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January 30, 2013

"Montana lawmaker offers pain instead of prison"

A helpful reader altered me to this notable local story of a notable state sentencing proposal that, I suspect, ought to generate some interesting discussions.  The story has the same headline as this post, and here are excerpts:

A Montana lawmaker says convicts should be allowed to get out of prison time if they instead agree to the "infliction of physical pain" — an idea that so far is receiving a cool reception.

Republican Rep. Jerry O'Neil is drafting a bill that would allow those convicted of misdemeanors or felonies to negotiate corporal punishment instead of another sentence. The method used to inflict the pain would be decided by a judge.

The veteran lawmaker said Wednesday that he thinks long prison sentences are inhumane. "Ten years in prison or you could take 20 lashes, perhaps two lashes a year?  What would you choose?" O'Neil said.

He argued that the convict under his proposal could remain employed to pay restitution, and that it would potentially save the corrections budget millions of dollars per year. "It is actually more moral than we do now," O'Neil said of the lashings. "I think it's immoral to put someone in prison for a long time, to take them away from their family, and force that family to go on welfare."...

The House speaker's office noted that O'Neil bill was tied up in lengthy legal review and faces several hurdles. "It's a citizen legislature, and folks get to carry the bills they like on their own," said House Speaker Mark Blasdel, a restaurant owner from Somers.

House Minority Leader Chuck Hunter of Helena was speechless over a bill he said looks like it comes out of the 17th century. "Wow," Hunter said.

The Montana ACLU, opposed to physical pain and corporal punishment, sympathized with the effort to reduce prison populations.  "We agree with Rep. O'Neil that our state needs to find alternatives to over-incarceration and lengthy jail and prison sentences that are ineffective and costly, but we don't agree that corporal punishment is the solution," said Niki Zupanic, the group's public policy director.

"We support reducing sentences and increasing our investment in community corrections alternatives.  We need to put more and better options on the table, but corporal punishment is not one of them."  

Not only do I share Rep. Jerry O'Neil's viewpoint that long prison sentences are inhumane, I am eager to applaud his apparent eagerness to develop a creative alternative to imprisonment that would give defendants and judges more discretionary punishment options.  Indeed, if a bill were merely to allow defendants to propose corporal punishment options in lieu of any prison time, and especially if the severity to the corporal punishment is to be circumscribed and only availble upon the defendant's knowing request, I do not this provocative sentencing proposal should be dismissed out of hand immediately. 

After all, even short prison terms include, both formally and informally, the imposition of some significant measure of physical discomfort: one need not have seen the TV series Oz to realize prison food, lodging and companionship lacks many of the comforts of home.  Moreover, for persons who suffer from any number of medical conditions (both physical and mental), prison stays can involve persistent and sometimes extreme physical pain (and can sometimes become de facto death sentences).   And, personally, I would consider the emotional pain of being separated from my children for a decade or more to be far harder to imagine or endure than even a serious whipping (and, of course, my kids would really hate not having me around to drive them places).  

Of course, as with all creative sentencing proposals, the devil is in the details.  But, for now, I am eager to reserve judgment on Rep. O'Neil's bill until I see just how he tries to operationalize a potential corporal punishment alternative to long prison sentences.  More generally, I hope that those folks eager to support and help the interests of criminal defendants are not too quick to dismiss completely any creative efforts to develop any potentially more humane punishment option than long imprisonment to our modern sentencing toolbox.

January 30, 2013 at 06:45 PM | Permalink


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One might hope the Montana courts would give thoughtful consideration to the 8th Amendment analysis in State v. Cannon, 190 A.2d 514 (Del. 1963), which I expect is not often read these days (although the "ratchet" theory in Cannon might require revisiting).

Posted by: JWB | Jan 30, 2013 7:04:52 PM

This is an intuitive, not a reasoned proposal.

So, what is the objective? What strategies should be used to accomplish that objective? Will these tactics accomplish that objective, given the strategy that is to be used? ? Are those objectives, strategies and tactics proportional? Are they cruel and unusual? Will they be cost effective?

This proposal is simple minded.

Posted by: Tom McGee | Jan 30, 2013 7:24:28 PM

And what happens when said corporal punishment results in a permanent medical condition? Corporal punishment is not just being paddled in the principal's office, it involves extremely painful and lacerating processes that increase chances of cancer, accelerates bone disease, and other implications that medical professionals can dictate. Finally, consider the lawyer who creates "conditions" for his lacerated clientele for huge payouts by the state?

Republicans are very rational when it comes to fiscal issues, but overdo the emotional component when it comes to judiciary punishment. Like castration, this can only snowball into the trial lawyers' dens, while not doing a damn thing for fair sentencing.

Posted by: Eric Knight | Jan 30, 2013 8:19:03 PM

Haven't given this idea much thought, but wouldn't the option be beneficial? I think most offenders would prefer more options. Of course, there may be plenty of administrative complexities and perhaps substantive counterarguments (none of which I've though through), but that is the immediate reaction.

If there were ways to achieve the goals of sentencing that would cost the government less and were not forced on defendants, certainly seems worth exploring.


