THE ACUTE PUNISHMENT of electric shock is easily demonstrated to be superior in every respect to our current punishment practices. Compare a typical occurrence in today's courtroom with what we would have in the future if only we could get it straight that it is pain, pure and simple, that is the essence of punishment.
The judge peers out over his glasses at the pathetic woman who sits across the courtroom. In a violent outburst she has just called him a heartless tyrant or something to that effect. The public defender and a courtroom guard restrain her.
"Mrs. Washington," says the judge. "This is your third shoplifting offense. You leave me no choice..."
He hesitates, expecting another outburst. Mrs. Washington's three year old daughter sits next to her, eyes wide and watery. The judge tries to avoid her gaze.
"Mrs. Washington, it is the judgment of this court that you be sentenced to a minimum of six months in the penitentiary and a maximum of one year. Your daughter will be turned over to the care of the Department of Youth, since the pre-sentence report indicates that you have no husband or relatives who could care adequately for her..."
The mother is led, crying, out of the courtroom. The child pulls at her mother's skirt, crying "Mama! Mama!" But the hands of the court are upon her, and an innocent child is about to be punished for the crime of having a guilty mother.
Every day, all across America many, many families and relatives of offenders suffer in this way. This means that literally thousands of people are punished for other people's crimes.
Now, an example of what punishment of the future could be like.
Twenty-year old John Jefferson stands along with his lawyer, the public defender.
"John Jefferson," says the judge, "the court has found you guilty of burglary in the first degree. Because this is your first offense, but the damage you did was considerable, I sentence you to..." The judge pushes a few buttons at his computer console. The average sentence for similar cases to Jefferson's flashes on the display: it is five shock units.
"You will be taken immediately to the punishment hall to receive five shock units. Court dismissed."
The victim of this crime is sitting at the back of the court. He approaches the court clerk, who directs him to the punishment hall where he will be able to watch the administration of the punishment.
Jefferson's wife and child are ushered to the waiting room where they will await Jefferson's return after he has been punished.
Meanwhile, in the punishment hall, Jefferson is seated in a specially designed chair. As part of the arrest procedure he has already received a medical examination to establish that he was fit to receive punishment.
In addition to the victim, a few members of the press are seated on the other side of the glass screen. The punishment technician, having settled the offender in the chair, returns to an adjoining room where he can observe the off ender through a one way screen. A medic is also present.
The technician sets the machine at the appropriate pain level, turns the dial to " 5, " and presses the button.
Jefferson receives five painful jolts of electricity to his buttocks. He screams loudly, and by the time the punishment is over, he is crying with pain.
The technician returns and releases the offender. "Stand and walk a little," he says.
Jefferson walks around, rubbing his buttocks. A shade drops over the spectators' screen.
"Do you still feel the pain?" asks the medic.
" Goddam, I sure do! But it's getting better. Can I go now?"
"Just sign here, and you've paid your dues."
Jefferson sighs happily and asks, "Which way to the waiting room?"
"Straight down the passage and second left."
Jefferson enters the waiting room where his wife rushes into his arms, crying,"I'm so glad it's over! Thank goodness you weren't sent to prison."
We see in this example that only the guilty person is punished. The punishment administered is clean, simple, and most importantly, convincingly painful. It is over in a brief time, and the offender is able to return to his family and his job. Punishment is confined only to the guilty. The side-effects of punishment are minimized.
There is little doubt that such punishment procedures are more than feasible. Yet as we saw in Chapter 1, a major objection to it has been that, because it is subjective, it would be felt so differently by each individual that it would be an inequitable punishment. Although it is true that people do respond differently to pain, it is also true that in the area of physical pain these differences can be more easily overcome than with other kinds of pain.
Let us look at the evidence.
Measuring Differences in Response to Pain
In general, it has been found that people do indeed vary according to the threshold at which they report pain (that is, the point of severity in the painful stimulus at which they report that it "hurts" or request that it be stopped). The kinds of painful stimuli that have been applied to subjects in these experiments have been:
1. Application of pressure to tissue or bone, such as the use of a blood pressure arm band with a hard object sewn into it.
2. Application of electric shock which can be carefully calibrated.
3. Application of heat to various parts of the body, which can be calibrated in terms of skin temperature at the site of application.
4. Field studies where persons in hospitals who are in pain, either through chronic illness, or perhaps as a result of an operation (post operative pain) may be studied to see how they perceive and report upon their pain, such as how often they request pain killing drugs.
