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PERSPECTIVE ON CORPORAL PUNISHMENT : Would 'Caning' Work Here? No! : It's not a deterrent; it is discriminatory and cruel, and it would seriously harm our justice system.

April 07, 1994|JEROME H. SKOLNICK | Jerome H. Skolnick is a professor of jurisprudence and social policy at UC Berkeley's School of Law and president of the American Society of Criminology.

When Michael Fay, an 18-year-old American, was sentenced to a "caning" for vandalism in Singapore, the initial reaction in this country was one of outrage; even President Clinton criticized the sentence as excessive and reportedly is seeking to have it withdrawn. But almost immediately, there was a backlash of Americans asking: If severe corporal punishment helps to maintain public order in Singapore, would it not be good policy here?

I don't think so, although I am sometimes angry enough at criminals to be tempted to advocate it.

Singapore canings are brutal. A martial artist strikes the offender's bare buttocks (in Fay's case, six lashes) with a half-inch rattan cane moistened to break the skin and inflict severe pain. The loss of blood is considerable and often results in shock.

Corporal punishment is not necessary to achieve public order, even in Singapore. Other countries do not employ corporal punishment, yet their streets are relatively free of random violence.

There are also principled reasons for opposing corporal punishment.

From antiquity to the present, law scholars have generally agreed that to be just, the punishment should be proportionate in severity to the crime. Under this principle of "just deserts," murderers may be executed, but not speeders. How many of us would consider the brutal flogging of a teen-ager as a just desert for vandalizing property?

Fay's caning seems like excessive punishment to me. The Singapore authorities do not disagree. The caning may be overly harsh, they acknowledge, but it will, they say, deter other youths tempted to commit crimes against property.

The evidence for this assumption is sparse and unclear. In 1960, a British Home Office research group (the Cadogan Committee) undertook a study of 3,000 cases of violent robbery, virtually the only offense where corporal punishment was still being imposed in Britain. The researchers found that robbers who were flogged were slightly more likely to be again convicted of robbery with violence than those who were not flogged.

Yet the study is inconclusive. The difference between the two groups was not statistically significant. Besides, those who were flogged might have repeated their offenses not because they were flogged, but because the authorities lashed only those who were perceived to be the most violent and most likely to repeat their crimes.

It could also be argued by advocates of corporal punishment that the most violent robbers weren't walloped harshly enough. After all, they weren't caned on the buttocks by a martial arts expert whose thrashing could send them into shock. Corporal punishment, the advocates would contend, is a deterrent only if it is adequately severe.

That brings us to this question: Assuming that our Constitution was amended to allow corporal punishment, were we to start down that road, how would we know where to stop? Historically, corporal punishment has included burning, branding, blinding, mutilation and amputation. In some countries, people sentenced to death were drawn and quartered, that is, partly strangled and, while still alive, disemboweled and torn apart. If we abandon the just-desert principle, how far down the road of pain does the quest for deterrence carry us?

And if we permit corporal punishment to be judicially determined, how will we control its administration in our correctional institutions? Once the corporal punishment barriers are down, won't we be inviting prison guard and police brutality?

Another factor to consider: Our prisons are disproportionately occupied by members of minority groups. In 1991, the United States had the highest incarceration rate in the world, 426 per 100,000. Predictably, those who will be beaten and branded and mutilated in this new American justice system will be disproportionately young, male and black and possibly Latino. Aren't racial tensions in this country high enough as it is?

Finally, corporal punishment advocates might argue that beating and mutilation are cheaper than imprisonment. Not necessarily. It would depend on whether caning is the sole mandated punishment or an add-on. Note that Michael Fay was fined and sentenced to four months of jail time in addition to the caning.

The same offenses committed here might have earned Fay, as a first offender, a 30-day jail sentence, a fine and several hundred hours of community service, in the form of street and car cleaning, as a condition of probation. To me, that appears a just desert for spray-painting parked cars and harboring "stolen property" (a stash of street signs).

Corporal punishment may be tough, but it's not very smart, and neither is it cheap, just or necessary.

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