By: Carolyn Strange
| In the wake of Foucault’s provocative philosophical contributions to the study of discipline and punishment, social and legal historians no longer narrate penal history as a straightforward tale of moral and political progress. In its place is a schematic picture of a large-scale retreat from the body to the prison as the prime site of punishment. Historiographical proclivities perpetuate that image: early modernists tend to concentrate on the Bloody Code and similar régimes of terror, whereas historians of the twentieth century specialize in studies of regulatory modes of punishment and “normalization.”1 These latter works include histories of reformatories, family courts, social workers, psychiatric experts—in short the institutions and agents that best instantiate the reorientation toward disciplining the soul and governing the self. Scholars who study corporal and capital punishment in the twentieth century would seem to have nothing to add, other than to remark that there were exceptions in the wider history of penal change. | 1 |
| But the continued practice of whipping and executing convicted criminals, well after most liberal states embraced a welfarist orientation in punishment, deserves to be more than a footnote in historical accounts.2 If, as Foucault claimed, “physical pain, the pain of the body itself, [was] no longer the constituent element of the penalty” in modern polities, then where and how did bodily sanctions fit?3 Significantly, pain and death were transferred from the whipping post and the public gallows over the nineteenth century, but equally significantly physical punishment remained in the repertoire of penal practice more than a century after it was hidden from view. By the late nineteenth century corporal and capital punishment were no mere exceptions to the rules: they appear to have been glaringly out of step with the modernist march toward reforming or correcting wrongdoers according to expertly defined norms. In holding onto the lash and retaining the services of executioners in the twentieth century, many otherwise advanced welfare states, including Canada, retained highly expressive modes of punishment designed to hurt and kill. | 2 |
| Why did such seemingly archaic penal practices persist? And how were these techniques rationalized? In Canada, as in other liberal democracies, the state continued to inflict physical forms of punishment in the twentieth century even though cultural certainties about the official use of pain and death had eroded. Canadians were proud of their refined sensibilities and ranked their country among the most civilized in the world but that pride did not outweigh legislative caution and the familiarity of penal tradition. Indeed, adherence to historic British practices and an unwillingness to experiment with abolition were defining features of Canadian penal culture prior to the 1970s. Debates about corporal and capital penalties in the mid-twentieth century exposed the rift between shifting sensibilities and static laws. However, they failed to spur legislative change. | 3 |
| Analyzing public pronouncements and tracking legislation over time is the standard method of plotting changes in attitudes toward crime, punishment, and the administration of justice.4 But charting penal undercurrents—mentalities and sensibilities about pain, suffering, and death—requires closer attention to the timbre of debates about the merits and demerits of particular forms of punishment and the procedures that determine their infliction. So attuned we can discern that ways of justifying, challenging, evaluating, and attributing meaning to specific modes of punishment can and do shift even when penal policy and practice remain unaltered. As George Lucas writes, “dissonance between legal precept and changing cultural contexts” generates discomfort but it does not necessarily produce legal change.5 Indeed, as this article argues, Canadians managed to resolve that discord through the discourse of civility. Interpreting the character and changing articulation of their discomfort does not answer why physical punishment ended at a particular point in history, but it does enrich our understanding of why and how it endured for so long in this cultural context.6 | 4 |
| Unease about the nature of punishment grew over the twentieth century as parliamentarians questioned whether or not Canadians could reconcile ancient modes of sanctioning with their self-image as a civilized people. Two major governmental inquiries, one on the death penalty in 1937 and the other an investigation of corporal and capital punishment, completed in 1956, failed to produce new policy on the use of physical sanctions. Evaluated in terms of their legislative impact, these inquiries merit little attention; however, viewed as evidence of members’ and witnesses’ candid thoughts and feelings about punishment, the transcripts and published reports are invaluable. Comparing the questions asked and the statements uttered in these two investigations brings the subtle alterations in opinion leaders’ mentalities and sensibilities into view. Committee members in both inquiries expressed characteristically modern, secular concerns about humaneness and fairness, but their cultural and political postures were distinct. In contrast to the witnesses and commissioners who participated in the politically conservative Depression-era inquiry into the death penalty, the participants in the mid-1950s commission, looking toward a future of greater civility, found it considerably more difficult to reconcile physical penalties with ideals of reformative justice. Statutes did not change over this period, but Canadian penal culture had become much less favorable toward physical punishment. Decades before an organized abolition movement gathered force in Canada, and a generation prior to the ban on corporal punishment as a criminal or institutional sanction, parliamentarians, bureaucrats, and academics examined the fit between penal culture and penal policy and found it awkward but provisionally adequate. | 5 |
| Several historians, looking at different countries and periods, have analyzed why certain penal practices lingered after the nineteenth-century retreat from the punishment of the body. Pietre Spierenburg and V. A. C. Gatrell, both of whom examined the modified retention of physical punishment in modern states, offer different arguments to explain why these penal forms persisted in Holland and England. They do agree, along with other historians and theorists, that an important symbolic break from ancient practices occurred when officials whisked whippings and executions out of the public eye. Political leaders deliberately switched their penal sets from the public whipping post and the town square gibbet to cells and chambers blocked by penitentiary walls.7 But while Spierenburg argues that a growing repugnance toward pain and suffering made public physical punishment offensive, Gatrell claims that reframing executions assuaged bourgeois hypocrites’ squeamishness and fears of crowd volatility. They concur, nevertheless, that late nineteenth-century authorities considered that it had become vaguely embarrassing for the state to use the body in public forms of punishment. Randal McGowen, looking at England, adds a political element to this analysis: “The public execution threatened to expose death on the gallows for the ambiguous and compromised solution that it was.”8 In each of these accounts, a sea change in feelings, if only among certain classes, largely explains why a once salutory state spectacle became a mark of inhumanity. But if changing sensibilities and evolving political rationales explain the departure from ancient ceremonies, why keep up the act itself? Why and how did modern states reconcile their premodern practices (particularly “old-fashioned” methods, such as whips and nooses) with their emergent welfarist penal policies? | 6 |
