Civilization and Barbarism

Punishing Criminals in the Twenty-First Century

Graeme R. Newman

• Publisher: SUNY Press
• Year: 2020
• Print ISBN: 9781438478128, 9781438478111
• eBook ISBN: 9781438478135
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Challenges the established corrections paradigm and argues for replacing mass incarceration with a viable and more humane alternative.

The practice of mass incarceration has come under increasing criticism by criminologists and corrections experts who, nevertheless, find themselves at a loss when it comes to offering credible, practical, and humane alternatives. In Civilization and Barbarism, Graeme R. Newman argues this impasse has arisen from a refusal to confront the original essence of punishment, namely, that in some sense it must be painful. He begins with an exposition of the traditional philosophical justifications for punishment and then provides a history of criminal punishment. He shows how, over time, the West abandoned short-term corporal punishment in favor of longer-term incarceration, justifying a massive bureaucratic prison complex as scientific and civilized. Newman compels the reader to confront the biases embedded in this model and the impossibility of defending prisons as a civilized form of punishment. A groundbreaking work that challenges the received wisdom of "corrections," Civilization and Barbarism asks readers to reconsider moderate corporal punishment as an alternative to prison and, for the most serious offenders, forms of incapacitation without prison.

The book also features two helpful appendixes: a list of debating points, with common criticisms and their rebuttals, and a chronology of civilized punishments.

Chapter One

From Barbaric to Civilized

The Replacement of Corporal Punishment with Prison

Halfway through the twentieth century, we in the West thought we had progressed nicely and had worked out a civilized and humane way to treat criminals. This mutually shared delusion among academic penologists and practitioners of punishment (that is, the prison bureaucratic complex) has fostered the incredible growth of prison as a punishment in the Western world and the convenient failure to notice the continuance of violent punishments in many countries, especially in the south and east of the Mediterranean and much of Southern Asia. Had it not been for the rapid development of the Internet and global media, this ignorance of the amount and extent of punishment practices and their heavy presence in every country of the world would have continued through to the twenty-first century. Of course, we need not even mention the daily horrendous violent punishments and tortures that are a great attraction in cinemas everywhere.1 The exotic violence of criminal punishments (formal and informal) is very much a part of the cultural life of those who live in the twenty-first century. It is important to acknowledge that, while adults may be shocked by what they see, their children will grow up used to seeing these violent punishments.

What are the implications of this global context for criminal punishments of the West? The daily presence, notoriety even, of the corporal punishments of Islam and mass media has not yet penetrated the moral bubble within which those in the West live in respect to punishing criminals. Possibly, we are witnessing a “clash of civilizations” (Huntington’s thesis)2 and a return to the forms of punishment that Western civilization once condoned, remembering that even then those punishments occurred within a civilized society.

A Short History of Civilized Punishment

Of the ancient civilizations of our past, the Romans and the Greeks used corporal punishments extensively. The Romans thought themselves an enlightened and certainly advanced civilization compared to others, such as their mortal enemies the Parthians, Carthaginians, and the Gauls, all considered barbarians because they indulged in human sacrifice. Yet at the same time, the Romans used torture as a matter of course in conducting interrogations, especially of slaves, whose testimony as witnesses was never allowed unless obtained under torture. And, at the height (and imminent demise) of the Roman Republic, the casual use of crucifixion as a death sentence reached its height when in 71 BCE Crassus crucified some six thousand rebellious slaves along a stretch of the Via Appia. Still, the Romans considered themselves civilized. Indeed, theirs was a magnificent civilization, setting the model of government and rule of law for Western civilization as we know it today.3

In fact, all major civilizations today have used corporal punishment at one time or another in their long histories. None have totally abolished it, though they may give the appearance that they have, and, indeed, at particular times in history, corporal punishment has ebbed and flowed.4 Today, in the United States and other Western countries, it is an officially forbidden method of judicial punishment, but has been replaced with an all embracing form of corporal punishment, one that allows for the possibility to pretend that it is not corporal punishment—prison.