Posted by: AnonymousOne | Jan 30, 2013 8:43:55 PM

Don't forget there are some people who also RELISH pain, and would not consider it much of a punishment. In addition, what about defendants who have previous medical conditions that would not allow them to be corporeally punished? Since there is no realistic option that would reduce a 20 year sentence to two years, that would run afoul of sentencing recommendations on BOTH sides of the bar, as well as the aisle.

Castration is bad enough, and that "treatment" ostensibly has to do with preventing sex offenses. Lashes don't prevent anything. We don't need more sentencing "options," we need a comprehensive and accountable legal overhaul that encompasses every aspect of the crime from commission to successful community reentry of the offender. That includes due process during investigation, victim restitution and retribution, courtroom procedures, sentencing, incarceration, and a post-incarceration period that doesn't just involve handing an offender 40 bucks and a bus ticket. Corporal punishment should be a family-based punishment (spanking), not a community-based "sentencing option."

Posted by: Eric Knight | Jan 30, 2013 11:06:32 PM

Eric: "Corporal punishment is not just being paddled in the principal's office"

me: school paddling can (and has) resulted in serious and long term injury.

Posted by: Erika | Jan 31, 2013 9:44:26 AM

I don't think it will fly...But the key is proper execution....What is pain to some means nothing to another...If you told me, you get 10 yrs or 20 lashings... Its a no brainer, give me the 20 lashings....

The flip side is this: The punishment is immediate and harsh yes...Whatever I did, to be sure I would not be doing it again....So it foes have merit, but there are just too many hurdles, permanent injuries, inhumane, etc. the list is lengthy.. It could be a useful tool...Ok, go ahead drive drunk, when you sober up, your gonna get beat up! How would this work you folks.. I think for most drunks, so what...For me, it would work...

Posted by: MidWestGuy | Jan 31, 2013 11:29:26 AM

Two things: First, if prison is not necessary to accomplish a legitimate purpose, then it should not be imposed and a convict should not have to submit to the lash to avoid it. If 20 years is necessary to accomplish that societal goal, then the convict should not be allowed to choose to avoid the proper punishment. The problem is that sentences are substantially longer (and thus more expensive) than necessary to accomplish their purported purpose.

Second, consider a whipping post being set up in front of the courthouse in Birmingham, Alabama and then get back to me on whether this is a good idea anywhere.

Posted by: Ala JD | Jan 31, 2013 2:05:39 PM

Pain would defintely help 3 people that we all know and Love..
In order of whom needs a good old fashioned @sskicking...........It would work wonders.

1. Lindsey Lohan
2. Brittney Spears
3. Paris Hilton - Miley Cyrus tag Team (before Molly gets any worse)

A 4th,and a 5th, why not..with the guys

4. Mel Gibson
5. Charlie Sheen

Waiting on Justin Bieber..Nah tune him up now, save us the trouble later on...

Anyone dispute this...

Posted by: MidWestGuy | Jan 31, 2013 2:08:46 PM

Jerry O'Neil is a professional crank. His prior claim to fame is a letter he wrote to the Montana legislature, in which he insisted that he be paid in gold and silver coins. This proposal exactly zero chance to become law, and I wouldn't hold my breath on waiting to see "how he tries to operationalize a potential corporal punishment alternative to long prison sentences."

There are plently of serious sentencing reforms being discussed throughout the country that are worth discussing, but this isn't one of them.

Posted by: Ryan from Las Vegas | Jan 31, 2013 5:26:16 PM

"First, if prison is not necessary to accomplish a legitimate purpose, then it should not be imposed and a convict should not have to submit to the lash to avoid it."

This. If you don't want to pay to punish the crime....don't make it a crime.

Posted by: Daniel | Jan 31, 2013 8:46:30 PM

This is a good proposal. Prof. Berman should be commended for keeping an open mind.

Corporal punishment is effective punishment serving retribution, and deterrence of the defendant (a proper purpose, in contrast to deterrence of others, which violates Fifth Amendment procedural due process).

Electric shocks are the most standardized punishment, and no one will like them, guaranteed. Lashes with a bull whip across the back may depend on the strength of the punisher. If there is one person doing it, then everyone gets the same kinetic energy and fatigue rate. Ten lashes make a good point, and will not do permanent damage. Scarring is part of the reminder and of the punishment. It will permanently identify convicted felons who failed to learn from lesser sanctions such as fines, and probation. Part of the law should prohibit pain medication and psychiatric drugs to address PTSD, so that avoidance is not disrupted.

Costly imprisonment serves incapacitation, and dropped the crime rate 40% with mandatory sentencing guidelines. If incapacitation is required, then imprisonment is rational. It does not have to be harsh because it does not serve a punitive purpose. Because there has been no learning from the hassles of the defendant, all first prison terms should be long enough to allow maturation from aging, such as 15 years, then life without parole, after a third strike.

Posted by: Supremacy Claus | Feb 1, 2013 8:02:08 AM

One reason it will never get enacted? It works, and will drop crime rates like a stone. Result? Massive loss of government make work jobs babysitting vicious predators in prison, prosecuting them, defending them, so on. The Rent.

Posted by: Supremacy Claus | Feb 1, 2013 8:04:03 AM

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