A TRUE PUNISHMENT is one that has its intended effect. We must be sure that pain is actually felt by those, and only those, who receive it. The Committee on Incarceration claimed that the pain that people feel as a result of corporal punishment was so subjective that it was impossible to control it.
Is Pain Uncontrollable?
The critics argue that, since pain is a subjective phenomenon, we never know whether a person really "feels" it or not, whether he in fact "perceives" it as pain or not, or whether all people experience pain in the same way.
Does the scientific research back up such a claim?
No, not really. "Pain" is certainly a subjective phenomenon, in that it is something that goes on inside a person and is not directly observable to others. But the same may be said about much that goes on inside people, such as thought processes (for example, doing an addition sum) or seeing things. All such "inner behaviors" can and have been measured.
Certainly we must guess at much of what is actually going on inside the person's head, but these "guesses" are well informed guesses because the behavior in reaction to pain that we can observe is quite similar across many individuals.
Perhaps the more important point is that some kinds of pain are more easily measurable than others. Mental pain (or anguish as it is sometimes called) is difficult to measure as are all other kinds of mental states. A glance at any psychiatry textbook, or a look at the many ways in which the American Psychiatric Association Official Classification of Mental Illnesses has changed over the past twenty years or so, is sufficient to convince one of this difficulty.
In contrast, physical pain is much easier to measure. "Pain behavior" has been described by psychologists in quite detailed terms. These include such behaviors as crying out, wincing, calling a halt to a painful stimulus, crying, gritting one's teeth, and sweating. The link between these behaviors and the inferred internal state of "pain" is self-evident in comparison with those behaviors from which we must infer the vague state of mental anguish or anxiety. The latter could range all the way from restless sleeping to excessive smoking or even eating too much or too little.(1)
It is clear, then, that the claim that corporal punishment is perceived so subjectively that it cannot be controlled does not hold water. The fact is that we can measure it quite precisely, and if we can measure it, we can control it.
Varieties of Pain
The varieties of pain that may result from punishment are physical, mental, social, and economic. We must recognize at the outset though, that this classification is not altogether helpful. Thomas Szasz, the renowned critic of the mental illness approach to crime, has noted in his book Pleasure and Pain that it is not possible to distinguish between physical and mental pain. In fact, he argues that all pain is reducible to mental pain, meaning, essentially, that all sense data must be processed by the brain, and in that sense are "mental."
It is also clear that punishment which inflicts social pain may also use physical punishment. For example, the branding of "R" on the forehead of a robber in early colonial days was both a physical infliction of pain, and also an infliction of stigma.(2)
The use of economic punishments such as fines is not easily distinguishable from social pain, or even mental pain - depending on how important money is to the person punished, and perhaps whether he is rich or poor.
The punishment of prison clearly combines all four types of pain to degrees that it is difficult to specify. Much has been written about the "pains of imprisonment"-the mental anguish, the physical suffering through poor diet, prison violence, the social stigma of being an ex-con and the economic deprivation of being imprisoned and unable to earn money through a real job.
A comparative analysis of the pains caused by the various types of punishment is, however, most useful. It is clear, for example, that prison has very severe economic effects on the offender's family, as do heavy fines. In contrast, physical punishments which are confined to administering pain to the body over a brief period of time, such as a particular number of strokes of the lash, do not have this carryover effect upon others who depend on the offender for their livelihood.
This is a serious drawback to prison and fines as punishment, such that, other things being equal, we might do well to consider some physical punishments for certain classes of crimes.
There is another way of classifying pain which is a combination of both religious and medical conceptions. It is this classification that provides us with a clue as to how to develop punishments that are appropriately painful and which can be matched to their respective crimes.
Two Types of Pain
In the medical world there is the general distinction between acute pain and chronic pain.(3) Acute pain is the kind that one feels when one cuts a finger, bangs one's head. Chronic pain is the type that continues for long periods, sometimes a lifetime, such as is felt by arthritis victims.