It is very hard to defend prison as an enlightened or civilized punishment, particularly as it is slowly coming to light how many lives are destroyed by this blunt, negligent, unenlightened, irresponsible punishment. For every individual locked up in prison (now close to two million in the United States), there are countless relatives and family members deprived of a livelihood; whole neighborhoods are devastated by prison.5

It is likely that the rise of prison is the direct result of the abolition of corporal punishment. The detailed history of the demise of corporal punishment in the West is yet to be written, though what happened to corporal punishment is what is now happening to prison: it was used to excess and it came to a point where (powerful) people said enough is enough. It took but a few outrageous cases of cruel and destructive use of corporal punishment to bring about its abolition, and this occurred in different parts of the Western world. Perhaps the most famous was the 250 lashes laid on a Brazilian sailor in 1910 that resulted in the one-week Revolt of the Whip in Rio de Janeiro.6

While the maximum number of lashes was originally set at forty in the Bible (Deuteronomy 25:2–3), the number administered far exceeded that biblical limit, especially in venues such as the military and navies of many Western countries, where discipline was brutally enforced.7 The numbers of lashes had increased enormously by the end of the nineteenth century. General George Washington petitioned the Continental Congress in 1776 to increase the number of allowed lashes to one hundred from its then thirty-nine. And in 1781 he requested authority to impose up to five hundred lashes. The reason, it has been suggested, was that this helped fill the “punishment gap” between one hundred lashes and the death penalty.8 The campaign against the death penalty led by Charles Dickens probably resulted in an excessive use of corporal punishment in England; it filled the void left by the movement of capital (not corporal) punishment behind prison walls. Furthermore, since many criminals were shipped off to Australia and other British colonies, they became subject to the corporal punishments of the ships they inhabited and of the indentured servitude they served in Australia.

The early forerunner of mass incarceration, solitary confinement, replaced whipping when it was abolished by the US Navy in 1850. Many naval officers argued that solitary confinement was far more brutal and less humane than was whipping. They also argued that it punished the innocent, since the absence of one sailor in solitary placed a higher workload on remaining workers.9

Leading up to this climate, the time of the “Enlightenment” in Europe, movements arose to reduce or abolish whipping. This occurred in Russia10 and throughout Europe, in favor of various forms of incarceration, the punishment of the “soul” rather than the body, as popularized by French philosopher Michel Foucault in his classic Discipline and Punish, who was perhaps the first to recognize the insidious governmental value of prison as a punishment and of the parallel asylums for lunatics.11 There were two main reasons for the movements against corporal punishments: they had been used in excess (a danger of all punishments), and their public nature was too much of a spectacle, an insult to the refined lives of those who lived above the rabble.12 What better way to cover up the dreadful truth of a civilized society than to hide away in prison the wanton violence done to those who break the laws, hopefully never to be heard of again, and, of course, in a place where corporal punishments have (and do) run riot within the secrecy of prison walls. It is important to understand that corporal punishment was not replaced by prison, a myth promoted by twentieth-century scholars. It was simply moved behind prison walls.13

Until the twentieth century, punishment was first and foremost a spectator sport. With few exceptions, depictions of corporal punishment throughout history show large numbers of onlookers. Its central characteristic was to humiliate to the point that the emotions of the crowd would be both piqued and conflicted. Could one not feel sorry for another reduced to the levels of subjection by the lash, blood pouring from the wounds, or constrained to the whipping post in the town square, shackled to the pillory or stocks? But the objects of punishment were, after all, criminals who had committed offenses against others, or, worse, against the society of onlookers. There is an embedded sense of satisfaction and even pleasure out of seeing someone get what they deserve.

Yet it is an uneasy satisfaction, at bottom full of anguish; it is a sentiment poised on top of a persistent, gnawing guilt. The entire edifice of crime and punishment sits precariously on a deep hypocrisy, revealed by Jesus when he said, “Let him who is without sin cast the first stone” (John 8:7). Or, its twenty-first-century cynical version, “Better him than me!” It is the price we pay (well worth it) for the rule of law. The trouble is that historically it has been very difficult to keep the need to punish under control. There is the constant demand for more.

On the surface of it, watching someone receive corporal punishment brings great clarity and simplicity to the arrangements of social life. It is comforting because the subjection of another through punishment is for something special; it is for a guarantee of order. For social order to exist, rules must be obeyed, individuals must of necessity give themselves up to the rule of order. And if they will not willingly do so, they must be forced to do so. The Enlightenment thinkers of the eighteenth century were almost unanimous on this point (though they did go wobbly at times, especially Rousseau), so well expressed by Rousseau’s complaint that “man is born free but everywhere is in chains.” Thinkers such as Rousseau, Voltaire, and the father of criminal justice, Cesare Beccaria, viewed the intentional infliction of pain by one human on another as an evil in itself that could be justified only by the rule of law.14 As a justification for criminal punishment, this was not a new idea. It was the ancient Romans who invented the secular justification for punishment based on a constitution (of sorts).15 Criminal punishment was justified on the basis of the survival of the Roman Republic (and later the Empire), its social order, and, of course, its commerce. As the Enlightenment thinkers all knew, punishment was the price paid for social order; individual liberty (and commerce) was not possible without it. Their ideas grew directly from the Greco-Roman philosophy and law with which they were, to a man, well versed.

