Can Corporal Punishments Be Rationally Defended?

Below, I’ll be sharing snippets from works authored by non-Muslims who defend corporal punishment. Not all those works necessarily stipulate even some of the basic conditions that Islam does. Some actually defend outright draconian methods of flesh tearing caning. Moreover, some go overboard in criticizing the utility of the prison system. I also doubt that these authors would be supportive of all Islamic hudud, or even all the reasons for why Islam would stipulate flogging as a punishment. Thus, I certainly 𝐝𝐨 𝐧𝐨𝐭 support all their arguments and underlying suppositions.

However, my only intent is to demonstrate that, just like with pretty much anything, a ‘secular’ rational case could be made in favor of corporal punishments and that we need not feel too embarrassed to speak in defense of the hudud as Muslims.

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Taken from: Graeme Newman, 1995. 𝐽𝑢𝑠𝑡 𝑎𝑛𝑑 𝑃𝑎𝑖𝑛𝑓𝑢𝑙: 𝐴 𝐶𝑎𝑠𝑒 𝑓𝑜𝑟 𝑡ℎ𝑒 𝐶𝑜𝑟𝑝𝑜𝑟𝑎𝑙 𝑃𝑢𝑛𝑖𝑠ℎ𝑚𝑒𝑛𝑡 𝑜𝑓 𝐶𝑟𝑖𝑚𝑖𝑛𝑎𝑙𝑠, 2nd edition…

“With the exception of those Middle-eastern countries that are torn by political strife, verging on civil war, which countries does he mean are “brutal.” It is well known that such countries have a much lower violent crime rate than does the U.S., and the character of the people in these countries is anything but brutal (notwithstanding the stereotypes presented in the popular media of half-crazed religious fanatics). Their prison rates are also considerably lower. The governments of these countries are often not democratic, but corporal punishment did not cause nor is it a “symptom” of a non-democratic political structure. For these countries, corporal punishment is instead part of the great Islamic religious tradition.”

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“Corporal punishment will encourage violence by setting a bad example. Reply: This is probably the most common criticism. In spite of claims to the contrary, an unbiased review of the research shows that whether or not children learn aggression from watching others use it is still unclear, and in cases where it has been shown to affect children, these are not long term effects. Just in case though, we should not let children watch the corporal punishment of criminals unless this experience is accompanied by a clear explanation of the crime and why the individual is being punished. This criticism, and much of the research used to back it up, fails to examine carefully the context in which corporal punishment is used, which, when properly administered, is in the context of discipline. It is not wanton violence. If a delinquent (along with radical criminologists who make the same argument) says, “I beat up this little old lady, but so what? The cops use violence too,” then one must point out that violence is clearly not deserved by the old lady, but it may well be deserved by the delinquent.”

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“Corporal punishment is a return to barbarism. Reply: What is barbaric? The cultural arrogance of this position I have already noted. But the hypocrisy of it I have not. Injury to the body of the accused already occurs in uncontrolled proportions within prisons, through rape, beatings, and protection rackets in prison. Corporal punishment as described in this book makes sure that we are publicly accountable for the punishment we administer and any injury that occurs to the inmate. This is not what happens with prisons, which are secret, allowing many hidden punishments for which society avoids responsibility because these injuries were “unintended” (though predictable).

Newman is out of step with modern sensibilities. Reply: David Garland made this observation in his excellent book: Punishment and Society. It is not really a criticism, since it does not challenge my argument, only its timing. I am inclined to agree with it, although I remain puzzled by the theory that it implies. Garland uses the word “sensibilities” as though it is synonymous with “manners” or “taste.” For example, he reviews the work of Norbet Elias on the history of punishment. This fascinating work attempts to explain why we abide by everyday habits of behavior such as using a knife and fork, not defecating in public or urinating at the dinner table (which Elias shows were quite common not too long ago). Would the use of corporal punishment be like farting in public? On closer analysis, we see that this criticism is actually the same as the “barbarism” criticism. As one Chinese student of mine observed: it is amusing to see that a Western scholar (Elias) should think that the use of a fork is the sign of a civilized society. Yet I admit that the outraged reactions I received in response to my book made me think that I had indeed committed an act of gross indecency.”

