth Amendment was adopted, but instead has often been the standard for an expensive punishment that barely existed in 1791.As a form of prison discipline, whipping lasted longer than it did outside prison and still exists on the statute books in some states.[FN146] In 1931, the Supreme Court of the Territory of Hawaii reviewed an order of the Board of Prison Inspectors that an incorrigible prisoner be chastised with a cat-o'-nine-tails.[FN147] The Territorial Supreme Court held that this prison discipline did not violate the Cruel and Unusual Punishments Clause and need not be “sanguinary” (i.e., bloody).[FN148] The lone dissenter observed that the territorial legislature had not specifically authorized JCP, Congress eliminated that punishment in the federal system, and that it had been in marked decline for many years.[FN149]The Arkansas prison system used cruel and unusual punishments, including the notorious Tucker Telephone, a homemade torture device directing electricity through male genitals, and generated the first conditions of confinement litigation. In Jackson v. Bishop,[FN150] the 8th Circuit enjoined the use of the strap until proper regulations and safeguards against abuse were implemented, finding its use on an incarcerated prisoner in Arkansas “runs afoul of the Eighth Amendment; that the strap's use … offends contemporary concepts of decency and human dignity and precepts of civilization which we profess to possess.” Punishment in prison is not JCP, but a disciplinary action to enforce prison rules. JCP is far different than corporal punishment as prison discipline. The authority for JCP is from the courts, under the law, the punishment is finite, structured and public, and after most sentences of JCP, the convicted defendant would be free to go. British and American JCP was generally imposed in public, while corporal punishment as a condition of confinement often lacked due process and was hidden from public and visual judicial scrutiny.The “proper regulations and safeguards” needed to re-impose legal corporal punishment in prison are similar to the criminal constitutional rights accorded to accused citizens prior to conviction. Prisons deal administratively with many in-prison infractions and crimes, but with the disuse of corporal punishment, prosecution of inmates must control serious criminal activity in prison. The lengthening of sentences in overcrowded prisons provides one disincentive to the prosecution of already-incarcerated prisoners. Prosecutors use the horrors of prison during plea bargaining, which likewise lessens the desire to correct those terrors.Brutality, pain and cruelty, by themselves, do not disqualify punishment on constitutional grounds. “Prison brutality … is part of the total punishment to which the individual is being subjected for his crime and, as such, is a proper subject for Eighth Amendment scrutiny …. Even so, the protection afforded by the Eighth Amendment is limited. After incarceration, only the unnecessary and wanton infliction of pain … constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”[FN151] “Unnecessary” and “wanton” in this context are synonyms for “ineffective.” “Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history.”[FN152] Ultimately, the question of constitutionality will turn on the issue of effectiveness, which includes considerations of recidivism, economics, public perception and acceptance, addictions, and comparisons with incarceration, the death penalty, parole, probation, fines and the treatment of youthful offenders.Failure to provide adequate healthcare and other awful prison conditions can violate the Cruel & Unusual Punishments Clause.[FN153] The Eighth Amendment does not outlaw cruel and unusual conditions; it outlaws cruel and unusual punishments.[FN154] Prison conditions are considered “punishment” under this analysis only if a prison official (or the state) was deliberately indifferent, actually knew of and disregarded the risk of harm.[FN155]Functionally, prisons turn offenders into dependents. Prisons necessarily undertake enormous duties to provide food, clothing, shelter, personal safety, sanitation, healthcare and medicine. The unwillingness, inability or incompetence of governments to provide space and resources and penal institutions to fulfill their duties of sustenance result in entrenched, institutional, system-wide problems, as outlined in Brown v. Plata. In numerous other rulings, federal courts have held conditions of incarceration unconstitutional. Over the last five decades, federal courts have taken over most of the prison systems in the United States based upon the Cruel and Unusual Punishments Clause.[FN156] This of course does not mean that incarceration per se is cruel and unusual, but it puts federal courts in the awkward situation of judicially supervising and managing—incompetently according to Justice Scalia[FN157]—state administrative, budgetary, executive and legislative functions.[FN158] In California, the necessity of such federal judicial intervention was caused by the state's failure to comply with an earlier consensual remedial injunction.[FN159] The American public rates prisoners as their bottom priority, although this population insensibly expanded into the largest and most expensive cohort of full-ride welfare recipients in the world.Public punishment, publicity and litigation are effective checks and balances on the administration of any punishment.[FN160] The courts struggle to remedy the cruelties suffered by society's least favorite class, largely because of the political indifference and economic disincentives under which the other two branches of government operate. A powerful practical force is the ancient and immutable doctrine, “Out of sight, out of mind.” It is still socially acceptable to disparage, abhor and execute prisoners.Wasteful and crippling statutory disincentives prevent the utilization of the enormous labor value represented by two million fairly young able-bodied yet idle American prisoners.[FN161] Other than those who benefit financially from the warehousing of prisoners, no one is happy about the financial and social costs, overcrowding or recidivism rates.[FN162] Nevertheless, incarceration provides proven value in terms of incapacitation.[FN163] Cost-benefit analysis of incapacitation is complex, inexact, variable with individual offenders and crimes, and has not been calculated with the option of JCP in lieu of incarceration for lesser or non-violent crimes.The 2011 majority opinion in Brown v. Plata described California's severely overcrowded correctional system, “exacerbated by an unprecedented budgetary shortfall,” as unconscionable, unsafe, harsh, toxic, criminogenic, violent, unsanitary, chaotic, disease-ridden, violent and suicide-inducing. Torture, lingering deaths and a culture of cynicism, fear and despair were the result.[FN164] Barbaric prisons in Latin America clearly entail “a journey into hell.”[FN165] As Carolyn Strange observed in analyzing the work of Norbert Elias: “barbarity does not disappear in nations that consider themselves to be enlightened: it moves out of public sight and is reconstituted in self-defined civilized societies.”[FN166] Not surprisingly, the Quakers, who had a hand in inventing the penitentiary, now repudiate it.[FN167]VII. Comparative Advantages of JCPJCP is no more brutal or cruel than the average prison.[FN168] Incarceration too often results in violence, gang activities, weapon production, anxiety, rape, hopelessness, depression, boredom, wasted time, an increased risk of communicable diseases, anger, forms of abuse, racism, ugly tattoos, mental illness and increased risks of corporal self-punishment (self-harm or self-mutilation) and suicide.[FN169] Modern American prisoners are 20 times more likely to commit suicide than antebellum slaves were in 1850.[FN170] Part of society's “evolution” was increasing reliance upon solitary confinement, which is known to cause mental illness,[FN171] and might offend the Eighth Amendment more if not absolutely necessary for prison administration, discipline and the safety of isolated prisoners.[FN172] Determinate prison terms under the guise of “truth in sentencing” have now largely replaced the more flexible and reformative indeterminate sentence.Principles of sentencing generally seek the least restrictive sanction consistent with the protection of the public and the gravity of the crime. Judges are encouraged to “consider alternatives to long-term institutional confinement or incarceration in cases involving offenders whom the court deems to pose no serious danger to society.”[FN173] As in most modern literature concerning punishments, words such as “alternative,” “community,” “flexible,” and unspecified “sanctions” are code words admitting at least three things: Imprisonment is often not the best answer, we do not know what else to do, and we are afraid the public will not or cannot pay for unspecified alternatives to incarceration. Today, the suggestion of traditional JCP in lieu of incarceration is almost never one of the “alternative sanctions” considered, but many offenders would prefer it and benefit from JCP. Advocates of change hope for more expensive programs, therapies, treatment, renewal and rehabilitation, which the public is unlikely to support, and do not consider JCP as encouraging, assisting or supporting such methods. Experimentation might reveal that JCP is the “bottom” substance abusers need to hit before they decide to stop abusing substances. JCP probably punishes some crimes, such as theft or drug offenses, better than jail time, so long as offenders once punished remain on track to receive follow-up JCP if necessary.Rehabilitation and ending social oppression were not accomplished through imprisonment.[FN174] Actual oppression worsened with physical concealment and the long-term effects. JCP is still correlated with less democratic regimes,[FN175] but so are imprisonment and the death penalty. In fact, the human body never ceased to be a focus of punishment after JCP ended in Western cultures.[FN176] In many cases, the long-lasting mental, economic, physical and social punishment of incarceration is worse for all concerned than one hour or less of traditional JCP.Work in prison decreased markedly after state and federal legislation made the sale or transport of prison-made goods illegal.[FN177] Today, relatively few American prisoners work hard. The economic, human and collateral social consequences of over two million largely inactive American prisoners are staggering.[FN178] Prisoners exercise and become more dangerous assailants, but produce relatively little. Confinement deprives offenders of their livelihood, something the still-valid Amercements Clause of the Magna Carta discouraged or prohibited even for serious offenses.[FN179] Indeed, the Amercements Clause of the Magna Carta eventually found its way into the Excessive Fines Clause of the Eighth Amendment, by way of the English and Virginia Bills of Rights.[FN180] Prisons today more often resemble hate factories than plants making useful goods.Ex-prisoners leave the “New Age slavery” of prison and enter a pariah class, now referred to as the “New Jim Crow,” in which they have great difficulty finding work, spouses and housing, education or government benefits.[FN181] Egalitarian punishment on the scales of class, race and gender remains a myth. Recidivism stubbornly keeps prisoners recycling through the prison system; well over half of released prisoners re-offend.[FN182] “Prisons serve as training camps for crime, especially for young offenders.”[FN183]Public JCP possesses several unquestioned advantages over incarceration. Public JCP punishes offenders rapidly, provides the great benefit of example, and then releases offenders to healthier environments without harming the economy. Offenders can preserve ties to schools, jobs, families, spouses, friends, religious organizations and communities. Prison is an expensive way to make bad people worse because of perverse socialization, “prisonization.” Ties to gangs are maintained and often increased in prison. Public flogging is the gangster's worst nightmare, appearing weak to others, and would reduce gang participation. JCP is much less expensive, exponentially faster, repeatable, flexible in application, adaptable to and supportive of parole, probation, Drug Court and other alternative sentences, and brings punishment visibly back to the community from the hidden centralized model that is more easily corrupted. When administered in conjunction with parole or probation, JCP effectively permits judges to impose both determinate and indeterminate sentences. While perceived as strictly punitive, JCP is very brief and then enables the reward mechanisms of marriage, family, school, religion, employment and community. Rewarding virtue is one way to reduce crime.[FN184] If the flogged offender resolves to obey the law, JCP is much more likely to reward virtue than a comparable prison term. Most offenders immediately receive a “second chance” after JCP.Offenders, at least in introductory legislation, might be allowed to choose JCP in lieu of incarceration and in this way accept the need for rehabilitation.[FN185] While tougher, pain-resistant criminals might opt more often for JCP, vulnerable convicts have an equally powerful incentive to choose JCP. Undersized, weaker, effeminate, better looking and more passive prisoners, and especially sex offenders, dread prison the most. JCP provides a multitude of different punishment options for judges, juries, victims, prosecutors, defense counsel and offenders. Existing punishment options often boil down to the extremes of prison versus probation or parole; more intermediate and concurrent criminal sanctions are needed. Fewer technical parole violators would return to prison if JCP was an option. The suspended JCP sentence would be an effective deterrent to future crimes, especially for certain crimes and types of offenders.JCP contains significant public shaming, an effective alternative to confinement.[FN186] Deciding between confinement versus JCP is not solely “an inquiry which punishment produces the most physical suffering, but which is the most ignominious; and among all nations of civilized man, from the earliest ages, the infliction of stripes has been considered more degrading than death itself. The Romans, in case of capital punishment, first scourged with the lash, and then put to death.”[FN187] Public shaming through JCP would increase exponentially by publication of video on the internet or the use of other judicial publicity. The effects of shaming, together with neuroscience, might scientifically justify the biblical limit of 40 lashes.While many law enforcement officials would not choose to personally flog convicted criminals, executioners would volunteer from the general public. Turnover of prison correctional officers is notoriously high, reflecting lack of career development, stress, burnout, boredom, compensation and the constant burden of dealing with mentally ill, contagious and dangerous prisoners.JCP could dramatically reduce the American prison population and overcrowded conditions. The average state prisoner only has about 2.1 years left to serve,[FN188] and thus at least half of the current prison population is in the shorter sentence range appropriate for JCP in lieu of incarceration. JCP will not replace incarceration or the death penalty for more serious offenses, but hybrid or split sentences of JCP and incarceration are feasible to reduce longer sentences and even the death penalty.[FN189]VIII. Science Explains Effectiveness of JCPFrom a learning theory and behavioral standpoint, soundly applied punishment under laboratory conditions stops or “extinguishes” unwanted targeted behaviors. “[R]esistance to extinction is reduced “when high-intensity punishment is delivered during early extinction.”[FN190] “[A] large body of evidence suggests that the effects of punishment are not temporary and that the effects of high-intensity punishment often endure better than those of reinforcement.”[FN191] Punishment both discourages misbehavior and encourages socially useful conduct: “Perhaps the most frequently noted positive side effect of punishment is facilitation of appropriate social interaction and cooperation during or following periods of punishment for undesirable behavior.”[FN192] Offenders learn from JCP; it is literally educational. A study of corporal punishment on several ships in the British Navy during the American Revolution found that the great majority of sailors did not receive corporal punishment twice.[FN193] “The positive side effects of punishment typically consist of improvements in social behavior, emotional responsiveness, imitation and discrimination learning, appropriate play, and attention.”[FN194] Aggression can result from punishment, but aggression is reliably extinguished with additional punishment. This suggests that the most effective use of JCP would be as initial punishment and if necessary as follow-up punishment under the exponentially faster schedules facilitated by parole, probation and suspended sentences.From a behavioral standpoint, incarceration is like placing humans in many tiny Skinner boxes,[FN195] ignoring them for years while allowing the overwhelming influence of anti-social forces. JCP on the other hand releases punished offenders into various social and reward systems capable of encouraging pro-social, productive behavior. While traditional JCP lacks rigorous scientific validation on humans, experience in American and world history at a minimum justifies JCP for modern experimental purposes in at least one American state or the federal system.Scientific research on criminal deterrence fails to find much deterrent value in incarceration.[FN196] Indefinite prison sentences in the future, to be served in places they may never have seen, are not foremost in criminals' minds when offending. With regard to imprisonment, “there is not a strong relationship between objective sanctions and perceived sanctions.”[FN197] But with public JCP, where the viewing public knows the crime and the exact punishment, that correlation increases markedly. Of the three accepted deterrence variables, certainty, severity, and celerity of criminal punishment,[FN198] JCP enhances two of them, perceived severity and celerity. Evidence suggests criminals want to get their punishment over with as soon as possible.[FN199] JCP offers accused and convicted criminals that opportunity, encouraging plea bargains and acceptance of guilt.The “dirty little secrets” in crime deterrence research prove that the threat of confinement deters crime very little compared to our massive investment in this punishment; incarceration is simply not certain, severe or swift.[FN200] “To be effective,” rehabilitation advocates James B. Appel and Neil J. Peterson argued in 1965, “deterrence requires either extreme (and likely cruel) forms of punishment or repeated applications of punishment.”[FN201] JCP supplies extreme physical pain and opportunities for repeated applications. As Beccaria observed:“The vulgar, that is, all men who have no general ideas or universal principles, act in consequence of the most immediate and familiar associations … It is, then, of the greatest importance, that the punishment should succeed the crime, as immediately as possible, if we intend, that, in the rude minds of the multitude, the seducing picture of the advantage arising from the crime, should instantly awake the attendant idea of punishment.”[FN202]Nothing instantly awakes the idea of punishment like an experienced, witnessed, broadcast or anticipated public flogging.“The Level of Service Inventory-Revised(tm) (LSI-R(tm)) is a quantitative survey of offender attributes and their situations relevant to level of supervision and treatment decisions. Designed for ages 16 and older, the LSI-R(tm) helps predict parole outcome, success in correctional halfway houses, institutional misconducts, and recidivism.”[FN203] The widely accepted LSI-R(tm) contains the following scales: Criminal History, Education/Employment, Financial, Family/Marital, Accommodation, Leisure/Recreation, Companions, Alcohol/Drug Problems, Emotional/Personal, Attitudes/Orientation.[FN204] The most important of these factors are labeled the Big Four: antisocial attitudes, antisocial associates, antisocial behavioral history, and antisocial personality.[FN205] JCP would provide specific deterrent value, associate an offender's companions with severe pain, change some attitudes and demonstrably affect behavior. JCP would not adversely affect ongoing education and employment, finances, family or current accommodations as much as imprisonment.Incredibly, there are no rigorous studies or statistics about people who change their thought patterns, behavior and criminal lifestyle after soul-searching in prison.[FN206] Obstacles to rational evaluation increase when prisoners are released years after the imposition of punishment and enter a large population of citizens. It is very difficult to perform long-term follow-up studies evaluating the efficacy of punishments, but public JCP will be easier to study than incarceration or parental corporal punishment.[FN207] These assessment difficulties suggest the greater ability of those at the community level to apply effective punishment. Punishment administered at the family level also benefits from this familiarity, but lacks the rationality, publicity and accountability of JCP and hence more often results in misuse due to emotional components.Brain research is in the process of confirming the deterrent effects of justly applied JCP of sane adults. Neurologically, pain is extremely complex. Functional MRI (fMRI) and EEG studies of adults in pain fairly recently found previously unknown neural mechanisms and brain activity patterns. Researchers can now determine individual sensitivity to pain based on objective brain, pain or neurologic fMRI “signatures” rather than self-reporting.[FN208] During brain scans, the same areas of the brain activate or “light up” with both physical pain and social rejection.[FN209] Deterrence in the legal sense is explained in part by what eminent scientists now call “anticipatory brain activity,”[FN210] and the mirror neural systems facilitating “synaesthesia for pain,” which allow a person to experience another's pain as if it were their own.[FN211] Clearly, scientific understanding will improve the justice and effectiveness of JCP. Adult criminals can begin repaying their debts to society by serving as experimental subjects during lawful JCP, in full accordance with existing standards for the protection of human subjects in experiments and in the only ethical manner available to scientists studying very high levels of induced pain and pain management generally.IX. Different PerspectivesA. International AgreementsInternational agreements do not stand in the way of JCP in the United States. U.S. ratification of the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment contained reservations that “cruel, inhuman or degrading” treatment means such treatment violates the U.S. Constitution under the Fifth, Eighth and Fourteenth Amendments.[FN212] As of 1998, no domestic or international courts found caning to be “torture.”[FN213] Most criticism of JCP under international treaties or otherwise labels JCP as “torture” or “barbaric” and then proceeds in shallow fashion to condemn JCP on a definitional basis without regard to effectiveness, circumstances, economics, science or the horrors of prison. As with some aspects of international law, opposition to JCP reflects Eurocentric and Western bias against time-honored practices in favor of a questionable Western invention, the penitentiary. The latest Western invention, chemical castration of sexual predators, includes significant adverse side-effects and seems to be a high-tech way of avoiding the personal and legal concerns of simpler, less expensive, more effective but permanent surgical castration.[FN214] The value of JCP at the community level refutes the idea that one law or treaty regarding JCP of adults should govern the entire world. The United States has, for example, catastrophic levels of incarceration, high rates of drug use, by far the highest gun ownership rate in the world, and any number of other unique circumstances.B. Public PerceptionAmerican attitudes about crime and incarceration are deep-seated, heavily influenced by the media, persistently erroneous in some ways, often vindictive and difficult to change.[FN215] Perceptions of generous criminal constitutional rights frustrate many Americans. Penal systems evolve very slowly in stable nations.[FN216] Many believe the myth that prisoners have it easy[FN217] or that crime rates are rising when they have actually been falling for about 20 years.[FN218] The public is very strongly attached to the principle of less eligibility: they want prison life to be worse than the lifestyle enjoyed by the poorest law-abiding citizens. Some want prison to be worse than it now is. The “Hortonization” of crime, referring to the Willie Horton attack ad shown before the 1988 presidential election, took about 125 years, the years since Emancipation. That powerful 1988 portrayal of an African American criminal for political purposes is widely decried by civil rights advocates.The restricted visibility of punishment keeps the public ignorant and apathetic in many ways. Publicized criminal trials show silent defendants in regular clothing, defended by lawyers subject to confidentiality. Juvenile proceedings are kept confidential, adult defendants often do not testify, evidence at trial is screened for admissibility, prisons are secluded with very little publicity, fines are paid from confidential accounts, probationers and parolees display no signs of their status, prisoners do not talk much about their time in prison, and the National Crime Information Center (NCIC) database restricts access. Many voice opinions about evidence they never saw or heard. Most offenders in prison are forgotten. Only a handful of visitors see the prison interior. After incarceration, we encourage prisoners to make a quiet re-entry. Even the increasingly accepted forms of JCP, chemical and physical castration, are hidden from the eyes of the people.Functionally, American prisons are the end stage of an elaborate, entrenched and rule-bound criminal justice system, completely subject to the output of, but unable to change, the earlier stages. Prisons reflect changes in society, but it is difficult to change society and massive institutions. “Punishment is the one policy that is never discredited by its failure to achieve its stated objectives. If it fails to meet its goals, the only reason is that there is not enough of it.”