It was the spectacle of corporal punishment that upset the Enlightenment thinkers. It was why eventually, thanks to Charles Dickens, the administration of the death penalty was removed to behind prison walls—in lieu of its abolition. What better argument against the spectacle of corporal punishment could be made than the famous scene of Madame Defarge sitting beside the platform of the guillotine watching the heads roll, the blood pour off the platform. Depending on whose side one was on, the beheadings were either unjust, well deserved, or both! It was why, in his famous argument against the death penalty almost a century before Dickens, Beccaria made the seemingly unconvincing argument at the time that life in prison was a far more painful substitute for the death penalty, an argument subsequently taken seriously by those who eventually achieved the abolition of the death penalty in England and elsewhere.16 The monolithic Eastern State Penitentiary in Philadelphia, opened in 1829 marked the abolition of public corporal punishments and the dramatic reduction of the death penalty in America.17

All the humiliation accompanying punishment should be enough to convince us that any kind of punishment that is done in public should be forbidden. It is so degrading. But the philosopher Kevin Murtagh defends corporal punishment by arguing that it is not necessarily degrading—mainly, I think, to the one punished, not so much to the person or organization administering the punishment.18 One might argue that degrading or humiliating an offender through punishment is not necessarily in itself bad, if it can be shown that the offender deserved it. And it may well be the case that it is a good thing if the person or organization administering the punishment is degraded by it; a solid reminder that what is being done to another person is something that we would all rather not do, a necessary evil? The trouble is that modern society has developed ways to avoid taking the responsibility for administering punishment, thus avoiding the degradation of the punisher by hiding punishment away inside the bureaucratic prison complex.

There are many reasons why the demand for punishment can never be fully satisfied. The only twentieth-century historian of corporal punishment, George Ryley Scott, was convinced that it was sex.19 His History of Corporal Punishment, published in 1938, was based on a Freudian view of the close relationship between sex and violence, that there were cases (he never said how many) where whipping excited the sexual desire and that therefore corporal punishment should be abolished. His book was not so much a history of corporal punishment, but a catalogue of horrors, sadism and masochism lavishly mentioned throughout.20 If he is right, then we have to conclude that Muslims are a sex-driven lot, since corporal punishment occupies an important place in the range of punishments inflicted by Shari’a law.21 More on this in chapter 9.

Corporal punishments shock the sensibilities of the Western world. Twenty-first-century Shari’a law has come suddenly into view, migrating from the East to the West at a rapid rate via the massive migration to Europe and North America of refugees from North Africa. The growing Muslim immigrant populations in Western countries have also begun to campaign for the introduction of Shari’a law within their adopted countries. In the US elections in November 2015, Hamtramck, Michigan, made history by electing an Islamic majority to its city council. At least one poll in 2015 found that 51 percent of American Muslims preferred Shari’a law over the American Constitution.22 And, according to media reports, there are over eighty-four Shari’a courts in the United Kingdom, and London now has a Muslim mayor. This may indicate a coming clash—or conjoining—if it is not already here, of punishment cultures, which I will discuss more fully in chapter 9. For the moment, claiming that we do not do corporal punishment in a civilized (Western) society demeans Islam as a civilization in its own right, does it not? Perhaps its use of corporal punishment is not barbaric, but civilized?23 I will pursue the ideas of civilized and barbaric punishments in further detail in the next ch...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgment
• Introduction A Humane Solution to a Barbaric Situation
• Chapter One From Barbaric to Civilized: The Replacement of Corporal Punishment with Prison
• Chapter Two From Civilized to Barbaric: Prison, the Civilized Punishment, Violates both Body and Mind
• Chapter Three Rethinking Corporal Punishment: Corporal Punishment Is Not Torture, nor Is It Barbaric
• Chapter Four The Retribution of Mass Incarceration: How the Ideology of Retribution Caused a Committee to Fuel Mass Incarceration
• Chapter Five The Successful Failure of Deterrence: How the Fake Science of Deterrence Justified Mass Incarceration
• Chapter Six The Promise of Incapacitation: Redemption and Control of the Body in an Open Society
• Chapter Seven A New Way to Punish: Moderate Corporal Punishment Is the Least Imperfect of All Criminal Punishments
• Chapter Eight Punishing without Bias: The True Pain of Punishment Is the Great Equalizer
• Chapter Nine Civilizing Barbarism: Mass Incarceration Violates More Rights Than Moderate Corporal and Shari’a Punishments
• Chapter Ten The End of Punishment (as We Know It): Punishment Redistributed in a Century of Surveillance
• Appendix A Debating Points: Common Criticisms and Their Rebuttal
• Appendix B A Chronology of Civilized Punishments
• Notes
• Works Cited
• Index
• Back Cover