The modern penal state is geared towards keeping its prisoners institutionalized, which is to say totally conditioned to the rhythms, desires, and goals of the penal state itself. This process supports the penal state, for institutionalized men and women usually commit more crimes once they return to the outside world. While low intelligence and poor impulse control can explain many cases of recidivism, they cannot explain all cases.
The state and its private prison contractors make more money off of full bunks and crowded cells. Ergo, stringent laws and the growth of the criminal justice system benefits the state at every level. For liberty to exist, this prison-industrial complex must be destroyed. The simplest method for accomplishing this is to return to the pre-modern punishments that the prison-industrial complex replaced. For more serious crimes, exile and outlawry could be reintroduced. For lesser offenses, a return to judicial corporal punishment is a superior alternative to the dehumanizing penal state. Let us explore the history of judicial corporal punishment, make the case for bringing back such punishments, and deal with likely objections.
A History of Violence
In the opening passage of his influential book Discipline and Punish, left-wing philosopher Michel Foucault characterizes pre-modern punishment as a gory spectator sport:
“On 2 March 1757, Damiens the regicide was condemned ‘to make the amende honorable before the main door of the Church of Paris,’ where he was to be ‘taken and conveyed in a car, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds’; then, ‘in he said cart, to the Place de Greve, where, on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses’…”
The brutal evisceration of Damiens was meant to purge the body politic of one man’s infection. In Foucault’s telling, pre-modern punishment was personal and designed to be didactic (thus the importance of the punishment being seen). Pre-modern punishment was also based around the monarch. For instance, Foucault talks about the ceremony of punishment and how pre-modern kings usually spoke of crime as an assault on them, the office of the sovereign, and, by extension, God. Modern leaders, by contrast, usually speak of crime as aassault on and debt owed to society.
Such public humiliation was not confined to the Old World. Prior to the American Revolution, public executions and lesser punishments such as branding were undertaken by colonial authorities acting on behalf of both the British king and their colonial charters. In Puritan Massachusetts, “scolds” and “brawlers” were placed into the cucking stool. Most commonly associated with witchcraft trials, cucking stools were simple machines whereby guilty parties were repeatedly dunked into “purifying” waters. Elsewhere in colonial New England, bickering couples or fornicators were sentenced to the pillory, where, side-by-side, they were subject to the violent whims of the community that they had angered with their “ungodly” behavior. Property crimes in colonial New England prompted similarly harsh treatment. Those who committed tiefen, or the theft of livestock, food, or clothing from farms, had their ears removed. Counterfeiters suffered the same fate until new laws were established in 1806. Arsonists typically met with a noose.
Popular history has remembered the Puritans as stern and superstitious provincials who saw the Devil peeking around every corner. However, they were a law-abiding society that utilized sharp punishments because of their unusual mixture of theocracy and republican virtue. Namely, every New England citizen was encouraged to spy on each other in order to ensure good behavior. If one local man left his barn door open or if a local woman talked too much, then the delicate covenant with God could be broken. Puritans protected this covenant like they protected their homes against Indian raids—with violence and prejudice.
The colonial South differed very little from New England in terms of its approach to corrective justice. 17th century Virginia saw criminals branded or mutilated in some way. As for prisons, the first one in American history may have been the English ship Susan Constant, the very same vessel that carried Captain John Smith and the Jamestown settlers to the New World.
The Coming of Prisons
British officials were bitten by the criminal justice reform bug early in the 18th century. As a result, James Oglethorpe, who was concerned about debt prisoners in Great Britain, was given control over the Colony of Georgia, North America’s largest penal colony. Here, work and the fresh air became substitutes for dank dungeons or “barbaric” practices like branding or mutilation.
During America’s push westward, physical punishment carried on in much the same way as it had in the 17th century. Horse thieves were hung by vigilante committees, while lynching parties tended to do the work of judges and juries. The lynching parties in the rural South tended to have a racial character, with whites killing black men under charges of rape or engaging in sexual improprieties with white women.
