In Re Candido

If a court having authority over my judgment had declared that whipping with a cat-o'-nine-tails, as a means of enforcing prison discipline, was not cruel and unusual punishment, I would consider myself under compulsion to obey its mandate. No such court, however, has so expressed itself. Or if the people of this Territory, speaking through their assembled legislative representatives, had so expressed themselves, I would hesitate to disagree with them. In the cases from Maryland, New Mexico, North Carolina and Virginia, referred to in the majority opinion, the conclusion of the courts that whipping was not a cruel and unusual punishment seems to have been influenced by the fact that in those jurisdictions it was authorized by legislative enactment. Our legislature, however, has taken no such action and I therefore feel free from this constraint. The direction to the high sheriff to whip the petitioner in the instant case issued not from the legislature but from a board of prison inspectors, composed of three members who held their office not by popular mandate but under executive appointment. It cannot be said of them, therefore, that they presumptively represented the wishes of the people. Under these circumstances I feel at liberty to express my own views.

I am much impressed by the following extract taken from the opinion written by the chief justice of North Carolina in State v. Nipper, 166 N.C. 272, 275: "Originally, flogging was recognized as a proper punishment in the armies and navies of the world. But it has long since been abolished in those services everywhere, notwithstanding the protests of officials who declared that the result would be mutiny and disorganization. Flogging has been long since abolished as a part of prison discipline by all the great and enlightened nations of the world, except Russia. In England, France, Germany, Austria, Italy, Belgium, Holland, Switzerland, Spain, and by the government of the United States, and even in Mexico and in most other civilized countries, the lash as an adjunct of prison discipline has long since been forbidden. In Mexico, in 1903, Art. 385 was adopted: `The lash or any other violent physical punishment shall not be employed' either as a sentence of the court or as a part of prison discipline. This has been taken substantially from the statutes obtaining in the more advanced countries. The statute in New York provides: `No guard in any prison shall inflict any blows whatsoever upon any prisoner, unless in self-defense or to suppress a revolt or insurrection.' Statutes or regulations to the same effect abolishing flogging prevail in all the northern and western States, 32 out of 48, and it is there looked upon as a survival of barbarism. In many of the southern States, as in Maryland, District of Columbia, West Virginia, Oklahoma, Tennessee, Texas, and others, it has also been abolished and prohibited. This is one of the very few States in which it has been retained, and here not by authority of law, but as a matter of custom, and is the survival, doubtless, of a former condition of society, and it has lingered here, probably, owing to the fact that an unusually large part of our criminal population are colored." While it is true the court did not have under consideration the question of whether whipping a convict was within the constitutional inhibition against cruel and unusual punishment, its observations are quite applicable to that question.

The Congress of the United States, believing no doubt that whipping was a cruel punishment, has many times expressed its condemnation of it. As far back as 1839 it declared that "The punishment of whipping * * * shall not be inflicted." In 1850 it declared that "flogging in the navy and on board vessels of commerce be and the same is hereby abolished from and after the passage of this Act." In 1861 it declared that "no person in the military service shall be punished by flogging * * *." In 1873, in the chapter on Military Prisoners, 9 U.S. Rev. Stat., 242-243, it declared that "in no case shall any prisoner be subjected to whipping * * *." Later it specifically declared that "in no case shall the punishment of flogging * * * be inflicted upon any person in the navy." These statutes have been in force throughout all the years and are a clear indication of the view taken of whipping by many of the great minds of this country. Finally, on June 4, 1920, in legislating further upon the subject of punishment in the army, the Congress expressed its very definite opinion that whipping was a cruel and unusual punishment by the enactment of the following statute: "Cruel and unusual punishments of every kind, including flogging, branding, marking, or tattooing on the body, are prohibited." Punishment by whipping was thus specifically characterized as cruel and unusual.

It is true that the condemnation of whipping expressed in the foregoing statutes did not emanate from the courts but it nevertheless represents the composite opinion of a coordinate branch of the government composed of men from all sections of the country, many of them lawyers of great eminence and I find this opinion more convincing than the judicial utterances of Maryland, New Mexico, North Carolina and Virginia, which were delivered many years ago under the influence of legislative enactments.

Even if I held an opinion different from that expressed in the federal statutes I would not feel justified in opposing my belief to this tremendous tide of protest which has swept over the land with gathering force for nearly a hundred years, destroying in its course those forms of punishment which contain no element of reformation but which only serve to humiliate and degrade their recipients. This sentiment was engendered no doubt by the historic records of the whipping post in England during the bloody reign of the Tudors, the flogging of Quakers, including delicate and refined women, with a cat-o'-nine-tails, in Colonial America, the knout in Russia and the bastinado in other parts of the world. The revulsion among a free and intelligent people against this form of punishment is not to be wondered at. It is but an indication of the evolution of social concepts and the beneficent influence of a civilization that has its roots in the teachings of the Man of Galilee.

There was a time when the dignity and sacredness of the human body were so little regarded, even among people who thought themselves leaders of civilization, that it was by law placed at the mercy of those who deemed it salutary or expedient to inflict upon it the most brutal and excruciating punishment. It was laid upon the rack and tortured until it recanted its sacred beliefs or became insensible. It was ravished and ruined by lecherous tyrants. It was taken from those whom it loved and sold into bondage to an alien race in a foreign country. It was lashed with bull whips by slave drivers until it was covered with blood. It was beaten and bruised by arrogant naval and military authorities. It was starved and forgotten in infested prisons. It was placed in stocks and pillories and jeered at and insulted by vulgar mobs. It was guillotined for a look that was construed into treason. It was hanged for killing a hare. It was manacled and chained and driven to penal labor through public streets and highways. Every conceivable indignity was heaped upon it until it was completely bereft of its self-respect. It is the hall mark of our progress that no matter how lowly and friendless a human body may be it has now been lifted from its degredation and shame and placed within the protection of our great Constitution.

Even animals are now under the aegis of our laws. In the chapter on "Cruelty to Animals" it is provided, in section 710, R.L. 1925, that "if any person shall * * * cruelly beat * * * any living creature, he shall be guilty of a misdemeanor." If the whipping with a cat-o'-nine-tails, to which Lucas Candido will now be subjected, should be inflicted on a tethered horse or a leashed dog there is no doubt in my mind that it would be an act of cruelty within the meaning of the statute and punishable as such. Is it less cruel to torment an imprisoned man than it is to similarly torment a dog or a horse? It is no answer to say that under some circumstances it may have a salutary effect to punish a man with a cat-o'-nine-tails but that it can have no such effect if a dog or a horse is likewise punished. So far as I know punishment of a man that is cruel and unusual has never been upheld on the ground that its effect upon him or upon society might be beneficial. Such an end, however desirable it may be to attain it, is no justification for the employment of such means.

For the foregoing reasons I most respectfully dissent from the majority opinion.