| Norbert Elias’s contribution to these debates is considerable. Although his writings on the history of manners and attitudes toward the visibility and functions of the body are easily caricatured when applied to the realm of punishment, it is worth returning to his notion of the “civilisation process” to help explain the maintenance of corporal and capital punishment in the context of modernity.9 Elias was more careful than some of his adherents to stress that “process” should not be confused with progress because “interruptions” and regressions transpire from time to time. A man who had fled Nazi Germany, he was acutely aware that “decivilising” social and political impulses could push back the “thresholds of repugnance.”10 Foreshadowing Foucault, he observed that Western societies underwent a change in attitudes toward inflicting pain, from considering it tolerable, salutary, and even pleasurable, to sensing that intentional physical suffering ought to be minimized wherever possible (particularly in public). Without constant effort to reinforce civility, Elias argued, countervailing forces of barbarism can and do surface, as late twentieth-century outrages like so-called ethnic cleansing illustrate. In other words, barbarity does not disappear in nations that consider themselves to be enlightened: it moves out of public sight and is reconstituted in self-defined civilized societies. | 7 |
| Elias’s concept of civilizing and decivilizing processes offers historians a means to comprehend partialities and contradictions in penal policy. Unfortunately his early and best-known work presents an image of competing processes, pulling in opposite directions, with cultural refinement winning over time. There the civilization process is a zero-sum game, in which more civility spells less barbarity, and vice versa. His later work, in which he attempted to come to grips with the “civilised barbarism” of the Nazi régime, is more helpful for twentieth-century historians interested in the challenge of explaining the long retention of corporal and capital punishment in liberal-democratic polities. Elias observed that dominant civilizing processes could coexist with civilization’s partial disintegration: “the processes of growth and decay can go hand-in-hand but the latter can also predominate relative to the former.”11 Other followers of Elias’s work have called for further reconfiguration of this formulation and proposed that analysts think in terms of “simultaneous but contradictory” processes that produce lighter and darker cultural elements of civilization. For Stefan Breuer, for instance, civilizing and decivilizing processes ought to be seen as sides of the same coin.12 | 8 |
| Such an image is illuminating only if we abandon the presumption that civility and barbarity (or “heads” and “tails”) are precast or easily distinguishable to actors forced to choose sides. As the 1937 and 1954 parliamentary commissioners and witnesses revealed, some authorities determined that whipping and executing criminals were uncivilized, while others, invoking the same ideals, perceived that physical punishment, administered properly, fostered civility. Making such arguments did not breach the bounds of credulity to the respectable men and women on the committees. After all, ruthless civilizing offenses, such as the imperialistic missions of European colonizers, were justified on similar grounds well into the twentieth century.13 When it came to judging the appropriateness of punishing certain kinds of criminals, however, deeply embedded cultural norms produced greater certainty about the civility of penal styles. For instance, everyone who participated in debates over corporal and capital punishment understood implicitly that treating men’s and women’s and youths’ bodies differently was a critical benchmark of a nation’s civility.14 Those who suggested otherwise were literally dismissed with laughter. Members of both committees also agreed that physical punishment had to be carried out by competent dispassionate workers (prison workers, not refined doctors) and conducted as far as possible from the public gaze. Thus, it would be simplistic to characterize retentionists as barbaric and abolitionists as civilized: committee members on both sides of the debate adhered to shared norms but they differed over the translation of cultural values into policy. | 9 |
| Subtle shifts in the criteria for civility occurred over the mid-twentieth century. According to the 1937 committee, adhering to traditions of British justice and maintaining a firm but fair image justified retaining death by hanging. Upholding procedural norms was of greater concern to the 1954 committee. By the 1950s, when rationality, objectivity, and scientific certainty were extolled as ideals of modernity, bureaucratic norms in the administration of criminal sanctions had become as vital to the impression of civility as the nature of punishment itself. Tellingly, the virtues of modern procedural values and efficient techniques framed the 1954 committee’s justification for the retention of corporal and capital punishment. | 10 |
| Despite their retentionist recommendations, the 1937 and 1954 inquiries into the nature, administration, forms, and viability of long-standing penal practices exposed three undercurrents of anxiety and ambivalence about physical punishment. First, committee members worried about the extent and nature of pain inflicted on the criminal’s body; second, they were concerned about the influence of criminal punishments on those who administered and observed the infliction of pain and death; and third, they were uncertain about the messages that old-style penal practices conveyed to Canadians and about Canadians to the rest of the world (particularly the British and the Americans). Rather than explore these concerns chronologically in separate studies of each commission, I examine both committees’ deliberations thematically, focusing first on their inquiries about the administration, personnel, and procedures involved in physical punishment and second on their assessments of the philosophical and aesthetic qualities of various penal techniques. Thus I compare the ways in which members of and witnesses before the two committees struggled to distinguish between the civilizing and brutalizing effects of pain and death. For the parliamentarians who deliberated in the 1930s, respect for British precedents and faith in Canadian officials to administer punishment fairly and firmly allayed fears that death by hanging might be uncivilized. In contrast, members of the 1954 committee found it more difficult to defend the civility of penal practices tainted not only by their antiquated image but also by association with totalitarian regimes. Only reassurances that justice could be administered and delivered with machine-like efficiency, combined with their reluctance to “soften” justice and invite a potential invasion of American criminals into Canada, outweighed the 1954 committee’s growing conviction that punishing the body might be inherently uncivilized. | 11 |
The Investigations | |