[FN219] Increasing the length of sentences has little deterrent effect, but from 1990 to 2009 the average prison sentence increased 36% in length.[FN220] As a society, we do not often consider JCP under constitutional protections or distinguish JCP from torture, oppression, slavery, colonialism, child abuse, sexual perversion or Hollywood's depiction of whipping.C. Racial DisparitiesAmericans of all political beliefs are unaware that in the antebellum era, white people were the outlaws and blacks were considered very safe[FN221]—the opposite of the public perception today. For an antebellum physician, who often travelled isolated roads at night, “the sudden appearance of a white man generally excited some apprehension with regard to personal safety, but the sight of a black man was always cheering, and made him feel safe.”[FN222] Statistics from the antebellum era show minimal involvement of the formal legal system in the everyday lives of slaves, as reflected in the small number of indictments and almost zero incarceration as punishment. Slaves were kept away from cities, gambling, excessive alcohol and drug use, saloons, status challenges and questionable companions, made to work very hard with their friends and families, lived in a cashless economy, their social and spiritual lives were centered on isolated plantations, and discipline was privately applied at the ownership level. Slaves were highly valued as workers. The profound turnaround in perceived criminal threat, from slaves to Willie Horton, proves criminality is not due to race, but to culture, laws, economic forces, socialization and discipline—and above all age and gender. The majority of slaves whipped were from the exact same age and gender cohort that now goes to prison. Many in that cohort today internalize racism and wrongly believe their race is more prone to criminal activity.As stated above, the states of the old Union incarcerate significantly greater percentages of African Americans compared to the percentage of whites incarcerated—about twice as many—than the states of the old Confederacy.[FN223] The abolition of JCP did not usher in an era of equal treatment in the use of incarceration on either side of the Mason-Dixon Line. Eventually, the supposed colorblind administration of justice without JCP culminated in huge racial disparities in America's correctional population, disproving the inexorable forward march of racial and social progress.Current criminal justice inequities regarding people of color would not immediately disappear with a change in punishment, but the public could then vividly visualize the problem, which would be impossible to ignore and much more persuasive in every direction than statistics, speeches, documentaries, websites, books and essays. Racialized corporal punishment has been completely replaced by the racialized punishment of prison—and prison is far worse. Each punishment procedure is race-neutral. Disparate results today arise from events and conditions such as legislation, socio-economic factors, arrests, prosecutions, trials and judgments preceding the actual punishment.D. Gender DisparitiesToday, about 93% of U.S. prison inmates are male,[FN224] reflecting that gender's inherent physical risks to women and children. Women and children suffer from abuse and violence at the hands of men much more often than the reverse. For many years, American culture suppressed public discussion of wife-beating.[FN225] The World Health Organization spoke on the issue of domestic violence and recommended in 2005 that, “those convicted need to be appropriately punished. Flexible sentencing or alternative sanctions should be explored, where possible, to deter further violence.”[FN226] Due to cultural values in nations currently utilizing JCP, wife-beating is not often punished with JCP anywhere in the world.The hazardous physical imbalance between genders can be offset with JCP in the traditional form of whipping and physical or chemical castration for rapists. JCP offers to lessen the indirect social costs of mass incarceration, which are felt by women and children in the form of lowered income and family disruption.X. An Argument for “Pure” PunishmentIn Wilson v. Seiter, Justice Scalia, quoting Judge Posner, defined punishment as a “deliberate act intended to chastise or deter.”[FN227] From a legal perspective, JCP is pure directed punishment, and does not include unrelated and varying prison conditions, brutalities, perverse socialization and other experienced prison and even post-prison indignities. JCP avoids most of the “extra-juridical elements and personnel” Foucault observed that complicate long prison terms and put power in the hands of administrators instead of judges.[FN228] Cruel prison conditions are unrelated to the original crime, because the sentence is for “time” to be served, but the actual conditions and ability to endure them vary greatly. Constitutional violations can entrench in penal institutions. Much depends upon a particular prisoner's circumstances, prison behavior and mental status.[FN229]Contrary to what official written prison sentences say, imprisonment “to hard labor” barely exists anymore. Most prisoners are sidelined from strenuous productive work by restrictive legislation. While the Thirteenth Amendment means the state owns the value of the prisoners' labor, Congress and most states do not allow themselves or private businesses to effectively use the full value of that labor, despite the benefits of jobs for prisoners and all directly concerned interests.[FN230]Executed under regulated conditions in public, in the presence of the sentencing judge with medical supervision, JCP does not subject the defendant to any unnecessary, wanton or brutal punishment after imposition and execution of the sentence.[FN231] Compared to the vagaries of imprisonment, JCP allows courts to strictly control the punishment and any follow-up punishment necessary to extinguish the criminal behavior.JCP is more effective punishment than prison in relation to the goals of deterrence, rehabilitation, retribution and economy. Congress in 1984 abolished parole in the federal system and said “imprisonment is not an appropriate means of promoting correction and rehabilitation.”[FN232] JCP would facilitate and speed up the indeterminate sentence in conjunction with parole or probation. In terms of perceived retribution, JCP is superior to incarceration. With regard to government expenses, JCP is exponentially more affordable. JCP is pure punishment also in the sense that it directly punishes the offender, while modern incarceration indirectly but strongly punishes taxpayers, victims seeking restitution, families, communities and others.The idea of JCP appalls many people and offends their sense of decency, especially those who will never go to prison. Strong reactions to the idea of JCP reflect its superior deterrent value. The emotional initial response against JCP stems from the ingrained, erroneous belief in continual social progress, tacit acceptance of the invisible ineffective paradigm and the futile goal of removing degradation from punishment. We lack appreciation for the ongoing social and economic disasters of massive imprisonment; associate JCP with past injustices, slavery,[FN233] racism[FN234] and sexual perversion, and somehow believe large government institutions can manage society. We ignore or do not know about the successful use of JCP in American history and in other cultures. We need new utilitarian calculations.Attachment to the prison paradigm is so strong that even Justice Scalia in 1989 was a “faint-hearted originalist” on the subject of JCP, and cast doubt on any judge's ability to uphold flogging.[FN235] But by 1994, Justice Scalia opined the probable constitutionality of JCP[FN236]—and that was before an additional 800,000 prisoners caused the U.S. to be called “a carceral state” and Justice Scalia went apoplectic about releasing up to 46,000 California felons from prison.[FN237] The Eighth Amendment “is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.”[FN238] This means that with regard to massive brutal incarceration on the scale now experienced in the U.S., the Eighth Amendment does not preclude JCP or other rational alternative punishments.Opponents of JCP argue it has been rejected by contemporary society, all U.S. states and Western democracies. Support for JCP is founded upon the realization that prison “is dangerous when it is not useless,”[FN239] counterproductive and wasteful of money and people. Proponents will insist on the original meaning of the Eighth Amendment, endorsement by the four presidents carved into Mt. Rushmore and the Bible, and say the Supreme Court rejected imprisonment for the California felons released pursuant to Brown v. Plata.[FN240]Disputes arising out of just six words adopted over 220 years ago are bound to be contentious, but at least we have those words in a strong Constitution.XI. ConclusionFor our eternal Constitution and world history, the years of JCP disuse in America were few. The effectiveness and efficiency of JCP in deterring crime, allowing rehabilitation and achieving visible retribution will eventually decide its fate in the U.S. as an additional punishment option. Only the passage of JCP legislation for a period of time sufficient to establish its benefits and disadvantages in our society fairly tests this mode of punishment in light of scientific advancements and social developments during its disuse.[FN241] With the enormous challenges and limitations associated with all other forms of punishment, a jurist could not easily bar a traditional weapon in the fight against crime, prison overcrowding, massive incarceration and now intractable pain. Originalists on the Supreme Court would uphold reasonable JCP legislation. Justices not strictly bound by the original meaning of the Eighth Amendment are still committed by a string of cases limiting, criticizing or condemning incarceration and capital punishment, and cannot say the current incarceration crisis represents societal progress. Beccaria's famous theorem, the conclusion in An Essay on Crimes and Punishments, calls for the justice of public JCP: “That a punishment may not be an act of violence, of one, or of many against a private member of society, it should be public, immediate and necessary; the least possible in the case given; proportioned to the crime, and determined by the laws.”[FN242][FN1] B.A. with honor, Auburn University, 1973 (Psychology); J.D., Vanderbilt Law School, 1977; Practicing attorney since 1977; author, Prison & Slavery — A Surprising Comparison (2010).[FN2] Brown v. Plata, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011).[FN3] Judicial corporal punishment of adults is hereinafter abbreviated “JCP,” referring most commonly to public whipping, flogging or caning in a structured manner, but also other applications of pain or amputation, pursuant to the final judgment of a court or as otherwise sanctioned by law.[FN4] In 1983, Graeme Newman advocated JCP in his book Just and Painful — A Case for the Corporal Punishment of Criminals (1983). The second edition in 1995 was still ahead of its time given the 750,000 to 800,000 additional prisoners, associated financial, economic and social costs, and additional misery caused by massive incarceration.[FN5] Incarceration is destroying African American communities, families and relationships, as exemplified by the “Million Dollar Block.” Columbia University, Graduate School of Architecture, Planning and Preservation, Spatial Information Design Lab — Architecture and Justice Project, available at http://www.spatialinformationdesignlab.org (“In many places the concentration [of incarcerated residents] is so dense that states are spending in excess of a million dollars a year to incarcerate the residents of single city blocks.”); Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271 (2004).[FN6] International Centre for Prison Studies, Entire World — Prison Population Rates per 100,000 of the National Population, available at http://www.prisonstudies.org.[FN7] William Eden, Principles of Penal Law, ch. VI — Imprisonment, § 1 (1771).[FN8] Concentration Camps during the South African /Boer War, 1899–1902 available at http://library.stanford.edu/depts/ssrg/africa/boers.html.[FN9] Hilda Nissimi, Mau Mau and the Decolonisation of Kenya, 8 J. Military & Strategic Stud. (2006), available at http://www.jmss.org/jmss/index.php/jmss/article/view/131/147.[FN10] Toyosaburo Korematsu v. U.S., 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944) (Roberts, J., Murphy, J. & Jackson, J., dissenting). Cf. Hirabayashi v. U.S., 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943).[FN11] Brown, 131 S. Ct. 1910. California must lower prison population to 137.5% of designed capacity by releasing thousands of prisoners for failure to provide constitutionally mandated levels of healthcare in its overcrowded & underfunded prison system).[FN12] One in 100: Behind Bars in America, 2008, at 21, Public Safety Performance Project, The Pew Center on the States, Pew Charitable Trusts, available at http://www.pewcenteronthestates.org/uploadedFiles/One%20in%20100.pdf [hereinafter One in 100].[FN13] William J. Stuntz, The Collapse of American Criminal Justice 40 (2011).[FN14] Whitney S. Wiedeman, Don't Spare the Rod: A Proposed Return to Public, Corporal Punishment of Convicts, 23 Am. J. Crim. L. 651 (1995–1996) (good review of Michael Fay prosecution controversy and consequences referred to herein).[FN15] Misplaced Priorities: Over Incarcerate, Under Educate — Excessive Spending on Incarceration Undermines Educational Opportunity and Public Safety in Communities, NAACP (2d ed. May 2011) (California, for example, now spends much more on corrections than education).[FN16] George Ryley Scott, The History of Corporal Punishment 91–107 (1968).[FN17] The Rule of St. Benedict, ch. 30, available at http://www.osb.org/rb/text/rbemjo1. Pope John Paul II and Mother Teresa used flagellation to humble themselves for spiritual benefit.[FN18] English Soncino Babylonian Talmud, Makkos 2a-24b.[FN19] Israel Abrahams, Jewish Life in the Middle Ages 7 (1896).[FN20] Bet Din and Judges — In Jewish Law — Origins, Jewish Virtual Library, available athttp://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0003_0_02840.html.[FN21] Abrahams, supra note 19, at 7.[FN22] Laurie A. Gould & Matthew Pate, Discipline, Docility and Disparity, 50 Brit. J. Criminology 185, 190 (2010).[FN23] International Statistics on Crime and Justice, European Institute for Crime Prevention and Control — Affiliated with the U.N. Office on Drugs and Crime (Stefan Harrendorf et al. eds., 2010), available at http://www.unodc.org/documents/data-and-analysis/Crime-statistics/International_Statistics_on_Crime_and_ Justice.pdf [hereinafter International Statistics].[FN24] Robert Winslow, A Comparative Criminology Tour of the World — Incidence of Crime, available at http://www-ohan.sdsu.edu/faculty /rwinslow/asia_pacific/saudi_arabia.html; Crime Statistics @ International statistics: Compare countries on just about anything! NationMaster.com.[FN25] International Statistics on Crime and Justice, European Institute for Crime Prevention and Control — Affiliated with the U.N. Office on Drugs and Crime (Stefan Harrendorf et al. eds., 2010), available at http://www.unodc.org/documents/data-and-analysis/Crime-statistics/International_Statistics_on_Crime_and_Justice.pdf [hereinafter International Statistics].[FN26] Stephen Nicholas, The Care and Feeding of Convicts, in The Convict Workers: Reinterpreting Australia's Past 181 (Stephen Nicholas ed., 1988).[FN27] Bernadette M. Fitzgibbon et al., Shared Pain: From Empathy to Synaesthesia, 34 Neurosci. & Behav. Rev. 500 (2010).[FN28] International Centre for Prison Studies — World Prison Brief, available at World Prison Brief.[FN29] International Centre for Prison Studies, supra note 27.[FN30] Highlights by Patrick A. Langan & David J. Levin, BJS Statisticians, U.S. Dept. of Justice, Office of Justice Statistics, Recidivism of Prisoners Released in 1994, NCJ 193427 (June 2002).[FN31] Alcohol Consumption Data — app. III, Global Status Report on Alcohol and Health 273, World Health Organization (2011).[FN32] See Michael Jacobson, Downsizing Prisons — How to Reduce Crime and End Mass Incarceration 199 (2005).[FN33] Elizabeth M. Tullio, Chemical Castration for Child Predators: Practical, Effective, and Constitutional, 13 Ch. L. Rev. 191, 206–07 (2009); John F. Stinneford, Incapacitation Through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity, 3 U. St. Thomas L.J. 559 (2006); Representing Sex Offenders and the “Chemical Castration Defense,” 34 Am. Jur. Trials 1.[FN34] John F. Stinneford, Incapacitation Through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity, 3 U. St. Thomas L.J. 559, 574 (2006).[FN35] Deuteronomy 25:2-3: “If the guilty man deserves to be beaten, the judge shall make him lie down and have him flogged in his presence with the number of lashes his crime deserves, but he must not give him more than forty lashes. If he is flogged more than that, your brother will be degraded in your eyes.” See also Proverbs 10:13: “[A] rod is for the back of him who lacks sense.” Proverbs 19:29: “[F]logging for the backs of fools.” Proverbs 26:3: “A whip for the horse, a bridle for the ass, and a rod for the back of fools.” John 2:15 (Jesus once used a whip). Other pro-punishment passages in the Bible refer specifically to parental corporal punishment, not JCP.[FN36] “Swift justice, fair hearings, elimination of third-degree brutality, and respect for the dignity of the criminal as a man would comprise a high ideal even for modern times.” H.H. Shires & P. Parker, 2 The Interpreter's Bible — Exposition of the Book of Deuteronomy 479 (1953).[FN37] Brown v. Howard, 14 Johns. 119, 1817 WL 1459 (N.Y. Sup 1817); Bangs v. Little, 2 F. Cas. 587, No. 839 (D. Me. 1839). Non-abusive parental corporal punishment is still legal in all 50 states.[FN38] Herbert Arnold Falk, Corporal Punishment — A Social Interpretation of Its Theory and Practice in the Schools of the United States 22–33 (1941).[FN39] Falk, supra note 38.[FN40] Journals of the Continental Congress, Articles of War — Sept. 20, 1776, Section XVIII — Art. 3: “No person shall be sentenced to suffer death, except in the cases expressly mentioned in the foregoing articles; nor shall more than one hundred lashes be inflicted on any offender, at the discretion of a court-martial.” Articles of War — June 30, 1775, Art. 51 limited JCP to 39 lashes. Eugene D. Genovese, Roll, Jordan, Roll — The World the Slaves Made 308 (1974).[FN41] Thomas Jefferson, A Bill for Proportioning Crimes and Punishments § 14 (castration; cartilage), § 15 (maiming), § 14 (witchcraft) (1778), available at http://press-pubs.uchicago.edu/founders/documents/amendVIIIs10.html.[FN42] Geo. Washington to President of Continental Congress, Feb. 3, 1781 available at American Memory from the Library of Congress.[FN43] U.S. Const. amend. V. Several modern chemical or surgical castration statutes give the word “limb” more than mere historical meaning. For any who consider the significance of serial position, the Fifth Amendment is three ahead of the Eighth Amendment.[FN44] Cesare Beccaria, An Essay on Crimes and Punishments, ch. XX, XXII, XLVII (1764; Anon. English Translation, 1767).[FN45] Beccaria, supra note 44, ch. XLVII - Conclusion.[FN46] 4 Blackstone Commentaries on the Laws of England ch. 29 (1765–1769).[FN47] The English Bill of Rights was enacted on Dec. 16, 1689.[FN48] Laurence Claus, Methodology, Proportionality, Equality: Which Moral Question Does The Eighth Amendment Pose?, 31 Harv. J.L. & Pub. Pol'y 35, 40 (2008), citing 4 Wm. Blackstone, Commentaries, 370–73 (1769).[FN49] Anthony F. Granucci, Nor Cruel and Unusual Punishments Inflicted: The Original Meaning, 57 Cal. L. Rev. 839, 840–42 (1969). The authors of the Bill of Rights intended to prohibit “manifestly cruel and unusual as burning at the stake, crucifixion, breaking on the wheel, or the like.” In re Kemmler, 136 U.S. 436, 446, 10 S. Ct. 930, 34 L. Ed. 519 (1890); or “the rack, the thumbscrew, the iron boot, the stretching of limbs and the like.” O'Neil v. State of Vermont, 144 U.S. 323, 339, 12 S. Ct. 693, 36 L. Ed. 450 (1892) (Fields, J., dissenting).[FN50] Annals of Cong. 754 (1789), quoted in Furman v. Georgia, 408 U.S. 238, 244, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Douglas, J., concurring).[FN51] Opponents of JCP concede this. See Michael P. Matthews, Caning and the Constitution: Why the Backlash Against Crime Won't Result in the Back-Lashing of Criminals, 14 N.Y.L. Sch. J. Hum. Rts. 571, 590–92 (1998) (author links post-Michael Fay interest in caning to Old South racism; argues unconvincingly JCP violates Eighth Amendment & international law; blurs distinction between JCP and corporal punishment as prison discipline).[FN52] Act of April 30, 1790, ch. 9, 1 Stat. 112–117, quoted in Ex parte Wilson, 114 U.S. 417, 427, 5 S. Ct. 935, 29 L. Ed. 89 (1885).[FN53] Harmelin v. Michigan, 501 U.S. 957, 980, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (life sentence without possibility of parole for possession of 672 grams of cocaine not cruel and unusual).[FN54] Michaelson v. Denison, 3 Day 294, 17 F. Cas. 258, No. 9523 (C.C.D. Conn. 1808).[FN55] Ex parte Wilson, 114 U.S. at 427.[FN56] See U.S. Const. amend. VIII. The absence of any such decisions was noted in State v. Cannon, 55 Del. 587, 596, 190 A.2d 514, 518–19 (1963). JCP is far different than CP as prison discipline; the authority for JCP is from the court, under the law, the punishment is finite, structured and public, and after most sentences of JCP, the convicted defendant would be free to go.[FN57] Foote v. State, 59 Md. 264, 1883 WL 4110 (1883) (whipping as punishment for crime of wife-beating not cruel and unusual); Garcia v. Territory of New Mexico, 1 N.M. 415, 418, 1869 WL 2421 (1869) (30 to 60 lashes for stealing cattle not cruel and unusual because “cruel … was no doubt intended to prohibit a resort to the process of torture”); U.S. v. Collins, 25 F. Cas. 545, No. 14836 (C.C.D. R.I. 1854) (without malice, flogging as punishment not unusual); Commonwealth v. Wyatt, 27 Va. 694, 6 Rand. 694, 1828 WL 860 (1828) (punishment by stripes not unusual). The conviction of a Mississippi overseer found guilty of violating a statute prohibiting cruel or unusual punishment of a slave was upheld in Scott v. State, 31 Miss. 473, 1856 WL 2627 (1856). Alabama had a similar statute. Turnipseed v. State, 6 Ala. 664, 1844 WL 301 (1844).[FN58] Weems v. U.S., 217 U.S. 349, 378, 30 S. Ct. 544, 54 L. Ed. 793 (1910), citing Foote v. State, 59 Md. 264, 1883 WL 4110 (1883).[FN59] State v. Cannon, 55 Del. 587, 190 A.2d 514 (1963) (decided in the wake of Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), which clearly made the Eighth Amendment applicable to the states through the Fourteenth Amendment and the incorporation doctrine).[FN60] Cannon, 55 Del. at 596.[FN61] As Justice Douglas observed in Furman v. Georgia, punishment is known to increase in severity as social status diminishes. Furman, 408 U.S. at 255 (Douglas, J., concurring); Gould & Pate, supra note 22, at 196 (JCP statistically correlated with economic disparity throughout the world). See Acts 22:25–29.[FN62] Michel Foucault, Discipline & Punish: The Birth of the Prison 59–65 (1975; 2nd Vintage Ed. 1995).[FN63] Foucault, supra note 62, at 59–65.[FN64] 5(1) London Lancet 88 (1847).[FN65] New World Encyclopedia — Corporal Punishment, available at https://www.newworldencyclopedia.org/entry/Corporal_punishment.[FN66] George Reid Andrews, Afro-Latin America — 1800-2000, at 148–49 (2004).[FN67] George Reid Andrews, Afro-Latin America — 1800-2000, at 148–49 (2004).[FN68] Joseph L. Love, The Revolt of the Whip x–xi. (2012).[FN69] See generally Myra C. Glenn, Campaigns Against Corporal Punishment — Prisoners, Sailors, Women and Children in Antebellum America (1984).[FN70] J. Thorsten Sellin, Slavery and the Penal System 30, 177 (1976).[FN71] Georg Rusche & Otto Kirchheimer, Punishment and Social Structure 58–62 (Transaction ed., 2003) (1939).[FN72] Rusche & Kirchheimer, supra note 71, at 53–58.[FN73] Glenn, supra note 69, at 103–26.