WHAT JUSTICE IS, EQUAL JUSTICE FOR ALL, AND THE WHITE PRIVILEGE CASES
LUCY M. WARNER
FEBRUARY 1, 2017


WHY THIS RAPE CASE SHOCKS AND INFURIATES ME, AND YET IS “RESPECTED” AS A VIABLE DECISION AT ALL, WILL BE TO MOST HONEST AMERICANS UNDERSTANDABLE, I THINK. OUR LAWS ARE NOT SUFFICIENTLY WELL WRITTEN THAT ALL SORTS OF RIDICULOUS CONCLUSIONS CAN BE DRAWN BY AN UNETHICAL JUDGE, AND UPHELD UNDER THE LAW. IT DOES SEEM TO ME ALSO, THAT WHETHER OR NOT THE MAN CAN BE TRIED AGAIN, THE SUPREME COURT MIGHT FIND ENOUGH INEQUITY HERE TO SIMPLY REVISIT CASES LIKE THIS WHEN A LEGAL ERROR HAS OCCURRED AND INTERVENE TO CHANGE THE PENALTY. THERE IS NO QUESTION THAT THE MAN IS GUILTY AS CHARGED. WE NEED TO REEXAMINE AND GROW BEYOND THE ESSENTIALLY WEALTH BASED JUSTICE SYSTEM WHICH WE INHERITED FROM BRITAIN AND OTHER EUROPEAN COUNTRIES. THEY SHOULDN’T STILL BE A PART OF OUR LAWS TODAY.

THERE IS A GREAT DEAL MORE TO WIKI’S ARTICLE “JUSTICE,” HERE, BUT THE FIRST PARAGRAPH SUMMARIZES SOME THINGS WHICH EXPLAIN, FOR INSTANCE, HOW A SLAVE, SERF, INDENTURED SERVANT, OR A WIFE CAN HAVE A “MORAL REQUIREMENT” TO STAY WITH HIS/HER OWNER UNDER ANY CONDITIONS WHATSOEVER. (SEE PROPERTY-RIGHTS BASED JUSTICE). THE “COMMUNITY” JUSTICE USED IN THE NEWS STORY IS BASED ON THE “AGREEMENT OF ALL CONCERNED,” BUT IT IS NOT SOMETHING THAT I BELIEVE WILL EVER BE DONE IN RELATION TO A NON-WHITE OR OTHERWISE SOCIALLY/ECONOMICALLY INFERIOR CRIMINAL IN RELATION TO THE VICTIM OF THE CRIME. THE OBSEQUIOUS BEHAVIOR OF A COURT OFFICIAL TO A PERSON OF GREAT WEALTH IS JUST ANOTHER FORM OF PECUNIARY SELF INTEREST IN MY VIEW. IT CERTAINLY ISN’T “FAIRNESS” OF ANY KIND.

OUR US SYSTEM SEEMS TO BE MAINLY BASED ON THE OBLIGATION TO THE STATE, OR “MORAL REQUIREMENT” WITH ASPECTS OF OTHERS AS WELL. I SUGGEST THE READER MAY WANT TO READ THE WHOLE WIKIPEDIA ARTICLE ON THEORIES OF JUSTICE. REPARATIVE JUSTICE, EGALITARIAN JUSTICE, AND THAT WHICH HAS THE BEST CONSEQUENCES ARE THE WAYS THAT I TEND TO SEE MOST ISSUES, THOUGH IN CASES LIKE THIS IN WHICH A MAN (REPEATEDLY, NOT ONCE WHEN HE WAS DRUNK) RAPES HIS DAUGHTER (OR ANY OTHER 12 YEAR OLD GIRL) DEMANDS THE OLD IDEA OF PUNISHMENT. THE COMMENT OF THE COMMUNITY MEMBER THAT THE ASSAILANT “MADE A MISTAKE” JUST DOESN’T WASH.