| Although punishing the body had never attracted universal support, it was not until the 1910s that a concerted abolition campaign set the debate formally on Canada’s parliamentary stage. A lone backbencher, Robert Bickerdike, focused exclusively on capital punishment and introduced four unsuccessful abolition bills over the decade. In 1924, another private member’s bill sank to defeat. On the corporal punishment front, two important changes had occurred over the nineteenth and twentieth centuries. First, prior to Confederation in 1867, colonial governments had begun to restrict corporal punishment to men and stipulated that floggings be conducted behind prison walls.15 Second, in a series of amendments in the 1910s and 1920s, the discretionary sentencing scope of corporal punishment for men actually widened, particularly in regard to assaults on females.16 Periodically judicial sentences of whippings or paddlings (usually imposed on sexual offenders, wife beaters, and robbers) drew public criticism. Yet nothing comparable to England’s Cadogan Committee (which recommended in 1938 that judicially ordered sentences of corporal punishment be abolished) was conducted in Canada.17 Whippings meted out to discipline prisoners did come under fire after the 1938 Archambault report on the penitentiary system condemned the excessive use of corporal punishment in prisons.18 However, this form of institutionalized punishment escaped sustained scrutiny in Canada until the 1950s, when the Joint Committee undertook its inquiries. No significant parliamentary action regarding the punishment of the body reemerged until 1960, when private members’ bills began to attract serious attention and government backing. By the mid-1960s a spirited and well-organized abolition movement gained momentum, prompting Lester B. Pearson’s Liberal government to impose a five-year moratorium on capital punishment in 1967. As opponents and supporters of abolition lobbied vigorously, the moratorium lapsed in 1972 and was renewed in 1973. Finally, in 1976, a slim majority of MPs voted to end Canada’s historic reliance upon execution as the “ultimate” punishment.19 With considerably less fanfare, and absent public debate or controversy, Parliament had quietly abolished corporal punishment four years earlier, in 1972.20 | 12 |
| The 1960s and 1970s, an era of unprecedented experimentation with social and political reform, marked the denouement of Canada’s historic reliance on physical punishment. Yet penal culture prior to this period was not inert. As the 1937 and 1954 committee inquiries indicate, underlying shifts in sensibilities, as well as doubts about the intellectual and political defensibility of capital punishment, helped to make these dramatic changes thinkable. The first inquiry, a parliamentary committee’s consideration of the proposal that lethal gas replace hanging as Canada’s method of execution, recommended that no changes be implemented. The second, an investigation produced by a joint committee of the House and Senate concerning capital and corporal punishment, was more extensive. Again, the members recommended that capital punishment be retained; however they suggested that the electric chair or lethal gas replace hanging. Furthermore, they argued for the abolition of corporal punishment as a judicial sentence but advised that it be retained to support institutional penal discipline. Neither inquiry produced dramatic shifts in policy. Both corporal and capital punishment remained in the Criminal Code until the 1970s; and no method of execution other than hanging was ever implemented. While the surface of penal practice remained calm over the course of the mid-twentieth century in Canada, committee deliberations document that penal culture was in flux. | 13 |
| The 1937 Special Committee on the death penalty would never have been struck had a badly botched execution not pricked Canadians’ consciences. Sympathy for criminals was scarce in this era of drastic economic losses and political unrest. By the early 1930s, over a quarter of the work force was unemployed; tens of thousands of recent immigrants were deported, largely on suspicion of being agitators; and the federal government slapped sedition charges on citizens protesting relief policies.21 Consistent with its hard line on civil unrest, the government’s commutation rate for persons condemned to death sank precipitously by the early 1930s.22 Nevertheless, a botched hanging of an Italian immigrant did manage to disturb Canadian sensibilities. In 1931 the much-practiced hangman, Radclive, had been replaced by an accident-prone man, known by his trade name “Ellis.” In March 1935 he executed a woman in Montreal, along with two male accomplices, all convicted as co-conspirators in the murder of her husband. The men died without incident, but the rope ripped off Tommasina Teolis’s head as she plunged from the gallows. Journalists reported that another of Ellis’s accidental beheadings had taken place several years earlier in Winnipeg. Public revulsion over these grisly mistakes reached the House of Commons, prompting the federal opposition’s justice critic to suggest that Canada ought to consider adopting a more reliable method. Canadian sensibilities about the aesthetics of death had clearly been disturbed. | 14 |
| In 1936 a surgeon-turned-MP, Dr. John Blair, capitalized on those concerns by introducing a bill proposing that lethal gas replace hanging. At the same time, the Sheriffs’ Association of Ontario recommended switching to “more humane methods of inflicting the death penalty.” Blair agreed to let his bill stand while Justice Department officials investigated jurisdictions that performed executions by lethal gas. After conducting surveys and visits to four U.S. states, a committee of MPs was struck early in 1937 to consider the Justice Department’s findings.23 Both the committee’s mandate and the horrifying incident that roused Blair to action provoked participants to articulate otherwise unspoken feelings about punishment. The committee was to consider first, whether gas was a more effective deterrent than hanging, and second, whether this technique was more humane than death by the drop. In the course of conducting its inquiries, committee members produced rich evidence of punishment’s cultural components in Depression-era Canada. | 15 |
| The federal inquiry into capital and corporal punishment in the 1950s was launched in a far different political and economic climate. An anticipated postwar slump failed to transpire; instead Canadians enjoyed new levels of comfort as employment levels were high and wages grew. While the federal government in the 1930s had been content to off-load social problems onto the provinces and municipalities, Ottawa moved boldly toward the central management of the economy, health, and social welfare by the 1950s.24 The attempt to fine-tune the Criminal Code was a key feature of this consolidating move. Feelings of shock or revulsion had nothing to do with the Joint Committee’s appointment in 1954. Rather the goal of streamlining and rationalizing the Criminal Code (key ambitions of bureaucratic refinement in both Weberian and Eliasian terms) prompted the committee’s work. As Liberal Minister of Justice Stuart Garson explained, over four hundred sections had been added to the Code in the half-century since the original statute had been passed in 1892. Ongoing legislative tinkering had rendered the Code “ambiguous and unclear” due to “inconsistencies, anomalies” and a “substantial amount of over-lapping and repetition.”25 Once the new consolidated Code was in place in 1956, Garson boasted, it would be “‘simpler, fairer, and easier to administer than the old one.'”26 In other words, it would be sleekly modern. | 16 |
