BORSTAL
Will Corporal Punishment 
Deter?
From the book 'JUST AND PAINFUL' by Graeme Newman
The whole of this book can be read at 
MANY CLASSIC EXPERIMENTS on the effects of corporal punishment on dogs, monkeys, pigeons and humans have been conducted in psychology laboratories.
The gate is opened and the rat dashes along a metal grid. It grabs the food that has been placed at the end of the runway and nibbles it joyfully. Suddenly the rat drops the food, squeals, and springs up in the air, dancing around the edge of the grid as though on hot bricks.
The experimenter has electrified the grid, giving the rat quite a shock.
After a few seconds the shock goes off. The rat sits apprehensively in a corner.
In a couple of minutes the experimenter again drops food into the cage. The rat immediately dashes forward and begins to consume it. Again it squeals, drops the food and dances around, clearly in pain.
The shock goes off. The experimenter repeats the whole pro-
cedure again and again. The same thing happens. The rat goes for
the food, but drops it when shocked.
Then at about the fifth "trial," as it is called, the rat runs toward the food, but withdraws as soon as it gets near it. After a few times at this, the rat no longer runs toward the food.
Acute corporal punishment has successfully eliminated the temptation to eat food.
Corporal Punishment Works
In a number of similar experiments corporal punishment has been so successful that some animals have starved themselves to death rather than eat the forbidden food. Most studies conducted by psychologists in their laboraties use electric shock when they wish to administer acute pain to their animal subjects.
It is also of interest that the few laboratory studies of the deterrent effects of isolation (that is, the laboratory analogue of prison) have produced much more inconclusive results than have those using corporal punishment. There is little doubt that, in the experimental conditions of the laboratory, acute pain is a very efficient and lasting suppressor of unwanted behavior, both of the person punished (individual deterrence) and of the person watching the punishment (general deterrence)
This is an amazing observation when one considers that the predominant scientific opinion as to whether it is possible to rehabilitate off enders (that is, do something to them to stop them from committing again) is that nothing works.
Why is this? It is because those who have reviewed the research on punishment as a deterrent have been biased.
The Three Biases of Deterrence Research
1. Researchers have used a different set of standards for evaluating corporal punishment as against prison.
2. They have conveniently overlooked all the research on corporal punishment conducted in the psychology laboratory, and, while this research does not have direct application to humans, it nevertheless is an important guide, just as research on the cancerous effects of drugs on animals is considered an important guide.
3. When researchers have recognized the laboratory research on the effectiveness of punishment, they have ignored the fact that almost all this research has used corporal punishment.
The prestigious research group for the National Research Council, to which we have referred many times throughout this book, is guilty of these biases. Presenting itself as "scientific" it made no attempt to review any of the experimental research on physical punishment.
Only two substantial studies on corporal punishment in criminal justice have been conducted. They were conducted in Delaware and in England roughly forty years ago.
The Delaware study was conducted by Professor Robert Caldwell in 1947, and published in his interesting book Red Hannah: Delaware's Whipping Post. Delaware was the last state in the United States to abolish whipping as a criminal punishment. (Abolition did not occur until 1972, although its use had been rare for some two decades previous).
Professor Caldwell compared the rate of recommittal of (1) those criminals sentenced to whipping and who were not whipped, with (2) those criminals who were sentenced to whipping and who were whipped.
However, the law was that whipping should always be coupled with a prison term, so that it is clear from the outset that we cannot hope to separate out the effects of whipping from the effects of prison. Indeed, the combined effects of prison and whipping might produce consequences quite different from each punishment when used separately.
But the most important criticism is that we do not know what were the reasons for selecting out those who were whipped as against those who were not. As we will see, those who were whipped were the more hardened criminals. This would bias the groups in such a way that we would expect a higher recommittal rate for the whipped group than for the unwhipped group.
Yet on the basis of these findings, Caldwell concluded that whipping should be abolished.
The British research into whipping displayed a similar bias.
The report of the Committee on Corporal Punishment was published by the Home Office in March 1938. It's conclusion was:
We are not satisfied that corporal punishment has that exceptionally effective influence as a deterrent which is usually claimed for it by those who advocate its use as a penalty..
As laudable, thorough, and apparently unbiased as the report of that Committee appears on first reading, it did in fact begin with a conclusion: that corporal punishment should be abolished. And it proceeded to collect as much evidence as possible to support this conclusion.