We should make an important distinction here between pain threshold and tolerance of pain.
Pain threshold refers to the point on the scale of severity of the pain stimulus (for example, heat) at which the person reports that he "feels" it as pain (in this case, prickly heat). This may, of course, vary widely among individuals, but it should be realized that it is usually only a painful stimulus at a very low level of intensity. As we increase the intensity of the painful stimulus the person will soon decide where along that scale to say "stop."
There is an additional advantage in the administration of physical pain in that one does not need to rely exclusively on verbal reports to ascertain when it "hurts." Rather, there are physiological indicators such as sweating and pupil dilation, which are good indicators that the painful stimulus is indeed having a painful effect. In this way we are able to eliminate at least one aspect of the complicated process of the person's perception of pain (that is, we do not have to depend on him to tell us when it hurts).
Tolerance of pain is not necessarily related to a person's pain threshold. While a person may call out "stop" relatively early in the application of a gradually increasing amount of pain, he may nevertheless be able to stand certain levels of pain for quite some time. The tolerance of pain refers to the time element in pain. Again, people may vary in the extent to which they can stand pain over time, and it has generally been found that the variations in tolerance are greater than the variations in pain threshold.(1)
Making Pain the Same for Everyone
Since pain is almost always at a very low level of intensity, people will cry out or ask for it to be stopped long before it reaches a point where they can no longer stand it. Thus, we would expect wide variations among individuals as to the point at which they called 4 4stop." However, if one were to administer a painful stimulus which was, say, twenty times that of the lowest pain threshold, the extent to which this pain was felt differently among individuals would be "levelled." That is, it would be felt the same by virtually everyone. And if we used a physiological indicator we could be even more certain.
For example, suppose we have established from our experiments that the range at which people display a high sweat reaction is from a low of 5 volts to a high of 20 volts, with most people at about the middle, that is, 12 volts. We could safely administer 30 volts for a one second duration, and be sure that everyone felt the shock, and that it was very painful. This would have the effect of levelling the punishment in that we could be absolutely sure that the punishment really hurt every person to whom it was applied, and hurt them equally.
The important point about this method of applying an amount of pain is that not only is it of brief duration, but it is certainly painful. Furthermore, the scientific studies have found that the variations in perceptions of pain are much greater for chronic pain (that is, drawn out pain, or pain tolerance) than for acute pain.(2) We are on much safer ground using momentary application of painful stimulus that we know will really hurt every person who receives it, than to apply some other form of pain which by its nature requires that it be administered over long periods of time. The longer the time period, the more the concept of pain tolerance will override the notion of pain threshold.
We can see that, with the application of acute pain, intensity depends much more on the amount of electric shock, the amount of heat, or amount of pressure. Only as a secondary device need time be used to vary the amount of pain. Thus, we may apply our 30 volts of shock for as brief a time as a fraction of a second. And, for some offenses, this may be sufficient.(3)
Does Pain Differ According to Social and Ethnic Background?
Pain is not distributed in society according to social class or race, as is money, although there have been a number of studies by various anthropolgists and psychologists which claim to have found differential responses to pain and suffering according to religious and ethnic background. One well known study conducted in the 1950's found that "old Americans" (that is, your everyday WASP) were more likely to put up with pain for a longer period and of more intensity without complaining than were Irish or Italian Catholics and Jews.(4)
Others have found that Eskimos will tolerate more pain than whites, and that whites will tolerate more pain than blacks. However, all these studies have been severely criticized on the basis of their very small samples and their reliance on cultural stereotypes to select their groups.(5) Although some recent work which was well designed did find some support for the claim of differences in response to pain according to religious background, other reviews of this research have generally concluded that while different cultural or social groups may be said to respond to and interpret pain differently, there is every chance that they actually feel pain in about the same way.(6)
In sum, people's physiological reaction to painful stimuli is pretty much the same. The way they deal with the pain varies according to the way they have been brought up. In other words, all people feel pain as pain. The ways they react to this pain may vary.
Differences in Reaction to Pain
Are there differential responses to the effects of prison according to social and ethnic background? There are drastic variations. Not only do people (including inmates) perceive time differently (and it is time that is the element in prison), but inmates also perceive prison life in widely differing ways. Some, indeed, see no difference between life on the inside and life on the outside:
It's not a matter of a guy saying, 'I want to go to jail or I am afraid of jail.' Jail is on the street just like it is on the inside. The same as, like, when you are in jail, they tell you, 'Look, if you do something wrong you are going to be put in the hole.' You are in jail, in the hole or out of the hole. You are in jail in the street or behind bars. It is the same thing.(7)
Differences in tolerance of prison are also demonstrated by the fact that hispanics have the highest suicide rate in prison, and the highest rate of self-inflicted injury. They are followed by whites, then by blacks.