In the religious or philosophical sphere two types of pain are also perceived. The eminent philosopher C. S. Lewis in his little book The Problem of Pain suggested that there was "A" pain and "B" pain. "A" pain was "... a particular kind of sensation probably conveyed by specialized nerve fibres, and recognizable by the patient as that kind of sensation whether he dislikes it or not. "B" pain was "...any experience, whether physical or mental, which the patient dislikes."(4)
While pain in the "B" sense could conceivably include all the pains in the "A" sense if they were severe enough, pains in the "A" sense would appear not to include those of "B" sense. By making this distinction, Lewis has shown how it is possible to classify anything at all that one disvalues as painful ("B" pain). We must reject this use of the word as far too broad. For example, the lives of the working class have been described by some authors as "worlds of pain."(5) However, the word "pain" in this context is used simply to make a value judgment as to the quality of life among the working class which is assumed to be "bad." The word "pain" should not be used to convey this value judgment because pain cannot be assumed to be in and of itself evil as we will see in Chapter 11.
Yet there is a sense in which a lifetime may be described as painful. The Christian religion is one among many that reveres pain in this sense. The lives of many Christian Saints were replete with pain and suffering-seen paradoxically as experiences which no one should have, yet at the same time to be treasured.
The important point for us to observe is that the religious tradition views pain as something to be endured over time. It is essentially a view of pain as chronic. This, taken together with Lewis's "A" pain ("a particular kind of sensation...") would suggest that the distinction between acute and chronic pain is also recognized in the religious and philosophical spheres.
Now let us equate chronic pain with prison, since prison is a punishment that is drawn out over a long period of time, and virtually requires that the offender lead a painful life.
And acute pain may be equated with some, but not all, forms of corporal punishment. (Some types of corporal punishment such as mutilations have long lasting effects.)
Which is the more severe, acute pain or chronic pain?
It would seem that chronic pain is potentially more severe, since it could include the prolonged application of pain.
We can further answer this question by comparing types of punishment and their consequences. For example, the infliction of twenty lashes might be much less severe than six months in prison. But what do we mean by "severe" here? We mean that it produces less painful consequences of a social and economic type, even though it may produce more intense physical pain, and maybe would take a month for the wounds to heal.
This is only part of the answer. We also need to know what the crime was for which the punishment must be administered. For it is a canon of just punishment, which we will see in Chapter 3 and later in Chapter 10, that the punishment must be made to fit the crime both in quality and quantity. There may be some crimes, therefore, for which the administration of acute pain is more appropriate, in a qualitative sense, than chronic pain. We cannot answer this difficult question until we have considered exactly what are justly deserved punishments. That is, we must develop a theory that will tell us what crimes deserve what punishments.
As a starting point, we may make a very general observation. The distinction between acute pain and chronic pain may be seen as a distinction between severe and less severe punishment, corporal punishment being less severe, on the whole. We may thery apply this dual system of punishment to two commonly accepted classes of crimes: the most severe (felonies) and the less severe (non-felonies, including misdemeanors).
It is true that the criminal law is notorious for its failure to apply a consistent doctrine as to which crimes should be classified as felonies and which ones as misdemeanors. But for the moment, it will do as a starting point. We will be able to improve on it considerably later on.
Our next task is to classify the currently used punishments into either acute or chronic. We have already done this for prison and corporal punishment. But this was a very rough classification, for it failed to take into account the range of possible corporal punishments, or the range of types of prison. There are, of course, other punishments such as fines, community service, and a range of humiliating punishments as were used in the middle ages such as the stocks and pillory, the scarlet letter and many others.
Chronic Punishments
Prison is a chronic punishment. Even a small amount of prison, such as one day, when compared to the few minutes it takes to administer a couple of strokes of the lash, is clearly a punishment of chronic pain. It is very important to note that even if one varies the intensity of the prison experience-that is if we introduce weekend furloughs, color televisions in each cell, and try in other ways to water down the painfulness of prison life, the chronic feature of prison still remains.