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“The confusion is clear. They call corporal punishment “maltreatment,” but they do not call prison “maltreatment.” They claim that corporal punishment causes humiliation and terror — yet we will see in this book that none of the research substantiates this claim. But it is well established that prison rests on a platform of humiliation and terror. Some criminals may deserve such a punishment. Unfortunately, humiliation and terror in prisons occur by default not by design and therefore subject all inmates indiscriminately to such punishments regardless of their crimes.”

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“As for the claim that a criminal has the right of integrity over his own body: who are they trying to fool? Such a right is worthless if that body is enclosed in a prison cell, especially if that cell contains other violent inmates who may attack each other at will.

Given this confusion of our experts about criminal punishment it seems perfectly reasonable for a civilized society to reconsider the painful possibilities of criminal punishment — all the possibilities, including various ways of inflicting pain.”

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“However, the difference between such acute punishment as corporal punishment, administered carefully as described in Chapter 5, and the chronic punishment of prison is that the chronic pain of imprisonment is actively promoted over a long period of time. The hypothesized humiliation of corporal punishment is not actively promoted after the punishment is administered. The offender is free to make it into a continuing painful experience or simply to forget it (which would minimize its deterrent effect, an important point which we will address in Part II of this book). The offender is not free in prison to minimize the chronic pains of everyday life in prison. Furthermore, it is highly likely that the inmate will in fact be subject to physical violence while in prison. Thus, prison ought truly to be seen as a mixture of chronic and continuously applied acute punishments.”

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“An important reason why bodily punishments are thought of with such repugnance is that they have been historically linked to the process of torture. But painful punishment is clearly indistinguishable from torture as we will see in Chapter 13. And the history of punishment also tells us that severe bodily punishments were used in the English criminal law until less than a couple of hundred years ago, yet there is very little evidence that the process of torture as it was used in Continental Europe ever took hold in England.

Therefore, there must be additional reasons for our revulsion. “It is because we are civilized,” we say, “we don’t do that sort of thing any more.” We are a civilized people and so we are naturally revolted by barbarities.

But what are barbarous acts? And are they the opposite to civilized acts? There are three ingredients of punishments that represent the essence of barbarism:

1) Mutilation

2) Excess

3) Violence”

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Taken from: Susan C. Hascall, Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative Justice?, p. 35…

“One of the foundational ideas has been that the movement away from corporal punishment to other forms of punishment, such as imprisonment, has been an improvement. But, such ideas have not gone unquestioned. In Discipline and Punish: the Birth of the Prison, Michel Foucault asserts that the movement away from the punishment of the body and towards the imprisonment of the body through the widespread institution of the prison has resulted in an even more heinous form of punishment: the punishment of the soul.”

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Taken from: Gresham M Sykes, 𝑇ℎ𝑒 𝑆𝑜𝑐𝑖𝑒𝑡𝑦 𝑜𝑓 𝐶𝑎𝑝𝑡𝑖𝑣𝑒𝑠: 𝐴 𝑆𝑡𝑢𝑑𝑦 𝑜𝑓 𝑎 𝑀𝑎𝑥𝑖𝑚𝑢𝑚 𝑆𝑒𝑐𝑢𝑟𝑖𝑡𝑦 𝑃𝑟𝑖𝑠𝑜𝑛, p. 64…