[FN74] The mentally ill compose some 16% of the modern U.S. prison population. Paula M. Ditton, Bureau of Justice Statistics, Special Report — Mental Health and Treatment of Inmates and Probationers (1999), available at http://www.bjs.gov/content/pub/pdf/mhtip.pdf. The mentally ill were always represented in criminal populations throughout history. “In Sixteenth Century England, one prescription for insanity was to beat the subject “until he had regained his reason.” Albert Deutsch, The Mentally Ill in America 13 (1937). In America, “the violently insane went to the whipping post and into prison dungeons or, as sometimes happened, were burned at the stake or hanged,” and “the pauper insane often roamed the countryside as wild men and from time to time were pilloried, whipped, and jailed.” Joint Commission on Mental Illness and Health, Action for Mental Health 26 (1961). As stated by Dr. Isaac Ray many years ago: “Nothing can more strongly illustrate the popular ignorance respecting insanity than the proposition, equally objectionable in its humanity and its logic, that the insane should be punished for criminal acts in order to deter other insane persons from doing the same thing.” Isaac Ray, Treatise on the Medical Jurisprudence of Insanity 56 (5th ed. 1871). See also Robinson, 370 U.S. at 668 (Douglas, J., concurring).[FN75] Foucault, supra note 62, at 19, 25.[FN76] Foucault, supra note 62, at 21–23, 247–48.[FN77] Beatrice Heuser, The Evolution of Strategy — Thinking War from Antiquity to the Present 158 (2010).[FN78] Rusche & Kirchheimer, supra note 71, at 100.[FN79] Patricia O'Brien, The Prison on the Continent: Europe, 1865–1965, in The Oxford History of the Prison: The Practice of Punishment in Western Society 199, 213–14 (Norval Morris & David J. Rothman eds., 1995). In time, Stalin's massive remote state slavery fully justified the pessimism of the Russian peasants. Centralization of punishment generally carries disadvantages for the punished and their families; it is administratively convenient for the punisher.[FN80] Global Initiative to End all CP of Children, India — Country Report, available at http://www.endcorporalpunishment.org.[FN81] Rudolph Peters, Crime and Punishment in Islamic Law — Theory and Practice from the Sixteenth to the Twenty-first Century 109 (2005).[FN82] John Briggs et al., Crime and Punishment in England — An Introductory History 80 (1996).[FN83] Hypatia Bradlaugh Bonner, The Gallows and the Lash: An Enquiry into the Necessity for Capital and Corporal Punishments 44, app. 2 (1897).[FN84] Lawrence Sondhaus, Navies in Modern World History 29 (2004).[FN85] It was abolished under the Labour Party. Margaret Thatcher supported in the House of Commons a 1961 criminal justice bill providing JCP for those under 21; it was said to have overwhelming public support. Hansard HC Standing Committee B [551–600], available at HC Standing Committee [Criminal Justice Bill] (supports corporal punishment); see also 230 HL Deb 01 May 1961, 230 cc1082-170, available at http://hansard.millbanksystems.com/lords/1961/may/01/criminal-justice-bill-1.[FN86] Cannon, 55 Del. at 596.[FN87] Carolyn Strange, The Undercurrents of Penal Culture: Punishment of the Body in Mid-Twentieth Century Canada, 19 Law & Hist. Rev. 343, 382 (2001).[FN88] U.S. v. Blake, 89 F. Supp. 2d 328, 342–43 (E.D. N.Y. 2000).[FN89] Jones v. Robbins, 74 Mass. 329, 348, 8 Gray 329, 1857 WL 5869 (1857) (solitary confinement in new state prison practically stopped JCP, which was later abolished by statute).[FN90] Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. Rev. 881 (2009). See, e.g., Brown v. Plata, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011); Austin v. Hopper, 15 F. Supp. 2d 1210 (M.D. Ala. 1998) (considers chain gang, “hitching post,” visitation & toilet facilities).[FN91] Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 611 (1996). Anonymity could be reversed with internet publication of punishment video.[FN92] Glenn, supra note 69, at 58–59.[FN93] Ex parte Wilson, 114 U.S. at 427; 10 U.S.C.A. § 855. Art. 55. Cruel and unusual punishments prohibited, passed in 1956, prohibits flogging and other punishments in the Uniform Code of Military Justice.[FN94] Stephen Schwartz, Brotherhood of the Sea: The Sailors' Union of the Pacific, 1885–1985, at 3–4 (1986).[FN95] A Plea in Favor of Maintaining Flogging in the Navy, available at http://www.history.navy.mil/library/online/flogging.htm.[FN96] Brief History of Punishment by Flogging in the U.S. Navy, available at http://www.history.navy.mil/library/online/flogging.htm.[FN97] 30 Stat. 761; the prohibition is now 18 U.S.C.A. § 2191 — Cruelty to seamen.[FN98] Delaware Public Archives, available athttp://archives.delaware.gov/100/other_stories/Enforcing%20the%20Law.shtml.[FN99] A slave lost value when whip marks left permanent scars. See Louis Hughes, Thirty Years a Slave: From Bondage to Freedom: The Institution of Slavery as Seen on the Plantation and in the Home of the Planter 8 (1897), available at Documenting the American South homepage; Dick v. State, 30 Miss. 631, 1856 WL 2565 (1856) (slave who confessed to rape of white woman given new trial); State v. Gilbert, 2 La. Ann. 244, 1847 WL 3357 (1847) (at least three trials required for slave who confessed under coercion to attempted rape of white woman).[FN100] A Missouri statute provided that, “every person who shall cruelly or inhumanly torture, beat, wound or abuse any slave in his employment or under his charge, power or control, whether belonging to himself or another, shall, on conviction, be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment.” State v. Peters, 28 Mo. 241, 1859 WL 6600 (1859); McCoy v. McKowen, 26 Miss. 487, 1853 WL 3710 (1853); Gillian v. Senter, 9 Ala. 395, 1846 WL 254 (1846) (owner sued overseer in trespass for excessive punishment); Helton v. Caston, 18 S.C.L. 95, 2 Bail. 95, 1831 WL 1475 (Ct. App. 1831) (owner sued lessee for beating slave contrary to contract).[FN101] Act to Regulate Relation of Master & Apprentice, § 3, Black Code of Mississippi, Dec. 2, 1865, available at http://oll.libertyfund.org.[FN102] Edward McPherson, Political History of the USA During the Period of Reconstruction 39 (1871).[FN103] McPherson, supra note 102, at 36–37.[FN104] Civil Rights Act of 1966, 14 Stat. 27–30, § 2, effective April 9, 1866.[FN105] S.R. 153, 39th Congress, 2nd session (reported Feb. 2, 1867).[FN106] H.R. 1080, 39th Congress, 2nd session.[FN107] On Mar. 2, 1867, Congress passed the First Reconstruction Act, and all the Military Districts in the South ordered whipping stopped shortly thereafter. Public — No. 85, in General Orders, No. 26, Headquarters Dep't of the South, Charleston, S.C., March 8, 1867, in McPherson, supra note 102, at 200, 201.[FN108] David M. Oshinsky, Worse Than Slavery — Parchman Farm and the Ordeal of Jim Crow Justice (1996); Douglas A. Blackmon, Slavery By Another Name: Re-Enslavement of Black Americans from the Civil War to World War II (2008).[FN109] U.S. Dept. of Justice, Bureau of Justice Statistics, Historical Corrections Statistics in the United States, 1850–1984, tbl.3-2.[FN110] Yancey Hall, U.S. Civil War Prison Camps Claimed Thousands, National Geographic News, July 1, 2003, available atU.S. Civil War Prison Camps Claimed Thousands.[FN111] 14, pt. 3 Federal Writers' Project, Slave Narratives: Henry D. Jenkins, South Carolina Slave Narratives 23–26; Mrs. Amanda Jackson, Georgia Slave Narratives, pt. 2, 292; Lucindia Washington, Alabama Slave Narratives, 410; Aunt Mary Ferguson, Georgia Slave Narratives, pt.1, 329. All 2,300 Slave Narratives available at http://memory.loc.gov/ammem/snhtml/snhome.html. See Gleissner, supra note 1, at 157–70.[FN112] See Gleissner, supra note 1, at 106.[FN113] The most common whips were un-tanned leather 18” long and 2” wide attached to a wooden handle or a 3-foot whip, not the bull-whip shown in the movie Roots. John Hope Franklin & Loren Schweninger, Runaway Slaves — Rebels on the Plantation 239 (1999).[FN114] Orlando Patterson, Slavery and Social Death — A Comparative Study 4 (1982).[FN115] Prison & Jail Incarceration Rates 154 tbl.4 (2005), by White Incarceration Rates, Rates of Incarceration per 100,000 Population, in Marc Mauer & Ryan S. King, Uneven Justice: State Rates of Incarceration By Race and Ethnicity, The Sentencing Project (2007), available at http://www.sentencingproject.org [hereinafter Incarceration Rates].[FN116] Incarceration Rates, supra note 115, at 154 tbl.4. By 2010, those rates still showed comparable relative racial disparities. U.S. 2010 Decennial Census, % of African American (vs. White) Males (ages 18–64) Incarcerated in State and Local Correctional Facilities.[FN117] George Washington in the Continental Army, supra notes 40 & 42; Thomas Jefferson in a statute, supra note 41; Abraham Lincoln as the ringleader in the corporal punishment of a Springfield, Illinois wife-beater, infra note 119–20; and Theodore Roosevelt in a message to Congress in 1904, infra note 124.[FN118] Robert Calvert, Criminal and Civil Liability in Husband-Wife Assaults, in Violence in the Family (Suzanne K. Steinmetz & Murray A. Straus eds., 1974).[FN119] William H. Herndon & Jesse W. Weik, Herndon's Life of Abraham Lincoln 151–52 (1889).[FN120] Herndon & Weik, supra note 119, at 151–52.[FN121] N.Y. Times, Jan. 13, 1895, available at THE WHIPPING POST IN MARYLAND; It Has Been an Institution in that State Twelve Years..[FN122] N.Y. Times, supra note 121.[FN123] N.Y. Times, supra note 121. Isolated anecdotes are not scientific, but patterns can be found in them. Anti-JCP books have been written, full of anecdotes emphasizing the worst aspects. See George Ryley Scott, The History of Corporal Punishment (1968).[FN124] Theodore Roosevelt, State of the Union Message, Dec. 6, 1904, available at The American Presidency Project.[FN125] Beccaria, supra note 44, ch. XX — Of Acts of Violence.[FN126] State v. Nipper, 166 N.C. 272, 81 S.E. 164, 166 (1914).[FN127] Wilkerson v. State of Utah, 99 U.S. 130, 135–36, 25 L. Ed. 345, 1878 WL 18292 (1878) (death by public firing squad not cruel and unusual).[FN128] Furman, 408 U.S. at 258 (Brennan, J., concurring).[FN129] Thomas M. Cooley, Constitutional Limitations 329–30 (1868). This 1868 book was published the year after Union generals banned corporal punishment of ex-slaves.[FN130] Ex parte Wilson, 114 U.S. at 427–28.[FN131] Claus, supra note 48, at 45.[FN132] Brown, 131 S. Ct. at 1928, quoting earlier cases.[FN133] Ingraham v. Wright, 430 U.S. 651, 659, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977), citing Powell v. State of Tex., 392 U.S. 514, 535, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968) (plurality opinion).[FN134] Ingraham, 430 U.S. at 660, citing U.S. v. Barnett, 376 U.S. 681, 692, 84 S. Ct. 984, 12 L. Ed. 2d 23 (1964); Greene v. McElroy, 360 U.S. 474, 508, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959).[FN135] Weems, 217 U.S. at 373 (15 years' imprisonment and other penalties for falsifying an official document upheld).[FN136] Trop v. Dulles, 356 U.S. 86, 100, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (statute providing expatriation of deserting soldier during wartime in a foreign country exceeds war powers of Congress & violates Eighth Amendment); Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).[FN137] Wiedeman, supra, note 14 (author proposes re-introduction of public JCP for non-capital crimes; argues incarceration too problematic and JCP provides re-integrative shaming without prisonization).[FN138] U.S. v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).[FN139] Harmelin v. Michigan, 501 U.S. 957, 990, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (life sentence without possibility of parole for possession of 672 grams of cocaine not cruel and unusual); “Know Your Rights Disciplinary Sanctions and Punishment,” ACLU National Prison Project available at American Civil Liberties Union (“The law is always evolving.”).[FN140] See Matthews, supra note 51, at 588–89. I disagree with this article, but appreciate the referenced delineation of approaches.[FN141] Ingraham v. Wright, 430 U.S. 651, 659, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977) (upheld educational corporal punishment, leading some to argue the U.S. has its priorities backward compared to abolition of JCP of adults).[FN142] Furman, 408 U.S. at 384 (Burger, C.J., dissenting).[FN143] Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002) (prison guards not entitled to qualified immunity after inmate tied to hitching post for 7 hours without regular water & bathroom breaks); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (beating prisoner with leather strap unconstitutional).[FN144] Lockyer v. Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003) (California's three-strikes law upheld).[FN145] Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), for example, struck down a California statute making mere status as a drug addict a crime.[FN146] See Ala. Code 1975, § 14-3-52 — Punishment — Cruel or excessive punishment; corporal punishment; records to be kept (requires a detailed record of all punishments inflicted by authority of the Board of Corrections).[FN147] In In re Candido, 31 Haw. 982, 1931 WL 2830 (1931).[FN148] In In re Candido, 31 Haw. 982, 1931 WL 2830 (1931).[FN149] In In re Candido, 31 Haw. 982, 1931 WL 2830 (1931) (Banks, J., dissenting).[FN150] Jackson, 404 F.2d at 579.[FN151] Ingraham, 430 U.S. at 669 (upheld educational corporal punishment).[FN152] Harmelin, 501 U.S. at 994–95 (life sentence without possibility of parole for possession of 672 grams of cocaine not cruel and unusual).[FN153] Brown v. Plata, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011) (California's overcrowded prison system did not provide adequate levels of healthcare and mental healthcare, requiring the release of prisoners or other reduction down to 137.5% of designed prison capacity); Coleman v. Plata involved the mental healthcare component, it was consolidated with Brown and one decision rendered for both; both cases are referred to herein as Plata or as Brown v. Plata. Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (deliberate indifference to healthcare during confinement can be cruel and unusual punishment).[FN154] Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (male-to-female transsexual acquired HIV after repeated rapes by male inmates; a prison official's “deliberate indifference” to substantial risk of serious harm to an inmate violates the Eighth Amendment).[FN155] Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).[FN156] Dolovich, supra note 90; Note, Complex Enforcement: Unconstitutional Prison Conditions, 94 Harv. L. Rev. 626 (1981). The scrutiny sometimes involved more mundane issues, as in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (addressed two prison regulations concerning allowed correspondence and necessity of warden's permission to marry).[FN157] Brown, 131 S. Ct. at 1955 (Scalia, J., dissenting).[FN158] The 2009 Chino, California prison riot demonstrates the errors of central control by the judiciary. In Johnson v. California, 543 U.S. 499, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005), the U.S. Supreme Court ruled that California's unwritten practice of racially segregating prisoners in prison reception centers, for purposes of inmate safety in the gang environment, was subject to strict scrutiny, the highest level of constitutional review. The resulting racial integration of prisoners substantially caused the 2009 race riot at Chino, just as integration of double-celled prisoners in Ohio caused the worst prison riot in Ohio history. Justices Thomas and Scalia dissented in Johnson v. California, noting the intractable problems of prison administration.[FN159] Brown, 131 S. Ct. at 1926.[FN160] Prisoners filed countless frivolous lawsuits, more than all federal prosecutions combined in 1995. This lead to the passage of the Prison Litigation Reform Act of 1996, 18 U.S.C.A. §§ 3626 et seq., which puts a lid on most frivolous suits filed by jailbird lawyers, but which also seals off the prison even tighter from scrutiny.[FN161] See Gleissner, supra note 1, at 243–78 (author proposes: repeal or revision of 18 U.S.C.A. §§ 1761 to 62 and comparable state statutes; market-oriented, laissez-faire private prison industries & negotiated labor wages, hours & conditions without government regulation or legal restrictions, except OSHA safety regulations and recovery for permanent injury; only manufacturing goods now made exclusively overseas; with written labor contracts; without compulsion, allowing prisoners to return to general prison population if desired; earnings to be divided between victims, child support, state & prisoner; avoiding evils of convict leasing).[FN162] See generally, Incarceration Reform Mega-Site available at Incarceration Reform Mega-Site (387 correctional related links, most expressing dissatisfaction, challenges or need for reform).[FN163] Steven D. Levitt, The Effect of Prison Population Size on Crime Rates: Evidence From Prison Overcrowding Litigation, 111 Q. J. Econ. 319 (1996).[FN164] Brown v. Plata, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011).[FN165] A Journey into Hell, Economist, Sept. 22, 2012, at 44.[FN166] Strange, supra note 87, at 347.[FN167] Michael Sherman & Gordon Hawkins, Imprisonment in America — Choosing the Future 11 (1983).[FN168] James E. Robertson, The Prison Litigation Reform Act as Sex Legislation: (Imagining) A Punk's Perspective of the Act, 24 Fed. Sent'g Rep. 276 (2012); SpearIt, Manufacturing Social Violence: The Prison Paradox & Future Escapes, 11 Berkeley J. Afr.-Am. L. & Pol'y 84 (2009); Phil Scraton & Jude McCullough, The Violence of Incarceration (2009).[FN169] Robertson, supra note 168.[FN170] Robert W. Fogel & Stanley L. Engerman, Time on the Cross — The Economics of American Negro Slavery 124–25 (1974); Alison Liebling, Suicides in Prison 24 (2003); 1850 U.S. Census. Former slave Ida Blackshear Hutchison recalled, “They say Negroes will not commit suicide.” 2 Ida Hutchison Blackshear, Federal Writers' Project Arkansas Slave Narratives 374.[FN171] “The laws and practices that have established and perpetuated this tragedy deeply offend any sense of common human decency.” Stuart Grassian, Psychiatric Effects of Solitary Confinement (1993), available at Vera Institute (expert witness opinions condensed). Elizabeth Vasiliades, Solitary Confinement and International Human Rights: Why the U.S. Prison System Fails Global Standards, 21 Am. U. Int'l L. Rev. 71 (2005).[FN172] Hutto v. Finney, 437 U.S. 678, 686–87, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978) (punitive isolation with 4 to 11 men in windowless 8′x10′ cells for longer than thirty days in Arkansas prisons constituted cruel and unusual punishment; Justice White in concurrence referred again to notorious ‘Tucker telephone’ used to crank painful electric current through inmates' genitals).[FN173] Ala. Rules Crim. P. 26.8 — Principles of Sentencing.[FN174] See generally Foucault, supra note 62.[FN175] See Gould & Pate, supra note 22.[FN176] Foucault, supra note 62, at 25, 30.[FN177] 18 U.S.C.A. §§ 1761 to 62 prohibit the sale and transportation of prison-made goods across state lines. Each state is free to prohibit the sale of prison-made goods. Most prison-made goods today are only sold to government entities. Governments possess a triple monopoly over prison industries, labor and the sale and purchase of prison-made goods. The resulting uncounted unemployment of prisoners roughly doubles the direct costs of about $25,000 per prisoner per year, because of the lost opportunity costs of the unemployed prisoners. Prisoners are not accurately counted as “unemployed” for statistical purposes, artificially lowering the official unemployment rate.[FN178] See One in 100, supra note 12.[FN179] Magna Carta, 9 Hen. III, ch. 14 (1225) [ch. 20 in original King John version]: “A free man shall not be amerced for a trivial offence, except in accordance with the degree of the offence, and for a serious offence, he shall be amerced according to its gravity, saving his livelihood; and a merchant likewise, saving his merchandise; in the same way, a villein shall be amerced saving his wainage ….” quoted in Furman, 408 U.S. at 243 (Douglas, J., concurring). For the same reason, namely work owed to their owner, antebellum slaves were almost never incarcerated as punishment. See Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219, 1989-1 Trade Cas. (CCH) ¶ 68630 (1989) (good discussion of Magna Carta and Eighth Amendment).[FN180] Browning-Ferris, 492 U.S. at 291–95 (O'Conner, J., concurring and dissenting).[FN181] The first term was used by Angela Davis, Are Prisons Obsolete? (2003); the second term was coined and explained by Michelle Alexander, The New Jim Crow — Mass Incarceration in the Age of Colorblindness (2010). Sellin, supra note 70, outlines the many connections between slavery and criminal punishment in different nations.[FN182] An Evaluation of the Prisoner Reentry Initiative: Final Report, Minnesota Dept. of Corrections (May 2011).[FN183] Ala. R. Crim. P. 26.8, Committee Comments.[FN184] Cesare Beccaria, An Essay on Crimes and Punishments, ch. XLIV — Of Rewards (1764; Anon. English Translation, 1767).[FN185] See U.S. v. Nobrega, 2012 WL 243090 (D. Me. 2012) (due to lack of statutory authority, the court denied a prisoner's motion requesting public flogging instead of incarceration and fine).[FN186] See generally Chad Flanders, Shame and the Meanings of Punishment, 55 Clev. St. L. Rev. 609 (2007). The pillory and stocks provided public shaming early in American history.[FN187] Herber v. State, 7 Tex. 69, 1851 WL 4038 (1851) (39 lashes versus 1 to 7 years in prison should have been for the guilty defendant to decide).[FN188] Pauol Guerino et al., Prisoners in 2010, at 7 tbl.5 (rev. Feb. 9, 2012), available at http://bjs.gov/content/pub/pdf/p10.pdf.[FN189] Numerous possible variations in sentences of JCP include, for examples: let the victim administer JCP, let the offender wear a shirt or a mask, administer JCP periodically, suspend JCP pending rehabilitation, restitution, parole or probation, the extent of post-JCP care, extra or restricted publicity, time and place of JCP, and split or hybrid sentences.[FN190] Ron Van Houten, Punishment: From the Animal Laboratory to the Applied Setting, in The Effects of Punishment on Human Behavior 18 (Saul Axelrod & Jack Apsche eds., 1983) (citing research).[FN191] Van Houten, supra note 190, at 19.[FN192] Crighton Newsom et al., The Side Effects of Punishment, in The Effects of Punishment on Human Behavior 302 (Saul Axelrod & Jack Apsche eds., 1983).[FN193] Alan G. Jamieson, Tyranny of the Lash? Punishment in the Royal Navy during the American War, 1776–1783 (1985), available at http://www.cnrs-scrn.org/northern_mariner/vol09/nm_9_1_53to66.pdf. As Texan and former slave William Byrd explained, “If a [slave] was mean, Marse Sam give him 50 licks over a log the first time and 75 licks the second time and ‘bout that time he most gen’rally had a good [slave].” William Byrd, Texas Federal Writers' Project, Slave Narratives 82–184 (1941).[FN194] Newsom et al., supra note 192, at 302.[FN195] A small laboratory box used extensively in behavioral research to provide regulated amounts of food pellets, electrical shock and other rewards and punishments to rapidly shape, train and/or test a laboratory animal's behavior.[FN196] Raymond Paternoster, How Much Do We Really Know About Criminal Deterrence?, 100 J. Crim. L. & Criminology 765, 818 (2010).[FN197] Paternoster, supra note 196, at 808.[FN198] Paternoster, supra note 196, at 784.[FN199] Paternoster, supra note 196, at 816; and this is what some criminal defendants have told the author. Nelson Mandela knew men in prison who preferred half a dozen lashes with a whip to solitary confinement.[FN200] Paternoster, supra note 196, at 804–06, 808, 818–24.[FN201] Paternoster, supra note 196, at 774, citing James B. Appel & Neil J. Peterson, What's Wrong with Punishment?, 56 J. Crim. L., Criminology & Police Sci. 450 (1965).[FN202] Beccaria, supra note 44, ch. XIX.[FN203] Multi-Health Systems Inc., Psychological Assessments and Services, available at http://www.mhs.com/product.aspx?gr=saf&prod=lsi-r&id=overview.[FN204] Multi-Health Systems Inc., supra note 204.[FN205] Tracy L. Fass et al., The LSI-R and the COMPAS — Validation Data on Two Risk-Needs Tools 2, Crim. Just. & Behav. Online (2008).[FN206] Stanton E. Samenow, Inside the Criminal Mind 154 (2004).[FN207] See Elizabeth Thompson Gershoff, Corporal Punishment by Parents and Associated Child Behaviors and Experiences: A Meta-Analytic and Theoretical Review, 128 Psychol. Bull. 539 (2002).[FN208] Tor D. Wager et al., An fMRI-Based Neurologic Signature of Physical Pain, 368 N. Engl. J. Med 1388 (2013); Enrico Schulz et al., Decoding an Individual's Sensitivity to Pain from the Multivariate Analysis of EEG Data, 22 Cerebral Cortex 1118 (May 2012).[FN209] Tor D. Wager et al., Placebo-Induced Changes in fMRI in the Anticipation and Experience of Pain, 303 Sci. 303, 1162 (2004); Greg Miller, Brain Scans of Pain Raise Questions for the Law, 323 Sci. 9, 195 (2009).[FN210] Bryan T. Denny et al., Anticipatory brain activity predicts the success or failure of subsequent emotion regulation, Social Cognitive and Affective Neuroscience Advance Access (Nov. 30, 2012) available athttp://dept.psych.columbia.edu/~kochsner/pdf/Denny_at_al_SCAN2012_AnticipatoryBOLDPredictsERSuccess.pdf.[FN211] Bernadette M. Fitzgibbon et al., Shared Pain: From Empathy to Synaesthesia, 34 Neurosci. & Behav. Rev. 500 (2010).[FN212] Vasiliades, supra note 171, at 83–85.[FN213] Matthews, supra note 51, at 610 n.184.[FN214] Tullio, supra note 33.[FN215] Lydia Saad, Most Americans Believe Crime in U.S. Is Worsening, Gallup — Wellbeing, Oct. 31, 2011, available at Most Americans Believe Crime in U.S. Is Worsening; Sara Sun Beale, The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness, 48 Wm. & Mary L. Rev. 397 (2006).[FN216] J. Thorsten Sellin, Slavery and the Penal System 132 (1976).[FN217] J.D. Gleissner, The Myth That Prisoners Have It Easy, The Largest Online Community for Corrections: Jails and Prisons. Homepage., May 23, 2011, available at http://www.corrections.com/news/article/28634.[FN218] Saad, supra note 215.[FN219] Jean-Paul Brodeur, Comparative Penology in Perspective, Crime, Punishment, and Politics in Comparative Perspective, 36 Crime & Just. — Rev. Res. 49, 80–81 (Michael Tonry ed., 2007).