THAT’S THE SAME REASONING AS HOLDING WEALTHY YOUTHS WHO RAMPAGE IN VARIOUS WAS DUE TO HAVING A LACK OF PROPER ETHICAL TRAINING IN THEIR “PRIVILEGE”; OR WORSE, HOLDING THE 12 YEAR OLD GIRL RESPONSIBLE FOR “SEDUCING” THE FATHER; BOTH ARE EGREGIOUSLY INEQUITABLE AND SHOULD NOT BE ALLOWED IN ANY COURT OF THE USA. JUDGE MCKEON SHOULD NOT ONLY LOSE HIS PLACE ON THE BENCH, BUT BE REQUIRED TO PAY RESTITUTION TO THE GIRL ALONG WITH THE FATHER. THE CRIME THAT WAS COMMITTED HERE IS A DOUBLE RAPE – FIRST IN THE FLESH AND SECOND IN THE COURTROOM BY THE JUDGE. THIS IS SO SAD.



THE ORIGINAL STORY

http://www.cbsnews.com/news/judge-john-mckeon-montana-no-prison-incest-rape-conviction-under-fire/

Judge who gave Montana man no prison for incest, rape conviction under fire
By CRIMESIDER STAFF CBS/AP
October 18, 2016, 9:03 AM

HELENA, MONT. - An online petition with more than 14,000 signatures calling for the impeachment of a Montana judge over the sentencing of a 40-year-old man to 60 days in jail in an incest case involving a 12-year-old girl has been sent to the state’s governor and other officials.

The man was sentenced to the jail time, plus a 30-year suspended prison term last week as part of a plea deal with prosecutors. The man also was ordered to complete community-based sex-offender treatment and register as a sex offender.

judge-mckeon-montana.jpg
Judge John McKeon KTVQ-TV

District Judge John McKeon has defended himself against criticism, saying a plea agreement that recommended a 25-year minimum sentence allowed for a lesser one, depending on the results of a psychosexual evaluation. He said that evaluation found the defendant could be safely treated and supervised in the community. McKeon also notes the victim’s mother and grandmother asked that the defendant not be sentenced to prison.

The AP and CBS News are not naming the defendant to avoid identifying the victim.

Originally, Deputy Valley County Attorney Dylan Jensen recommended a 100-year prison sentence with 75 years suspended - as called for in state law - as part of a plea agreement that recommended the dismissal of two other incest charges.

“A father repeatedly raped his 12-year-old daughter,” Jensen said during the Oct. 4 sentencing hearing.

A licensed clinical social worker testified that the man was a low-risk to re-offend and that it would be important for him to have social support while he received treatment. The social worker, Michael Sullivan of Billings, said the man did suffer a “collapse of social support” when he lost his family and job.

Court records said the girl’s mother walked in on one of the sexual assaults.

Public defender Casey Moore argued there was more than one way to hold a person accountable.

“I’m not asking that he be given a slap on the wrist,” Moore said. “He did spend 17 days in jail and he did lose his job,” and will be on supervision for the rest of his life.

McKeon said he diverted from the recommended sentence because the man had support from his family, friends, church and his employer. The girl’s mother and grandmother were reportedly among those supporting a community-based punishment. Someone wrote that “he was a good father for 12 years,” and another said he was not a monster, but a man who had made a mistake.

Jensen said afterwards that he was shocked and disappointed with the sentence, but respected the judge’s decision.

McKeon is retiring soon after 22 years as a state judge.

Public defender Casey Moore argued there was more than one way to hold a person accountable.

“I’m not asking that he be given a slap on the wrist,” Moore said. “He did spend 17 days in jail and he did lose his job,” and will be on supervision for the rest of his life.

McKeon said he diverted from the recommended sentence because the man had support from his family, friends, church and his employer. The girl’s mother and grandmother were reportedly among those supporting a community-based punishment. Someone wrote that “he was a good father for 12 years,” and another said he was not a monster, but a man who had made a mistake.

Jensen said afterwards that he was shocked and disappointed with the sentence, but respected the judge’s decision.



THE FOLLOWUP


http://lawnewz.com/high-profile/60-day-sentence-for-man-who-repeatedly-raped-12-year-old-daughter-cant-be-appealed/

60 Day Sentence for Man Who Repeatedly Raped 12-Year-Old Daughter Can’t Be Appealed
by Ronn Blitzer | 4:57 pm, December 13th, 2016

The Montana State Attorney General’s Office has said that they are unable to appeal a controversial decision by District Judge John McKeon, who sentenced a father to only 60 days in jail for repeatedly raping his 12-year-old daughter.