“The modern pains of imprisonment are often defined by society as a humane alternative to the physical brutality and the neglect which constituted the major meaning of imprisonment in the past. But in examining the pains of imprisonment as they exist today, it is imperative that we go beyond the fact that severe bodily suffering has long since disappeared as a significant aspect of the custodians’ regime, leaving behind a residue of apparently less acute hurts such as the loss of liberty, the deprivation of goods and services, the frustration of sexual desire, and so on. These deprivations or frustrations of the modern prison may indeed be the acceptable or unavoidable implications of imprisonment, 𝐛𝐮𝐭 𝐰𝐞 𝐦𝐮𝐬𝐭 𝐫𝐞𝐜𝐨𝐠𝐧𝐢𝐳𝐞 𝐭𝐡𝐞 𝐟𝐚𝐜𝐭 𝐭𝐡𝐚𝐭 𝐭𝐡𝐞𝐲 𝐜𝐚𝐧 𝐛𝐞 𝐣𝐮𝐬𝐭 𝐚𝐬 𝐩𝐚𝐢𝐧𝐟𝐮𝐥 𝐚𝐬 𝐭𝐡𝐞 𝐩𝐡𝐲𝐬𝐢𝐜𝐚𝐥 𝐦𝐚𝐥𝐭𝐫𝐞𝐚𝐭𝐦𝐞𝐧𝐭 𝐰𝐡𝐢𝐜𝐡 𝐭𝐡𝐞𝐲 𝐡𝐚𝐯𝐞 𝐫𝐞𝐩𝐥𝐚𝐜𝐞𝐝.” (emphasis mine)

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Taken from: John Dewar Gleissner. 2013, “Prison Overcrowding Cure: Judicial Corporal Punishment of Adults,” 𝐶𝑟𝑖𝑚𝑖𝑛𝑎𝑙 𝐿𝑎𝑤 𝐵𝑢𝑙𝑙𝑒𝑡𝑖𝑛, 49(4)…

“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.”

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“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 (Judicial Corporal Punishment), because almost everything depends upon the circumstances of each.”

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“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.”

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“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.”

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“JCP 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.”

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“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.”

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“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.”

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Taken from: Peter Moskos, 𝐼𝑛 𝐷𝑒𝑓𝑒𝑛𝑠𝑒 𝑜𝑓 𝐹𝑙𝑜𝑔𝑔𝑖𝑛𝑔…

“The conditions in overcrowded modern prisons can be, in the starkest terms, as hellish as their early American prototypes. Bunk beds stacked within arm’s reach of each other fill cells and communal sleeping rooms. Although guards may act like they’re in charge, because of the sheer numbers, prisons are, in effect, run by prisoners. And without legal forms of settling disputes and conducting transactions, violence and criminality become the norm. One prisoner succinctly summed up the prisoner-survival attitude: “If I gotta survive in this environment, I gotta be bad ass.”

The risks of physical and sexual violence in prison, though sometimes overstated, are real enough: Approximately one in twenty prison inmates say they’ve been sexually assaulted by other inmates or staff in the past year. Because there’s no permitted sexual outlet (even masturbation is against the rules), there’s a lot of sexual aggression. And yet we still joke about prison rape.”

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“In twenty-first-century America, could we have court-sanctioned flogging? It’s unclear, but it’s not currently prohibited. The Supreme Court has never explicitly ruled on the matter, and until it does, we should assume it’s constitutional. There is some interesting precedent (which some mistakenly believe bans flogging), such as Jackson v. Bishop. This 1968 Court of Appeals decision was very unsympathetic to corporal punishment but only banned whippings in the context of prison discipline — and thus ended the practice of prison wardens carrying around whips. But prison discipline is not the same as legally sanctioned criminal punishment. Discipline is at the discretion (and potential abuse) of a warden and issued for administrative violations, whereas court-sanctioned criminal punishment follows law and due process and has constitutional safeguards.”

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“Every conscientious reader should confront the question of which is harsher: prison or flogging. Not that punishment should be judged by harshness alone, but how you assess their comparative harshness has very real consequences as to how we proceed. If we as a society cannot even reach consensus about what prison is, how can we ever discuss what needs to be done? And even if we can’t agree which form of punishment is harsher, in order to have any discussion at all — be it on prison reform, overhauling the entire penal system, or just kicking up our heels and doing nothing — we can at least agree that prison and flogging have different degrees of harshness.

I hope you agree that flogging, harsh though it is, is a far better choice than prison. And if you think, as I suspect some do, that both prison and flogging are cruel but flogging is still beyond the pale, then ask yourself why you would choose the lash for yourself to avoid prison and yet still refuse to give that choice to others. If you wouldn’t choose the lash for yourself, I may never convince you that flogging is a better option (though I appreciate you reading this far), but hopefully you’ve been convinced that prison is not the answer.”