[FN220] Pew Center on the States, Time Served: The High Cost, Low Return of Longer Prison Terms 2 (June 2012), available athttp://www.pewstates.org/uploadedFiles/PCS_Assets/2012/Prison_Time_Served.pdf.[FN221] Every plantation was its own legal system for the slaves. The official legal system was surprisingly protective of the slaves' labor value; there were zero slaves in state prisons, and jail stays were relatively short. See Philip D. Morgan, Slave Counterpoint: Black Culture in the Eighteenth-Century Chesapeake & Lowcountry 394–95 (1998).[FN222] Nehemiah Adams, A South-Side View of Slavery — Or, Three Months at the South in 1854 (4th ed., 1860) (1854). Rev. Dr. Nehemiah Adams of Boston, an educated life-long abolitionist, visited the South for his health and was astounded at how mild the slavery he observed was compared to what he had previously read about and expected to see.[FN223] Incarceration Rates, supra note 115, tbl.4. Cf. Indiana's 2005 rate was barely less than Virginia's.[FN224] Facts About Prisons and Prisoners, The Sentencing Project available at http://sentencingproject.org/doc/publications/publications/inc_factsAboutPrisons_Jan2012.pdf. Males constitute over 90% of prisoners in most nations. U.N. Office of Drugs & Crime, Global Study on Homicide 63 (2011).[FN225] Glenn, supra note 69, at 80–81.[FN226] World Health Organization (WHO) Multi-Country Study on Women's Health and Domestic Violence Against Women, Recommendation 13 (2005).[FN227] Wilson v. Seiter, 501 U.S. 294, 300, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991) held the deliberate indifference standard applicable to 42 U.S.C.A. § 1983 complaints of prison conditions generally (quoting Judge Posner in Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985)).[FN228] Foucault, supra note 62, at 22, 247.[FN229] Dolovich, supra note 90, at 885.[FN230] Stephen Garvey, Freeing Prisoners' Labor, 50 Stan. L. Rev. 339, 373 (1998); Gleissner, How to Create One Million American Jobs, Digital J., Aug. 20, 2011, available at http://digitaljournal.com/article/310587.[FN231] Wiedeman, supra note 14 (suggests the identity of some punished criminals might be concealed). There are numerous potential JCP variables.[FN232] 18 U.S.C.A. § 3582(a).[FN233] I take former slave Susan Bledsoe at her word when she said, “Yes, they had to whip a slave sometimes, but only the bad ones, and they deserved it.” Federal Writers' Project Ohio Slave Narratives 6–9. Ex-slave Minnie Davis agreed: “I don't recall any certain reason why the slaves were punished; they needed it, I'm sure of that. Some folks need to be punished now.” Federal Writers' Project Georgia Slave Narratives, pt. 1, 257. The fairness of slave treatment varied, but a top field hand in today's money was worth up to $45,000; slaveholders had a financial incentive to punish fairly inside the intrinsically unjust institution of chattel slavery.[FN234] See Matthews, supra note 51; Aldridge v. Com., 4 Va. 447, 2 Va. Cas. 447, 1824 WL 1072 (1824) (39 stripes upheld, along with sale of free black into slavery for theft offense; affirmed differential punishment based on race).[FN235] Matthews, supra note 51, at 590 n.84.[FN236] Matthews, supra note 51, at 590 n.84.[FN237] Brown v. Plata, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011) (Scalia, J., dissenting).[FN238] Weems, 217 U.S. at 378.[FN239] Foucault, supra note 62, at 232.[FN240] Brown, 131 S. Ct. at 1923, states the maximum figure of 46,000, but some prisoners had already been released when the Supreme Court ruled. The affirmed mandate is to reduce the California prison population to 137.5% of the designed capacity, however achieved. Other states now hold prison populations well above 137.5% of their designed prison capacities; their concern is reflected in the multiple amicus briefs filed by them in support of California in Brown v. Plata. Alabama, for example, now operates at about 200% of designed capacity.[FN241] See Gleissner, Model Corporal Punishment Statute, available at http://ezinearticles.com/?Model-Corporal-Punishment-Statute&id=6146750.-[FN242] Cesare Beccaria, An Essay on Crimes and Punishments, ch. XLVII — Conclusion (1764; Anon. English Translation, 1767).Westlaw. © 2013 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.49 NO 4 CRIMLAWBULL ART 2END OF DOCUMENT (c) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works

Believe it or not, it was banned in the USA because it was too effective:Prison Overcrowding Cure: Judicial Corporal Punishment of AdultsJohn Dewar Gleissner [FN1]I. IntroductionThe Supreme Court's 2011 condemnation of California's prison system in Brown v. Plata[FN2] underscores the national prison crisis. Except for incapacitation, research rates incarceration very poorly in achieving the goals of punishment. Prison overcrowding causes an array of negative consequences. Given the disastrous effects of massive incarceration in the United States, a question arises whether traditional public judicial corporal punishment[FN3] (“JCP”) would be held cruel and unusual if and when state legislatures or Congress enact legislation providing for JCP as an additional punishment option.[FN4]Imprisonment has become the principal and almost exclusive punishment for serious offenses in the United States, and cannot and should not be abolished, but suffers from numerous disadvantages, as shown in conditions of confinement litigation, prison riots, gang violence, recidivism, government expenses, post-confinement disabilities, prison-based gerrymandering, and overall negative economic and social impacts.[FN5] The United States now incarcerates a significantly greater percentage of its population than any other nation in the world.[FN6]Except for the huge scale of the modern prison population, prison problems are not new. Prominent political leader and diplomat William Eden, Baron Auckland wrote in his 1771 treatise Principles of Penal Law: “Imprisonment, inflicted by law as a punishment, is not according to the principles of wise legislation. It sinks useful subjects into burdens on the community, and has always a bad effect on their morals: nor can it communicate the benefit of example, being in its nature secluded from the eye of the people.”[FN7] The problems of expense, perverse socialization and seclusion still infest prison regimes across the world.In the nineteenth and twentieth centuries, prisoner-of-war and concentration camps in many countries proved the hazards of rapid large-scale internment, especially when motivated by war, revolution, racism, imperialism or politics. Internment on a vast scale by dictatorships usually leads to abuse, holocausts or misery, because detention is without trial, based on a disliked status and usually rapid to the point of overcrowding. Even democratic nations cause injustice in remote regions: The British established concentration camps during the Second Boer War, with disastrous results,[FN8] and later detained countless Kenyans under harsh conditions, including torture, during the Mau Mau Uprising.[FN9] King Leopold II's oppression of the Belgian Congo, including the most horrific corporal punishment and a holocaust, shows how seclusion fosters abuses. The internment of Japanese-Americans in remote areas during war hysteria, although not physically brutal, blatantly violated the Constitution in several respects.[FN10] Regardless of motivation or politics, when the number of prisoners increases, multiple problems inside and outside confinement usually worsen.The devastating social and economic costs of current U.S. incarceration policies justify Baron Auckland's conclusion today, as evidenced by California's ongoing correctional crisis.[FN11] “[W]ith one in 100 adults looking out at this country from behind an expensive wall of bars, the potential for new approaches cannot be ignored.”[FN12] In The Collapse of American Criminal Justice, Harvard law professor William J. Stuntz suggested, “Today's would-be reformers would do well to … consider the possibility that the best models for productive change may not come from contemporary legislation or court decisions, but from a past that has largely disappeared from our consciousness. Sometimes, the best road forward faces back.”[FN13]II. Traditional JCP and its Several VirtuesThe publicized 1994 caning of Michael Fay in Singapore generated debate for and against traditional JCP. New Mexico, New York, Mississippi, Tennessee, Maryland and Alabama introduced JCP legislation.[FN14] The New Mexico and New York bills intended to punish acts of graffiti, while the proposed Mississippi law applied to all crimes. None passed. Since 1994, the imprisoned and jailed population of the U.S. increased by about 800,000 prisoners, pushing correctional budgets up while state education budgets declined.[FN15]Christian religious orders historically governed with the use of legal corporal punishment.[FN16] The Rule of St. Benedict endorses corporal punishment in three of its chapters, and in chapter 30 states, “Every age and degree of understanding should have its proper measure of discipline. With regard to boys and adolescents, therefore, or those who cannot understand the seriousness of the penalty of excommunication, whenever such as these are delinquent let them be subjected to severe fasts or brought to terms by harsh beatings, that they may be cured.”[FN17]The Talmud contains detailed information and discussion of judicial flogging.[FN18] In the early middle ages, Jewish offenders were flogged by the Beth Din, the Jewish Court of Justice.[FN19] Talmudic due process mandated no less than three judges, and one view held that 23 judges were necessary to impose JCP.[FN20] Talmudic JCP was administered at the community level, in or near the synagogue.[FN21]At least 30% of the world's nations now utilize JCP as a legal sanction for juvenile or adult offenders.[FN22] Stable, prosperous nations employing JCP (Singapore, Saudi Arabia, Qatar, etc.) enjoy much lower crime rates than those in the United States.[FN23] Per capita, the United States has, for example, exponentially more burglary, rape, robbery, theft and major assault than Saudi Arabia. Generally, the U.S. had over 25 times more crime per capita than Saudi Arabia in 2000.[FN24]A little bit of JCP goes a long way. Most Western observers acknowledge the effectiveness of hand amputation in Saudi Arabia, a form of JCP. Saudi Arabia amputates the hands of thieves in addition to whipping some types of offenders,[FN25] but amputates very few hands, none in some years. Almost two-thirds of convict workers in the penal colony of New South Wales never received more than one whipping during their sentences.[FN26] The experiences of British seaman and U.S. slaves similarly revealed unwillingness, naturally, to take the punishment multiple times. Public JCP in all forms is effective in deterring those who have never offended. Witnesses to the pain of others experience profound neurological effects,[FN27] facilitating what they learn and always remember about a shameful criminal punishment.Incarceration rates in the Muslim world typically run from about 8% to 30% of the American incarceration rate.[FN28] For comparison in numerical terms, if the United States had the lower Saudi confinement rate, approximately 1,700,000 Americans would leave confinement.[FN29] Obviously, more factors are at work than just JCP, including prevailing culture, religion, family structure, poverty and attitudes, but generally Islamic countries have far less crime than the United States. The unmistakable power of JCP to limit theft in particular contrasts markedly with the highest recidivism rates in the U.S. A massive study on recidivism found that, “Released prisoners with the highest re-arrest rates were robbers (70.2%), burglars (74.0%), larcenists (74.6%), motor vehicle thieves (78.8%), those in prison for possessing or selling stolen property (77.4%), and those in prison for possessing, using, or selling illegal weapons (70.2%).”[FN30]In countries that punish alcohol consumption with flogging, consumption of alcohol is non-existent or rare, a miniscule fraction of the alcohol consumed on a per capita basis in other parts of the world.[FN31] This proven ability to suppress alcohol consumption contrasts sharply with the spectacular failure of the United States when attempting the same thing from 1920 to 1933. Hailed a progressive change when adopted in 1920, the Eighteenth Amendment did not stop the manufacture, sale and transportation of intoxicating liquors. Without question, existing legal sanctions did not assure compliance with the Eighteenth Amendment and the National Prohibition Act, commonly called the Volstead Act. If the Volstead Act had been strongly supported by JCP, attacking both the supply of and demand for alcoholic beverages, the Eighteenth Amendment might have succeeded. Western nations now ignore the potential of JCP to reduce illegal drug use. JCP can attack demand for illegal drugs in addition to failed efforts to eliminate the supply. JCP provides a valuable stimulus to evoke the response of sobriety, filling addicts with the powerful resolve to recover through treatment or on their own. JCP would punish and reduce the large number of drug-based technical violations, diverting large numbers of offenders from returning to prison.[FN32]Multiple American states punish sexual offenses with chemical castration and allow chemical or surgical castration in lieu of prison time.[FN33] Surgical castration of sex offenders virtually eliminates recidivism by castrated offenders; chemical castration is also effective.[FN34] Thus, JCP has already been re-introduced, though not in its traditional American form. Compared to capital punishment, whipping, amputation, castration and mutilation are lesser punishments some death row occupants would prefer.III. Judicial Corporal Punishment in American HistoryColonial America, heavily influenced by religion, accepted JCP as mandated in the Bible.[FN35] Biblical JCP contains noteworthy safeguards: JCP is administered proportionally, in public, in the presence of the sentencing judge, with the offender lying down, and in deference to human dignity, only to a maximum of 40 lashes.[FN36]Historically, the law sanctioned corporal punishment to discipline soldiers, seamen, scholars, slaves, serfs, apprentices, wives and children.[FN37] In the military, maritime, academic, slavery, apprenticeship and family contexts, the “judge” was the superior officer, courts martial, shipmaster, schoolmaster, slavemaster, tradesman, husband or parent. American colonies judicially punished in a variety of forms, including whipping, stocks, the pillory and the ducking stool.[FN38] In the seventeenth and eighteenth centuries, whipping posts were considered indispensable in American and English towns.[FN39] Starting in 1776, Gen. George Washington strongly advocated and utilized JCP in the Continental Army, with due process protection, obtaining in 1776 authority from the Continental Congress to impose 100 lashes, more than the previous limit of 39.[FN40] In his 1778 Bill for Proportioning Crimes and Punishments, Thomas Jefferson provided up to 15 lashes for witchcraft, at the jury's discretion; castration for men guilty of rape, polygamy or sodomy, and a minimum half-inch hole bored in the nose cartilage of women convicted of those sex crimes.[FN41] In 1781, Washington requested legal authority from the Continental Congress to impose up to 500 lashes, as there was still a punishment gap between 100 lashes and the death penalty.[FN42] The Founders believed whipping and other forms of corporal punishment effectively promoted pro-social and discouraged anti-social behavior.The Fifth Amendment's Double Jeopardy Clause—“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”—reflects traditional acceptance of severe bodily punishments, including amputation.[FN43] In his influential treatise written 20 years before the Constitution, Cesare Beccaria, an enlightened opponent of torture, endorsed the use of JCP for crimes against the person and appreciated the simple proportionality facilitated by JCP.[FN44] Beccaria believed that punishments should match “the state of the nation,” meaning that unruly nations require greater punishments and orderly nations less severe punishments.[FN45] America's Founders received English common law along with ideas from the Enlightenment. Sir William Blackstone listed whipping among other accepted corporal punishments in Commentaries on the Laws of England.[FN46] JCP was the practical punishment for those without money to pay fines, property to confiscate or status to lose.The Eighth Amendment to the U.S. Constitution, taken from the English Bill of Rights,[FN47] states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The English Bill of Rights did not condemn methods of punishment.[FN48] The Framers of the Bill of Rights intended the Cruel and Unusual Punishments Clause of the Eight Amendment to prohibit torture and barbarous punishment, but not public whipping.[FN49] In the debate about the Bill of Rights at the First Congress, New Hampshire representative and jurist Samuel Livermore foretold several future questions over the constitutionality of whipping:The clause seems to express a great deal of humanity, on which account I have no objection to it; but, as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.[FN50]Without question, JCP was not considered cruel and unusual on Dec. 15, 1791, the date the Eighth Amendment became part of the U.S. Constitution.[FN51] The original meaning of constitutional provisions has never ceased to inform jurists in the interpretation and application of those provisions. The first U.S. Crimes Act of 1790 punished by whipping the crimes of “stealing or falsifying records, fraudulently acknowledging bail, larceny of goods, or receiving stolen goods.”[FN52] The acts of the First Congress are persuasive in constitutional questions.[FN53] In 1808, Justice Livingston found JCP on ships salutary, often necessary and proper, and that “without it, it would be impossible to navigate our vessels.”[FN54] The U.S. did not provide by statute for imprisonment at hard labor until 1806, with additional crimes added in 1825.[FN55]The Eighth Amendment limits all three branches of government: the sentences of courts, the constitutional validity of legislation and actions of the executive branch. No American court has ever held as a matter of constitutional law that JCP in the form of whipping violates the Cruel and Unusual Punishments Clause of the Eighth Amendment.[FN56] To the contrary, state and federal courts uniformly over the years upheld sentences of traditional JCP against constitutional challenge.[FN57] In Weems v. U.S., U.S. Supreme Court Justice McKenna observed that as of 1882, whipping was upheld in Maryland as a punishment for wife-beating.[FN58] In 1963, the Supreme Court of Delaware in State of Delaware v. Cannon unanimously upheld the constitutionality of whipping as a criminal punishment.[FN59] The Supreme Court of Delaware simply found that punishments are determined to be cruel and unusual only by the will of the people as expressed through their legislatures.[FN60]IV. Why Was JCP Abolished in Different Contexts?A. Abolition of JCP in “Modern” NationsThroughout history, the lowest ranks of free society provided the majority of criminals. Punishments often varied by social class or caste, officially or unofficially. JCP and legal corporal punishment most often were reserved for or primarily given to serfs, soldiers, sailors, slaves, students, wives, prisoners, criminals and others with little status, money or property.[FN61] Thus, JCP is generally abolished as a by-product of greater equality or democracy, including the abolition of slavery and colonialism, because it is an ignominious relic of lower-class status that newly empowered citizens dislike and elites, including judges, associate with backwardness, degradation or unwanted publicity.Authorities through the years had reason to dislike public punishments, because they sometimes caused sympathy, reactions or riots in favor of the convict.[FN62] A public accustomed to “the spectacle of the scaffold” regarded it as their right to witness punishments and might applaud or denounce the punishment, rendering public judgment on the criminal, crime, court, sentence and proceedings.[FN63] The worst abuses in the administration of corporal punishment were hidden from the eyes of the people, arbitrary and capricious, and not administered by a fair legal system.Together with the false promise of rehabilitation, excessive or abusive use of corporal punishment led to its abolition. Opposition to JCP and legal corporal punishment in Britain arose after a mentally imbalanced soldier's death from 150 lashes in 1847,[FN64] and a student's death from punishment administered by his schoolmaster in 1860.[FN65] The imposition of 250 lashes on a Brazilian sailor in 1910 triggered the one-week Revolt of the Whip in Rio de Janeiro by largely Afro-Brazilian seamen.[FN66] Led by seaman Joao Cándido, the son of former slaves, against the all-white officers on four Brazilian Navy ships, the Revolt ended naval corporal punishment in the Brazilian Navy, just as it had recently been curtailed in the British Navy.[FN67] Brazilian slavery had only been abolished in 1888, and the Brazilian mutineers regarded the punishment as a relic of slavery.[FN68] In the prison, naval, educational and domestic contexts, legal corporal punishment was limited, regulated or abolished because it was not strictly judicial, but instead too often arbitrarily imposed by a single person rather than a judicial body.[FN69]JCP is unpleasant to administer. In fact, the deterrent value of public JCP stems from its horrific aspects. It seems barbaric when incarceration holds out false hopes of rehabilitation, perfectibility, leniency or humane treatment. Today, common initial reactions to JCP include the labels “primitive,” “barbaric,” and “backward,” which are actually characteristics of modern incarceration. JCP does not conceal society's most despised members, but instead masks complex neurologic activity. In physical and economic terms, corporal punishment is easier to abuse than other forms of punishment, because it is fast, easy to administer, cheap, repeatable, not dependent upon location and extremely variable. Those same characteristics are advantages when due process and equal protection are accorded, which is to say they have not always been provided.Punishments continually vary over the centuries with changes in social structure, economies, revolutions, public order, religions, technology and wars. Changes in punishments over time are the rule, not the exception. In some ages, JCP gains acceptance by entire societies. Gustav Radbruch demonstrated that corporal punishment in Germanic law started out as domestic slave punishment and over the centuries was made applicable to all offenders.[FN70] The punishment of transportation was invented out of the need for labor in the New World and stopped when that need decreased.[FN71] Galley slavery arose from the military need for rowers and the difficulty of inducing free men to serve; it ended with improvements in sail technology.[FN72] Criminology had little to do with these changes in punishment. Applied social science still plays a surprisingly small role compared to economics and politics. Penal institutions in particular are slow to change because their subjects have little voice in society, punishment and offenders are concealed and prisons are government bureaucracies. In antebellum America, naval and educational corporal punishment were primarily opposed in the North and supported in the South, reflecting regional differences on the issue of slavery,[FN73] including the South's dependence upon corporal punishment to maintain the efficiency of its peculiar institution and economy.JCP was periodically perceived as ineffective because it was administered to the mentally ill component of the criminal population, for many of whom it is ineffective or much less effective.[FN74] The reintroduction of JCP presupposes that the mentally ill would undergo diagnostic mental health evaluation and then be treated or punished differently than other criminals. Our current judicial and correctional systems often place the mentally ill in prison. Modern standardized psychiatric assessment and screening tools and tests could assist judges to determine the suitability of JCP in a given criminal case. Like the invention of the penitentiary, the de-institutionalization movement in the later twentieth century was supposed to help the mentally ill, but it resulted in more incarceration for them, demonstrating the cyclicality and inevitability of intractable social problems. Medical supervision of JCP ought to include both mental and physical aspects of JCP, including perhaps individual pain sensitivity determined by fMRI or EEG.Foucault observed that societies moved from punishing the body to punishing the soul, even though the body is still heavily involved with incarceration.[FN75] This change necessarily reduced the speed, certainty, visibility and judicial control of punishment, and as Foucault wrote, created a host of extra-juridical decision-makers strung out over the dimensions and disciplines of time, distance, finance, psychology, education and medicine.[FN76]In France, JCP ended with the French Revolution and France's citizen army, a reform Prussian General Scharnhorst advocated for the Prussian Army in response.[FN77] In Prussia, JCP ended in 1848, when ordinary Prussians received the right to vote.[FN78] Russian peasants, who had long played a role in punishment at the village level, feared fines and imprisonment more than flogging when JCP was abolished by the Tsar in the 1860s,[FN79] at the time serfdom was abolished in Russia. In a similar way, villages or tribes in India retained JCP when it was outlawed generally throughout India.