Back on the East Coast, criminal justice reform moved towards a supposedly more humane model of punishment. As was the case in England, American Quakers led the charge for prison systems that were designed to change the behavior of their inmates. From the late 18th century onward, America’s prisons became correctional institutions where wardens attempted to guide their charges to better lifestyles through work, contemplation, and isolation.
For Foucault, the linchpin to this new prison system was the Panopticon—a cyclopean tower that stood in the middle of a ring of prison cells. From this guard tower, prison officials hoped to direct the behavior and thought patterns of their prisoners. He writes,
“Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So to arrange things that the surveillance is permanent in its effects, even if it is discontinuous in its action; that the perfection of power should tend to render its actual exercise unnecessary…”
The power of the Panopticon lies in the fact those within the purview of its vision can never be sure if they are being watched. Even if no one is controlling the tower, most prisoners will act as if someone is observing them. The theory of the Panopticon can today be found in the United Kingdom, where closed-circuit television cameras abound on almost every street corner. In the United States, not only is the NSA busy spying on everyone, but technology companies like Google and Facebook use their power to discourage “wrongthink” concerning political issues.
However, as powerful as the Panopticon is, it would have never been born without the Enlightenment and America’s transition from a limited monarchy to a constitutional republic. Rather than seeing crime as an offense against one person (the sovereign) or against a limited community, crime became seen as an offense against the entire society (the demos). It thus became cruel to subject criminals to customized punishments and important that criminals be kept away from the masses. The modern penal state does just that, but the process of creating a separate culture of prisoners actually rationalizes criminality. Criminals were once those who trespassed against divine authority, but criminality is now a profession that has a finishing school called prison.
Peace Through Force
The modern penal state has only been successful in producing more criminals. This is part of its business model, so in order to find a superior alternative, we must do away with the modern penal state. In its place should be private citizens and municipal authorities which do not receive any money from the federal government. Rather than operate contemporary prisons, these communities would subject criminals who have been convicted of serious crimes to flogging, branding, or other such corporal punishments. The most incorrigible criminals would be subject to execution or exile as an outlaw rather than life in prison. Lesser offenses would merit restitution to be performed in a different sort of prison that those which are common today.
It should go without saying that children should not be subject to judicial corporal punishment. Just as using physical violence at the individual level of the parent to discipline children violates the non-aggression principle, so too would the use of communal violence. Instead, every effort to reason with children and teach them virtue must be made. It is only after all such efforts are exhausted to no avail and a disobedient child grows into a criminal adult that they should feel the sting of the lash.
The practitioners should ideally be those aggrieved by the criminals; otherwise, the administrators should be the natural leaders in the community. Because one of the largest problems in modern culture is that the true nature of reality is hidden from the masses, the new corporal punishments should be performed in public, with all citizens encouraged to witness the acts and hear the reasons for them. Bringing back pre-modern punishments would show everyone that violence is disgusting and only righteous when used to deter aggression.
Another added benefit would be that criminal trials and punishments would be an expedited affair. Currently, the average time of criminal trials, whether for misdemeanors or felonies, is anywhere between three months and several years. In the proposed system, trials would be faster, primarily because one of the key components of this system would be a streamlined criminal code. There would be less crimes on the books, for libertarian theory only considers crime to be those offenses which victimize or threaten a person or property. For example, simple possession of drugs or engaging in prostitution in secret would be considered vices rather than crimes, to merit the attentions of the beadle rather than the policeman.
Along with faster trials and more efficient punishments, a return to pre-modern methodologies of punishment would curtail the demand for prisons. At best, only medium-sized jails would be needed to temporarily house those awaiting trial. And since life imprisonment would no longer be an available sentence, there would be no need for “supermax” correctional facilities that cost taxpayers millions of dollars every year. There would only be two options for the most hardened criminals: death or banishment from society.
