Physical punishment

“ Nevertheless to this trustfulness and innocence the terrible physical punishment that had been evolved for a race of men who had been educated for centuries was ruthlessly applied, and to make the situation still more unhappy and apparently unjust, no remedial or palliative agencies were known to the victims. ”

“ I had a great desire to know among other things all about the various grades of sentences and punishments, the varying severity of the different forms of punishments, the attitude of the convicts themselves. I tried to picture to myself the psychological condition of men going to punishment. I have mentioned already that it is unusual for anyone to be unconcerned before punishment, even those who have been severely punished and on more than one occasion. The condemned are overcome by an acute purely physical terror, involuntary and irresistible, which masters the man’s whole moral being. ”

“ Bishop, 404 F.2d 571 (CA8 1968) , death remains as the only punishment that may involve the conscious infliction of physical pain. In addition, we know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death. ”

“ As the heading indicates, this section deals with " [f] reedom and security of the person" and the subsection provides that " [n] o person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment." This is the only provision, among those relied upon by the applicants, that expressly refers to punishment. I propose to deal with the impact, if any, of sections 10 and 11 (2) of the Constitution on the conduct which is prescribed by section 294 of the Act. ”

“ Although we have come to adopt modern ideas about the infliction of physical pain in punishment, we cannot depart far from its fundamental theory and motive. In the past, physical pain has been employed also, in lynching and in regular proceedings, to enforce conformity, and to suppress dissent from the current mores of the society. ”

“ Whoever shall, by violence, do bodily harm to the person of another shall be arrested, and suffer such punishment as may on trial be adjudged against him; and should death result from such bodily harm done to the person of another, the offender shall be arrested, and suffer such punishment as may be adjudged against him. ”

“ Imprisonment as practised in modern times has followed from the last-named class of punishments. Although affecting the individual, and in many of its phases with brutal and reckless disregard for human suffering, it can hardly be styled a purely personal punishment, upon which I propose now more particularly to treat, and the present chapter will deal only with penalties corporeal.
Taking first the punishments which fell short of death, those most common in this country until comparatively recent times, were branding, mutilation, dismemberment, whipping, and degrading public exposure. ”

“ The uncertainty of crimes hath sacrificed more victims to secret tyranny, than have ever suffered by public and solemn cruelty. What are, in general, the proper punishments for crimes? Is the punishment of death really useful, or necessary for the safety or good order of society? Are tortures and torments consistent with justice, or do they answer the end proposed by the laws? Which is the best method of preventing crimes? Are the same punishments equally useful at all times? ”

“ Finally, speaking for itself, this Court said:
'Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. ”

“ Cruel or unusual punishment is not to be inflicted, but who is to decide what is cruel and what is unusual? * * * Each officer may define cruelty according to his own temper, and if it is not usual, he will make it usual. Corporal punishment, imprisonment, the gag, the ball and chain, and the almost insupportable forms of torture invented for military punishment lie within the range of choice. ”

“ THE useless profusion of punishments, which has never made men better, induces me to inquire, whether the punishment of death be really just or useful in a well governed state? What right, I ask, have men to cut the throats of their fellow-creatures? ”

“ There is one excellence, indeed, which I perceive in corporal punishment; it is an excellent means of breeding criminals. Parents who inflict frequent corporal punishment, I make bold to say, are helping to prepare their children for a life of crime; they put them on a level with the brute, break their spirit and weaken their sense of shame. ”

“ It may be objected, that the same punishment inflicted on a nobleman and a plebeian, becomes really different from the difference of their education, and from the infamy it reflects on an illustrious family; but I answer, that punishments are to be estimated, not by the sensibility of the criminal, but by the injury done to society; which injury is augmented by the high rank of the offender. ”

“ The end of punishment, therefore, is no other, than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence. Such punishments, therefore, and such a mode of inflicting them, ought to be chosen, as will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal. ”

“ There is not, I should think, any human infliction which makes an impression on the imagination so entirely out of proportion to its real severity as the punishment of death. The punishment must be mild indeed which does not add more to the sum of human misery than is necessarily or directly added by the execution of a criminal. ”

“ In proportion as punishments become more cruel, the minds of men, as a fluid rises to the same height with that which surrounds it, grow hardened and insensible; and the force of the passions still continuing, in the space of an hundred years, the wheel terrifies no more than formerly the prison. That a punishment may produce the effect required, it is sufficient that the evil it occasions should exceed the good expected from the crime ”

“ Article 9 The principal punishments are categorized as the death penalty, imprisonment, imprisonment without work, fine, penal detention and petty fine, with confiscation as a supplementary punishment. ”

“ Many cruelties have been enacted in the past in the name of prison discipline—solitude, darkness, chains, floggings, tread wheels and cranks, even until a comparatively recent period, were regarded as the essential accessories of punishment. In studying the history of punishment, we cannot fail to be struck by the singular inventiveness of the human mind in designing forms of suffering for those who broke the law—crucifixion, mutilation, stoning, drowning, torture. ”

“ Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.
[Pg 564] "Whoever is guilty of murder, shall suffer the punishment of death or imprisonment in the penitentiary for his natural life, or for a term of not less than fourteen years. ”

“ The number of crimes for which death and bodily torture have been the punishment can scarcely be recorded, and if they could it would be of no value. They would run into the hundreds and probably the thousands. ”