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“Violence may seem an unsavory alternative to prison, but punishment must by definition hurt in some way, be it emotionally, psychologically, monetarily, or physically. Punishment must cause pain. Physical violence has the advantage of being honest, inexpensive, and easy to understand. For many Americans violence is part of life. It is not incomprehensible that when softer cajoling and rational persuasion fail, corporal discipline, or at least the threat of it, is an effective deterrent and can even make a substantial difference on the course of a person’s life. For many children growing up in disadvantaged neighborhoods, the challenge isn’t to follow the social norms of one’s peers but to actively resist them. Many of my students tell me they wouldn’t be in college if not for corporal punishment. More interesting is that they tell me they’re eternally grateful for this discipline. These are college students making it. Without grandpa’s belt, they tell me, or at least the threat of it, they’d be in the streets, in prison, or dead.

I don’t mean to defend child abuse or unprovoked violence, but wishing away violence is not the solution.”

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“Flogging is indeed very harsh, but it’s not torture — not unless all corporal punishment is defined as torture. Indeed, to conflate flogging with torture does a grave disservice to the understanding of both. It is not only the physical act that defines torture but also the context, the psychological underpinnings, the lack of consent, and the openended potential. The US government has tortured people with euphemistically named “enhanced interrogation techniques.” This torture is not so much a punishment as a means to an end. This is not flogging.

The distinction between pain as punishment and pain as torture is important. People torture because they’re sadistic or want information. We punish because others have done wrong. The torture our government has sanctioned, which I in no way condone, was supposed to achieve a goal. Until that goal was achieved, torture continued. Punishment, however, is finite. It ends. Torture ends only when someone breaks. Punishment, unlike torture, is prescribed in accordance with clear rules of law. The difference between the goals and methods of punishment and torture is critical. I defend flogging, not torture.

Indeed, if examined closely, prisons much more so than flogging display characteristics of torture. By locking people in cells and denying meaningful human contact, we cause irreparable damage; by holding prisoners in group living quarters, we subject them to the potential of gang violence, assault, and all the other forms of aggression found in prisons; and through parole boards’ decisions, we hold the power to continue such punishment for extended periods of time. And for what? What do we gain? Why incapacitate criminals in a nonrehabilitative environment never meant for punishment? This is more torturous than flogging could ever be.”

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“Flogging is refreshingly transparent and honest. What you see is what you get. If you want someone to receive more punishment, you give more lashes. If you want them to receive less punishment, you give fewer. Prison, however, is dishonest punishment. We on the outside have no real idea what goes on inside the concertina wire, but let’s not fool ourselves: It’s bleak. Prisons and slaughterhouses are two of the very few institutions closed to visitors. Just as we prefer not to know all the details of how meat ends up on our table, we prefer to keep prisoners out of sight and mind. Bad things tend to happen in secret, when the masses of “decent” folks can’t or don’t want to see what happens to others.”

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“Even as flogging is more open and honest than prison, this may not persuade some critics, so the fact that flogging is cheap — much less expensive than prison — is worth some elaboration. The financial argument is extremely important and also straightforward. Leaving aside everything already mentioned about the horrors of prison, incarceration simply costs too much (especially considering how ineffective it is). Although there is a fixed cost in establishing any system of judicial punishment — the courts, lawyers, jails, appeals, and police officers — compared to a system of incarceration, the actual cost of flogging is miniscule.”

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Taken from: WEIDMAN, WHITNEY S. 1996. “Don’t Spare the Rod: A Proposed Return to Public, Corporal Punishment of Convicts.” 𝐴𝑚𝑒𝑟𝑖𝑐𝑎𝑛 𝐽𝑜𝑢𝑟𝑛𝑎𝑙 𝑜𝑓 𝐶𝑟𝑖𝑚𝑖𝑛𝑎𝑙 𝐿𝑎𝑤, 23, pp. 651–673…

“Corporal punishment may appear to be a barbaric solution to the problems of a civilized society, but it is in fact a reasonable, rational alternative to the systemic prison overcrowding and rampant recidivism that are part of our current approach to crime and criminals.”