| The problem in this drive toward efficiency was that some morally contentious issues defied hard and fast rule making. Garson tossed what the legislative reform committee had considered to be the most troublesome issues into the lap of a joint committee of the House and Senate. Its task was to review current legislation on capital punishment, corporal punishment, and lotteries and to recommend whether or not policy changes were advisable. Garson explained this odd three-part mandate to the House: “these questions are of such paramount importance that they could and should not be dealt with merely as incidentals to the consolidation or revision of the current Criminal Code.”27 Even aside from its duty to evaluate Canada’s laws on gambling, this committee’s scope of inquiry was considerably broader than that of the 1937 committee. Although it was not granted the status of a full-blown royal commission (like the four-year U.K. Royal Commission on the Death Penalty that reported in September 1953), its 1,814 pages of minutes affirm that this was no mere cursory review. Perhaps more than any of the participants had intended, it became a record of conflicting emotional and cognitive stances on the place of violence and punishment in this economically buoyant but politically cautious era.28 | 17 |
| Charged with examining the techniques and administration of both lethal and nonlethal forms of physical punishment, the MPs and senators on the Joint Committee were expected to advise the government on future legislative policy (including the possibility of recommending the abolition of corporal and capital punishment). Through the 1954 committee’s surveys and interviews—over one hundred hearings with judges, lawyers, wardens, former prisoners, doctors, and academics—Canadians learned in detail how often, and according to what procedures and techniques, corporal and capital punishment was administered. This was news even to criminal justice insiders. Prison functionaries had always been obliged to keep records concerning corporal punishment imposed in the course of enforcing prison discipline, but neither the history of judicially ordered whippings nor the administration of capital justice had been documented systematically. On discovering disturbing evidence of bureaucratic shortcomings, committee members voiced concerns that ranged beyond criticism of spotty bookkeeping: if criminal justice turned out to be inefficient, irrational, and unfair, then perhaps it was as chancy as gambling. Over the course of questioning witnesses on matters as disparate as bingos and electrocution, unsettling parallels between games of chance and the infliction of physical punishment emerged. Although the committee’s final reports29 overlooked those embarrassing similarities, several witnesses and dissenting committee members openly hinted that physical punishment was evidently meted out in a lottery-like, rather than evenhanded, fashion. If this was the case, a minority of dissenting members argued, then a country that extolled the merits of civilized justice could not defend its retention. However, the majority recommended that imposing stricter regulations for the administration and delivery of punishment could render whipping and hanging defensible. | 18 |
| In both investigations, one conducted during the Depression and the other carried out after the Second World War, politicians, academics, bureaucrats, medical experts, and representatives of penal and welfare organizations presented a spectrum of opinions on one key question: were these forms of punishment, inflicted according to these procedures, consistent with modern, civilized modes of criminal justice? Evaluating consistency was not simply a matter of logic, although evidence of inconsistencies and inequities in administration certainly disturbed all participants. Determining the right fit between a self-proclaimed civilized nation and its penal techniques was also a matter of aesthetics, not unlike the fit of a dress or suit. For instance, committee members and witnesses believed that corporal punishment did not suit women. Penal fashions might have been changing with the rise of welfarist penality, but classic styles of punishment retained a traditional appeal. Tearing the heads off criminals apparently would not do, but could putting the worst criminals gently to sleep deter murderers? Did sparing the rod in favor of therapeutic treatment only spoil young hoodlums? Despite both committees’ unemotional conclusions about physical punishment’s high-minded merits in civil society, the poetic justice of inflicting pain and death retained a powerful hold on the investigators’ minds and hearts. By the 1950s, participants in the Joint Committee were prepared to consider execution techniques that seemed more civilized than the noose, and they also recommended an end to judicial sentences of whippings, but they had not weaned themselves, nor their fellow Canadians, from a long-standing conviction that capital and corporal punishment suppressed crime. Doubts had multiplied since the 1930s but the criminal’s body remained a compelling object for punishment, as long as the techniques and administration of pain and death could be rendered fair and efficient. | 19 |
Searching for the Right Fit: Administration, Personnel, and Procedures | |
| While bureaucracies are not exclusively modern artifacts, a specific set of ideals concerning their administration is. Modern aspirations of efficiency and rationality became the dominant logics of political, economic, and civic life by the early twentieth century. From bringing up babies to attaching headlamps to Model-T Fords, logical functional distinctions and strict adherence to rules became shibboleths of modern Western societies. Weber’s metaphor for this emergent mentality was the “iron cage of rationality,” an image that sociologists such as Elias rejected. They considered that bureaucratic ideals comprised only one aspect of the civilizing process and that the “cage” clearly failed to contain decivilizing tendencies, both on the part of criminals (who blatantly broke the rules) and the officials responsible for determining their punishment, including lawyers, judges, and justice bureaucrats (whose failures to uphold modern bureaucratic ideals fell under increasing scrutiny in the mid-twentieth century).30 In 1937 and again in the 1950s Canadian politicians put their country’s administration of justice to the test of fairness, efficiency, and rationality and found the infliction of physical punishment to be wanting on all three counts. Indeed, it seemed that the cage of rationality was embarrassingly flimsy and anything but iron. | 20 |
| Both defenders and opponents of corporal and capital punishment were troubled by evidence of sloppy procedures and slipshod workers. And they were genuinely surprised to learn how executions were carried out. Since 1868 public executions had been outlawed in Canada, a political move that transformed a highly dramatic act into a strictly scripted technocratic procedure. Hanging remained familiar to Canadians, largely through popular memory and popular culture (such as dime novels). Yet the actual procedures and personnel had become mysterious shadow events and characters, conjured up in newspaper writers’ accounts.31 Even the identity of the hangman remained secret, disguised under the “Mr. Ellis” brand name. One of the committee’s important objectives was to determine how Canada’s techniques of inflicting death compared to procedures in other civilized countries. Investigators anticipated that coolly competent professionals would conduct modern penal administration, but they were shocked to learn otherwise. As their mandate dictated, if lethal gas, already in use in the U.S., could be delivered more professionally, then it might well be a more civilized means of putting people to death. | 21 |