[FN80] The Ottoman Empire abolished JCP in 1858, the year after abolishing the African slave trade, and Egypt abolished it in 1861; one scholar suggests those Islamic states abolished JCP in the mistaken belief confinement was more rehabilitative and to improve the image portrayed to the West.[FN81]Starting in the late seventeenth century, England increasingly relied upon JCP as a substitute for the death penalty in cases of grand larceny.[FN82] From 1877 to 1894, 418 adults were flogged in England, two for garroting and 416 for robbery.[FN83] Great decreases in the rum ration facilitated discipline without corporal punishment in the British Navy, as did better pay and treatment.[FN84] In Britain, JCP was abolished in 1947, although its re-introduction was debated in 1961.[FN85] In Canada, JCP was abolished in 1957.[FN86]Economic, political, religious and popular forces, not the science of criminology, determined through history what punishments were used in a given era. The great prison reformer John Howard disparaged the punishment of transportation to colonies, yet that punishment over time had the best record of rehabilitation, especially for descendants of transported criminals.“Penal theorists and criminal justice historians generally agree that modern nations rejected physical punishments not because they failed to rationalize them but because intentional physical harm disturbed sensibilities and conflicted with changing cultural norms about suffering, which included the pains of the punished as well as the distress of those performing or witnessing punishment.”[FN87]B. Abolition of JCP in the United StatesSignificantly, JCP in the U.S. was limited or abolished by legislatures and martial decree, never the courts, in favor of untested incarceration, lacking the benefit of modern behavioral science or studies, and without knowing how much the prison population would later increase and suffer a worse fate. The precipitous abandonment of JCP in favor of incarceration was personified in New York by Thomas Eddy, a devotee of Beccaria, who worked against harsh punishments and tried to be a humane warden of Newgate Prison after JCP was abolished—but who was forced to resign in 1804 after frequent prison riots.[FN88] Large fortress-like prisons arose gradually in the nineteenth century, concurrently with the steady abandonment of JCP. Abandonment of JCP followed prison construction.[FN89] The impressive architecture of prisons and isolation of the inner workings masked their imperfections and the difficulty of running them. Prisoners were always found to occupy the space available. In time, the conditions of imprisonment, including corporal punishment administered to prisoners as discipline by prison authorities, generated an increasingly large volume of litigation under the Cruel and Unusual Punishments Clause.[FN90]Legal flogging declined in the U.S. in different stages and contexts, after the American Revolution, after the Civil War ended chattel slavery and Union generals sought to enforce racial equality, and finally when merchant seamen escaped their unique brutal servitude. Urbanization, centralization, migration and the greater difficulties of knowing and keeping track of offenders lessened the effect of JCP. The shame of JCP—often said to be worse than the physical pain—diminished with the greater anonymity of urban life.[FN91]Early reformers opposed to legal corporal punishment in the naval, educational and penal contexts did not seek to abolish its use, but only make it a “last resort.”[FN92] The civilian punishments of whipping and of standing in the pillory were abolished by Congress in 1839; imprisonment “at hard labor” was substituted for nearly all other ignominious non-capital federal offenses.[FN93] Published in 1840, Two Years Before the Mast by Richard H. Dana, Jr. was the first of several books to publicize the brutal legal corporal punishment of merchant seamen by their masters (i.e., captains).[FN94] When the U.S. Navy enlisted foreigners and persons of low character, and daily issued rum or grog to sailors, an anonymous pamphlet entitled A Plea in Favor of Maintaining Flogging in the Navy was published and circulated, outlining unique naval circumstances.[FN95] Over 90% of the 84 U.S. naval officers surveyed objected to the abolition of flogging in 1850, the year Congress abolished its use in the U.S. Navy.[FN96] Through labor union pressure, the White Act of 1898 abolished the legal corporal punishment of seamen on American merchant vessels.[FN97] While we often associate flogging with American slavery, legal whipping of white citizens was first significantly curtailed only a few decades before the American Civil War and continued long afterwards in limited circumstances.Delaware was the last state to administer, in 1952, and then legislatively abolish, in 1972, JCP.[FN98] By coincidence, crime and incarceration rates rose steadily for several decades thereafter.C. The African American Experience with JCP AbolitionThe corporal and capital punishments of African Americans became more arbitrary, brutal and chaotic after the economic incentives of slavery and Union Army governance disappeared.[FN99] Statutes and common law permitted disciplinary legal corporal punishment of slaves, but prohibited or discouraged the “cruel, unusual and excessive” punishment of slaves.[FN100] Black Codes passed after the Civil War, such as the one adopted by Mississippi to assign orphaned and unsupported “apprentices,” supposedly drew the distinction between “moderate corporal chastisement as a father or guardian is allowed to inflict on his or her child or ward at common law,” but prohibited “cruel or inhuman punishment.”[FN101] Florida established up to 39 stripes of JCP or the pillory as punishment for vagrancy and vagabonds (i.e. wandering ex-slaves) on Jan. 12, 1866.[FN102] Less than a month after South Carolina enacted a code authorizing the JCP of former slaves, Union Major General Sickles of the Military District of South Carolina prohibited such punishment in his general order of Jan. 17, 1866.[FN103] The Civil Rights Act of 1866, effective April 9, 1866 over President Johnson's veto, made it a crime to subject former slaves to “different punishment, pains, or penalties.”[FN104] A U.S. Senate bill was introduced to authorize the president “to prevent the infliction of corporal punishment in the States lately in rebellion.”[FN105] One House bill ordered printed on Jan. 28, 1867 equated JCP with a violation of the Eighth Amendment.[FN106] Union generals in command of Military Districts throughout the South ordered the abolition of JCP shortly after Congress passed the First Reconstruction Act on March 2, 1867.[FN107] Martial law abolished JCP, not for ineffectiveness, but because JCP too powerfully promoted white supremacy in labor relations, commerce, the bearing of arms, criminal laws and voting rights. Disparate use of JCP, not the effectiveness of the punishment technique, caused its post-war demise.The South's re-assertion of white supremacy through Black Codes resulted in the Fourteenth and Fifteenth Amendments. The Ku Klux Klan then illegally and secretly punished African Americans with whips, lynching and intimidation outside the legal system, just as the mafia in Southern Italy and Sicily earlier arose as a secret internal police force to counter conquering powers. Far worse than slavery, the convict labor systems developed after the Civil War exploited convict labor without any investment in the workers.[FN108] As bad as convict leasing was, the numbers involved in convict leasing and incarceration at that time are dwarfed by modern correctional populations. In 1890, there were only 8,417 prison inmates of all races in the entire South, and the federal prison system did not yet exist.[FN109]While JCP was linked to racism and banned by the winning side, incarceration caused an enormous tragedy on both sides. Prisoner-of-war camps in Andersonville, Georgia, Johnson's Island, Ohio, Richmond, Virginia, and “Hellmira,” New York fully revealed how terribly two American governments handled their prisoners-of-war. An estimated 56,000 Union and Confederate prisoners died as a result of disease, poor shelter and malnutrition.[FN110]Former slaves interviewed during the Federal Writers' Project vouched for the effectiveness of just corporal punishment, most often imposed on young men for not working and stealing,[FN111] just as they dreaded alcoholic and insane owners and overseers.[FN112] No blanket conclusion about the corporal punishment of slaves is accurate, because each slave was an individual, pain sensitivity varies with the person, each bondage experience was unique, different whips were used,[FN113] and the frequency, intensity and type of punishment fluctuated greatly in relation to reward mechanisms. A significant number of American slave owners did not whip their slaves, which helps prove its deterrent effect in conjunction with reward systems. But the whip was indispensable to all slaveholding societies in history,[FN114] which qualifies its use as an evidence-based practice or at least practiced-based evidence.Today, as a percentage of population, the South incarcerates far fewer African Americans than the North compared to the number of whites incarcerated in each state. The greatest imprisonment disparities today in favor of whites and against blacks are in the North, in the very same states that took the strongest stances against slavery and whose military representatives banned JCP in the South.[FN115] Iowa, Vermont, New Jersey, Connecticut, and Wisconsin had the greatest racial disparities as of 2005, all over 10-to-1, while the Deep South states of Alabama, Arkansas, Mississippi, Louisiana, Georgia, South Carolina, and Texas had racial disparities of less than 5-to-1.[FN116] Social, economic, political, biological, physical, religious and military forces drive inequities, not punishment techniques.The most respected American leaders, the four presidents carved into Mount Rushmore, are all on record as favoring the use of JCP on white (and black) citizens, and each favored racial freedom or equality more than the bulk of their contemporaries.[FN117] African Americans today often compare mass incarceration and its effects to slavery and Jim Crow.D. Antidote for Wife-Beating & Child Abuse AbolishedU.S. courts did not until the 1870s overturn the common law principle that a husband had the right to physically chastise his wife.[FN118] In Springfield, Illinois, Abraham Lincoln as a vigilante with friends caught and restrained an alcoholic wife-beater, who Lincoln had previously threatened with a whipping should he beat his wife again, and then allowed the wife to whip her husband with a tree branch.[FN119] Despite threatening retaliation, the chastened wife-beater did not later offend against his wife.[FN120]In 1882, Maryland was the first U.S. state to make wife-beating a crime.[FN121] The Maryland statute provided for JCP (and/or imprisonment) as a punishment, and as of 1895, JCP was said to be effective in reducing this crime.[FN122] A whipped wife-beater said he would not make himself subject to the penalty again, and that the disgrace of JCP was worse than the physical pain.[FN123] In his Dec. 6, 1904 State of the Union message, President Theodore Roosevelt observed:There are certain offenders, whose criminality takes the shape of brutality and cruelty towards the weak, who need a special type of punishment. The wife-beater, for example, is inadequately punished by imprisonment; for imprisonment may often mean nothing to him, while it may cause hunger and want to the wife and children who have been the victims of his brutality. Probably some form of corporal punishment would be the most adequate way of meeting this kind of crime.[FN124]JCP generally was almost extinct before American women obtained full voting rights in 1920. One of the last uses of American JCP was to vindicate the rights of battered wives. This specific application harkens back to Beccaria's idea that crimes of violence should be punished corporally.[FN125] JCP in the U.S. was mainly directed against males and physically counterbalanced obvious gender disparities to protect the rights of abused women and children. While condemning corporal punishment as prison discipline without statutory authority, in 1914 the Supreme Court of North Carolina observed, “Delaware and Maryland retain flogging, not as a part of their prison discipline, but as a court sentence for “wife beaters”—an admirable arrangement and a most just application of the lex talionis.”[FN126]V. Eighth Amendment Receptivity to JCPDifficulty would attend the effort to define with exactness the extent of [this] constitutional provision … but it is safe to affirm that punishments of torture … and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.[FN127][L]ike the other great clauses of the Constitution, [it] is not susceptible of precise definition.[FN128]A. Eighth Amendment Not Precise or Static.In his respected 1868 treatise Constitutional Limitations, Judge Cooley wrote:It is somewhat difficult to determine precisely what is meant by cruel and unusual punishments. Probably a punishment declared by statute for an offence which was punishable in the same way at the common law could not be regarded as cruel or unusual in the constitutional sense. And probably any new statutory offence may be made punishable to the extent permitted by the common law for similar offences. But those degrading punishments which in any State had become obsolete before its existing constitution was adopted, we think may well be held to be forbidden by it as cruel and unusual. We may well doubt the right to establish the whipping-post and the pillory in States where they were never recognized as instruments of punishment, or in States whose constitutions, revised since public opinion had banished them, had forbidden cruel and unusual punishments. In such a case the public sentiment had condemned them as cruel, and they had not merely become unusual, but altogether ceased to be inflicted.[FN129]In 1885, the U.S. Supreme Court distinguished “infamy” from “cruel and unusual,” acknowledged the original acceptance of whipping, but noted the changing view of punishments:What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another. In former times, being put in the stocks was not considered as necessarily infamous. And by the first Judiciary Act of the United States, whipping was classed with moderate fines and short terms of imprisonment in limiting the criminal jurisdiction of the district courts to cases “where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted.” Act September 24, 1789, c. 20, § 9, 1 Stat. 77. But at the present day either stocks or whipping might be thought an infamous punishment.[FN130]U.S. Supreme Court treatment of the Eighth Amendment has been likened to a “conceptual chameleon,” with multiple different unintended moral inquiries.[FN131] The Court's chosen Eighth Amendment ideal of human dignity[FN132] is vaguer than the Cruel and Unusual Punishments Clause itself, because all significant punishments contain some element of indignity. In defense of the Court, most of their Cruel and Unusual Punishments Clause decisions dealt with the inflexible dimensions of time, death and what some regard as the failed 200-year social experiment of criminogenic imprisonment.B. Dualism: Original Intent Versus Evolving Standards.As with other constitutional amendments, a dualism or tension exists within Cruel and Unusual Punishments Clause jurisprudence. In addressing the scope of the Eighth Amendment's prohibition on cruel and unusual punishments, the Supreme Court refers to traditional common law concepts[FN133] and attitudes which society has traditionally taken; procedurally under the Fifth and Fourteenth Amendments, they consider what has always been the law of the land and traditional ideas of fair procedure.[FN134]Justice McKenna in 1910 stated the constitutional goal of immortality regarding the Cruel and Unusual Punishments Clause:Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, “designed to approach immortality as nearly as human institutions can approach it.” The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.[FN135]In contrast to the traditionalist or originalist view, the courts consider evolving standards. Chief Justice Warren in 1958 opined, “the words of the Amendment are not precise, and … their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[FN136] Under this analysis, the courts determine the extent to which American standards of decency regarding criminal punishments have evolved and marked societal progress.Massive incarceration is not progress. American courts have found that various prison conditions and sentences constitute cruel and unusual punishment, including corporal punishment administered by prison guards. Incarceration per se is not necessarily more decent or less cruel than its predecessor JCP, because almost everything depends upon the circumstances of each.[FN137] A law may not be declared facially unconstitutional unless there is no set of circumstances under which the challenged law would be valid.[FN138]The constitutionality, cruelty and proportionality of JCP must be analyzed with reference to a specific sentence, the precise conditions of force under which it is executed, the crime for which it is administered and the characteristics of the offender. “The Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions.”[FN139] Eighth Amendment jurisprudence cannot be unidirectional, because society changes in diverse and unpredictable ways. Despite all efforts to eliminate it, human nature continually reasserts brutality in both hidden and obvious ways, and force is often necessary to contain it.C. Issues, Approaches & LimitsThe U.S. Supreme Court has confronted at least four issues under the Cruel and Unusual Punishments Clause, in sometimes overlapping ways: (1) whether the punishment was cruel and unusual as of 1791, the date the Bill of Rights was adopted, the originalist view; (2) whether the punishment is now cruel and unusual, under the “evolving standards of decency” view; (3) whether the punishment is excessive or disproportionate to the crime; and (4) whether the offense, behavior or status can be made criminal and punished.[FN140]According to the Supreme Court in Ingraham v. Wright,[FN141] the resolution of these issues circumscribes the criminal process in three ways:Limits the kinds of punishment that can be imposed on those convicted of crimes. No U.S. court has ever held whipping unconstitutional as JCP,[FN142] although arbitrary corporal punishment administered by prison guards or in prison has been found unconstitutional or without qualified immunity.[FN143] The only way JCP could be held unconstitutional per se is if evolving standards of decency now make JCP cruel and unusual. The evolving standards of decency argument against JCP must show that standards have actually evolved, and this necessarily involves comparisons with massive incarceration. The facts in Brown v. Plata, earlier conditions of confinement litigation, recidivism and deterrence statistics, and the public's unwillingness or inability to fund the total dependence of over two million prisoners, indicate those standards have not evolved for the better, despite the courts' insistence on reform and progress. There is plenty of room inside the Eighth Amendment and its jurisprudence to rationalize the will of the people as reflected in carefully drawn legislation. If all involved parties in a particular case agree to JCP in lieu of incarceration, appellate courts could not oppose JCP as a punishment method.Proscribes punishment grossly disproportionate to the severity of the crime. The Supreme Court has judged the constitutionality of prison terms by deciding whether a sentence was “grossly disproportionate” to the individual crime based on factors like crime severity and the offender's criminal history.[FN144] For over a century, JCP has not been tested under proportionality or excessiveness analysis. Proportionality analysis of JCP must wait until legislatures and courts adopt sentencing schedules for each crime punishable by JCP, including allowances for weight, age, gender, mental, medical and physical conditions and even pain sensitivity based on EEG or fMRI-determined “brain signatures.”Imposes substantive limits on what can be made criminal and punished as such. This factor has little bearing on the constitutionality of JCP for existing crimes.[FN145] JCP was administered in our culture for non-capital and mid-level offenses, for which prison and fines are now the standard punishments. Initial objections to JCP in the U.S. sometimes confuse JCP itself with the foreign values of countries that corporally punish behavior we do not consider criminal or serious.VI. The Brutality of IncarcerationDuring the great majority of recorded history, long terms of imprisonment were rare, reserved for hostages, prisoners of war, political prisoners, nobles held for ransom or others with some value. Jails held accused defendants awaiting trial, but the ultimate sentence was not generally lengthy incarceration. Prison sentences were sometimes tantamount to discreet death sentences from disease, starvation, mistreatment, neglect or concealed murder. In history, imprisonment was the anomaly, although in modern Western nations that perception is now reversed. During recent decades, the Eighth Amendment has not been used to judge the cruelty of whipping, a common punishment when the Eighth Amendment was adopted, but instead has often been the standard for an expensive punishment that barely existed in 1791.As a form of prison discipline, whipping lasted longer than it did outside prison and still exists on the statute books in some states.[FN146] In 1931, the Supreme Court of the Territory of Hawaii reviewed an order of the Board of Prison Inspectors that an incorrigible prisoner be chastised with a cat-o'-nine-tails.[FN147] The Territorial Supreme Court held that this prison discipline did not violate the Cruel and Unusual Punishments Clause and need not be “sanguinary” (i.e., bloody).[FN148] The lone dissenter observed that the territorial legislature had not specifically authorized JCP, Congress eliminated that punishment in the federal system, and that it had been in marked decline for many years.[FN149]The Arkansas prison system used cruel and unusual punishments, including the notorious Tucker Telephone, a homemade torture device directing electricity through male genitals, and generated the first conditions of confinement litigation. In Jackson v. Bishop,[FN150] the 8th Circuit enjoined the use of the strap until proper regulations and safeguards against abuse were implemented, finding its use on an incarcerated prisoner in Arkansas “runs afoul of the Eighth Amendment; that the strap's use … offends contemporary concepts of decency and human dignity and precepts of civilization which we profess to possess.” Punishment in prison is not JCP, but a disciplinary action to enforce prison rules. JCP is far different than corporal punishment as prison discipline. The authority for JCP is from the courts, under the law, the punishment is finite, structured and public, and after most sentences of JCP, the convicted defendant would be free to go. British and American JCP was generally imposed in public, while corporal punishment as a condition of confinement often lacked due process and was hidden from public and visual judicial scrutiny.The “proper regulations and safeguards” needed to re-impose legal corporal punishment in prison are similar to the criminal constitutional rights accorded to accused citizens prior to conviction. Prisons deal administratively with many in-prison infractions and crimes, but with the disuse of corporal punishment, prosecution of inmates must control serious criminal activity in prison. The lengthening of sentences in overcrowded prisons provides one disincentive to the prosecution of already-incarcerated prisoners. Prosecutors use the horrors of prison during plea bargaining, which likewise lessens the desire to correct those terrors.Brutality, pain and cruelty, by themselves, do not disqualify punishment on constitutional grounds. “Prison brutality … is part of the total punishment to which the individual is being subjected for his crime and, as such, is a proper subject for Eighth Amendment scrutiny …. Even so, the protection afforded by the Eighth Amendment is limited. After incarceration, only the unnecessary and wanton infliction of pain … constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”[FN151] “Unnecessary” and “wanton” in this context are synonyms for “ineffective.” “Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history.”[FN152] Ultimately, the question of constitutionality will turn on the issue of effectiveness, which includes considerations of recidivism, economics, public perception and acceptance, addictions, and comparisons with incarceration, the death penalty, parole, probation, fines and the treatment of youthful offenders.Failure to provide adequate healthcare and other awful prison conditions can violate the Cruel & Unusual Punishments Clause.[FN153] The Eighth Amendment does not outlaw cruel and unusual conditions; it outlaws cruel and unusual punishments.[FN154] Prison conditions are considered “punishment” under this analysis only if a prison official (or the state) was deliberately indifferent, actually knew of and disregarded the risk of harm.