“ If, in our horror of inflicting death, we endeavour to devise some punishment for the living criminal which shall act on the human mind with a deterrent force at all comparable to that of death, we are driven to inflictions less severe indeed in appearance, and therefore less efficacious, but far more cruel in reality. Few, I think, would venture to propose, as a punishment for aggravated murder, less than imprisonment with hard labor for life ”

“ To every crime, which from its nature must frequently remain unpunished, the punishment is an incentive. Such is the nature of the human mind, that difficulties, if not insurmountable, nor too great for our natural indolence, embellish the object, and spur us on to the pursuit. ”

“ And punishment, which is one of the social forms of pain, is always a direct motive in human conduct, as it is also an indirect guide, by virtue of its being a sanction of justice, unconsciously strengthening respect for the law. But still this psychological truth, whilst it demonstrates the natural character of punishment, and the consequent absurdity of abolishing it as absolutely void of efficacy, does not destroy our conclusion as to the slight efficacy of punishment as a counteraction of crime. ”

“ And every person so offending may be arrested and held for trial by a court-martial, and if found guilty shall be punished by fine and imprisonment, or such other punishment as the court-martial may adjudge, save the punishment of death. ”

“ To every breach of discipline, certain punishments are allotted; some, indeed, appear very severe; and for many misdemeanours, corporal punishment is not merely held out in terrorem, but inflicted. Attempts at escape are liable to be punished by labour in chains, or flogging up to 100 lashes, or to a renewed sentence of transportation ”

“ Experience has shown these attempts ever to have been futile. All kinds of punishment have been tried — hanging, beheading, burning, mutilating, disemboweling, quartering, gouging out the eyes, cutting out the tongue, cropping the ears, branding, standing in the stocks, drowning, using the rack and the thumbscrew and many others which ingenuity in this direction could devise. ”

“ Nothing is more clear than that the infliction of punishment in general, in a degree which the reformation and the restraint of those who transgress the law does not render indispensable, and none more than death, confirms all the inhuman and unsocial impulses of men. It is almost a proverbial remark, that those nations in which the penal code has been particularly mild, have been distinguished from all others by the rarity of crime. ”

“ That there are numbers of persons who would be quite willing to bring back, if it were possible, the medieval forms of torture cannot for a moment be doubted by any one who, like myself, has had the experience of working for over twenty-five years for the discontinuance of flogging. There are, of course, many reasonable advocates of corporal punishment in one or another of its forms ”

“ Men do not, in general, commit great crimes deliberately, but rather in a sudden gust of passion; and they commonly look on the punishment due to a great crime as remote and improbable. The public punishment, therefore, of small crimes will make a greater impression, and, by deterring men from the smaller, will effectually prevent the greater. ”

“ The proposition put forward by counsel, that, if the court has authority to inflict the punishment prescribed, its action is not void, though it pursues any form or mode which may commend itself to its discretion, is certainly not to be tolerated. Imprisonment might be accompanied with inconceivable misery and mental suffering, by its solitary character, or other attending circumstances. Death might be inflicted by torture or by starvation, or by drawing and quartering. ”

“ Against the theory of punishments as established here by us, there is usually opposed another theory, which establishes an absolute right of punishment, and looks upon judicial punishment not as a means, but as an end in itself. ”

“ THE more immediately after the commission of a crime, a punishment is inflicted, the more just and useful it will be. It will be more just, because it spares the criminal the cruel and superfluous torment of uncertainty, which increases in proportion to the strength of his imagination and the sense of his weakness; and because the privation of liberty, being a punishment, ought to be inflicted before condemnation, but for as short a time as possible. ”

“ First, there are certain punishments that inherently involve so much physical pain and suffering that civilized people cannot tolerate them - e. g., use of the rack, the thumbscrew, or other modes of torture. ”

“ It is not so much an instrument of punishment in itself, as it is an operation-board whereon to confine the criminal, not with nails, but ropes, to undergo—as in the case of a woman taken in adultery—the cutting away of the flesh from the bosom. ”

“ My Lords, the punishments to be inflicted upon misdemeanors of this sort, have usually been of three different kinds; fine, corporal punishment by imprisonment, and infamy by the judgment of the pillory. With regard to the fine, it is impossible for justice to make this sort of punishment, however the infamy will always fall upon the offender ”

“ Pincers to pull out finger-nails, branding-irons, and stocks that kept a man or a woman standing on the toes for hours, were light punishments for petty thievery. A very popular form of punishment was to hang the prisoner by his feet, head down, and let the populace come in and enjoy the sight. ”

“ From what I have written results the following general theorem, of considerable utility, though not conformable to custom, the common legislator of nations. 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 ”

“ At present, however, there is but a dim and very confined sense, even amongst enlightened men (as we may see by the debates of Parliament) , of the injury which is done to human nature by giving legal sanction to such brutalizing acts; and therefore most men, in seeking to escape it, would be merely shrinking from a personal dishonor. Corporal punishment is usually argued with a single reference to the case of him who suffers it ”

“ We have only to distinguish between punishment as a natural sanction and punishment as a social sanction in order to see how the really great power of natural punishment almost entirely disappears in social punishment, which in all our systems is but a sorry caricature. ”