Corporal Punishment - Prevalence

Corporal Punishment - History in Britain

Although corporal punishment has been widely banned, the extent to which it continues to be used is difficult to determine. Countries that strictly observe Islamic law inflict both amputation and whipping as penalties. In South Africa, until the mid-1990s, males under twenty-one years of age could be whipped for any offense in lieu of other punishment, and adult males between the ages of twenty-one and thirty could be whipped either in addition to or instead of other punishment for many offenses, including robbery, rape, aggravated or indecent assault, burglary, and auto theft. In the 1970s an annual average of 335 adults were sentenced to "corporal punishment only." Whipping was used more extensively to chastise juveniles, but official statistics were not kept.

In Great Britain the Cadogan Committee, appointed in 1937 to review the application of corporal punishment, reported that this penalty had been abolished for criminal offenses by adults in every "civilized country" in the world except those whose criminal code was influenced by English criminal law—that is, in some of the British dominions and American states, where it could still be legally imposed for offenses by juveniles and for violations of prison discipline (Cadogan Committee). The committee's recommendation that corporal punishment be abandoned as a judicial penalty in England was adopted in the Criminal Justice Act, 1948, 11 & 12 Geo. 6, c. 58 (Great Britain), which abolished the penalty for all offenses except serious violations of prison discipline; in 1967 it was also eliminated for these. The Advisory Council on the Treatment of Offenders (ACTO) reported in 1961 that corporal punishment had not been reintroduced in any country which had abolished it and that in those few countries which continued to prescribe such penalties various limitations had been introduced, so that infliction had become uncommon (Advisory Council on the Treatment of Offenders). The last two American states to use corporal punishment as a judicial penalty were Maryland, where it was seldom inflicted before being abolished in 1952, and Delaware, where the last flogging took place in 1952 although formal abolition did not occur until 1972. Corporal punishment remains available, however, as a penalty for serious breaches of prison discipline in a number of states. Milder forms of corporal punishment for students remain a possible penalty in many states.

In 1994, the caning of a young American in Singapore for a property offense drew wide political condemnation from American political leaders, although it also had the effect of temporarily raising public debate over the merits of judicial corporal punishment. As a result of a growing public concern over crime rates, as well as prison overcrowding, public support of corporal punishment for petty criminals and juvenile offenders increased, and bills were introduced in several state legislatures to reintroduce judicial corporal punishment as an alternative to imprisonment. Most efforts failed, however, because of potential constitutional infirmities.

More serious forms of corporal punishment, including flogging and amputation, have undergone a revival in certain Islamic countries that have experienced a resurgence in fundamentalism. The United Nations Human Rights Committee and other organizations have suggested that the prohibition of cruel, inhuman, or degrading punishment under Article 7 of the International Covenant on Civil and Political Rights could be extended by customary law to include corporal punishment. Nevertheless, while some of the practices of some Islamic countries have drawn rebuke and condemnation by the United Nations Commission on Human Rights, that body has as recently as 1997 suggested only that certain forms of corporal punishment may be violative of international law, leaving open the question of the extent to which evolving standards or general principles of law will tolerate other forms.

Corporal Punishment - Normative Arguments

Corporal punishment satisfies demands for reprisal and is seen as a just penalty for certain kinds of offenses. Both sentiments are resurgent among the public in countries in which such punishment has been abolished. Apparent or real increases in crime, particularly violent offenses, spark public demands for the restoration of corporal punishment. A 1960 poll in England revealed that 74 percent of the population thought it an appropriate penalty for some crimes. The idea that corporal punishment is particularly fitting for certain offenses—for example, those involving personal violence—is ultimately a moral or political judgment that reflects the retributive theory of punishment. Various modern expressions of human rights policy, however, condemn corporal punishment. Article 3 of the European Convention on Human Rights declares that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment" (Council of Europe, p. 25), and in 1978 the European Court of Human Rights found corporal punishment to be "degrading" under the terms of this article (Tyrer v. United Kingdom, 2 Eur. Human Rights R. 1, 58 I.L.R. 339 (Eur. Ct. Human Rights 1978)). Moreover, the United Nations' "Standard Minimum Rules for the Treatment of Prisoners" specifically states that "corporal punishment . . . shall be completely prohibited as punishment for disciplinary offenses" (United Nations Secretariat, Rule 31, p. 69).

In the mid-1990s, several proponents of corporal punishment asserted an "economic" approach: that technology could enable the use of more effective forms of corporal punishment designed to provide temporary and specific physical incapacitation rather than imprisonment, which "over-incapacitates." Others have argued in favor of reintroduction of corporal punishment as a solution to overcrowding and the negative effects of long-term imprisonment.

Corporal Punishment - Effectiveness

Advocates of corporal punishment argue that it is more likely than any alternative to prevent offenders from committing further criminal acts, and that it is also an exceptionally strong deterrent to potential offenders. These claims have been subjected to some empirical investigation, especially by the Cadogan Committee, whose research was continued in 1960 by the Home Office Research Unit for ACTO.

Individual deterrence. Part of the research carried out by the Cadogan Committee and ACTO covered 3,023 cases of robbery with violence (virtually the only offense for which corporal punishment was imposed) between 1921 and 1947. Offenders were divided into two groups: those previously convicted of serious crimes and those not previously convicted. In both categories, offenders who were not flogged showed slightly better subsequent records. Those who were flogged seemed slightly more likely to be convicted again of robbery with violence, although the numbers were small and the differences not statistically significant (Cadogan Committee; Advisory Council on the Treatment of Offenders). These findings suggested that flogging was not especially effective as an individual deterrent, but they were not conclusive: the groups of those flogged and not flogged were not properly matched, nor were the sentences randomly assigned, for some judges habitually made more use of the penalty than others.

General deterrence. The Cadogan Committee devoted special attention to five cases of corporal punishment used as an exemplary sentence in response to major outbreaks of crimes for which, according to public opinion, the penalty was particularly suitable. The committee found that in some cases the facts plainly contradicted such beliefs and that reductions in crime could just as plausibly be attributed to causes other than the penalties imposed on offenders. It also noted that the incidence of robbery with violence in England and Wales had declined steadily in the years before World War I, notwithstanding infrequent and decreasing use of corporal punishment, whereas in the postwar years it had tended to increase despite a much greater and increasing resort to floggings. It was also shown that between 1890 and 1934 the incidence of robbery in England and Wales (where corporal punishment might have served as a deterrent) declined more slowly than in Scotland, where corporal punishment was not inflicted for those offenses (Cadogan Committee).

ACTO also compared the incidence of robbery with violence in England and Wales before and after corporal punishment was abolished as a judicial penalty in 1948. The number of robberies reported to the police increased steadily during and after World War II, although corporal punishment was employed more frequently than before the war. After 1948, however, there was a marked downward trend, and until 1957 instances of robbery remained well below the 1948 level. The causes of this reduction were unknown, but ACTO inferred that corporal punishment had not been a strong deterrent immediately before its abolition and noted that abolition was not followed by an increase in the offenses for which it had previously been imposed (Advisory Council on the Treatment of Offenders). In short, no evidence proved that corporal punishment provided more deterrence than imprisonment, to which it commonly served as an alternative penalty before abolition. Canadian and New Zealand studies confirmed these findings (Canada, Parliament; New Zealand Department of Justice).