[FN155]Functionally, prisons turn offenders into dependents. Prisons necessarily undertake enormous duties to provide food, clothing, shelter, personal safety, sanitation, healthcare and medicine. The unwillingness, inability or incompetence of governments to provide space and resources and penal institutions to fulfill their duties of sustenance result in entrenched, institutional, system-wide problems, as outlined in Brown v. Plata. In numerous other rulings, federal courts have held conditions of incarceration unconstitutional. Over the last five decades, federal courts have taken over most of the prison systems in the United States based upon the Cruel and Unusual Punishments Clause.[FN156] This of course does not mean that incarceration per se is cruel and unusual, but it puts federal courts in the awkward situation of judicially supervising and managing—incompetently according to Justice Scalia[FN157]—state administrative, budgetary, executive and legislative functions.[FN158] In California, the necessity of such federal judicial intervention was caused by the state's failure to comply with an earlier consensual remedial injunction.[FN159] The American public rates prisoners as their bottom priority, although this population insensibly expanded into the largest and most expensive cohort of full-ride welfare recipients in the world.Public punishment, publicity and litigation are effective checks and balances on the administration of any punishment.[FN160] The courts struggle to remedy the cruelties suffered by society's least favorite class, largely because of the political indifference and economic disincentives under which the other two branches of government operate. A powerful practical force is the ancient and immutable doctrine, “Out of sight, out of mind.” It is still socially acceptable to disparage, abhor and execute prisoners.Wasteful and crippling statutory disincentives prevent the utilization of the enormous labor value represented by two million fairly young able-bodied yet idle American prisoners.[FN161] Other than those who benefit financially from the warehousing of prisoners, no one is happy about the financial and social costs, overcrowding or recidivism rates.[FN162] Nevertheless, incarceration provides proven value in terms of incapacitation.[FN163] Cost-benefit analysis of incapacitation is complex, inexact, variable with individual offenders and crimes, and has not been calculated with the option of JCP in lieu of incarceration for lesser or non-violent crimes.The 2011 majority opinion in Brown v. Plata described California's severely overcrowded correctional system, “exacerbated by an unprecedented budgetary shortfall,” as unconscionable, unsafe, harsh, toxic, criminogenic, violent, unsanitary, chaotic, disease-ridden, violent and suicide-inducing. Torture, lingering deaths and a culture of cynicism, fear and despair were the result.[FN164] Barbaric prisons in Latin America clearly entail “a journey into hell.”[FN165] As Carolyn Strange observed in analyzing the work of Norbert Elias: “barbarity does not disappear in nations that consider themselves to be enlightened: it moves out of public sight and is reconstituted in self-defined civilized societies.”[FN166] Not surprisingly, the Quakers, who had a hand in inventing the penitentiary, now repudiate it.[FN167]VII. Comparative Advantages of JCPJCP is no more brutal or cruel than the average prison.[FN168] Incarceration too often results in violence, gang activities, weapon production, anxiety, rape, hopelessness, depression, boredom, wasted time, an increased risk of communicable diseases, anger, forms of abuse, racism, ugly tattoos, mental illness and increased risks of corporal self-punishment (self-harm or self-mutilation) and suicide.[FN169] Modern American prisoners are 20 times more likely to commit suicide than antebellum slaves were in 1850.[FN170] Part of society's “evolution” was increasing reliance upon solitary confinement, which is known to cause mental illness,[FN171] and might offend the Eighth Amendment more if not absolutely necessary for prison administration, discipline and the safety of isolated prisoners.[FN172] Determinate prison terms under the guise of “truth in sentencing” have now largely replaced the more flexible and reformative indeterminate sentence.Principles of sentencing generally seek the least restrictive sanction consistent with the protection of the public and the gravity of the crime. Judges are encouraged to “consider alternatives to long-term institutional confinement or incarceration in cases involving offenders whom the court deems to pose no serious danger to society.”[FN173] As in most modern literature concerning punishments, words such as “alternative,” “community,” “flexible,” and unspecified “sanctions” are code words admitting at least three things: Imprisonment is often not the best answer, we do not know what else to do, and we are afraid the public will not or cannot pay for unspecified alternatives to incarceration. Today, the suggestion of traditional JCP in lieu of incarceration is almost never one of the “alternative sanctions” considered, but many offenders would prefer it and benefit from JCP. Advocates of change hope for more expensive programs, therapies, treatment, renewal and rehabilitation, which the public is unlikely to support, and do not consider JCP as encouraging, assisting or supporting such methods. Experimentation might reveal that JCP is the “bottom” substance abusers need to hit before they decide to stop abusing substances. JCP probably punishes some crimes, such as theft or drug offenses, better than jail time, so long as offenders once punished remain on track to receive follow-up JCP if necessary.Rehabilitation and ending social oppression were not accomplished through imprisonment.[FN174] Actual oppression worsened with physical concealment and the long-term effects. JCP is still correlated with less democratic regimes,[FN175] but so are imprisonment and the death penalty. In fact, the human body never ceased to be a focus of punishment after JCP ended in Western cultures.[FN176] In many cases, the long-lasting mental, economic, physical and social punishment of incarceration is worse for all concerned than one hour or less of traditional JCP.Work in prison decreased markedly after state and federal legislation made the sale or transport of prison-made goods illegal.[FN177] Today, relatively few American prisoners work hard. The economic, human and collateral social consequences of over two million largely inactive American prisoners are staggering.[FN178] Prisoners exercise and become more dangerous assailants, but produce relatively little. Confinement deprives offenders of their livelihood, something the still-valid Amercements Clause of the Magna Carta discouraged or prohibited even for serious offenses.[FN179] Indeed, the Amercements Clause of the Magna Carta eventually found its way into the Excessive Fines Clause of the Eighth Amendment, by way of the English and Virginia Bills of Rights.[FN180] Prisons today more often resemble hate factories than plants making useful goods.Ex-prisoners leave the “New Age slavery” of prison and enter a pariah class, now referred to as the “New Jim Crow,” in which they have great difficulty finding work, spouses and housing, education or government benefits.[FN181] Egalitarian punishment on the scales of class, race and gender remains a myth. Recidivism stubbornly keeps prisoners recycling through the prison system; well over half of released prisoners re-offend.[FN182] “Prisons serve as training camps for crime, especially for young offenders.”[FN183]Public JCP possesses several unquestioned advantages over incarceration. Public JCP punishes offenders rapidly, provides the great benefit of example, and then releases offenders to healthier environments without harming the economy. Offenders can preserve ties to schools, jobs, families, spouses, friends, religious organizations and communities. Prison is an expensive way to make bad people worse because of perverse socialization, “prisonization.” Ties to gangs are maintained and often increased in prison. Public flogging is the gangster's worst nightmare, appearing weak to others, and would reduce gang participation. JCP is much less expensive, exponentially faster, repeatable, flexible in application, adaptable to and supportive of parole, probation, Drug Court and other alternative sentences, and brings punishment visibly back to the community from the hidden centralized model that is more easily corrupted. When administered in conjunction with parole or probation, JCP effectively permits judges to impose both determinate and indeterminate sentences. While perceived as strictly punitive, JCP is very brief and then enables the reward mechanisms of marriage, family, school, religion, employment and community. Rewarding virtue is one way to reduce crime.[FN184] If the flogged offender resolves to obey the law, JCP is much more likely to reward virtue than a comparable prison term. Most offenders immediately receive a “second chance” after JCP.Offenders, at least in introductory legislation, might be allowed to choose JCP in lieu of incarceration and in this way accept the need for rehabilitation.[FN185] While tougher, pain-resistant criminals might opt more often for JCP, vulnerable convicts have an equally powerful incentive to choose JCP. Undersized, weaker, effeminate, better looking and more passive prisoners, and especially sex offenders, dread prison the most. JCP provides a multitude of different punishment options for judges, juries, victims, prosecutors, defense counsel and offenders. Existing punishment options often boil down to the extremes of prison versus probation or parole; more intermediate and concurrent criminal sanctions are needed. Fewer technical parole violators would return to prison if JCP was an option. The suspended JCP sentence would be an effective deterrent to future crimes, especially for certain crimes and types of offenders.JCP contains significant public shaming, an effective alternative to confinement.[FN186] Deciding between confinement versus JCP is not solely “an inquiry which punishment produces the most physical suffering, but which is the most ignominious; and among all nations of civilized man, from the earliest ages, the infliction of stripes has been considered more degrading than death itself. The Romans, in case of capital punishment, first scourged with the lash, and then put to death.”[FN187] Public shaming through JCP would increase exponentially by publication of video on the internet or the use of other judicial publicity. The effects of shaming, together with neuroscience, might scientifically justify the biblical limit of 40 lashes.While many law enforcement officials would not choose to personally flog convicted criminals, executioners would volunteer from the general public. Turnover of prison correctional officers is notoriously high, reflecting lack of career development, stress, burnout, boredom, compensation and the constant burden of dealing with mentally ill, contagious and dangerous prisoners.JCP could dramatically reduce the American prison population and overcrowded conditions. The average state prisoner only has about 2.1 years left to serve,[FN188] and thus at least half of the current prison population is in the shorter sentence range appropriate for JCP in lieu of incarceration. JCP will not replace incarceration or the death penalty for more serious offenses, but hybrid or split sentences of JCP and incarceration are feasible to reduce longer sentences and even the death penalty.[FN189]VIII. Science Explains Effectiveness of JCPFrom a learning theory and behavioral standpoint, soundly applied punishment under laboratory conditions stops or “extinguishes” unwanted targeted behaviors. “[R]esistance to extinction is reduced “when high-intensity punishment is delivered during early extinction.”[FN190] “[A] large body of evidence suggests that the effects of punishment are not temporary and that the effects of high-intensity punishment often endure better than those of reinforcement.”[FN191] Punishment both discourages misbehavior and encourages socially useful conduct: “Perhaps the most frequently noted positive side effect of punishment is facilitation of appropriate social interaction and cooperation during or following periods of punishment for undesirable behavior.”[FN192] Offenders learn from JCP; it is literally educational. A study of corporal punishment on several ships in the British Navy during the American Revolution found that the great majority of sailors did not receive corporal punishment twice.[FN193] “The positive side effects of punishment typically consist of improvements in social behavior, emotional responsiveness, imitation and discrimination learning, appropriate play, and attention.”[FN194] Aggression can result from punishment, but aggression is reliably extinguished with additional punishment. This suggests that the most effective use of JCP would be as initial punishment and if necessary as follow-up punishment under the exponentially faster schedules facilitated by parole, probation and suspended sentences.From a behavioral standpoint, incarceration is like placing humans in many tiny Skinner boxes,[FN195] ignoring them for years while allowing the overwhelming influence of anti-social forces. JCP on the other hand releases punished offenders into various social and reward systems capable of encouraging pro-social, productive behavior. While traditional JCP lacks rigorous scientific validation on humans, experience in American and world history at a minimum justifies JCP for modern experimental purposes in at least one American state or the federal system.Scientific research on criminal deterrence fails to find much deterrent value in incarceration.[FN196] Indefinite prison sentences in the future, to be served in places they may never have seen, are not foremost in criminals' minds when offending. With regard to imprisonment, “there is not a strong relationship between objective sanctions and perceived sanctions.”[FN197] But with public JCP, where the viewing public knows the crime and the exact punishment, that correlation increases markedly. Of the three accepted deterrence variables, certainty, severity, and celerity of criminal punishment,[FN198] JCP enhances two of them, perceived severity and celerity. Evidence suggests criminals want to get their punishment over with as soon as possible.[FN199] JCP offers accused and convicted criminals that opportunity, encouraging plea bargains and acceptance of guilt.The “dirty little secrets” in crime deterrence research prove that the threat of confinement deters crime very little compared to our massive investment in this punishment; incarceration is simply not certain, severe or swift.[FN200] “To be effective,” rehabilitation advocates James B. Appel and Neil J. Peterson argued in 1965, “deterrence requires either extreme (and likely cruel) forms of punishment or repeated applications of punishment.”[FN201] JCP supplies extreme physical pain and opportunities for repeated applications. As Beccaria observed:The vulgar, that is, all men who have no general ideas or universal principles, act in consequence of the most immediate and familiar associations … It is, then, of the greatest importance, that the punishment should succeed the crime, as immediately as possible, if we intend, that, in the rude minds of the multitude, the seducing picture of the advantage arising from the crime, should instantly awake the attendant idea of punishment.[FN202]Nothing instantly awakes the idea of punishment like an experienced, witnessed, broadcast or anticipated public flogging.“The Level of Service Inventory-Revised(tm) (LSI-R(tm)) is a quantitative survey of offender attributes and their situations relevant to level of supervision and treatment decisions. Designed for ages 16 and older, the LSI-R(tm) helps predict parole outcome, success in correctional halfway houses, institutional misconducts, and recidivism.”[FN203] The widely accepted LSI-R(tm) contains the following scales: Criminal History, Education/Employment, Financial, Family/Marital, Accommodation, Leisure/Recreation, Companions, Alcohol/Drug Problems, Emotional/Personal, Attitudes/Orientation.[FN204] The most important of these factors are labeled the Big Four: antisocial attitudes, antisocial associates, antisocial behavioral history, and antisocial personality.[FN205] JCP would provide specific deterrent value, associate an offender's companions with severe pain, change some attitudes and demonstrably affect behavior. JCP would not adversely affect ongoing education and employment, finances, family or current accommodations as much as imprisonment.Incredibly, there are no rigorous studies or statistics about people who change their thought patterns, behavior and criminal lifestyle after soul-searching in prison.[FN206] Obstacles to rational evaluation increase when prisoners are released years after the imposition of punishment and enter a large population of citizens. It is very difficult to perform long-term follow-up studies evaluating the efficacy of punishments, but public JCP will be easier to study than incarceration or parental corporal punishment.[FN207] These assessment difficulties suggest the greater ability of those at the community level to apply effective punishment. Punishment administered at the family level also benefits from this familiarity, but lacks the rationality, publicity and accountability of JCP and hence more often results in misuse due to emotional components.Brain research is in the process of confirming the deterrent effects of justly applied JCP of sane adults. Neurologically, pain is extremely complex. Functional MRI (fMRI) and EEG studies of adults in pain fairly recently found previously unknown neural mechanisms and brain activity patterns. Researchers can now determine individual sensitivity to pain based on objective brain, pain or neurologic fMRI “signatures” rather than self-reporting.[FN208] During brain scans, the same areas of the brain activate or “light up” with both physical pain and social rejection.[FN209] Deterrence in the legal sense is explained in part by what eminent scientists now call “anticipatory brain activity,”[FN210] and the mirror neural systems facilitating “synaesthesia for pain,” which allow a person to experience another's pain as if it were their own.[FN211] Clearly, scientific understanding will improve the justice and effectiveness of JCP. Adult criminals can begin repaying their debts to society by serving as experimental subjects during lawful JCP, in full accordance with existing standards for the protection of human subjects in experiments and in the only ethical manner available to scientists studying very high levels of induced pain and pain management generally.IX. Different PerspectivesA. International AgreementsInternational agreements do not stand in the way of JCP in the United States. U.S. ratification of the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment contained reservations that “cruel, inhuman or degrading” treatment means such treatment violates the U.S. Constitution under the Fifth, Eighth and Fourteenth Amendments.[FN212] As of 1998, no domestic or international courts found caning to be “torture.”[FN213] Most criticism of JCP under international treaties or otherwise labels JCP as “torture” or “barbaric” and then proceeds in shallow fashion to condemn JCP on a definitional basis without regard to effectiveness, circumstances, economics, science or the horrors of prison. As with some aspects of international law, opposition to JCP reflects Eurocentric and Western bias against time-honored practices in favor of a questionable Western invention, the penitentiary. The latest Western invention, chemical castration of sexual predators, includes significant adverse side-effects and seems to be a high-tech way of avoiding the personal and legal concerns of simpler, less expensive, more effective but permanent surgical castration.[FN214] The value of JCP at the community level refutes the idea that one law or treaty regarding JCP of adults should govern the entire world. The United States has, for example, catastrophic levels of incarceration, high rates of drug use, by far the highest gun ownership rate in the world, and any number of other unique circumstances.B. Public PerceptionAmerican attitudes about crime and incarceration are deep-seated, heavily influenced by the media, persistently erroneous in some ways, often vindictive and difficult to change.[FN215] Perceptions of generous criminal constitutional rights frustrate many Americans. Penal systems evolve very slowly in stable nations.[FN216] Many believe the myth that prisoners have it easy[FN217] or that crime rates are rising when they have actually been falling for about 20 years.[FN218] The public is very strongly attached to the principle of less eligibility: they want prison life to be worse than the lifestyle enjoyed by the poorest law-abiding citizens. Some want prison to be worse than it now is. The “Hortonization” of crime, referring to the Willie Horton attack ad shown before the 1988 presidential election, took about 125 years, the years since Emancipation. That powerful 1988 portrayal of an African American criminal for political purposes is widely decried by civil rights advocates.The restricted visibility of punishment keeps the public ignorant and apathetic in many ways. Publicized criminal trials show silent defendants in regular clothing, defended by lawyers subject to confidentiality. Juvenile proceedings are kept confidential, adult defendants often do not testify, evidence at trial is screened for admissibility, prisons are secluded with very little publicity, fines are paid from confidential accounts, probationers and parolees display no signs of their status, prisoners do not talk much about their time in prison, and the National Crime Information Center (NCIC) database restricts access. Many voice opinions about evidence they never saw or heard. Most offenders in prison are forgotten. Only a handful of visitors see the prison interior. After incarceration, we encourage prisoners to make a quiet re-entry. Even the increasingly accepted forms of JCP, chemical and physical castration, are hidden from the eyes of the people.Functionally, American prisons are the end stage of an elaborate, entrenched and rule-bound criminal justice system, completely subject to the output of, but unable to change, the earlier stages. Prisons reflect changes in society, but it is difficult to change society and massive institutions. “Punishment is the one policy that is never discredited by its failure to achieve its stated objectives. If it fails to meet its goals, the only reason is that there is not enough of it.”[FN219] Increasing the length of sentences has little deterrent effect, but from 1990 to 2009 the average prison sentence increased 36% in length.[FN220] As a society, we do not often consider JCP under constitutional protections or distinguish JCP from torture, oppression, slavery, colonialism, child abuse, sexual perversion or Hollywood's depiction of whipping.C. Racial DisparitiesAmericans of all political beliefs are unaware that in the antebellum era, white people were the outlaws and blacks were considered very safe[FN221]—the opposite of the public perception today. For an antebellum physician, who often travelled isolated roads at night, “the sudden appearance of a white man generally excited some apprehension with regard to personal safety, but the sight of a black man was always cheering, and made him feel safe.”[FN222] Statistics from the antebellum era show minimal involvement of the formal legal system in the everyday lives of slaves, as reflected in the small number of indictments and almost zero incarceration as punishment. Slaves were kept away from cities, gambling, excessive alcohol and drug use, saloons, status challenges and questionable companions, made to work very hard with their friends and families, lived in a cashless economy, their social and spiritual lives were centered on isolated plantations, and discipline was privately applied at the ownership level. Slaves were highly valued as workers. The profound turnaround in perceived criminal threat, from slaves to Willie Horton, proves criminality is not due to race, but to culture, laws, economic forces, socialization and discipline—and above all age and gender. The majority of slaves whipped were from the exact same age and gender cohort that now goes to prison. Many in that cohort today internalize racism and wrongly believe their race is more prone to criminal activity.As stated above, the states of the old Union incarcerate significantly greater percentages of African Americans compared to the percentage of whites incarcerated—about twice as many—than the states of the old Confederacy.[FN223] The abolition of JCP did not usher in an era of equal treatment in the use of incarceration on either side of the Mason-Dixon Line. Eventually, the supposed colorblind administration of justice without JCP culminated in huge racial disparities in America's correctional population, disproving the inexorable forward march of racial and social progress.Current criminal justice inequities regarding people of color would not immediately disappear with a change in punishment, but the public could then vividly visualize the problem, which would be impossible to ignore and much more persuasive in every direction than statistics, speeches, documentaries, websites, books and essays. Racialized corporal punishment has been completely replaced by the racialized punishment of prison—and prison is far worse. Each punishment procedure is race-neutral. Disparate results today arise from events and conditions such as legislation, socio-economic factors, arrests, prosecutions, trials and judgments preceding the actual punishment.D. Gender DisparitiesToday, about 93% of U.S. prison inmates are male,[FN224] reflecting that gender's inherent physical risks to women and children. Women and children suffer from abuse and violence at the hands of men much more often than the reverse. For many years, American culture suppressed public discussion of wife-beating.