Despite the law prescribing a 25-year minimum prison sentence for sexual assaults against those aged 12 or younger, Judge McKeon handed down a suspended 30-year sentence. The decision was made after a court-appointed evaluation determined that it would be better if the offender received treatment out of court. His family members, including the girl’s mother, agreed. The suspended sentence means that as long as the offender (whose name is being kept anonymous so as not to identify the victim) goes through sex offender treatment, stays away from minors, complies with other restrictions, and completes probation, he will not have to serve the 30-year prison term. Prosecutors had recommended a 100-year sentence, with 75 years suspended.

On January 2, the state legislature will discuss a proposal that would eliminate sentences like this one. In the meantime, State Department of Justice spokesman Eric Sell says that while McKeon’s sentence for the offender was “reprehensible,” it’s legal, and there is no viable legal argument against it.

[Image via Valley County Sheriff’s Office]

Have a tip we should know? tips@lawnewz.com



https://en.wikipedia.org/wiki/Justice

Justice
From Wikipedia, the free encyclopedia
(Redirected from Legal justice)

Justice is the legal or philosophical theory by which fairness is administered.[3][4][5] The concept of justice differs in every culture. An early theory of justice was set out by the Ancient Greek philosopher Plato in his work The Republic. Advocates of divine command theory argue that justice issues from God. In the 17th century, theorists like John Locke argued for the theory of natural law. Thinkers in the social contract tradition argued that justice is derived from the mutual agreement of everyone concerned. In the 19th century, utilitarian thinkers including John Stuart Mill argued that justice is what has the best consequences. Theories of distributive justice concern what is distributed, between whom they are to be distributed, and what is the proper distribution. Egalitarians argued that justice can only exist within the coordinates of equality. John Rawls used a social contract argument to show that justice, and especially distributive justice, is a form of fairness. Property rights theorists (like Robert Nozick) take a deontological view of distributive justice and argue that property rights-based justice maximizes the overall wealth of an economic system. Theories of retributive justice are concerned with punishment for wrongdoing. Restorative justice (also sometimes called "reparative justice") is an approach to justice that focuses on restoring what is good, and necessarily focuses on the needs of victims and offenders.[6]

Introductory understandings[edit]
Justice by Luca Giordano.

Understandings of justice differ in every culture, as cultures are usually dependent upon a shared history, mythology and/or religion. Each culture's ethics create values which influence the notion of justice. Although there can be found some justice principles that are one and the same in all or most of the cultures, these are insufficient to create a unitary justice apprehension.



http://www.dictionary.com/browse/deontological

noun, 1820-30; < Greek deont- that which is binding (stem of déon, neuter present participle of deîn to bind) -- ethics, especially that branch dealing with duty, moral obligation, and right action.

(philosophy) (of an ethical theory) regarding obligation as deriving from reason or as residing primarily in certain specific rules of conduct rather than in the maximization of some good




A WHITE MAN’S PUNISHMENT FOR A SHOCKING CRIME?

https://en.wikipedia.org/wiki/Community_sentence

Community sentence
From Wikipedia, the free encyclopedia

Community sentence or alternative sentencing or non-custodial sentence is a collective name in criminal justice for all the different ways, in which courts can punish someone, convicted of committing an offence, other than the custodial sentence (serving a prison term) or capital punishment (death).
Traditionally, the theory of retributive justice is based on the ideas of retaliation (punishment), which is valuable in itself, and also provides deterrent. Before the police, sentences of execution or imprisonment were thought pretty efficient at this, while at the same time removing the threat criminals pose to the public (protection). Alternative sentences add to these goals, trying to reform the offender (rehabilitation), and put right what he did (reparation).
Traditionally, victims of a crime only played a small part in the criminal justice process, as this breaching the rules of the society. The restorative approach to justice approach often makes it a part of a sentence for the offender to apologize, compensate the damage they have caused or repair it with their own labour.
The shift towards alternative sentencing means that some offenders avoid imprisonment with its many unwanted consequences. This is beneficial for the society, as it may prevent them from getting into the so-called the revolving door syndrome, the inability of a person to go back to normal life after leaving a prison, becoming a career criminal. Furthermore, there are hopes that this could alleviate prison overcrowding and reduce the cost of punishment.
Instead of depriving those who commit less dangerous offences (such as summary offences) of their freedom, the courts put some limitations on them and give them some duties. The list of components that make up a community sentence is of course different in individual countries, and will be combined individually by the court. Non-custodial sentences can include:
unpaid work (this can be called community payback or community service)
house arrest
curfew
suspended sentence (that means that breaking the law during a sentence may lead to imprisonment)
wearing an electronic tag
mandatory treatments and programmes (drug or alcohol treatment, psychological help, back to work programmes,)
fine
apology to the victim
specific court orders and injunctions (not to drink alcohol, not to go to certain pubs, meet certain people)
regular reporting to someone (offender manager, probation)
judicial corporal punishment [1]