| With these criteria in mind, Ministry of Justice bureaucrats surveyed state officials from Nevada, Colorado, Wyoming, Arizona, and North Carolina, the first U.S. jurisdictions to use lethal gas.32 In particular, they asked whether experts were required, or if they employed “a man of the type who ordinarily served as hangman?” None of the respondents reported experiencing trouble finding men fit to carry out the job. In most cases, a regular guard from the penitentiary was recruited, in some states receiving a bonus for his extra duties. Furthermore, subjecting the condemned to hydro-cyanide gas was fast and effective. As long as the condemned person was securely strapped and the chamber was sealed, the warden of the North Carolina State Prison stated, “there is nothing left for the executioner to do except to press the electric switch, and once the [cyanide] pellets fall into the [sulphuric acid] liquid, there can be no mistake or bungling, and death is a certainty for the victim.” The Nevada warden registered his agreement: “No chance for bungling or messy mistakes.”33 | 22 |
| In contrast, the committee heard from witnesses who suggested that hanging required the services of a skilled craftsman. Upon learning that the Canadian bureaucracy of capital justice had not yet established professional standards for hangmen, members wondered how applicants were screened and incumbents evaluated. The committee learned that Canada retained only one executioner, who traveled around the country dispatching the condemned. The deputy sheriff of Toronto complained that the latest “Mr. Ellis” had more than Tommasina Teolis’s beheading and the Winnipeg mishap to his discredit. Deputy Wills added that he had personally witnessed another incident in which the hangman had rushed down to the pit and yanked a victim’s legs because he had miscalculated the man’s drop and failed to snap his neck. One MP, surprised that there was no training or evaluation of hangmen, surmised that “A new hangman would have to do it pretty much by guess, wouldn’t he?” Wills agreed, shocking the committee and prompting one MP to declare: “that is murder.” 34 The chanciness of unregulated procedures, not the eventual outcome, clearly prompted this spontaneous outburst of repugnance. According to committee members, Canada had a problem on its hands if it could not find men trained to do the dirty work of punishment properly. | 23 |
| Evidence of botched hangings was largely anecdotal, however, and contradicted by stories of hangings conducted efficiently. The guards, the chaplain, and the executioner were all strict professionals, according to the sheriff of Montreal, Oscar Bélanger. A man who had presided over twenty-eight executions, Bélanger attested to the speedy procedures that allowed prison officials to take a man from his cell, escort him to the scaffold, strap his arms and legs, place a hood over his head, and pull the switch—a kind of lethal ballet choreographed for a five-minute private performance.35 In the end, the committee sided with those who felt that Canada’s hanging personnel were up to the task. But it suggested that one central penal institution, staffed and designed to carry out the death penalty with utmost efficiency, ought to replace the existing system, which stipulated that condemned persons be executed in the jurisdictions where they had been convicted. At such an institution, practices could be standardized and evaluated more effectively, thereby reducing the risk of mistakes that made the death penalty seem as barbaric as murder. | 24 |
| By the time that the Joint Committee on Capital and Corporal Punishment deliberated in the mid-1950s, the penal personnel problem remained unsolved. Executions continued to be carried out by the roving “Mr. Ellis” and his ad hoc teams of local helpers, men of uncertain competence and nerve. But this committee’s mandate was wider than the 1937 committee’s, and members devoted more attention to the administrative procedures that took place long before the death penalty or whippings were carried out. In Weberian terms, by the 1950s Canadian public leaders extolled the values of legal formalism and rationality so highly that they invested considerable energy trying to meet those standards in the bureaucratic administration of public life. The federal state, buoyed by the unprecedented powers assumed during the Second World War, enthusiastically expanded its scope and its inclination toward self-analysis. Establishing a joint committee to review corporal and capital punishment was only one product of the federal government’s broader commitment to streamline public administration in the 1950s. For instance, in 1956, the same year that the Joint Committee submitted its final report, another committee appointed “to inquire into the principles and procedures” in the Justice Department’s Remissions Branch presented its criticism of the informality and procedural anomalies in the old Ticket of Leave system.36 In the same period an independent royal commission evaluated the legal defense of insanity and advised that psychiatric definitions be standardized and applied uniformly.37 In keeping with these procedural preoccupations, the Joint Committee members raised similar concerns about the legal and political administration of corporal and capital punishment. | 25 |
| Although the Criminal Code defined a limited set of crimes for which judges could order sentences of corporal punishment, and stipulated that women and children could not be whipped, its application was discretionary. In general, crimes involving attempted or actual physical assaults, especially those of a hetero- or homosexual nature, carried corporal punishment provisions, but robberies and physical assaults on women were included too.38 Whippings and paddlings were also carried out in prisons as punishment for institutional infractions, as annual prison and penitentiary reports indicated. Committee members were disturbed to discover that the rate of infliction, both of judicially and institutionally ordered corporal punishment, varied considerably over time and between jurisdictions.39 The only certainty, that women’s bodies were exempt from physical chastisement, was an axiomatic exemption, barely worthy of note.40 Inconsistencies on other grounds received closer attention. It became evident that a judge could sentence one man to fifteen lashes and another, found guilty of the same offense, simply to a prison term. Once inside, wardens could exercise even more discretion, although it was clear that the lash had been used more freely in the pre–Second World War period.41 Even the instruments of pain varied from prison to prison.42 As one committee member ruminated, “the punishment that might be inflicted in one part of Canada . . . might be entirely different to what you suffer in another part of Canada because they used an instrument which inflicted much less pain.”43 Of course, the opposite was also possible, thereby consigning all imprisoned men to a lottery of pain. | 26 |