The report began by flatly rejecting any defense of corporal punishment on the grounds of retribution, a philosophy, it said, which "did not fit in with the enlightened treatment philosophy." Today, we know that this treatment philosophy has not produced the results its advocates expected.
The Committee was confronted with some good arguments. For example, some witnesses complained that merely to give a juvenile probation for an offense which might have included very substantial damage to property and even to life and limb did not seem just, or at least failed to fit the punishment with the crime. Yet the committee dismissed this evidence on the grounds that it could not allow criminal justice to be "dominated by these few exceptions," and that it was by its deterrent value that corporal punishment should be judged.
The Committee set as its task to discover whether corporal punishment had deterred crime in England and Wales, and its conclusion was, predictably, that it could not be shown to have done so, and therefore should be abolished
The Committee made no effort whatsoever to investigate the comparative effects of long prison terms on crime rates, yet made the forthright conclusion that:
We have found no evidence that ... long sentences of imprisonment or penal servitude are so ineffective as deterrents that it is essential to add some further penalty for the protection of society...
That further penalty was, of course, corporal punishment. The Committee never considered seriously the possibility of using corporal punishment in and of its own without prison, except in the case of juveniles (for whom it also rejected it because it was not in line with the treatment philosophy). All of the data on which it based its conclusions were data in which corporal punishment had been administered in addition to a prison term, so that it was never possible to separate the effects of the two.
A quick look at some of the games the Committee played will suffice to show how biased was the treatment or the research material.
1. A number of witnesses argued that, from their considerable experience, very few offenders were reconvicted for an offense for which they had been flogged. The Committee dismissed this evidence on the grounds that they found only two or three instances in which offenders were re-flogged.
2. The Garotters Act was introduced in 1863 in response to a serious increase in robbery in which the victim was strangled. The act required flogging as an additional penalty for this crime. There was a substantial decrease in the number of these crimes immediately after the Act-from 60 in 1863 to 43 in 1864. The Committee insisted that, because the decrease occurred in the few months just before the act was passed, flogging could not possibly have deterred this crime. But we know that deterrence works by way of threat, and so the early decrease may just as easily be explained by the threat of flogging that would occur in advance of the act being passed. This is not to say that this is the only true interpretation, but it does point out that the Committee made the interpretations that it wanted to.
3. In Glasgow it was generally believed that the offense of living off the immoral earnings of a woman was stamped out by an Act in 1912 which prescribed corporal punishment for the crime. The Committee observed that, although there were substantial decreases in the number of crimes after this act, flogging was actually never applied for any of these crimes. Once again, the Committee failed to recognize the significance of the threat of punishment as a deterrent.
There are a number of other examples of "field studies" related by the Committee, all of which were explained away in this manner. Again, one should emphasize that the figures or evidence are not conclusive either way, especially as we know from the work of the National Research Council review of deterrence research that field studies are filled with impossible pitfalls and that there are so many alternative factors which can affect crime rates.
The significant point was that this Committee was prepared to reject statistics when they appeared to support the thesis that corporal punishment may have a deterrent effect, and to accept data without too much criticism when they appeared to show that it had no deterrent effect.
4. The Committee made a special effort to meet one criticism, namely that they were only examining the effects of corporal punishment combined with prison, since at the time the laws of England and Wales did not provide for corporal punishment as a sentence on its own. It was always combined with prison. An examination of this effort provides an excellent example of the Cornmittee's confused thinking.
Committee members compared the crime rates for violence between England and Wales figured together and Scotland, since Scotland did not have the power to impose corporal punishment for violent crimes. They concluded that, because the rate of violent crime was lower in Scotland compared with England and Wales for the years 1900 to 1934, this proved that corporal punishment added no appreciable deterrent effect. It is clear that this is not a fair test of corporal punishment, especially as there may be very good reasons for supposing that the combination of corporal punishment with prison may create a form of punishment which is quite different from both prison or corporal punishment alone. In the previous chapter we saw that this combination came very close to torture.
But even allowing for this, it is clearly misleading to claim that it was corporal punishment, and only corporal punishment, that was the effective cause of the higher crime rate of England and Wales as compared with Scotland. Since the Committee only compared data on violent crimes, one suspects that, if property crimes had been included (crimes for which whipping was not the punishment), similar differences in crime rates between the two geographical and social areas would have been found.