Sources[edit]
UK. Government Digital Service. "Community sentences". Gov.uk. Retrieved 8 March 2013.
http://www.volunteersac.org/alternative-sentencing-program/
http://www.nolo.com/legal-encyclopedia/sentencing-alternatives-prison-probation-fines-30294.html
http://www.justice.vic.gov.au/home/sentencing/community+orders/
http://www.citizensinformation.ie/en/justice/criminal_law/criminal_trial/types_of_sentences.html
http://www.makejusticework.org.uk/community-sentences/what-is-a-community-sentence/
http://www.justicebc.ca/en/cjis/you/offender/understanding_sentences/community.html
References[edit]
Jump up ^ J.D. Gleissner, "Prison Overcrowding Cure: Judicial Corporal Punishment of Adults," Vol. 49, Issue 4, Criminal Law Bulletin Art. 2 (Summer 2013).




THIS ARTICLE IS LONG, BUT IT ANALYZES ONE OF THE ALTERNATIVES TO PRISON OR DEATH

http://incarcerationreform.blogspot.com/2012/04/why-was-judicial-corporal-punishment.html

Saturday, April 7, 2012

Why Was Judicial Corporal Punishment Abolished?
Why Was Judicial Corporal Punishment Abolished? by John Dewar Gleissner, Esq.

