A reader writes:
Flogging may not constitute torture – and at this stage there is little point returning to this point – but it is almost inevitably cruel and unusual punishment as defined by the Eighth Amendment of the US Constitution. While the Supreme Court held in Ingraham v. Wright (1977) that corporal punishment was not cruel and unusual punishment, the decision was largely based on a technicality that public schools do not form part of the criminal justice system. To that degree, the Eighth Circuit in Jackson v. Bishop (1968) ruled that corporal punishment in the Arkansas prison system ran afoul of the Eighth Amendment. As Justice Blackman went on to say:
Neither do we wish to draw, in this context, any meaningful distinction between punishment by way of sentence statutorily prescribed and punishment imposed for prison disciplinary purposes. It seems to us that the 8th Amendment’s proscription has applicability to both.
Moreover, the very idea is on the face of it completely absurd. As a starting point, we should start work on the reasonable assumption that Americans are no more and no less law-abiding than citizens of any other Western liberal democracy; that they are no more or no less violent; that they are no more or no less susceptible to illicit substances, etc. Then we should consider why the US is more prone to incarcerating its citizenry than any other nation – for example, are there more criminal offences on the statute books, do US authorities seek jail sentences for more minor crimes, etc – and only then should we consider whether “justice” in the United States is working to the degree which it should, particularly by comparing recidivism rates. That most, if potentially not all European and Australasian nations seem perfectly capable of keeping both crime and recidivism rates lower than those in the US without resorting to corporal punishment only serves to undermine the professor’s philosophy, and simply reflects the singularly American idea (within Western democracies) that violent retribution is required as a punishment.
Another:
My first thought was about the current demographics of our prison population and I wondered how would that look: whipping black men. Ugh.