The point is that, just as in many similar studies of deterrence reviewed by the National Research Council, there is simply no way to exclude all of the possible factors that may contribute to different crime rates between different jurisdictions to allow one to safely conclude that a particular punishment has had a deterrent effect.
The Committee's categorical recommendations for abolition of corporal punishment were therefore not warranted by the data. Yet at the same time the Committee admitted that whipping might have a deterrent effect:
We do not, of course, deny that it (corporal punishment) has some deterrent effect. All forms of punishment have some deterrent influence, and it is arguable that the more severe the punishment the greater the deterrent effect. This alone, however, would not be a sufficient ground for retaining the existing powers of corporal punishment. If it were it would also be a sufficient ground for making corporal punishment a possible penalty for many other offenses.
The Committee then went on to outline a number of other crimes that the judiciary had suggested might be appropriately punished by corporal punishment, and also a range of crimes that various witnesses had suggested. It complained, however, that there was 4 tno principle" underlying the range of crimes that were suggested as fit for corporal punishment, yet at the same time observed quite astutely, that the crimes suggested were those that "excited the imagination. " We can see at work here the quest for punishments that can meet the quality of the crimes. But because of the Committee's one-sided view of the purpose of criminal punishment-deterrence to the exclusion of all else-it failed to recognize the principle embedded in "special indignation" (the Committee's words): retribution.
Did British Criminals Learn Their Lesson? 
The Home Office examined the records of 440 offenders who were convicted of robbery with violence, an offense that was punishable by whipping at the time (1921-1930), and compared those who were flogged with those who were not flogged. However the very same criticisms and flaws may be identified in this study as in that by Caldwell. Whipping was always administered in conjunction with a prison term, so one is never able to separate the two punishments.
But the Home Office concluded that, if anything, the whipped group displayed a higher recommittal rate than the unwhipped group. The data are so similar to those presented by Caldwell that one may conclude either (1) that whipping really does produce higher rates of recommittal or (2) that the biased selection of the whipped group as against the unwhipped group contributed to the difference. Buried in the appendix of the report is the statement that the majority of the unflogged group was composed of first offenders, and that the whipped group was made up largely of those who had previous offenses of robbery, or who had previously served long prison terms!
Clearly, the groups were heavily biased from the beginning and therefore no conclusion can be made as to whether flogging taught criminals a lesson or not.
We may conclude that the abolition of whipping is not justified on the basis of deterrence research.
Why Prison is a Bad Deterrent
1. Chronic pain is not as efficient as acute pain. The punishment applied to the subjects of the punishment experiment described at the beginning of this chapter is one that is always defined in terms of acute pain. In real criminal punishment, this is far from the case. The punishment is drawn out into long prison terms which are then-almost as an apology for their being long-turned into periods of "humane" punishment, described as deprivation of liberty, while maintaining many physical comforts.
2. Time works against prison. The scientists of punishment know what makes punishment most effective: it must be immediate and swift. That is, it must be administered as soon after the offense as possible. In that way both the offender and the public are able to make the connection between the crime and the punishment. This important technique of punishment is quite commensurate with retribution, in that, if the link between the punishment and the crime is to be clearly forged, it must occur as close as possible to the crime. Thus, people will see the meaningful connection between the punishment and the crime. The longer the delay the less deserved will seem the punishment.
For example, we find ourselves in great difficulty understanding the justice of punishing an offender who has been, say, in hiding for twenty years leading a life as a productive citizen, who is finally apprehended and sentenced to several years prison for a crime he committed so long ago. Such a punishment seems somehow not right.
It may be that it is because all we have to punish with is "time," that the time elapsed since the offense naturally eats away at the punishment. If we were to administer a punishment that was acute and extremely brief, such punishment does not seem so out of place, and is less affected by time. The offender, even though he has spent the last twenty years as a good citizen, still has his price to pay for the original crime. To make him do even two years in prison would seem unnecessarily destructive. To punish him with pain for a few minutes preserves the offender's integrity, and gives him a chance as well to make amends for his crime. The balance between crime and punishment is restored, and as little damage as possible is done in the process.