Throughout history, the lowest ranks of society provided the majority of criminals. Punishments often varied by social class or caste, officially or unofficially, and JCP most often was reserved for or primarily given to slaves and those with little status, money or property.[1] Thus, JCP is generally abolished in advanced societies as a by-product of greater equality or democracy, because it is a relic of lower-class status that newly enfranchised citizens dislike.
JCP is unpleasant to administer, sometimes causes publicized deaths,[2] seems barbaric when incarceration holds out false promises of rehabilitation or humane treatment, and does not conceal society’s most despised members. As a community punishment, JCP was overwhelmed by urbanization and centralization.
But JCP in some ages gains acceptance by entire societies. Gustav Radbruch demonstrated that corporal punishments in Germanic law started out as domestic slave punishments and over the centuries were made applicable to all offenders.[3] Changes in punishments are the rule, not the exception. Punishments continually vary over the centuries with changes in social structure, economies, revolutions, public order, religions, technology and wars. The punishment of transportation was invented out of the need for labor in the New World and stopped when that need decreased.[4] Galley slavery arose from the military need for rowers and the difficulty of inducing free men to serve; it ended with improvements in sail technology.[5] Criminology had little to do with these changes in punishment. Applied social science still plays a surprisingly small role. Penal institutions in particular are slow to change because their subjects have little voice in society and the punishment is concealed.
JCP was perceived as ineffective because it was administered to the mentally ill component of the criminal population, for whom it is ineffective or much less effective.[6] The reintroduction of JCP presupposes that the mentally ill would be diagnosed and then treated or punished differently than regular criminals. Our current judicial and correctional systems often perform poorly in this regard, but localized decision-making would attend to this needed screening with greater diligence. Like the invention of the penitentiary, the de-institutionalization movement in the later twentieth century was supposed to help the mentally ill, but it resulted in more incarceration for them. Medical supervision of JCP ought to include both mental and physical aspects of JCP.
In France, JCP ended with the French Revolution and France’s citizen army, a reform Prussian General Scharnhorst then advocated for the Prussian Army in response.[7] In Prussia, JCP ended in 1848, when ordinary Prussians received the right to vote.[8] Russian peasants, who had long played a role in punishment at the village level, feared fines and imprisonment more than flogging when JCP was abolished by the Tsar in the 1860s,[9] at the time serfdom was abolished in Russia. In a similar way, villages or tribes in India retained JCP when it was outlawed generally throughout India.[10] Starting in the late seventeenth century, England increasingly relied upon JCP as a substitute for the death penalty in cases of grand larceny.[11] In Britain, JCP was abolished in 1947, although its re-introduction was debated in 1961.[12] In Canada, JCP was abolished in 1957.[13]
Significantly, JCP in the U.S. was abolished by legislatures, not the courts, in favor of untested incarceration, without the benefit of modern behavioral science or studies, and without knowing how much the prison population would later increase. Precipitous abandonment of JCP in favor of incarceration was personified in New York by Thomas Eddy, a devotee of Beccaria, who worked against harsh punishments and tried to be a humane warden of Newgate Prison after JCP was abolished – but who was forced to resign in 1804 after frequent prison riots.[14] Large prisons arose gradually in the nineteenth century, concurrently with the gradual abandonment of JCP. In time, the conditions of incarceration, including corporal punishment administered to prisoners as discipline by prison authorities, generated an increasingly large volume of litigation under the Cruel and Unusual Punishments Clause.[15]
In accordance with the pattern of other nations, JCP declined in the U.S. in two stages, after the American Revolution and again after the Civil War ended chattel slavery and granted freed slaves the right to vote. The punishments of whipping and of standing in the pillory were abolished by Congress in 1839; imprisonment at hard labor was substituted for nearly all other ignominious non-capital federal offenses,[16] although today relatively few prisoners work hard. Work in prison decreased markedly after state and federal legislation made the sale or transport of prison-made goods illegal.[17]
The corporal punishment of African Americans became more arbitrary, brutal and chaotic after the economic incentives of slavery disappeared.[18] Black Codes passed after the Civil War, such as the one adopted by Mississippi to assign orphaned and unsupported “apprentices,” supposedly drew the distinction between “moderate corporal chastisement as a father or guardian is allowed to inflict on his or her child or ward at common law” but prohibited “cruel or inhuman punishment.”[19] In 1867, Union generals in command of Military Districts in the South during Reconstruction ordered the abolition of corporal punishment shortly after Congress passed a law to that effect.[20] The South’s attempt to re-assert white supremacy though Black Codes resulted in the Fourteenth and Fifteenth Amendments. The Ku Klux Klan then illegally and secretly punished African Americans with whips, lynching and intimidation outside the legal system. The convict labor systems developed after the Civil War were far worse than slavery, because the exploiters of convict labor had no investment in their workers. As bad as convict leasing was, the numbers involved in convict leasing and incarceration at the time are dwarfed by modern correctional populations. In 1890, there were still only 8,417 prison inmates of all races in the entire South, and the federal prison system did not yet exist.[21]