[FN225] The World Health Organization spoke on the issue of domestic violence and recommended in 2005 that, “those convicted need to be appropriately punished. Flexible sentencing or alternative sanctions should be explored, where possible, to deter further violence.”[FN226] Due to cultural values in nations currently utilizing JCP, wife-beating is not often punished with JCP anywhere in the world.The hazardous physical imbalance between genders can be offset with JCP in the traditional form of whipping and physical or chemical castration for rapists. JCP offers to lessen the indirect social costs of mass incarceration, which are felt by women and children in the form of lowered income and family disruption.X. An Argument for “Pure” PunishmentIn Wilson v. Seiter, Justice Scalia, quoting Judge Posner, defined punishment as a “deliberate act intended to chastise or deter.”[FN227] From a legal perspective, JCP is pure directed punishment, and does not include unrelated and varying prison conditions, brutalities, perverse socialization and other experienced prison and even post-prison indignities. JCP avoids most of the “extra-juridical elements and personnel” Foucault observed that complicate long prison terms and put power in the hands of administrators instead of judges.[FN228] Cruel prison conditions are unrelated to the original crime, because the sentence is for “time” to be served, but the actual conditions and ability to endure them vary greatly. Constitutional violations can entrench in penal institutions. Much depends upon a particular prisoner's circumstances, prison behavior and mental status.[FN229]Contrary to what official written prison sentences say, imprisonment “to hard labor” barely exists anymore. Most prisoners are sidelined from strenuous productive work by restrictive legislation. While the Thirteenth Amendment means the state owns the value of the prisoners' labor, Congress and most states do not allow themselves or private businesses to effectively use the full value of that labor, despite the benefits of jobs for prisoners and all directly concerned interests.[FN230]Executed under regulated conditions in public, in the presence of the sentencing judge with medical supervision, JCP does not subject the defendant to any unnecessary, wanton or brutal punishment after imposition and execution of the sentence.[FN231] Compared to the vagaries of imprisonment, JCP allows courts to strictly control the punishment and any follow-up punishment necessary to extinguish the criminal behavior.JCP is more effective punishment than prison in relation to the goals of deterrence, rehabilitation, retribution and economy. Congress in 1984 abolished parole in the federal system and said “imprisonment is not an appropriate means of promoting correction and rehabilitation.”[FN232] JCP would facilitate and speed up the indeterminate sentence in conjunction with parole or probation. In terms of perceived retribution, JCP is superior to incarceration. With regard to government expenses, JCP is exponentially more affordable. JCP is pure punishment also in the sense that it directly punishes the offender, while modern incarceration indirectly but strongly punishes taxpayers, victims seeking restitution, families, communities and others.The idea of JCP appalls many people and offends their sense of decency, especially those who will never go to prison. Strong reactions to the idea of JCP reflect its superior deterrent value. The emotional initial response against JCP stems from the ingrained, erroneous belief in continual social progress, tacit acceptance of the invisible ineffective paradigm and the futile goal of removing degradation from punishment. We lack appreciation for the ongoing social and economic disasters of massive imprisonment; associate JCP with past injustices, slavery,[FN233] racism[FN234] and sexual perversion, and somehow believe large government institutions can manage society. We ignore or do not know about the successful use of JCP in American history and in other cultures. We need new utilitarian calculations.Attachment to the prison paradigm is so strong that even Justice Scalia in 1989 was a “faint-hearted originalist” on the subject of JCP, and cast doubt on any judge's ability to uphold flogging.[FN235] But by 1994, Justice Scalia opined the probable constitutionality of JCP[FN236]—and that was before an additional 800,000 prisoners caused the U.S. to be called “a carceral state” and Justice Scalia went apoplectic about releasing up to 46,000 California felons from prison.[FN237] The Eighth Amendment “is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.”[FN238] This means that with regard to massive brutal incarceration on the scale now experienced in the U.S., the Eighth Amendment does not preclude JCP or other rational alternative punishments.Opponents of JCP argue it has been rejected by contemporary society, all U.S. states and Western democracies. Support for JCP is founded upon the realization that prison “is dangerous when it is not useless,”[FN239] counterproductive and wasteful of money and people. Proponents will insist on the original meaning of the Eighth Amendment, endorsement by the four presidents carved into Mt. Rushmore and the Bible, and say the Supreme Court rejected imprisonment for the California felons released pursuant to Brown v. Plata.[FN240]Disputes arising out of just six words adopted over 220 years ago are bound to be contentious, but at least we have those words in a strong Constitution.XI. ConclusionFor our eternal Constitution and world history, the years of JCP disuse in America were few. The effectiveness and efficiency of JCP in deterring crime, allowing rehabilitation and achieving visible retribution will eventually decide its fate in the U.S. as an additional punishment option. Only the passage of JCP legislation for a period of time sufficient to establish its benefits and disadvantages in our society fairly tests this mode of punishment in light of scientific advancements and social developments during its disuse.[FN241] With the enormous challenges and limitations associated with all other forms of punishment, a jurist could not easily bar a traditional weapon in the fight against crime, prison overcrowding, massive incarceration and now intractable pain. Originalists on the Supreme Court would uphold reasonable JCP legislation. Justices not strictly bound by the original meaning of the Eighth Amendment are still committed by a string of cases limiting, criticizing or condemning incarceration and capital punishment, and cannot say the current incarceration crisis represents societal progress. Beccaria's famous theorem, the conclusion in An Essay on Crimes and Punishments, calls for the justice of public JCP: “That a punishment may not be an act of violence, of one, or of many against a private member of society, it should be public, immediate and necessary; the least possible in the case given; proportioned to the crime, and determined by the laws.”[FN242]Prison Overcrowding Cure: Judicial Corporal Punishment of Adults[FN1] B.A. with honor, Auburn University, 1973 (Psychology); J.D., Vanderbilt Law School, 1977; Practicing attorney since 1977; author, Prison & Slavery — A Surprising Comparison (2010).[FN2] Brown v. Plata, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011).[FN3] Judicial corporal punishment of adults is hereinafter abbreviated “JCP,” referring most commonly to public whipping, flogging or caning in a structured manner, but also other applications of pain or amputation, pursuant to the final judgment of a court or as otherwise sanctioned by law.[FN4] In 1983, Graeme Newman advocated JCP in his book Just and Painful — A Case for the Corporal Punishment of Criminals (1983). The second edition in 1995 was still ahead of its time given the 750,000 to 800,000 additional prisoners, associated financial, economic and social costs, and additional misery caused by massive incarceration.[FN5] Incarceration is destroying African American communities, families and relationships, as exemplified by the “Million Dollar Block.” Columbia University, Graduate School of Architecture, Planning and Preservation, Spatial Information Design Lab — Architecture and Justice Project, available at SPATIAL INFORMATION DESIGN LAB (“In many places the concentration [of incarcerated residents] is so dense that states are spending in excess of a million dollars a year to incarcerate the residents of single city blocks.”); Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271 (2004).[FN6] International Centre for Prison Studies, Entire World — Prison Population Rates per 100,000 of the National Population, available at World Prison Brief.[FN7] William Eden, Principles of Penal Law, ch. VI — Imprisonment, § 1 (1771).[FN8] Concentration Camps during the South African /Boer War, 1899–1902 available at http://library.stanford.edu/depts/ssrg/africa/boers.html.[FN9] Hilda Nissimi, Mau Mau and the Decolonisation of Kenya, 8 J. Military & Strategic Stud. (2006), available at http://www.jmss.org/jmss/index.php/jmss/article/view/131/147.[FN10] Toyosaburo Korematsu v. U.S., 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944) (Roberts, J., Murphy, J. & Jackson, J., dissenting). Cf. Hirabayashi v. U.S., 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943).[FN11] Brown, 131 S. Ct. 1910. California must lower prison population to 137.5% of designed capacity by releasing thousands of prisoners for failure to provide constitutionally mandated levels of healthcare in its overcrowded & underfunded prison system).[FN12] One in 100: Behind Bars in America, 2008, at 21, Public Safety Performance Project, The Pew Center on the States, Pew Charitable Trusts, available at http://www.pewcenteronthestates.org/uploadedFiles/One%20in%20100.pdf [hereinafter One in 100].[FN13] William J. Stuntz, The Collapse of American Criminal Justice 40 (2011).[FN14] Whitney S. Wiedeman, Don't Spare the Rod: A Proposed Return to Public, Corporal Punishment of Convicts, 23 Am. J. Crim. L. 651 (1995–1996) (good review of Michael Fay prosecution controversy and consequences referred to herein).[FN15] Misplaced Priorities: Over Incarcerate, Under Educate — Excessive Spending on Incarceration Undermines Educational Opportunity and Public Safety in Communities, NAACP (2d ed. May 2011) (California, for example, now spends much more on corrections than education).[FN16] George Ryley Scott, The History of Corporal Punishment 91–107 (1968).[FN17] The Rule of St. Benedict, ch. 30, available at http://www.osb.org/rb/text/rbemjo1. Pope John Paul II and Mother Teresa used flagellation to humble themselves for spiritual benefit.[FN18] English Soncino Babylonian Talmud, Makkos 2a-24b.[FN19] Israel Abrahams, Jewish Life in the Middle Ages 7 (1896).[FN20] Bet Din and Judges — In Jewish Law — Origins, Jewish Virtual Library, available atBet Din and Judges.[FN21] Abrahams, supra note 19, at 7.[FN22] Laurie A. Gould & Matthew Pate, Discipline, Docility and Disparity, 50 Brit. J. Criminology 185, 190 (2010).[FN23] International Statistics on Crime and Justice, European Institute for Crime Prevention and Control — Affiliated with the U.N. Office on Drugs and Crime (Stefan Harrendorf et al. eds., 2010), available at http://www.unodc.org/documents/data-and-analysis/Crime-statistics/International_Statistics_on_Crime_and_ Justice.pdf [hereinafter International Statistics].[FN24] Robert Winslow, A Comparative Criminology Tour of the World — Incidence of Crime, available at http://www-ohan.sdsu.edu/faculty /rwinslow/asia_pacific/saudi_arabia.html; Crime Statistics @ International statistics: Compare countries on just about anything! NationMaster.com.[FN25] International Statistics on Crime and Justice, European Institute for Crime Prevention and Control — Affiliated with the U.N. Office on Drugs and Crime (Stefan Harrendorf et al. eds., 2010), available at http://www.unodc.org/documents/data-and-analysis/Crime-statistics/International_Statistics_on_Crime_and_Justice.pdf [hereinafter International Statistics].[FN26] Stephen Nicholas, The Care and Feeding of Convicts, in The Convict Workers: Reinterpreting Australia's Past 181 (Stephen Nicholas ed., 1988).[FN27] Bernadette M. Fitzgibbon et al., Shared Pain: From Empathy to Synaesthesia, 34 Neurosci. & Behav. Rev. 500 (2010).[FN28] International Centre for Prison Studies — World Prison Brief, available at World Prison Brief data.[FN29] International Centre for Prison Studies, supra note 27.[FN30] Highlights by Patrick A. Langan & David J. Levin, BJS Statisticians, U.S. Dept. of Justice, Office of Justice Statistics, Recidivism of Prisoners Released in 1994, NCJ 193427 (June 2002).[FN31] Alcohol Consumption Data — app. III, Global Status Report on Alcohol and Health 273, World Health Organization (2011).[FN32] See Michael Jacobson, Downsizing Prisons — How to Reduce Crime and End Mass Incarceration 199 (2005).[FN33] Elizabeth M. Tullio, Chemical Castration for Child Predators: Practical, Effective, and Constitutional, 13 Ch. L. Rev. 191, 206–07 (2009); John F. Stinneford, Incapacitation Through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity, 3 U. St. Thomas L.J. 559 (2006); Representing Sex Offenders and the “Chemical Castration Defense,” 34 Am. Jur. Trials 1.[FN34] John F. Stinneford, Incapacitation Through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity, 3 U. St. Thomas L.J. 559, 574 (2006).[FN35] Deuteronomy 25:2-3: “If the guilty man deserves to be beaten, the judge shall make him lie down and have him flogged in his presence with the number of lashes his crime deserves, but he must not give him more than forty lashes. If he is flogged more than that, your brother will be degraded in your eyes.” See also Proverbs 10:13: “[A] rod is for the back of him who lacks sense.” Proverbs 19:29: “[F]logging for the backs of fools.” Proverbs 26:3: “A whip for the horse, a bridle for the ass, and a rod for the back of fools.” John 2:15 (Jesus once used a whip). Other pro-punishment passages in the Bible refer specifically to parental corporal punishment, not JCP.[FN36] “Swift justice, fair hearings, elimination of third-degree brutality, and respect for the dignity of the criminal as a man would comprise a high ideal even for modern times.” H.H. Shires & P. Parker, 2 The Interpreter's Bible — Exposition of the Book of Deuteronomy 479 (1953).[FN37] Brown v. Howard, 14 Johns. 119, 1817 WL 1459 (N.Y. Sup 1817); Bangs v. Little, 2 F. Cas. 587, No. 839 (D. Me. 1839). Non-abusive parental corporal punishment is still legal in all 50 states.[FN38] Herbert Arnold Falk, Corporal Punishment — A Social Interpretation of Its Theory and Practice in the Schools of the United States 22–33 (1941).[FN39] Falk, supra note 38.[FN40] Journals of the Continental Congress, Articles of War — Sept. 20, 1776, Section XVIII — Art. 3: “No person shall be sentenced to suffer death, except in the cases expressly mentioned in the foregoing articles; nor shall more than one hundred lashes be inflicted on any offender, at the discretion of a court-martial.” Articles of War — June 30, 1775, Art. 51 limited JCP to 39 lashes. Eugene D. Genovese, Roll, Jordan, Roll — The World the Slaves Made 308 (1974).[FN41] Thomas Jefferson, A Bill for Proportioning Crimes and Punishments § 14 (castration; cartilage), § 15 (maiming), § 14 (witchcraft) (1778), available at Thomas Jefferson, A Bill for Proportioning Crimes and Punishments.[FN42] Geo. Washington to President of Continental Congress, Feb. 3, 1781 available at American Memory from the Library of Congress.[FN43] U.S. Const. amend. V. Several modern chemical or surgical castration statutes give the word “limb” more than mere historical meaning. For any who consider the significance of serial position, the Fifth Amendment is three ahead of the Eighth Amendment.[FN44] Cesare Beccaria, An Essay on Crimes and Punishments, ch. XX, XXII, XLVII (1764; Anon. English Translation, 1767).[FN45] Beccaria, supra note 44, ch. XLVII - Conclusion.[FN46] 4 Blackstone Commentaries on the Laws of England ch. 29 (1765–1769).[FN47] The English Bill of Rights was enacted on Dec. 16, 1689.[FN48] Laurence Claus, Methodology, Proportionality, Equality: Which Moral Question Does The Eighth Amendment Pose?, 31 Harv. J.L. & Pub. Pol'y 35, 40 (2008), citing 4 Wm. Blackstone, Commentaries, 370–73 (1769).[FN49] Anthony F. Granucci, Nor Cruel and Unusual Punishments Inflicted: The Original Meaning, 57 Cal. L. Rev. 839, 840–42 (1969). The authors of the Bill of Rights intended to prohibit “manifestly cruel and unusual as burning at the stake, crucifixion, breaking on the wheel, or the like.” In re Kemmler, 136 U.S. 436, 446, 10 S. Ct. 930, 34 L. Ed. 519 (1890); or “the rack, the thumbscrew, the iron boot, the stretching of limbs and the like.” O'Neil v. State of Vermont, 144 U.S. 323, 339, 12 S. Ct. 693, 36 L. Ed. 450 (1892) (Fields, J., dissenting).[FN50] Annals of Cong. 754 (1789), quoted in Furman v. Georgia, 408 U.S. 238, 244, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Douglas, J., concurring).[FN51] Opponents of JCP concede this. See Michael P. Matthews, Caning and the Constitution: Why the Backlash Against Crime Won't Result in the Back-Lashing of Criminals, 14 N.Y.L. Sch. J. Hum. Rts. 571, 590–92 (1998) (author links post-Michael Fay interest in caning to Old South racism; argues unconvincingly JCP violates Eighth Amendment & international law; blurs distinction between JCP and corporal punishment as prison discipline).[FN52] Act of April 30, 1790, ch. 9, 1 Stat. 112–117, quoted in Ex parte Wilson, 114 U.S. 417, 427, 5 S. Ct. 935, 29 L. Ed. 89 (1885).[FN53] Harmelin v. Michigan, 501 U.S. 957, 980, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (life sentence without possibility of parole for possession of 672 grams of cocaine not cruel and unusual).[FN54] Michaelson v. Denison, 3 Day 294, 17 F. Cas. 258, No. 9523 (C.C.D. Conn. 1808).[FN55] Ex parte Wilson, 114 U.S. at 427.[FN56] See U.S. Const. amend. VIII. The absence of any such decisions was noted in State v. Cannon, 55 Del. 587, 596, 190 A.2d 514, 518–19 (1963). JCP is far different than CP as prison discipline; the authority for JCP is from the court, under the law, the punishment is finite, structured and public, and after most sentences of JCP, the convicted defendant would be free to go.[FN57] Foote v. State, 59 Md. 264, 1883 WL 4110 (1883) (whipping as punishment for crime of wife-beating not cruel and unusual); Garcia v. Territory of New Mexico, 1 N.M. 415, 418, 1869 WL 2421 (1869) (30 to 60 lashes for stealing cattle not cruel and unusual because “cruel … was no doubt intended to prohibit a resort to the process of torture”); U.S. v. Collins, 25 F. Cas. 545, No. 14836 (C.C.D. R.I. 1854) (without malice, flogging as punishment not unusual); Commonwealth v. Wyatt, 27 Va. 694, 6 Rand. 694, 1828 WL 860 (1828) (punishment by stripes not unusual). The conviction of a Mississippi overseer found guilty of violating a statute prohibiting cruel or unusual punishment of a slave was upheld in Scott v. State, 31 Miss. 473, 1856 WL 2627 (1856). Alabama had a similar statute. Turnipseed v. State, 6 Ala. 664, 1844 WL 301 (1844).[FN58] Weems v. U.S., 217 U.S. 349, 378, 30 S. Ct. 544, 54 L. Ed. 793 (1910), citing Foote v. State, 59 Md. 264, 1883 WL 4110 (1883).[FN59] State v. Cannon, 55 Del. 587, 190 A.2d 514 (1963) (decided in the wake of Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), which clearly made the Eighth Amendment applicable to the states through the Fourteenth Amendment and the incorporation doctrine).[FN60] Cannon, 55 Del. at 596.[FN61] As Justice Douglas observed in Furman v. Georgia, punishment is known to increase in severity as social status diminishes. Furman, 408 U.S. at 255 (Douglas, J., concurring); Gould & Pate, supra note 22, at 196 (JCP statistically correlated with economic disparity throughout the world). See Acts 22:25–29.[FN62] Michel Foucault, Discipline & Punish: The Birth of the Prison 59–65 (1975; 2nd Vintage Ed. 1995).[FN63] Foucault, supra note 62, at 59–65.[FN64] 5(1) London Lancet 88 (1847).[FN65] New World Encyclopedia — Corporal Punishment, available at Corporal punishment.[FN66] George Reid Andrews, Afro-Latin America — 1800-2000, at 148–49 (2004).[FN67] George Reid Andrews, Afro-Latin America — 1800-2000, at 148–49 (2004).[FN68] Joseph L. Love, The Revolt of the Whip x–xi. (2012).[FN69] See generally Myra C. Glenn, Campaigns Against Corporal Punishment — Prisoners, Sailors, Women and Children in Antebellum America (1984).[FN70] J. Thorsten Sellin, Slavery and the Penal System 30, 177 (1976).[FN71] Georg Rusche & Otto Kirchheimer, Punishment and Social Structure 58–62 (Transaction ed., 2003) (1939).[FN72] Rusche & Kirchheimer, supra note 71, at 53–58.[FN73] Glenn, supra note 69, at 103–26.[FN74] The mentally ill compose some 16% of the modern U.S. prison population. Paula M. Ditton, Bureau of Justice Statistics, Special Report — Mental Health and Treatment of Inmates and Probationers (1999), available at http://www.bjs.gov/content/pub/pdf/mhtip.pdf. The mentally ill were always represented in criminal populations throughout history. “In Sixteenth Century England, one prescription for insanity was to beat the subject “until he had regained his reason.” Albert Deutsch, The Mentally Ill in America 13 (1937). In America, “the violently insane went to the whipping post and into prison dungeons or, as sometimes happened, were burned at the stake or hanged,” and “the pauper insane often roamed the countryside as wild men and from time to time were pilloried, whipped, and jailed.” Joint Commission on Mental Illness and Health, Action for Mental Health 26 (1961). As stated by Dr. Isaac Ray many years ago: “Nothing can more strongly illustrate the popular ignorance respecting insanity than the proposition, equally objectionable in its humanity and its logic, that the insane should be punished for criminal acts in order to deter other insane persons from doing the same thing.” Isaac Ray, Treatise on the Medical Jurisprudence of Insanity 56 (5th ed. 1871). See also Robinson, 370 U.S. at 668 (Douglas, J., concurring).[FN75] Foucault, supra note 62, at 19, 25.[FN76] Foucault, supra note 62, at 21–23, 247–48.[FN77] Beatrice Heuser, The Evolution of Strategy — Thinking War from Antiquity to the Present 158 (2010).[FN78] Rusche & Kirchheimer, supra note 71, at 100.[FN79] Patricia O'Brien, The Prison on the Continent: Europe, 1865–1965, in The Oxford History of the Prison: The Practice of Punishment in Western Society 199, 213–14 (Norval Morris & David J. Rothman eds., 1995). In time, Stalin's massive remote state slavery fully justified the pessimism of the Russian peasants. Centralization of punishment generally carries disadvantages for the punished and their families; it is administratively convenient for the punisher.[FN80] Global Initiative to End all CP of Children, India — Country Report, available at Welcome to the Global Initiative.[FN81] Rudolph Peters, Crime and Punishment in Islamic Law — Theory and Practice from the Sixteenth to the Twenty-first Century 109 (2005).[FN82] John Briggs et al., Crime and Punishment in England — An Introductory History 80 (1996).[FN83] Hypatia Bradlaugh Bonner, The Gallows and the Lash: An Enquiry into the Necessity for Capital and Corporal Punishments 44, app. 2 (1897).[FN84] Lawrence Sondhaus, Navies in Modern World History 29 (2004).[FN85] It was abolished under the Labour Party. Margaret Thatcher supported in the House of Commons a 1961 criminal justice bill providing JCP for those under 21; it was said to have overwhelming public support. Hansard HC Standing Committee B [551–600], available at HC Standing Committee [Criminal Justice Bill] (supports corporal punishment); see also 230 HL Deb 01 May 1961, 230 cc1082-170, available at CRIMINAL JUSTICE BILL.[FN86] Cannon, 55 Del. at 596.[FN87] Carolyn Strange, The Undercurrents of Penal Culture: Punishment of the Body in Mid-Twentieth Century Canada, 19 Law & Hist. Rev. 343, 382 (2001).[FN88] U.S. v. Blake, 89 F. Supp. 2d 328, 342–43 (E.D. N.Y. 2000).[FN89] Jones v. Robbins, 74 Mass. 329, 348, 8 Gray 329, 1857 WL 5869 (1857) (solitary confinement in new state prison practically stopped JCP, which was later abolished by statute).[FN90] Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. Rev. 881 (2009). See, e.g., Brown v. Plata, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011); Austin v. Hopper, 15 F. Supp. 2d 1210 (M.D. Ala. 1998) (considers chain gang, “hitching post,” visitation & toilet facilities).[FN91] Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 611 (1996). Anonymity could be reversed with internet publication of punishment video.[FN92] Glenn, supra note 69, at 58–59.[FN93] Ex parte Wilson, 114 U.S. at 427; 10 U.S.C.A. § 855. Art. 55. Cruel and unusual punishments prohibited, passed in 1956, prohibits flogging and other punishments in the Uniform Code of Military Justice.[FN94] Stephen Schwartz, Brotherhood of the Sea: The Sailors' Union of the Pacific, 1885–1985, at 3–4 (1986).[FN95] A Plea in Favor of Maintaining Flogging in the Navy, available at http://www.history.navy.mil/library/online/flogging.htm.[FN96] Brief History of Punishment by Flogging in the U.S. Navy, available at http://www.history.navy.mil/library/online/flogging.htm.[FN97] 30 Stat. 761; the prohibition is now 18 U.S.C.A. § 2191 — Cruelty to seamen.[FN98] Delaware Public Archives, available athttp://archives.delaware.gov/100/other_stories/Enforcing%20the%20Law.shtml.