3. Prison maximizes uncertainty. Any criminal worth his salt knows that he can expect to get caught only for a small number of his crimes. There is no certainty of punishment in real life as far as crime is concerned. However, when we are talking about general deterrence-that is, the deterrence by the threat of punishment of those ordinary people who might otherwise commit a crime-this is not so bad. It is likely that most people grossly overestimate the chances of getting caught, so that the "certainty" of the punishment is ensured through the omnipresence of threat.
Certainty means more than simply the chances of getting caught, and in fact one might argue that this is not really what certainty means when it comes to criminal punishment. Certainty also requires that, when a person is found guilty of a crime the punishment will in fact be carried out.
This is the point on which most criminal justice reformers have concentrated their energies over the last few years. As we saw in Chapter 8, they have complained that judges' discretion produced highly unpredictable sentences. Their solution, we have seen, was to argue for the legislation of mandatory or fixed sentences.
This makes the punishment certain all right. But it makes the wrong kind of punishment certain. In fact, these reformers have mixed up certainty with severity. As long as the words "mandatory" or "fixed" are there, they think that the problem of certainty is solved.
It is not, of course.
The only thing that is certain is that the offender will go to prison (that is, if he has not undergone plea bargaining for some lesser offense-although some legislatures have also tried to outlaw plea bargaining in an attempt to ensure certainty of punishment). However, it is not certain that he will be punished appropriately, or that the experience of prison will even be painful.
This problem would not arise if prisons were made once again retributive, if the split between the crimes and the criminals were made immense enough.
One final defense of the deterrent use of corporal punishment can be made-this time, paradoxically, from the point of view of retribution.
The argument in favor of the acute corporal punishment of criminals would be made easier if it could be shown that it had little lasting effect on the individuals punished. The reason for this is that, according to the principles of the "old retributivists," their main moral defense of punishment is this very fact: that it punishes the act only, and leaves the person unaffected (that is, unchanged). In this sense, the finding that "nothing works" is great support for their position!
The psychologists who advocate the use of painful techniques to eliminate unwanted behavior argue that their methods are designed specifically to eliminate only the particular unwanted behaviors of the individual and leave the individual's personality essentially untouched.
For example, through an effective punishment routine, Professor Eysenck of the renowned Maudsley Institute of Psychiatry in London, eliminated a man's fetish for ladies' handbags-a fetish that had gotten him into a lot of trouble. This deviant behavior was eliminated through a punishment schedule. Professor Eysenck and his associates are insistent that they made no attempt (and see it as entirely unnecessary) to "get inside the person's head" to some supposed deeper problem of his personality." In that sense, it may be said that this kind of punishment routine leaves the individual untouched, especially in comparison with prison which, we have seen throughout this book, essentially affects the person's whole personality and life.
Therefore, if we must use deterrence as the standard by which to measure corporal punishment, we may say that not only can it be shown to have a specific deterrent effect on a specific behavior (which cannot be shown for prison) but it also is a more justifiable deterrent in comparison with prison because it focuses on the act rather than the actor.
In Sum...
We have seen that deterrence researchers have failed to review the relevant research concerning the deterrent effects of acutely painful punishment. The claim that "nothing works" is not supported by the research evidence on corporal punishment in the laboratory.
In contrast, when research on corporal punishment in criminal justice has been conducted, it has been interpreted in a biased fashion, particularly in a way that favored prison as a punishment. Social scientists' conclusions were invariably that corporal punishment should be abolished because it could not be demonstrated to have a deterrent effect. Yet when similar results were reviewed for the effects of prison as a deterrent, the conclusion that prison should be abolished was never drawn.
Finally, we saw that there are some situations in which individual deterrent techniques were not too different from the position advanced by the old retributivists, in which the aim was to punish only a specific piece of behavior, leaving the individual untouched.
Undoubtedly, there are other areas of overlap between the retributive and utilitarian positions. Another identified in an earlier chapter was that between the educative function of retribution in punishing by analogy and the deterrent function of punishing by example. Clearly, there may be room for some accommodation. It is to be hoped that, with our new found knowledge of the role of pain in punishment, and the varieties of pain and punishments that are truly available to us, these areas of accommodation will be researched in more depth in the years to come.
For the moment, there is a great need for experimentation in punishment, and to summon the courage to try some creative sentencing.