While corporal punishment was linked to racism and banned by the winning side, incarceration caused an enormous tragedy on both sides. Prisoner-of-war camps in Andersonville, Georgia, Johnson’s Island, Ohio, Richmond, Virginia, and “Hellmira,” New York fully revealed how terribly two American governments handled their prisoners-of-war. An estimated 56,000 Union and Confederate prisoners died as a result of disease, poor shelter and malnutrition.[22]
JCP in the United States reminds many of slavery or Jim Crow, even though whites were commonly whipped from the founding of the colonies until the modern incarceration regime arose. Former slaves interviewed during the Federal Writers’ Project Slave Narratives vouched for the effectiveness of fair corporal punishment, most often imposed for not working and stealing,[23] just as they dreaded alcoholic and insane owners and overseers. Today, as a percentage of population, the South incarcerates far fewer African Americans than the North compared to the number of whites incarcerated in those states. The greatest incarceration disparities today in favor of whites and against blacks are in the North, in the very same states that took the strongest stances against slavery and whose representatives banned JCP in the South.[24] Iowa, Vermont, New Jersey, Connecticut, and Wisconsin had the greatest racial disparities as of 2005, all over 10-to-1, while the Deep South states of Alabama, Arkansas, Mississippi, Louisiana, Georgia, South Carolina, and Texas all had racial disparities of less than 5-to-1.[25] Almost without exception, the states of the old Union incarcerate significantly greater percentages of African Americans compared to the percentage of whites incarcerated – about twice as many – than the states of the old Confederacy.[26] Clearly, the abolition of JCP did not usher in an era of equal treatment in the use of incarceration on either side of the Mason-Dixon Line. Eventually, the supposed colorblind administration of justice without JCP culminated in huge racial disparities in America’s prisons and entire correctional population.
JCP is just a technique; inequities are driven by social, economic, political, biological, physical, religious and military forces. The most respected American leaders, the four presidents carved into Mount Rushmore, are all on record as favoring the use of JCP, and yet each favored racial freedom or equality more than the bulk of their contemporaries.[27]
One of the last uses of American JCP was to vindicate the rights of battered wives. This specific use harkens back to Beccaria’s idea that crimes of violence should be punished corporally.[28] In Springfield, Illinois, Abraham Lincoln as a vigilante with friends caught and restrained an alcoholic wife-beater, who Lincoln had previously threatened with a whipping should he beat his wife again, and then allowed the wife to whip her husband with a tree branch.[29] Despite threatening retaliation, the chastened wife-beater did not later offend against his wife.[30] U.S. courts did not until the 1870s overturn the common law principle that a husband had the right to physically chastise his wife.[31] In 1882, Maryland was the first U.S. state to make wife-beating a crime.[32] The Maryland statute provided for JCP (and/or incarceration) as a punishment, and as of 1895, JCP was said to be effective in reducing this crime.[33] A whipped wife-beater said he would not make himself subject to the penalty again, and that the disgrace of JCP was worse than the physical pain.[34] Maryland acted long before the World Health Organization spoke on the issue of domestic violence and recommended in 2005 that, “those convicted need to be appropriately punished. Flexible sentencing or alternative sanctions should be explored, where possible, to deter further violence.”[35] As in most modern literature concerning punishments, words such as “alternative,” “community,” “flexible,” and unspecified “sanctions” are code words admitting two things: Incarceration is not the answer, but we do not know what else to do or if the public will pay for it. The suggestion of traditional JCP in lieu of incarceration is almost never one of the unspecified “alternative sanctions” considered. Advocates of change hope for more expensive programs, therapies, treatment, renewal and rehabilitation and do not consider JCP as encouraging, assisting and supporting such methods. Experimentation might reveal that JCP is the “bottom” substance abusers need to hit before they decide to stop abusing substances.
Economic, political, religious and popular forces, not the science of criminology, determined through history what punishments were used in a given era. The great prison reformer John Howard disparaged the punishment of transportation to colonies, yet that punishment over time had the best record of rehabilitation, especially for descendants of transported criminals. As a practical matter, it is extremely difficult to perform long-term follow-up studies evaluating the efficacy of punishments. Obstacles to rational evaluation increase when prisoners are released years after the imposition of punishment and enter a large population of citizens. These assessment difficulties suggest the greater ability of those at the village, military unit and community level to apply effective punishment. Punishment administered at the family level also benefits from this familiarity, but lacks the rationality, publicity and accountability of JCP and hence more often results in misuse due to emotional components.


