On the importance of public awareness of punishments
When our early immigrants from Great Britain set up their legal system in New England they did not have prisons and, often, not even jails. What passed for justice included such corporal punishments as standing in the stocks or being bound to the whipping post, usually in the village square and always in public view.
That shaming was part of the punishment. Also, it was erroneously believed to reduce recidivism. The great French legal philosopher Paul-Michael Foucault (1926-1984) posited that the “public” part of public punishments was essential to helping eliminate cruel and unusual sentences for crimes.
If a petty thief could have his or her hands hacked off on the public square, society would more likely be averse to such disproportionate penalties. According to Foucault, modern governments began to remove punishments such as beheadings from public view not out of a concern for general sensibilities but out of a desire to prevent the people from rising up against the government. If the public, through its governmental officials, saw fit to physically punish a miscreant, especially a political prisoner, then the public should be witness to the spectacle.
Recently, perhaps as a concomitant of the Black Lives Matter phenomenon, such vestiges as public whipping posts are being removed from public lands and moved to museums. The state of Delaware allowed public floggings as criminal punishments until 1972. Now the places where the public could watch as a person was beaten with a cat-o-nine tails are being removed from such places as jail yards and courthouse lawns. Even the memory may be lost.
In 1817 Posey County, Indiana did not yet have a jail but in one of the county’s first criminal jury trials the defendant, one Mr. Green, was found guilty of hog stealing and sentenced to 49 lashes at a post just outside Posey County’s first courthouse, which was the living room of Absalom Duckworth’s home.
Under the procedure of 1817 the defendant’s lawyer, Richard Daniels, had the right to immediately petition for a new trial. He did so and Judge Isaac Blackford took a lunch break to consider the motion. During the lunch hour, Sheriff John Carson, who either did not know or did not care about the petition for new trial, tied Mr. Green to the whipping post and flogged him without the judge’s or the attorneys’ knowledge.
When Judge Blackford reconvened court, Attorney Daniels stood and requested a new trial. The defendant grabbed his attorney by his coattails and said, “For God’s sake, Dick, do stop. I’ve had enough already!” I suppose no one could accuse the legal system of delay in 1817.
I do not condone or recommend corporal punishment as a sanction for criminal behavior. However, I do agree with Foucault — excluding the public from the imposition of Draconian sanctions makes such unfair outcomes more likely. For example, the spectacle of public whippings was legal in Delaware until 1972, but there had not been such a horrific punishment in that state since 1952, when a husband was lashed 20 times for beating his wife. There is no evidence such a sanction helped prevent spousal abuse. But it surely caused citizens to lose respect for their legal system.
— James (Jim) M. Redwine was born in Pawhuska, Osage County, Oklahoma. He is a graduate of Pawhuska High School, Indiana University, I.U. School of Law, the Indiana Graduate Judges College and the National Judicial College. He lives at JPeg Osage Ranch in rural Osage County, Oklahoma with his wife, Peg. Jim and Peg have 3 grown children, 7 grandchildren and one great-grandchild.