There are, however, good reasons why we would not want to water down the painfulness of prison in these ways (as we shall see in Chapter 7), the main one being that they obscure the punitive purpose of prisons. Our purposes could be served much better by substituting the application of acute pain for the drawn out prison terms of mild painfulness-provided that the punishment were appropriate to the crime. There may, of course, be crimes that deserve a long and drawn out punishment. These we will consider shortly. Right now it is important to understand that the question is not, which is "better" punishment-chronic or acute-but rather to which crimes are chronic pains more applicable, and to which ones are acute pains more fitting.
Perhaps we should also note that much has been made recently of the physical suffering in prison as a result of prison violence and rape,(6) and the most often cited pain of prison which is that of mental anguish.(7) And it is apparent that mental suffering will occur regardless of the material conditions of prison. Mental anguish is a pain that is most likely of long duration, a chronic pain. Most important, it can last after prison-as attested to by many recidivists who have been unable to "go straight" after release. Their mental suffering continued after the actual period of punishment was supposed to have terminated.(8)
This element of prison is a serious defect because it cannot be controlled. And it is important, if we are to get on top of this problem of criminal punishment, that we inflict the kinds of pain that we can control most easily.
No doubt mental pain may be experienced as a side effect of all punishments. But it is likely that it occurs more as a result of prison than of any other type of punishment including some corporal punishments.
Acute Punishments
Corporal punishments are the most obvious acute punishments, but there are many different kinds of corporal punishments, and not all have the same physical and mental effects.
There is the lash, usually applied to the bare back, the paddle and other variations of this wooden hand piece, most often applied to the buttocks (in Western Society our favorite objects of this punishment are young boys). Electric shock has become popular in many countries of South America, along with various techniques of making the offender stand in certain positions, denial of sleep, inadequate diet, imposition of hard labor. The list is quite long.(9)
Historically, corporal punishments have been linked most often with some kind of public ridicule. Whipping and the pillory were essentially public events. The townspeople were able to pelt the offender with rotten fruit, or stones if he were an especially hated criminal. Sometimes his ears would be cut off.
Some corporal punishments are chronic, such as those that produce permanent mutilation or injury or observable ugly scars.
Other corporal punishments, while not chronic, do not easily fit into the category of acute pain, since they take too long to administer, and very often require that they be administered under prison conditions since they assume total control over the person's body for a relatively long period of time. Examples of these punishments are denial of sleep, hard labor, and harsh diet.
The lash and electric shock are truly acute punishments. They may be applied in a matter of seconds or minutes and their intensity may be varied easily.
Fines: The Unclassifiable Punishment
It is impossible to tell whether this punishment is acute or chronic, because it depends so much on how the offender values money, or at least how serious an economic loss the fine represents to him. A sudden extremely large fine might place this punishment within the acute classification, although it is hard to conceptualize an economic "pain" as being as intense as the acute pain of electric shock. It is not clear whether it is chronic either, since if the offender has a job, he can eventually replace the money lost through the fine, so that its effects are not long lasting. But if the offender is unemployed or in severe economic circumstances, the fine could mean a severe loss which could take years to replace. In this sense, fines would be more akin to chronic punishments, and as with most chronic pains, their effects would "overflow" onto others such as the offender's dependents who cannot be said in any way to deserve such punishment-since they are innocent.
Probation: Chronic but Painless
The problem with this type of punishment is that it is not clearly painful. One may have a mild ache in the back that one lives with for many years. However, one learns easily to put up with a mild pain, even if it is chronic.
Yet some even argue that having been found guilty in a court of law is enough of a punishment in itself, so that it does not matter whether probation is truly painful. Perhaps this might have been true some years ago when the criminal justice system was viewed with less cynicism. But today, it is hard to believe that the finding of guilt is sufficiently stigmatizing to be considered a punishment, especially in the case of juveniles whose names cannot even be made public.
Community Service: Chronic and Painful?
Again, it is not entirely clear whether this punishment is truly painful, although the "pain" that results from it is most likely that of social stigma or ridicule, and loss of free time. Since social stigma may last for many years, even a lifetime, this punishment may be classified as chronic. There may be some crimes that deserve such punishments as we shall see in Chapter 8.