| Getting the right man for the job was just as much a concern when it came to corporal punishment as it was with hanging. On the one hand, whipping was neither a matter of expertise nor as unusual a craft as that practiced by executioners.44 Parents, teachers, and military authorities could all claim some experience wielding paddles, canes, straps, and belts.45 On the other hand, the object of corporal punishment—to inflict pain—was far more difficult than death to measure and far trickier to associate with civility. Medical officers were required to attend whippings, but they were merely expected to determine whether or not a prisoner was physically “Fit” to withstand the punishment. As one jail surgeon testified, it was impossible for guards to administer ten strokes of the strap without drawing blood. However, he had only stopped corporal punishment sessions, as he put it, when he “felt that more damage was being done than was meant to be done.”46 Thus, the hangman’s art could be measured in terms of swiftness and sureness, but the pain produced by whips and paddles was incalculable. If a certain degree of physical “damage” was required to civilize ruffians, how much would amount to torture? | 27 |
| Discomfort over the idiosyncratic application of physical penalties expressed itself in arcane exchanges between members and witnesses who appeared before the 1954 committee. Unfortunately interviews with former prisoners who had been punished were not published. But men who supervised whippings were permitted to speak in open committee hearings. Claiming to adhere to strict rules of procedure, wardens averred that they and their guards were scrupulous. As they pointed out, only the stipulated number of lashings was inflicted at specified points in inmates’ sentences; medical men called a halt to sessions if prisoners seemed seriously ill; whippings were carried out on special apparatuses in private chambers; and care was taken not to damage the head or vital organs. But when the committee members pressed witnesses about the infliction of pain, they shattered all faith that professionalism and standardization, two of the hallmarks of a civilized justice system, governed the delivery of pain. Since one guard was likely to whip or lash a man harder than another, committee members worried that prisoners might be subjected to different degrees of pain. Warden Allan of the Kingston Penitentiary confirmed their suspicions: “There is bound to be a variation in the intensity of the strokes. That is bound to happen; we cannot help it.” His admission sparked a series of questions evocative of the modern obsession with detail and precision: | 28 |
| FULTON: It is clear the object is to in flict pain?A: Yes. . . .WINCH: Would you just raise the arm and strike down, or do you swing?A: With the lash you have to raise your arm and strike down. With the strap, you swing.FULTON: Have you any regulations which determine the length of the arc? Could they bring it from the back and over the head?A: Most of them let the thongs rest on their shoulder and come down this way.FULTON: Would be mostly a forearm movement?A: Yes.FULTON: And what about the extent of the swing with the strap?A: That may vary.FULTON: Do you have any regulations or instructions to your own of ficers as to how far back they shall carry their arm before they start the forward motion?A: No. . . .CHAIR (BROWN): The fact remains that it could vary from prisoner to prisoner?A: Oh yes, it can vary. 47 | |
| Committee members were surprised that ordinary guards, not specially trained professionals, inflicted whippings and lashings. The option of a whipping machine (an idea first entertained by Bentham in the late eighteenth century) was briefly considered but rejected on account of possible malfunctions.48 In the end, the Joint Committee recommended in 1956 that judicially ordered corporal punishment, unlike the death penalty, could safely be abolished, not because pain was an inappropriate element in punishment but because its imposition was “inconsistent and inequitable.” Squeamish guards evidently “‘went through the motions'” reluctantly, whereas others indulged their “sadistic impulses” in performing these duties, which they found not at all distasteful. Neither scenario conformed to the aims of civilized justice: sure, steady, and dispassionate. Furthermore, committee members seemed embarrassed to have learned that “Canada was one of very few countries in the democratic world still using corporal punishment.”49 As a tool of institutional discipline, it might continue to play a role, the Final Report declared, but as a discretionary denunciatory flourish in sentencing, its time had passed. | |
| By the 1950s, efficiency and fairness in the delivery of punishment had clearly become more important indices of civility than in the 1930s. The legal administration of the death penalty, a sidelight in the 1937 committee’s review, was of great concern to the Joint Committee. Several key players in the machinery of capital justice, including a veteran appeal court judge and Ontario’s public prosecutor, claimed that capital trials and case reviews were conducted with utmost concern for fairness and expediency. The long-serving chief officer of the Remissions Branch in the Department of Justice, Michael F. Gallagher, had retired only a year before the Joint Committee was formed or he might have testified along similar lines. In 1937, when he had already held the post of chief officer for thirteen years, he coyly evaded questions about commutation rate fluctuations (specifically the drop from half to one-third of those condemned to death during the late 1920s and the Depression) by suggesting that the “circumstances of the individual cases” accounted for the variations.50 By the mid-1950s, criminal justice officials could not offer such oblique claims without facing stiff questions about procedure and principles. | 29 |
| The MPs and senators appointed to the 1954 committee reflected a nation ambivalent about the death penalty. By the mid-twentieth century Canadians were almost equally divided between those who favored it and those who disapproved of it.51 Among committee members, party lines did not dictate individual views, although socialist Canadian Commonwealth Federation (CCF) members, notably Harold Winch of Vancouver, were most dubious about the procedural fairness of capital punishment.52 What united both supporters and opponents of the death penalty was their shared anxiety over evidence of inconsistencies in its application. Testimony and documents that revealed the aleatory disposition of murder cases violated shared ideals of rule-bound governance, irrespective of members’ opinions about capital punishment per se. | 30 |
| Criminal justice officials who appeared before the 1954 committee were pressured more than their 1937 counterparts to reassure members that Canadian capital justice was administered fairly. As J. A. Hope, the appropriately named Ontario Court of Appeal justice contended, no effort was spared to ensure that capitally charged defendants received fair trials. For example, accused persons were granted the right to challenge up to twenty jurors. The defendant, Hope explained, “may say that there is something wrong with the preliminaries which led to the calling of these [jurors], that they are not here ‘according to Hoyle.'” Hope was similarly confident in judicial review procedures. As he put it: “We try our best to see that [the condemned person] gets fair play and the utmost fair play.” The director of public prosecutions for Ontario, William B. Common, was equally eager to assure the committee that Crown attorneys were scrupulous and fair-minded. For instance, he claimed that Crown officers fully disclosed their cases to the defense before every trial. “To use a colloquialism,” Common quipped, “there are no ‘fast ones’ pulled by the Crown.”53 Both Common and Hope supported the death penalty and defended the legal procedures that governed its application. Whether consciously or not, the prosecutor and judge slipped into gaming argot (Hoyle’s rules, fair play, fast ones) to assert the legitimacy of the penal process. Sounding all the world like casino operators, these officers of the law swore that the “house” (in this instance, the Crown and the courts) was on the level, and that everyone enjoyed the same chance of winning or losing solely on the merits of his or her case. | 31 |