As with an earlier proposal for private security, the first likely objection is that bringing back pre-modern punishments would incentivize vigilantism and the madness of crowds. Liberals will claim that such a proposal all but guarantees a return to lynching and racial injustice. Although there is no guarantee that every community would act perfectly rationally, every liberal must answer this question: is it better to have injustice on a small scale or on an industrial scale? Would community-organized punishment really be that much worse than the current penal state, which has seen millions of men pass through its doors thanks to pointless drug laws? The critic would also be conflating racial injustice with the methods of punishment being used, when the two are separate issues. Furthermore, the proposal is not to abandon a judicial structure in favor of vigilantism, but to reintroduce corporal punishment into a judicial structure.
Another possible objection is that the mentally or physically unfit would be subject to corporal punishment. This can be resolved by barring the mentally or physically unfit from certain punishments, although both could still face an array of pre-modern punishments, including permanent house arrest, banishment, and even cruel execution. Doctors and other medical professionals would play a key role in determining whether someone is fit for punishments such as flogging or branding.
A third objection would be that the proposed system would not deter crime. After all, there has never been any conclusive proof that the death penalty deters crime. Indeed, some of the most hardened criminals may even have a death wish. But this may have more to do with the current practice of capital punishment rather than its effectiveness in all cases. Capital punishment in America is a drawn-out process that often sees inmates waiting on death row for decades. Some famous criminals, such as Charles Manson and members of the Ripper Crew, were sentenced to death, but had the good fortune to be housed in liberal states that discontinued capital punishment. A pre-modern regime would not give criminals the chance to languish away in government-subsidized cells complete with food, showers, clothing, televisions, and other amenities. Similarly, rather than be injected with toxins or shocked with thousands of volts of electricity in secret death chambers, criminals would be publicly humiliated in view of all of society. Such an attack on personal pride and vanity would strike a deep cord in most criminals.
Fourth, some will condemn the use of corporal punishment as anti-libertarian, or at least counterproductive. As noted above, such arguments are correct when applied to children, but for adult aggressors who inflict bodily harm upon others, these are merely aesthetic and utilitarian concerns which play no role in libertarian theory. As Murray Rothbard writes,
“In the question of bodily assault, where restitution does not even apply, we can again employ our criterion of proportionate punishment; so that if A has beaten up B in a certain way, then B has the right to beat up A (or have him beaten up by judicial employees) to rather more than the same extent.”
This comes not out of concern for efficacy or even deterrence, but out of concern for logical consistency.
Finally, the greatest objection to this proposal in America is the Eighth Amendment, which outlaws “cruel and unusual punishment.” While this amendment was written with the good intention of restraining the state, it prevents the punishment from fitting the crime in the event of cruel and unusual crimes. One could also argue that the entire concept of a prison is cruel and should be unusual. Furthermore, cruelty done in the name of justice is not immoral. While it may be cruel to brand a criminal for horse thievery, the original act of theft may have been just as cruel, if not more so, especially if a family depended on that horse for its livelihood.
The current penal state institutionalizes bad behavior and encourages recidivism in the form of social ostracism and limited economic prospects. By contrast, a pre-modern approach to criminal justice, even with its attendant violence, does more to discourage repeat offenders and the marginally criminally-minded. Better yet, a pre-modern system would do away with lengthy trials and the specter of long, taxpayer-funded waits on death row. Punishments would be quick, vicious, and public, thus increasing the likelihood of deterrence.
Such a system would have no need for the central state. All trials and punishments could be carried out at the local level. Judges, bailiffs, juries, punishers, and executioners could all be local residents. The holding cells would also have little need for federal funding, for local resources are generally enough for temporary housing before trial. A pre-modern punishment regime would decrease crime, cut out the vampiric state and its bloated penal system, and put authority back into the hands of municipalities.
- Foucault, Michael (1977). Discipline and Punish: The Birth of the Prison. Random House. p. 3
- Mofford, Juliet Haines (2012). “The Devil Made Me Do It”: Crime and Punishment in Early New England. Globe Pequot Press.
- Foucault, p. 201
- Rothbard, Murray (1982). The Ethics of Liberty. Humanities Press. p. 89