[1] As Justice Douglas observed in Furman v. Georgia, punishment is known to increase in severity as social status diminishes. Furman v. Georgia, 408 U.S. 238, 255 (1972) (Douglas, J., concurring); Laurie A. Gould & Matthew Pate, Discipline, Docility and Disparity, 50 Brit. J. Criminology 185, 196 (Mar. 2010) (JCP statistically correlated with economic disparity throughout the world). See Acts 22:25-29.
[2] Opposition in Britain arose after a mentally imbalanced soldier’s death from 150 lashes in 1847, Vol. V., No. 1, The London Lancet 88 (1847); and a student’s death from punishment administered by his schoolmaster in 1860. New World Encyclopedia – Corporal Punishment.
[3] J. Thorsten Sellin, Slavery and the Penal System 30, 177 (1976).
[4] Georg Rusche & Otto Kirchheimer, Punishment and Social Structure 58-62 (Transaction Edition, 2003) (1939).
[5] Id. at 53-58.
[6] The mentally ill compose some 16% of the modern U.S. prison population. Paula M. Ditton, Bureau of Justice Statistics, Special Report – Mental Health and Treatment of Inmates and Probationers (1999) available at http://www.bjs.gov/content/pub/pdf/mhtip.pdf. The mentally ill were always represented in criminal populations throughout history.
“In Sixteenth Century England, one prescription for insanity was to beat the subject "until he had regained his reason." Deutsch, The Mentally Ill in America (1937), p. 13. In America, "the violently insane went to the whipping post and into prison dungeons or, as sometimes happened, were burned at the stake or hanged," and "the pauper insane often roamed the countryside as wild men and from time to time were pilloried, whipped, and jailed." Action for Mental Health (1961), p. 26. As stated by Dr. Isaac Ray many years ago: "Nothing can more strongly illustrate the popular ignorance respecting insanity than the proposition, equally objectionable in its humanity and its logic, that the insane should be punished for criminal acts in order to deter other insane persons from doing the same thing." Treatise on the Medical Jurisprudence of Insanity (5th ed. 1871), p. 56.” Robinson v. California, 370 U.S. 660, 668 (1962) (Douglas, J., concurring).
[7] Beatrice Heuser, The Evolution of Strategy – Thinking War from Antiquity to the Present 158 (2010).
[8] Georg Rusche & Otto Kirchheimer, Punishment and Social Structure 100 (Transaction Edition, 2003) (1939).
[9] Pieter Spierenburg, The Practice of Punishment in Western Society, in Oxford History of the Prison 213-214 (Norval Morris & David J. Rothman eds., 1995). In time, Stalin’s massive remote state slavery fully justified the pessimism of the Russian peasants. Centralization of punishment usually carries disadvantages for the punished and their families; it is administratively convenient for the punisher.
[10] Global Initiative to End all CP of Children, India – Country Report available at http://www.endcorporalpunishment.org.
[11] John Briggs, Christopher Harrison, Angus McInnes & David Vincent, Crime and Punishment in England – An Introductory History 80 (1996).
[12] It was abolished under the Labour Party. Margaret Thatcher supported in the House of Commons a 1961 criminal justice bill providing JCP for those under 21; it was said to have overwhelming public support. Hansard HC Standing Committee B [551-600] available at http://www.margaretthatcher.org/document/101088; See also, HL Deb 01 May 1961 vol 230 cc1082-170 available at http://hansard.millbanksystems.com/lords/1961/may/01/criminal-justice-bill-1.
[13] State of Delaware v. Cannon, 5 Storey 587, 596, 55 Del. 587, 596, 190 A.2d 514, 518 (1963).
[14] U.S. v. Blake, 89 F.Supp.2d 328, 342-343 (E.D.N.Y. 2000).
[15] Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 NYU L. Rev. 881 (2009). See, for example, Brown v. Plata, 563 U.S. __ (2011); Austin v. Hopper, 15 F.Supp.2d 1210 (M.D. Ala. 1998) (chain gang, “hitching post,” visitation & toilet facilities).
[16] Ex Parte Wilson, 114 U.S. 417, 427 (1885). 10 U.S.C. § 855. Art. 55. Cruel and unusual punishments prohibited, passed in 1956, prohibits flogging and other punishments in the Uniform Code of Military Justice.