| Such high-minded claims were countered by evidence that criminal justice practices were neither fair nor square. When Justice Ministry bureaucrats collated their records, it became obvious that execution rates over the previous decades had bobbed up and down. Persons condemned to death during the Depression, for instance, had faced greater odds of execution than at any prior or subsequent point in Canadian history. Data on gender and capital justice confirmed what many might have guessed: women were significantly more likely than men to see their sentences commuted. The ministry did not keep statistics on defendants’ economic standing, but everyone, including prosecutors, acknowledged that the poor dominated the ranks of the executed. As William Common ruminated revealingly: “it is curious that in a vast number of cases . . . we find that persons convicted of murder are in that unfortunate indigent class. . . .” When asked why that might be the case, he replied unhelpfully: “It may be a coincidence. I do not know.” | 32 |
| Death penalty opponent and prominent defense lawyer Arthur Maloney had a different theory, one that painted capital justice as a game of chance rigged in favour of the prosecution. As Maloney pointed out, impoverished defendants rarely employed the barristers of their choice; rather they made do with the luck of the draw when courts appointed counsel for the defense. Justice Hope had tried to put this practice in a positive light, reflecting that it was “always customary for a trial judge to seek out an able young man. . . .” Maloney, a veteran of eleven capital trials, countered that freshly minted lawyers appointed to defend accused murderers frequently had no trial training whatsoever, let alone capital case experience. Although provincial legal aid schemes had been implemented in most provinces by the 1950s, they did not cover the costs of filing appeals. For Maloney, poor men’s overrepresentation among the executed confirmed that a cruelly rigged crap game was operating under the guise of the law. When a senator goaded him by asking if he would prefer murderers to have “a better chance to escape through legal loopholes,” his reply was blunt: all he wanted was procedural fairness, the cornerstone of justice in a civilized society. | 33 |
| The Final Report, tabled in 1956, cautiously assessed the conflicting evidence and shrank from suggesting radical changes. Despite testimony that eroded confidence in the administration of capital justice (substantiated by the Justice Ministry’s own statistics on variable execution rates), the Final Report advised that doing away with the death penalty would be too risky at that moment in Canada’s history. First, Canadian civilization had failed to reach the point at which governments could abolish severe penalties. In addition, Canada could not experiment with laxity because of its proximity to the U.S. Several witnesses had cautioned that any relaxation in criminal justice policies north of the U.S. border would effectively announce open season for “gangsters.”54 Resorting to the familiar trope of the American criminal menace to counter considerable evidence of Canadian injustice suggested that death penalty advocates felt as if they were on the defensive by the 1950s. As dissenting left-wing member Harold Winch cynically remarked: “I cannot help but wonder whether executive clemency is not based on the flip of a coin; heads you die and tails you live.”55 | 34 |
| The Final Report suppressed such images, preferring to picture Canadian criminal justice as a complex machine that merely needed to be more finely tuned to eliminate the risk of malfunctions. For example, ensuring that the appeal process did not appear to favor some convicts over others would be critical in the future. Although restrictions limiting appeals had been relaxed in 1949, the report noted that time limits and procedural complexities still left the “possibility that a technical slip may deprive an accused of his right to appeal.” To avert both “embarrassment and injustice,” the committee recommended that every capitally convicted person be granted an automatic right to appeal to the Supreme Court of Canada. Thus it was hoped that, from an administrative point of view, the infliction of physical punishment could be rationalized: corporal punishment could be confined to a last-resort institutional disciplinary role,56 and capital punishment could be governed by rigorously fair review procedures. The infliction of pain and death had been hidden away, its functionaries cloaked in anonymity, but the ineptness and inconsistencies of penal administration had been exposed through the committee’s investigation. With minor procedural adjustments, they predicted that these blots on Canada’s criminal justice record could be erased. Attempting to reconcile the intentional infliction of pain and death with Canadians’ self-image as civilized peoples would entail deeper soul-searching, however. | 35 |
Reconciling Pain, Death, and Civilization | |
| Attitudes toward physical harm are always particularistic, rather than all encompassing. Forms of violence may be tolerated or even celebrated in some sectors of social life (such as ice hockey) but deemed inappropriate in others (such as schoolyards). Prior to the nineteenth century in most Western jurisdictions, judicial figures and legislators generally agreed that physical punishment was not only necessary but that it ought to hurt, it ought to humiliate, and it ought to frighten onlookers. By the mid-nineteenth century, that consensus began to break down in the face of criticism from penal reformers. Whether or not these critics were more concerned about their own feelings than those of criminals is irrelevant from the point of view of the civilizing process. As Elias argued, heightened concern about those who suffer—the flogged or executed criminal—is always bound up with worries about the emotional effects of their suffering on observers—the people charged with administering punishment as well as the wider public. He did not define this gradual shift in sensibilities as the root of humanitarianism, as much as the optimistic might want to interpret his work in that light. After all, searching for more humane ways to put people to death does not change the penal outcome. For this reason Elias stressed that civilization “is never completed and constantly endangered.”57 The participants in the 1937 and 1954 inquiries struggled to reconcile violent practices not simply with penal philosophies but with cultural norms about civility, and both managed to do so. The difference was that the earlier committee operated in a world where most countries retained the death penalty, a world that had not yet witnessed the full horrors of Nazism and totalitarianism. The 1954 committee, in contrast, conducted its deliberations at a time when notions of human rights and dignity were extolled as hallmarks of the free world. At the same time, modern science had provided new and improved ways of delivering death painlessly. Ambivalent feelings would not preclude punishing the body. | 36 |