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“As to the issue of the relative humanity of prison versus corporal punishment, consider this: prisoners can reasonably be expected to face assault, sodomy, or murder on a daily basis through the entire term of their imprisonment. How can this be the most humane way to punish them? Prisons were intended to prevent the excesses of punishment meted out in times past and to end the torturous extremes to which corporal punishment had been taken on criminals for even the most petty offenses. But there is an irreconcilable difference between the goal and the reality of prison life. With this in mind, reconsider the humanity of a painful, but brief and controlled application of corporal punishment, conducted in a public setting, thus delivering retribution, deterrence, and the opportunity for rehabilitation into society.”

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“Looking at the applicable terms of the Eighth Amendment may provide further enlightenment. “Cruel” is defined as brutal, savage, or barbarous.14 “Unusual” means scarce, peculiar, or abnormal. 15 The courts have defined “cruel and unusual punishment” to mean “an unnecessary and wanton infliction of pain.” “Wanton” means unconscionable, unbridled, or unrestrained. 16 “Unnecessary” is defined as needless or gratuitous. 17 Corporal punishment, as I recommend it, is certainly scarce in our penal system, at least as punishment is controlled and applied by the state rather than by prison inmates. There are certainly people who feel corporal punishment would be savage and barbarous. But, if applied correctly, it would, by the fact that a specific penalty is imposed for a specific crime, be neither wanton nor unnecessary. This holds true in the same way that imprisonment is considered to be necessary and restrained if the sentence applied is proportionate to the crime.”

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“There is frequently some confusion between the ideas of corporal punishment of children and abuse, just as commentators have confused corporal punishment of criminals with torture. Beating a child severely is abusive. But sending a child to bed without dinner or locking a child in his room can also be abuse. The problem is not with the punishment, but with its application. The same holds true for a penal use of corporal punishment. If applied properly, it could be made no more torturous or barbaric than any other method of criminal punishment.”

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“Retribution is the reason for punishment, but corporal punishment is primarily aimed at punishing the body. Just as the courts have recognized that there is a mental aspect to criminal behavior, so too should the court realize that there be mental punishment imposed on the criminal. Shaming might be the best means of accomplishing that mental punishment.

The difficulties in making shaming a part of criminal punishment are that it must come from all of society rather than simply from the members of the criminal justice system, and it must be designed so as to not stigmatize an offender permanently. Instead, it should merely encourage remorse on the part of the criminal. If it stigmatizes him, he is likely to rebel against a society in which he cannot find a place, and he will continue to break the law.”

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“Corporal punishment applied in a public setting creates an excellent situation for shaming that does not stigmatize but reintegrates. The punishment is quickly applied and quickly finished, allowing the offender to immediately reenter society. Contrast this with imprisonment, which takes criminals out of the mainstream culture and puts them in a close, continued association with a group of people who have proved their willingness to break the law, where a convict is almost inevitably socialized to other criminals’ ways of thinking. When people who have served their time do return to the outside world, they find that it has changed, and their roles in it have changed even more.

By keeping people convicted of crimes out of prison, we eliminate the negative socialization they receive there and, we hope, replace it with a positive socialization of everyday life. By making the punishment public, we try to add a sense of guilt and embarrassment to the proceeding. To make sure that the shame is not disintegrative, perhaps we could give the option of anonymity to the offender. 26 This might let the person feel the full weight of societal disapproval while still allowing them to avoid any long-term stigmatization that would inhibit a smooth return to society.”

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“I would establish a maximum amount of penalty, perhaps the Biblical, Mosaic proscription against giving more than forty lashes.”

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“By using corporal punishment as our primary method of dealing with criminals instead of prisons, we could dramatically reduce the burden in dollars and time that our current criminal justice system imposes on society. It costs as much per year to keep a person in a maximum security prison as it does to send a person to a private university. If there were a viable alternative available, who would argue that the money is better spent on the convict than on the student? As I propose it, a properly administered system of corporal punishment would keep most of the people charged with noncapital crimes out of prison altogether because punishment could be administered immediately after sentencing in many cases.”