The Fairness of Acute Pain
One can immediately see the inherently attractive features of acute pain such as electric shock, as opposed to prison. It ensures that all persons receive the same amount of punishment. All people, rich or poor, black or white, will suffer the same amount of pain. This surely fulfills the requirements of equity and fairness. People will truly receive the same amount of punishment for the same crimes. No longer will it be possible to claim that the punishment favors the rich or poor, since we know that we have, by the scientific selection of an intensely painful stimulus, ensured that each individual will experience the same amount of pain. And for those purists who would insist that no matter at what level of intensity of shock, each one will feel it differently, one may reply that even if this is so, it is demonstrably clear that in comparison with the punishment of prison, the application of physically acute pain to the body is far more equitable, and far less susceptible to variations in effects. It achieves its object, then stops.(8)
Would Blacks Suffer More than they do Now?
The number of people in prison has increased over the last several years at an astronomical rate, from approximately 177,113 in 1971 to well over 300,000 in 1982, and the rate continues to climb. The number of blacks in state prisons has always been disproportionately high: 46.5 per cent in 1973 and 47.8 per cent in 1979, and this during a period when there was supposedly more sensitivity to the plight of black persons in the United States. When we consider that blacks comprise only 11.5 per cent of the total United States population, we see that the proportion of blacks in prison is tremendous. And in some regions of the United States the proportions are even higher. The chances are that every black in the country has at least one relative in prison and probably more.(9)
The trouble is that these figures do not have much impact because the ordinary person is not likely to be confronted by the silent process that keeps people-of all colors-in prison. Criminals can be tunnelled into this archipelago and forgotten about by the majority of people who are happy that someone will keep them locked up, and preferably silent. Only from time to time do prison riots break this silence, but after a brief spilling of blood, the silence returns, and we hear nothing more. (10)
Clearly, if corporal punishment can become a viable alternative to prison, then blacks stand to gain more than any other group.
What about Women and Children?
It is a popular belief that women are able to withstand more pain than men, although there is no research data to support this claim.
It is also argued on occasion that the young could withstand severe acute pain more easily than the old, but once again there is no research data to support this claim.
But there is evidence to show that women and children suffer more than do adult men from the punishment of prison. Studies have shown that women suffer the separation from their families much more than do men,(11) and it is a well established fact that the young who are sent to prison are those who are preyed on by rapists, and if they are not raped, they are turned into hardened criminals by older inmates.(12)
Therefore, it would seem to be much more preferable to administer acute pain in the same quantities for women and children as for men. In this way we have truly fair punishments, and all, regardless of race, age, or sex, receive the same penalty. In addition, the law could be considerably simplified, since in many cases, separate laws have had to be made for children so that they could be given more lenient (and recently more severe) punishments.
It is clear that, where appropriate to the crimes, the use of an acute corporal punishment instead of the vague use of prison as punishment is preferable, since the application of acute pain can be scientifically controlled both in terms of duration and intensity. The way it is physically felt does not vary, although reactions to it may: but even these reactions vary far less than reactions to prison.
Prisons vary inside so much, and they vary among one another so much, that there is no reliable way to control their quality or intensity. Convicts are well aware of the ways in which prisons differ from eachother, as is well documented in any prison diaries and books about prison. And these variations occur within prisons that are supposed to be of one type, such as "maximum security."(13)
This chapter suggests another defect in the use of prison as punishment. It is difficult to vary the intensity and duration of prison in a clear cut way as it is with electric shock. The most common way to vary intensity of prison is to vary the length of prison term. But this mixes up duration with intensity. Another way to vary the intensity of prison is to introduce various types or degrees of "security"-such as maximum security down to minimum security prisons. However, such variations in intensity are not specific enough for our purposes, for we wish to control the administration of pain as carefully and fully as possible. This practice also affects the credibility of prisons as a punishment since minimum security prisone are easily portrayed as "resorts for white collar criminals."
We have seen that we can minutely control both the intensity and duration of electric shock. If we are to control the intensity of prison, we must look closely at the types of pain that occur in prison-diet, hard labor, isolation cells-and consider systematically grading these so that the intensity of prison may be adjusted to the punishment deserved by the crime.