[17] 18 U.S.C. §1761 & 18 U.S.C. §1762 prohibit the sale and transportation of prison-made goods across state lines. Each state is free to prohibit the sale of prison-made goods. Most prison-made goods today are only sold to government entities. Governments possess a triple monopoly over prison industries, labor and the sale and purchase of prison-made goods. The resulting uncounted unemployment of prisoners roughly doubles the direct costs (about $25,000 per prisoner per year) because of the lost opportunity costs of the unemployed prisoners. Prisoners are not accurately counted as “unemployed” for statistical purposes, artificially lowering the official unemployment rate.
[18] For example, a slave lost value when whip marks left permanent scars. See Louis Hughes, Thirty Years a Slave: From Bondage to Freedom: The Institution of Slavery as Seen on the Plantation and in the Home of the Planter 8 (1897) available at docsouth.unc.edu. Alcoholic and mentally ill slave masters and overseers account for much of the documented cruelty in the antebellum era. See J.D. Gleissner, Prison & Slavery – A Surprising Comparison 106 (2010).
[19] Act to Regulate Relation of Master & Apprentice, §3, Black Code of Mississippi, Dec. 2, 1865, available at http://oll.libertyfund.org.
[20] On Mar. 2, 1867, Congress passed a law outlawing whipping in the former Confederacy, and all the Military Districts in the South ordered whipping stopped shortly thereafter: Public – No. 85, in General Orders, No. 26, Headquarters Dep’t of the South, Charleston, S.C., March 8, 1967, in Edward McPherson, Political History of the USA during the Period of Reconstruction 200, 201 (1871).
[21] U.S. Dept. of Justice, Bureau of Justice Statistics, Historical Corrections Statistics in the United States, 1850-1984, Table 3-2.
[22] Yancey Hall, U.S. Civil War Prison Camps Claimed Thousands, National Geographic News, July 1, 2003, available at http://news.nationalgeographic.com/news/2003/07/0701_030701_civilwarprisons.html.
[23] A very successful ex-slave was landowner Henry D. Jenkins: ‘Yes sir, I doesn’t deny it, I got many whuppins. Dere’s not much to a boy, white or black, dat don’t need a whuppin’ sometime on de way up. When you break a wild spirited colt, they make de best hoss or mule. I can do more work today, than most of dese triflin’, cigaret young mens. . . You bet yo’ life, my white folks was de bestest in de land.” South Carolina Slave Narratives, Vol. XIV, Pt. 3, 23-26. Also from Fed. Writers’ Project: Mrs. Amanda Jackson, Georgia Slave Narratives, Pt. 2, 292; Lucindia Washington, Alabama Slave Narratives, 410; Aunt Mary Ferguson, Georgia Slave Narratives, Pt.1, 329. See J.D. Gleissner, Prison & Slavery – A Surprising Comparison 157-170 (2010). Some slaves did not consider it stealing when they took from their owners, because their whole people were stolen from Africa and they were usually benefiting their owners’ property. A good number of slaveholders did not use the whip at all.
[24] 154 Table 4 – Prison & Jail Incarceration Rates, 2005, by White Incarceration Rates, Rates of Incarceration per 100,000 Population, in Marc Mauer & Ryan S. King, “Uneven Justice: State Rates of Incarceration By Race and Ethnicity,” The Sentencing Project, 2007 available at www.sentencingproject.org.
[25] Id.
[26] Id. Cf. Indiana’s rate is barely less than Virginia’s.
[27] George Washington in the Continental Army; Thomas Jefferson in a statute; Abraham Lincoln as the ringleader in the corporal punishment of a Springfield, Illinois wife-beater; and Theodore Roosevelt in a message to Congress in 1904.
[28] Cesare Beccaria, An Essay on Crimes and Punishments, Ch. XX, Of Acts of Violence (1764; A New Edition Corrected, 1872) available at http://oll.libertyfund.org.
[29] William H. Herndon & Jesse W. Weik, Herndon’s Life of Abraham Lincoln 151-152 (1889).
[30] Id.
[31] R Calvert, Criminal and Civil Liability in Husband-Wife Assaults, in Violence in the Family (Suzanne K. Steinmetz and Murray A. Straus, eds., 1974).
[32] The New York Times, Jan. 13, 1895, available at http://query.nytimes.com/mem/archive-free/pdf?res=FA0614FD395911738DDDAA0994D9405B8585F0D3
[33] Id.
[34] Id. Obviously, isolated anecdotes are not scientific. Anti-JCP books have been written, full of anecdotes emphasizing the worst aspects. See George Ryley Scott, The History of Corporal Punishment (1968).
[35] World Health Organization (WHO) Multi-Country Study on Women's Health and Domestic Violence Against Women, Recommendation 13 (2005).
Posted by John Gleissner at 12:53 AM