[FN99] A slave lost value when whip marks left permanent scars. See Louis Hughes, Thirty Years a Slave: From Bondage to Freedom: The Institution of Slavery as Seen on the Plantation and in the Home of the Planter 8 (1897), available at Documenting the American South homepage; Dick v. State, 30 Miss. 631, 1856 WL 2565 (1856) (slave who confessed to rape of white woman given new trial); State v. Gilbert, 2 La. Ann. 244, 1847 WL 3357 (1847) (at least three trials required for slave who confessed under coercion to attempted rape of white woman).[FN100] A Missouri statute provided that, “every person who shall cruelly or inhumanly torture, beat, wound or abuse any slave in his employment or under his charge, power or control, whether belonging to himself or another, shall, on conviction, be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment.” State v. Peters, 28 Mo. 241, 1859 WL 6600 (1859); McCoy v. McKowen, 26 Miss. 487, 1853 WL 3710 (1853); Gillian v. Senter, 9 Ala. 395, 1846 WL 254 (1846) (owner sued overseer in trespass for excessive punishment); Helton v. Caston, 18 S.C.L. 95, 2 Bail. 95, 1831 WL 1475 (Ct. App. 1831) (owner sued lessee for beating slave contrary to contract).[FN101] Act to Regulate Relation of Master & Apprentice, § 3, Black Code of Mississippi, Dec. 2, 1865, available at Online Library of Liberty.[FN102] Edward McPherson, Political History of the USA During the Period of Reconstruction 39 (1871).[FN103] McPherson, supra note 102, at 36–37.[FN104] Civil Rights Act of 1966, 14 Stat. 27–30, § 2, effective April 9, 1866.[FN105] S.R. 153, 39th Congress, 2nd session (reported Feb. 2, 1867).[FN106] H.R. 1080, 39th Congress, 2nd session.[FN107] On Mar. 2, 1867, Congress passed the First Reconstruction Act, and all the Military Districts in the South ordered whipping stopped shortly thereafter. Public — No. 85, in General Orders, No. 26, Headquarters Dep't of the South, Charleston, S.C., March 8, 1867, in McPherson, supra note 102, at 200, 201.[FN108] David M. Oshinsky, Worse Than Slavery — Parchman Farm and the Ordeal of Jim Crow Justice (1996); Douglas A. Blackmon, Slavery By Another Name: Re-Enslavement of Black Americans from the Civil War to World War II (2008).[FN109] U.S. Dept. of Justice, Bureau of Justice Statistics, Historical Corrections Statistics in the United States, 1850–1984, tbl.3-2.[FN110] Yancey Hall, U.S. Civil War Prison Camps Claimed Thousands, National Geographic News, July 1, 2003, available atU.S. Civil War Prison Camps Claimed Thousands.[FN111] 14, pt. 3 Federal Writers' Project, Slave Narratives: Henry D. Jenkins, South Carolina Slave Narratives 23–26; Mrs. Amanda Jackson, Georgia Slave Narratives, pt. 2, 292; Lucindia Washington, Alabama Slave Narratives, 410; Aunt Mary Ferguson, Georgia Slave Narratives, pt.1, 329. All 2,300 Slave Narratives available at About this Collection - Born in Slavery: Slave Narratives from the Federal Writers' Project, 1936-1938. See Gleissner, supra note 1, at 157–70.[FN112] See Gleissner, supra note 1, at 106.[FN113] The most common whips were un-tanned leather 18” long and 2” wide attached to a wooden handle or a 3-foot whip, not the bull-whip shown in the movie Roots. John Hope Franklin & Loren Schweninger, Runaway Slaves — Rebels on the Plantation 239 (1999).[FN114] Orlando Patterson, Slavery and Social Death — A Comparative Study 4 (1982).[FN115] Prison & Jail Incarceration Rates 154 tbl.4 (2005), by White Incarceration Rates, Rates of Incarceration per 100,000 Population, in Marc Mauer & Ryan S. King, Uneven Justice: State Rates of Incarceration By Race and Ethnicity, The Sentencing Project (2007), available at http://www.sentencingproject.org [hereinafter Incarceration Rates].[FN116] Incarceration Rates, supra note 115, at 154 tbl.4. By 2010, those rates still showed comparable relative racial disparities. U.S. 2010 Decennial Census, % of African American (vs. White) Males (ages 18–64) Incarcerated in State and Local Correctional Facilities.[FN117] George Washington in the Continental Army, supra notes 40 & 42; Thomas Jefferson in a statute, supra note 41; Abraham Lincoln as the ringleader in the corporal punishment of a Springfield, Illinois wife-beater, infra note 119–20; and Theodore Roosevelt in a message to Congress in 1904, infra note 124.[FN118] Robert Calvert, Criminal and Civil Liability in Husband-Wife Assaults, in Violence in the Family (Suzanne K. Steinmetz & Murray A. Straus eds., 1974).[FN119] William H. Herndon & Jesse W. Weik, Herndon's Life of Abraham Lincoln 151–52 (1889).[FN120] Herndon & Weik, supra note 119, at 151–52.[FN121] N.Y. Times, Jan. 13, 1895, available at THE WHIPPING POST IN MARYLAND; It Has Been an Institution in that State Twelve Years..[FN122] N.Y. Times, supra note 121.[FN123] N.Y. Times, supra note 121. Isolated anecdotes are not scientific, but patterns can be found in them. Anti-JCP books have been written, full of anecdotes emphasizing the worst aspects. See George Ryley Scott, The History of Corporal Punishment (1968).[FN124] Theodore Roosevelt, State of the Union Message, Dec. 6, 1904, available at The American Presidency Project.[FN125] Beccaria, supra note 44, ch. XX — Of Acts of Violence.[FN126] State v. Nipper, 166 N.C. 272, 81 S.E. 164, 166 (1914).[FN127] Wilkerson v. State of Utah, 99 U.S. 130, 135–36, 25 L. Ed. 345, 1878 WL 18292 (1878) (death by public firing squad not cruel and unusual).[FN128] Furman, 408 U.S. at 258 (Brennan, J., concurring).[FN129] Thomas M. Cooley, Constitutional Limitations 329–30 (1868). This 1868 book was published the year after Union generals banned corporal punishment of ex-slaves.[FN130] Ex parte Wilson, 114 U.S. at 427–28.[FN131] Claus, supra note 48, at 45.[FN132] Brown, 131 S. Ct. at 1928, quoting earlier cases.[FN133] Ingraham v. Wright, 430 U.S. 651, 659, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977), citing Powell v. State of Tex., 392 U.S. 514, 535, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968) (plurality opinion).[FN134] Ingraham, 430 U.S. at 660, citing U.S. v. Barnett, 376 U.S. 681, 692, 84 S. Ct. 984, 12 L. Ed. 2d 23 (1964); Greene v. McElroy, 360 U.S. 474, 508, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959).[FN135] Weems, 217 U.S. at 373 (15 years' imprisonment and other penalties for falsifying an official document upheld).[FN136] Trop v. Dulles, 356 U.S. 86, 100, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (statute providing expatriation of deserting soldier during wartime in a foreign country exceeds war powers of Congress & violates Eighth Amendment); Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).[FN137] Wiedeman, supra, note 14 (author proposes re-introduction of public JCP for non-capital crimes; argues incarceration too problematic and JCP provides re-integrative shaming without prisonization).[FN138] U.S. v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).[FN139] Harmelin v. Michigan, 501 U.S. 957, 990, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (life sentence without possibility of parole for possession of 672 grams of cocaine not cruel and unusual); “Know Your Rights Disciplinary Sanctions and Punishment,” ACLU National Prison Project available at American Civil Liberties Union (“The law is always evolving.”).[FN140] See Matthews, supra note 51, at 588–89. I disagree with this article, but appreciate the referenced delineation of approaches.[FN141] Ingraham v. Wright, 430 U.S. 651, 659, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977) (upheld educational corporal punishment, leading some to argue the U.S. has its priorities backward compared to abolition of JCP of adults).[FN142] Furman, 408 U.S. at 384 (Burger, C.J., dissenting).[FN143] Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002) (prison guards not entitled to qualified immunity after inmate tied to hitching post for 7 hours without regular water & bathroom breaks); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (beating prisoner with leather strap unconstitutional).[FN144] Lockyer v. Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003) (California's three-strikes law upheld).[FN145] Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), for example, struck down a California statute making mere status as a drug addict a crime.[FN146] See Ala. Code 1975, § 14-3-52 — Punishment — Cruel or excessive punishment; corporal punishment; records to be kept (requires a detailed record of all punishments inflicted by authority of the Board of Corrections).[FN147] In In re Candido, 31 Haw. 982, 1931 WL 2830 (1931).[FN148] In In re Candido, 31 Haw. 982, 1931 WL 2830 (1931).[FN149] In In re Candido, 31 Haw. 982, 1931 WL 2830 (1931) (Banks, J., dissenting).[FN150] Jackson, 404 F.2d at 579.[FN151] Ingraham, 430 U.S. at 669 (upheld educational corporal punishment).[FN152] Harmelin, 501 U.S. at 994–95 (life sentence without possibility of parole for possession of 672 grams of cocaine not cruel and unusual).[FN153] Brown v. Plata, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011) (California's overcrowded prison system did not provide adequate levels of healthcare and mental healthcare, requiring the release of prisoners or other reduction down to 137.5% of designed prison capacity); Coleman v. Plata involved the mental healthcare component, it was consolidated with Brown and one decision rendered for both; both cases are referred to herein as Plata or as Brown v. Plata. Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (deliberate indifference to healthcare during confinement can be cruel and unusual punishment).[FN154] Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (male-to-female transsexual acquired HIV after repeated rapes by male inmates; a prison official's “deliberate indifference” to substantial risk of serious harm to an inmate violates the Eighth Amendment).[FN155] Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).[FN156] Dolovich, supra note 90; Note, Complex Enforcement: Unconstitutional Prison Conditions, 94 Harv. L. Rev. 626 (1981). The scrutiny sometimes involved more mundane issues, as in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (addressed two prison regulations concerning allowed correspondence and necessity of warden's permission to marry).[FN157] Brown, 131 S. Ct. at 1955 (Scalia, J., dissenting).[FN158] The 2009 Chino, California prison riot demonstrates the errors of central control by the judiciary. In Johnson v. California, 543 U.S. 499, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005), the U.S. Supreme Court ruled that California's unwritten practice of racially segregating prisoners in prison reception centers, for purposes of inmate safety in the gang environment, was subject to strict scrutiny, the highest level of constitutional review. The resulting racial integration of prisoners substantially caused the 2009 race riot at Chino, just as integration of double-celled prisoners in Ohio caused the worst prison riot in Ohio history. Justices Thomas and Scalia dissented in Johnson v. California, noting the intractable problems of prison administration.[FN159] Brown, 131 S. Ct. at 1926.[FN160] Prisoners filed countless frivolous lawsuits, more than all federal prosecutions combined in 1995. This lead to the passage of the Prison Litigation Reform Act of 1996, 18 U.S.C.A. §§ 3626 et seq., which puts a lid on most frivolous suits filed by jailbird lawyers, but which also seals off the prison even tighter from scrutiny.[FN161] See Gleissner, supra note 1, at 243–78 (author proposes: repeal or revision of 18 U.S.C.A. §§ 1761 to 62 and comparable state statutes; market-oriented, laissez-faire private prison industries & negotiated labor wages, hours & conditions without government regulation or legal restrictions, except OSHA safety regulations and recovery for permanent injury; only manufacturing goods now made exclusively overseas; with written labor contracts; without compulsion, allowing prisoners to return to general prison population if desired; earnings to be divided between victims, child support, state & prisoner; avoiding evils of convict leasing).[FN162] See generally, Incarceration Reform Mega-Site available at Incarceration Reform Mega-Site (387 correctional related links, most expressing dissatisfaction, challenges or need for reform).[FN163] Steven D. Levitt, The Effect of Prison Population Size on Crime Rates: Evidence From Prison Overcrowding Litigation, 111 Q. J. Econ. 319 (1996).[FN164] Brown v. Plata, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011).[FN165] A Journey into Hell, Economist, Sept. 22, 2012, at 44.[FN166] Strange, supra note 87, at 347.[FN167] Michael Sherman & Gordon Hawkins, Imprisonment in America — Choosing the Future 11 (1983).[FN168] James E. Robertson, The Prison Litigation Reform Act as Sex Legislation: (Imagining) A Punk's Perspective of the Act, 24 Fed. Sent'g Rep. 276 (2012); SpearIt, Manufacturing Social Violence: The Prison Paradox & Future Escapes, 11 Berkeley J. Afr.-Am. L. & Pol'y 84 (2009); Phil Scraton & Jude McCullough, The Violence of Incarceration (2009).[FN169] Robertson, supra note 168.[FN170] Robert W. Fogel & Stanley L. Engerman, Time on the Cross — The Economics of American Negro Slavery 124–25 (1974); Alison Liebling, Suicides in Prison 24 (2003); 1850 U.S. Census. Former slave Ida Blackshear Hutchison recalled, “They say Negroes will not commit suicide.” 2 Ida Hutchison Blackshear, Federal Writers' Project Arkansas Slave Narratives 374.[FN171] “The laws and practices that have established and perpetuated this tragedy deeply offend any sense of common human decency.” Stuart Grassian, Psychiatric Effects of Solitary Confinement (1993), available at Vera Institute (expert witness opinions condensed). Elizabeth Vasiliades, Solitary Confinement and International Human Rights: Why the U.S. Prison System Fails Global Standards, 21 Am. U. Int'l L. Rev. 71 (2005).[FN172] Hutto v. Finney, 437 U.S. 678, 686–87, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978) (punitive isolation with 4 to 11 men in windowless 8′x10′ cells for longer than thirty days in Arkansas prisons constituted cruel and unusual punishment; Justice White in concurrence referred again to notorious ‘Tucker telephone’ used to crank painful electric current through inmates' genitals).[FN173] Ala. Rules Crim. P. 26.8 — Principles of Sentencing.[FN174] See generally Foucault, supra note 62.[FN175] See Gould & Pate, supra note 22.[FN176] Foucault, supra note 62, at 25, 30.[FN177] 18 U.S.C.A. §§ 1761 to 62 prohibit the sale and transportation of prison-made goods across state lines. Each state is free to prohibit the sale of prison-made goods. Most prison-made goods today are only sold to government entities. Governments possess a triple monopoly over prison industries, labor and the sale and purchase of prison-made goods. The resulting uncounted unemployment of prisoners roughly doubles the direct costs of about $25,000 per prisoner per year, because of the lost opportunity costs of the unemployed prisoners. Prisoners are not accurately counted as “unemployed” for statistical purposes, artificially lowering the official unemployment rate.[FN178] See One in 100, supra note 12.[FN179] Magna Carta, 9 Hen. III, ch. 14 (1225) [ch. 20 in original King John version]: “A free man shall not be amerced for a trivial offence, except in accordance with the degree of the offence, and for a serious offence, he shall be amerced according to its gravity, saving his livelihood; and a merchant likewise, saving his merchandise; in the same way, a villein shall be amerced saving his wainage ….” quoted in Furman, 408 U.S. at 243 (Douglas, J., concurring). For the same reason, namely work owed to their owner, antebellum slaves were almost never incarcerated as punishment. See Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219, 1989-1 Trade Cas. (CCH) ¶ 68630 (1989) (good discussion of Magna Carta and Eighth Amendment).[FN180] Browning-Ferris, 492 U.S. at 291–95 (O'Conner, J., concurring and dissenting).[FN181] The first term was used by Angela Davis, Are Prisons Obsolete? (2003); the second term was coined and explained by Michelle Alexander, The New Jim Crow — Mass Incarceration in the Age of Colorblindness (2010). Sellin, supra note 70, outlines the many connections between slavery and criminal punishment in different nations.[FN182] An Evaluation of the Prisoner Reentry Initiative: Final Report, Minnesota Dept. of Corrections (May 2011).[FN183] Ala. R. Crim. P. 26.8, Committee Comments.[FN184] Cesare Beccaria, An Essay on Crimes and Punishments, ch. XLIV — Of Rewards (1764; Anon. English Translation, 1767).[FN185] See U.S. v. Nobrega, 2012 WL 243090 (D. Me. 2012) (due to lack of statutory authority, the court denied a prisoner's motion requesting public flogging instead of incarceration and fine).[FN186] See generally Chad Flanders, Shame and the Meanings of Punishment, 55 Clev. St. L. Rev. 609 (2007). The pillory and stocks provided public shaming early in American history.[FN187] Herber v. State, 7 Tex. 69, 1851 WL 4038 (1851) (39 lashes versus 1 to 7 years in prison should have been for the guilty defendant to decide).[FN188] Pauol Guerino et al., Prisoners in 2010, at 7 tbl.5 (rev. Feb. 9, 2012), available at http://bjs.gov/content/pub/pdf/p10.pdf.[FN189] Numerous possible variations in sentences of JCP include, for examples: let the victim administer JCP, let the offender wear a shirt or a mask, administer JCP periodically, suspend JCP pending rehabilitation, restitution, parole or probation, the extent of post-JCP care, extra or restricted publicity, time and place of JCP, and split or hybrid sentences.[FN190] Ron Van Houten, Punishment: From the Animal Laboratory to the Applied Setting, in The Effects of Punishment on Human Behavior 18 (Saul Axelrod & Jack Apsche eds., 1983) (citing research).[FN191] Van Houten, supra note 190, at 19.[FN192] Crighton Newsom et al., The Side Effects of Punishment, in The Effects of Punishment on Human Behavior 302 (Saul Axelrod & Jack Apsche eds., 1983).[FN193] Alan G. Jamieson, Tyranny of the Lash? Punishment in the Royal Navy during the American War, 1776–1783 (1985), available at http://www.cnrs-scrn.org/northern_mariner/vol09/nm_9_1_53to66.pdf. As Texan and former slave William Byrd explained, “If a [slave] was mean, Marse Sam give him 50 licks over a log the first time and 75 licks the second time and ‘bout that time he most gen’rally had a good [slave].” William Byrd, Texas Federal Writers' Project, Slave Narratives 82–184 (1941).[FN194] Newsom et al., supra note 192, at 302.[FN195] A small laboratory box used extensively in behavioral research to provide regulated amounts of food pellets, electrical shock and other rewards and punishments to rapidly shape, train and/or test a laboratory animal's behavior.[FN196] Raymond Paternoster, How Much Do We Really Know About Criminal Deterrence?, 100 J. Crim. L. & Criminology 765, 818 (2010).[FN197] Paternoster, supra note 196, at 808.[FN198] Paternoster, supra note 196, at 784.[FN199] Paternoster, supra note 196, at 816; and this is what some criminal defendants have told the author. Nelson Mandela knew men in prison who preferred half a dozen lashes with a whip to solitary confinement.[FN200] Paternoster, supra note 196, at 804–06, 808, 818–24.[FN201] Paternoster, supra note 196, at 774, citing James B. Appel & Neil J. Peterson, What's Wrong with Punishment?, 56 J. Crim. L., Criminology & Police Sci. 450 (1965).[FN202] Beccaria, supra note 44, ch. XIX.[FN203] Multi-Health Systems Inc., Psychological Assessments and Services, available at Level of Service Inventory-Revised.[FN204] Multi-Health Systems Inc., supra note 204.[FN205] Tracy L. Fass et al., The LSI-R and the COMPAS — Validation Data on Two Risk-Needs Tools 2, Crim. Just. & Behav. Online (2008).[FN206] Stanton E. Samenow, Inside the Criminal Mind 154 (2004).[FN207] See Elizabeth Thompson Gershoff, Corporal Punishment by Parents and Associated Child Behaviors and Experiences: A Meta-Analytic and Theoretical Review, 128 Psychol. Bull. 539 (2002).[FN208] Tor D. Wager et al., An fMRI-Based Neurologic Signature of Physical Pain, 368 N. Engl. J. Med 1388 (2013); Enrico Schulz et al., Decoding an Individual's Sensitivity to Pain from the Multivariate Analysis of EEG Data, 22 Cerebral Cortex 1118 (May 2012).[FN209] Tor D. Wager et al., Placebo-Induced Changes in fMRI in the Anticipation and Experience of Pain, 303 Sci. 303, 1162 (2004); Greg Miller, Brain Scans of Pain Raise Questions for the Law, 323 Sci. 9, 195 (2009).[FN210] Bryan T. Denny et al., Anticipatory brain activity predicts the success or failure of subsequent emotion regulation, Social Cognitive and Affective Neuroscience Advance Access (Nov. 30, 2012) available athttp://dept.psych.columbia.edu/~kochsner/pdf/Denny_at_al_SCAN2012_AnticipatoryBOLDPredictsERSuccess.pdf.[FN211] Bernadette M. Fitzgibbon et al., Shared Pain: From Empathy to Synaesthesia, 34 Neurosci. & Behav. Rev. 500 (2010).[FN212] Vasiliades, supra note 171, at 83–85.[FN213] Matthews, supra note 51, at 610 n.184.[FN214] Tullio, supra note 33.[FN215] Lydia Saad, Most Americans Believe Crime in U.S. Is Worsening, Gallup — Wellbeing, Oct. 31, 2011, available at Most Americans Believe Crime in U.S. Is Worsening; Sara Sun Beale, The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness, 48 Wm. & Mary L. Rev. 397 (2006).[FN216] J. Thorsten Sellin, Slavery and the Penal System 132 (1976).[FN217] J.D. Gleissner, The Myth That Prisoners Have It Easy, Welcome to nginx!, May 23, 2011, available at The Myth That Prisoners Have It Easy.[FN218] Saad, supra note 215.[FN219] Jean-Paul Brodeur, Comparative Penology in Perspective, Crime, Punishment, and Politics in Comparative Perspective, 36 Crime & Just. — Rev. Res. 49, 80–81 (Michael Tonry ed., 2007).[FN220] Pew Center on the States, Time Served: The High Cost, Low Return of Longer Prison Terms 2 (June 2012), available athttp://www.pewstates.org/uploadedFiles/PCS_Assets/2012/Prison_Time_Served.pdf.[FN221] Every plantation was its own legal system for the slaves. The official legal system was surprisingly protective of the slaves' labor value; there were zero slaves in state prisons, and jail stays were relatively short. See Philip D. Morgan, Slave Counterpoint: Black Culture in the Eighteenth-Century Chesapeake & Lowcountry 394–95 (1998).[FN222] Nehemiah Adams, A South-Side View of Slavery — Or, Three Months at the South in 1854 (4th ed., 1860) (1854). Rev. Dr. Nehemiah Adams of Boston, an educated life-long abolitionist, visited the South for his health and was astounded at how mild the slavery he observed was compared to what he had previously read about and expected to see.[FN223] Incarceration Rates, supra note 115, tbl.4. Cf. Indiana's 2005 rate was barely less than Virginia's.[FN224] Facts About Prisons and Prisoners, The Sentencing Project available at http://sentencingproject.org/doc/publications/publications/inc_factsAboutPrisons_Jan2012.pdf. Males constitute over 90% of prisoners in most nations. U.N. Office of Drugs & Crime, Global Study on Homicide 63 (2011).[FN225] Glenn, supra note 69, at 80–81.[FN226] World Health Organization (WHO) Multi-Country Study on Women's Health and Domestic Violence Against Women, Recommendation 13 (2005).[FN227] Wilson v. Seiter, 501 U.S. 294, 300, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991) held the deliberate indifference standard applicable to 42 U.S.C.A. § 1983 complaints of prison conditions generally (quoting Judge Posner in Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985)).[FN228] Foucault, supra note 62, at 22, 247.[FN229] Dolovich, supra note 90, at 885.[FN230] Stephen Garvey, Freeing Prisoners' Labor, 50 Stan. L. Rev. 339, 373 (1998); Gleissner, How to Create One Million American Jobs, Digital J., Aug. 20, 2011, available at Op-Ed: How to Create One Million American Jobs.[FN231] Wiedeman, supra note 14 (suggests the identity of some punished criminals might be concealed). There are numerous potential JCP variables.[FN232] 18 U.S.C.A. § 3582(a).[FN233] I take former slave Susan Bledsoe at her word when she said, “Yes, they had to whip a slave sometimes, but only the bad ones, and they deserved it.” Federal Writers' Project Ohio Slave Narratives 6–9. Ex-slave Minnie Davis agreed: “I don't recall any certain reason why the slaves were punished; they needed it, I'm sure of that. Some folks need to be punished now.” Federal Writers' Project Georgia Slave Narratives, pt. 1, 257. The fairness of slave treatment varied, but a top field hand in today's money was worth up to $45,000; slaveholders had a financial incentive to punish fairly inside the intrinsically unjust institution of chattel slavery.[FN234] See Matthews, supra note 51; Aldridge v. Com., 4 Va. 447, 2 Va. Cas. 447, 1824 WL 1072 (1824) (39 stripes upheld, along with sale of free black into slavery for theft offense; affirmed differential punishment based on race).[FN235] Matthews, supra note 51, at 590 n.84.[FN236] Matthews, supra note 51, at 590 n.84.[FN237] Brown v. Plata, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011) (Scalia, J., dissenting).[FN238] Weems, 217 U.S. at 378.[FN239] Foucault, supra note 62, at 232.[FN240] Brown, 131 S. Ct. at 1923, states the maximum figure of 46,000, but some prisoners had already been released when the Supreme Court ruled. The affirmed mandate is to reduce the California prison population to 137.5% of the designed capacity, however achieved. Other states now hold prison populations well above 137.5% of their designed prison capacities; their concern is reflected in the multiple amicus briefs filed by them in support of California in Brown v. Plata. Alabama, for example, now operates at about 200% of designed capacity.[FN241] See Gleissner, Model Corporal Punishment Statute, available at http://ezinearticles.com/?Model-Corporal-Punishment-Statute&id=6146750.-[FN242] Cesare Beccaria, An Essay on Crimes and Punishments, ch. XLVII — Conclusion (1764; Anon. English Translation, 1767).Westlaw. © 2013 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.49 NO 4 CRIMLAWBULL ART 2END OF DOCUMENT (c) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works