Here we are confronted with the most difficult of all questions in criminal punishment: which criminals (as opposed to crimes) deserve punishments of the chronic proportions of prison; which ones deserve the lesser ones of acute pain; and are there any that deserve both?
Until this point, we have considered what punishments are appropriate for what crimes, but we have not considered whether certain kinds of criminals deserve particular kinds of punishments. Rather, we have stayed on what could be called a "superficial" level in our attempt to match the crimes with the punishments.
Matching criminals with punishments is a much more difficult problem, and gets us into hot water when it comes to using retribution as the justification for administering painful punishment. For it is one thing to reflect the elements of crimes in punishments, but it is another to reflect the elements of criminals in the punishments. The latter would virtually mean concocting punishments which were unique to each criminal.
Such an "individualization of punishment" is not new, and was advocated around the turn of the century.(14) It has been found by and large to be unrealistic, and that those who advocate it in fact do not really practice it. Researchers have found that judges tend to apply similar punishments for similar crimes and similar criminals.
The solution to this problem lies in repackaging the notion of retribution by using the knowledge we now have about the range of pains and punishments.
1 .Sternback, Pain: A Psychophysiological Analysis.
2. Kosterlitz, Pain and Society.
3. It would be necessary to avoid another phenomenon that appears to occur naturally in the body when pain is experienced over a long period of time, which is that the body's defensive apparatus manufactures substances that interefere with the brain's processing of painful stimuli. It may be that people will adapt to the level of painful stimulus over time, and thus may not "feel" it as much as in the immediate and momentary onset of pain. Indeed, some torture victims have referred to this very phenomenon and even said in retrospect that the torture was not all that bad. This is why the best torturers make cunning use of time, and will vary torture sessions over some weeks or months.
Some experimentation may also be necessary as to the appropriate parts of the body to attach the electrodes, and the amount of voltage and current to apply without causing tissue damage. Considerable research has been conducted on dogs in relation to the use of electricity in the death penalty, but little data is available on its use as a means of administering pain. See T. Bernstein, "Theories of the Causes of Death by Electricity," Medical Instrumentation 9 (November-December, 1975): 6; and by the same author, "A Grand Success," IEEE Spectrum, (February, 1973).
4. M. Zborowski, People in Pain (San Francisco: Josey Bass, 1969).
5. B. B. Wolff and S. Langley, "Cultural Factors and Response to Pain: A Review," American Anthropologist 70 (1968): 495-501.
6. J. J. Bonica and D. Albe-Fessard eds., Proceedings of the First World Congress on Pain (St. Florence: World Health Organization, 1975).
7. Quoted in J. Braithwaite, Prisons and Work (Brisbane: University of Queensland Press, 1980).
8. See in this regard A. Petrie, Individuality in Pain and Suffering (Berkeley, California: University of California Press, 1961) who has identified "augmenters" and "reducers" in the perception of pain and suffering. This differentiation, though not yet shown to be related to any class or ethnic background, may nevertheless tell us that the way in which prison is perceived is unquestionably different according to each individual. The augmenters are those whose perceptual processes must increase the intensity with which they feet a stimulus. The reducers are those whose perceptual processes do the opposite, and so reduce the amount of intensity of the stimulus.
Petrie observes that the augmenters are those who are most likely to suffer from being isolated in prison, since they must constantly augment or add to their stimulation. They are the ones who suffer severely from boredom, and for whom lack of stimulation of any kind is a severe form of punishment. On the other hand the reducers find even the minimal amount of stimulation enough, and so are less likely to suffer from the isolation of prison-provided, of course, they are able to live out their time in a prison that fosters individual isolation. In today's overcrowded conditions, this is doubtful.
9. See S. Christianson, "Our Black Prisons," Crime and Delinquency (July, 1981): 364-375.
10. Prison riots arc as old as prisons themselves. See T. Kabealo and
S. Dinitz, "Prison Riots and Revolts in the U. S. 1951-1971," Quaderni di Criminotogia Clinica 15 (1973): 305-328; D. Asiz, Historical Review of Prison Disturbances 1970-1980 (Unpublished report to the New York State Department of Corrections, 1981).
11. See, for example, T. Foster, "Make Believe Families: A Response of Women and Girls to the Deprivations of Imprisonment," International Journal of Criminology and Penology 3 (1975): 7178.
12. J. Irwin, Prisons in Turmoil (Boston: Little Brown and Co., 1980).
14. R. Salleilles, The Individualization of Punishment (Boston:Little Brown and Co., 19 1 1).