But are these punishments convincing punishments? In the days of the Quakers in colonial Philadelphia when convicts wore striped uniforms as they cleaned up the streets, they probably were. With the exception of road gangs in the South, this is not what happens today. Offenders do their community service in much the same way that those on welfare are now required to work. Without a clear distinction between "worker" and "offender" how can such a punishment maintain its credibility?
In fact, we now see that probation, community service and variations of these, whose advocates introduced them as alternatives to prison, are chronic pains that are variations of prison itself. Our 20th century reformers are unable to let these offenders go. They want to supervise their lives for long periods of time, as Michel Foucault in his Discipline and Punish has so clearly demonstrated in regard to prison.(10)
In Sum...
1.Within the realm of chronic punishments, there are prison and certain forms of corporal punishments (such as branding, mutilation) and the milder alternatives to punishment such as probation.
2.Within the realm of acute punishments we find some corporal punishments such as the whip, electric shock, and others that produce an immediate but non-lasting pain.
3.While it is probable that all types of pain-mental, physical, economic and social-result from both acute and chronic punishments, it is impossible to assess just how much of each results from particular punishments, especially as some experts claim that all pain is reducible to mental pain.
4. Punishments vary widely as to their credibility. The clarity with which one can demonstrate that a punishment is truly painful is probably a key factor in establishing its credibility.
5. It is apparent that we have before us a wide range of punishment possibilities. The next important task is to consider the ways in which punishments of acute and chronic pain may be related to various crimes.
I . See, for example: H. Merskey, Pain: Psychological and Psychiatric Aspects (London: Baillere, Tindall and Cassell, 1967); J. P. Payne and R. P. Burt, eds., Pain: Basic Principles (Baltimore: Williams and Wilkins, 1972); H. Wolff and S. Wolff, Pain (Springfield, Illinois: Charles Thomas, 1958); R. A. Sternback, Pain: A Psychophysiological Analysis (New York: Academic Press, 1968).
2. See G. Newman, The Punishment Response (New York: Lippincott, 1978) for a review of these punishments.
3. See Merskey, Pain. Also: H. W. Kosterlitz and L. Y. Terenius, eds., Pain and Society (Berlin: Verlag Chemie, 1980).
4. C. S. Lewis, The Problem of Pain (London: Macmillan, 1973), p.78.
5. See, generally, Kosterlitz, Pain and Society, especially Part 1.
6. L. Bowker, Prison Victimization (New York: Elsevier, 1982); D. Lockwood, Prison Sexual Violence (New York: Elsevier, 1981).
7. There have been many books written on this question, but the classic is probably by George Bernard Shaw, The Crime of Imprisonment (New York: Philosophical Library, 1946).
8. See, for example, M. Braley, False Starts (London: Penguin, 1976).
9. See G. R. Scott, The History of Torture Throughout the Ages (London: Luxor Press, 1938).
10. Probation and various forms of community service are constantly proposed as alternatives to prison. However, probation has long suffered from a credibility problem: because it is administered largely by social workers, the public does not believe that it is punitive enough. Other alternatives such as weekend incarceration, enforced attendance at classes, and community service have been tried around the world. Some "work" within a very limited setting and for mild crimes. But they are, by and large, not sufficiently punitive to take the place of prisons. For examples see C. R. Dodge, A World Without Prisons: Alternatives to Incarceration Throughout the World (Lexington, Mass.: D. C. Heath, 1979); also D. Biles, "Imprisonment and its Alternatives," The Australian Law Journal 55 (March, 1981): 125-134, who suggests that the effectiveness of alternatives should be measured by the public acceptance of them as punishments.
Yet if it is found that they do "work"-that is, are credibly painful-we have seen that they are, in fact, chronic punishments. It seems that the 20th century reformers are unable to let these offenders go. They must supervise their lives for long periods of time, as Michel Foucault in his Discipline and Punish so clearly demonstrated in regard to prisons.