| Discussion about criminal bodies in debates about physical sanctions provides a prime opportunity to chart the cultural undercurrents of punishment. Devising and revising policies about how to punish is never simply a matter of calibrating sanctions nor whole-heartedly abandoning past practices; rather arguments about punishment are culturally embedded and culturally expressive.58 Historians have been curiously silent on the fact that physical punishment involves touching human bodies. Historical actors, however, thought it important to distinguish not only between different types of criminals but different types of criminal bodies. Historians have traced broad shifts in sensibilities about inflicting pain and death but opinions on the merits and demerits of corporal and capital punishment have varied significantly, most obviously in regard to gendered images of the body. Ordinary folk and opinion leaders in the nineteenth century clearly thought these differences mattered, otherwise the physical punishment and execution of women and children would not have been outlawed in the nineteenth century, while adult men continued to face those sanctions in the twentieth century.59 Although Elias considered class differences between elite and plebeian attitudes toward violence, he virtually ignored the fact that all societies make profound distinctions between the cultural meanings of men’s and women’s bodies.60 Paradoxically these gender norms did not preserve women from the death penalty: decades after the whipping of females was outlawed in most Western jurisdictions, women continued to be executed. The 1954 committee’s deliberations suggest that concerns about the visibility of the female body and its sensational exposure in the act of corporal punishment explain that paradox. The female about to be whipped was not simply an object of punishment: stripped to the waist or exposed with her skirts lifted, she was an abject, half-naked, sexualized object and the forced recipient not only of the whip but also of the male gaze. In contrast, the condemned woman stepped up to the gallows fully clothed and sometimes veiled. | 37 |
| As we will see, uncomfortable discussions about women’s bodies exposed deeper anxieties about the civility of using criminals’ bodies to imprint penal messages. Members of the 1937 and 1954 committees and the witnesses they called articulated feelings on matters that civilized people never raised in polite company. Finding the words to justify bodily punishment was difficult in the 1930s and even more challenging in the 1950s. In effect, committee members confronted the disturbing thought that sanctions meant to be salutary and didactic might actually be obscene and vaguely pornographic. | 38 |
| Exploring new techniques of putting people to death involved the 1937 Death Penalty Committee in cross-border shopping for the latest fashions. Several witnesses voiced concerns that gas might not be as painless or efficient as its foreign enthusiasts claimed, but the Justice Ministry’s representative, backed by responses from U.S. wardens, stuck to his conviction that gas was “most definitely the more humane method.” As one warden had boasted, “‘our method was farthest advanced in safety from bunglesome horrors, bothersome, costly preparation, and certainly humaneness.'”61 Over the course of their deliberations, committee members reached a consensus that lethal gas provided an easier way to go. One member found the committee’s attention to criminals’ suffering literally laughable. If the technique’s capacity to reduce distress was to be the sole consideration, he asked, “why not adopt laughing gas; let the criminal have a good laugh . . . make it feel pleasant for these criminals to pass out of the picture?”62 His joke was a derisive reminder that the prospect of being executed ought to strike terror into a criminal’s heart in order for its deterrent effect to operate. Significantly, he used sarcasm to drive his point home. Committee members were loath to declare outright that condemned men ought to be mighty uncomfortable at the thought of particular forms of death, but they were equally reluctant to consider that executions might provide an “easy” way out. If that were to be the case, what penal rationale could justify execution? On this matter, the U.S. officials were unhelpful: they considered that death was death, irrespective of method. Any higher goal was doubtful, as Wyoming’s warden flatly admitted: “It is considered that this method will have no more effect as a deterrent on crime than any other method of capital punishment.” His colleague from Nevada agreed: “Just as there is nothing to prove hanging as a deterrent so there is nothing to prove ‘gas’ a deterrent.”63 | 39 |
| Setting aside the disquieting thought that the death penalty in any guise might simply be a form of vengeance, the committee considered whether or not the prevailing method of hanging could minimize suffering while maximizing deterrence. For guidance on this matter, members turned to a man who had never witnessed an execution. Michael Gallagher, the chief officer of the Remissions Branch of the Ministry of Justice, was the bureaucrat who managed the criminal case review process. He prepared the final reports in capital cases and advised the cabinet to commute or execute. Although one committee member questioned why Gallagher was called to shed light on execution methods (he thought Canada’s hangman or a medical doctor would have been more helpful), Gallagher testified at length, and his comments resurfaced in the committee’s final report. He spoke warmly about the virtues of Canada’s “strong administration of justice . . . swift and sure.” Switching to a new “more lenient” method of execution, he warned, would risk Canada’s “excellent reputation.” Hanging was a solid deterrent because it was part of a venerable cultural tradition inherited from England. Respectable gentlemen of the law, such as Gallagher, understood this, but, more important, the lowest criminals “abhorred” “the drop” more than any other penalty. Gallagher believed that the mystique of death by hanging somehow worked on criminals’ minds: “There is not only the conception they have of what actually hanging may be and probably is, but there is the ignominy attached to it. It is part of a long and thorough education.” The only types who failed to learn were “the worst in all humanity,” the majority of whom were born outside of Canada, he added pointedly. Here Gallagher was making a thinly veiled reference to the U.S. Why give up “the stigma of hanging,” a method that appeared to “answer the purpose” of deterrence, unless Canadians were willing to risk allowing their murder rates to rise to U.S. levels? With gunslingers running amok south of the border, and the Depression fomenting civil unrest and radical protest, he warned, “conditions . . . call[ed] for every deterrent possible.”64 | 40 |
| A medical man who had observed eighteen executions at Montreal’s Bordeaux Jail agreed with Gallagher. Dr. Daniel Plouffe was an “alienist” who reckoned that most executions were performed satisfactorily. The technical aspects of hangings interested him less than the impression they made on the minds of other criminals, however. In Plouffe’s opinion, the “horror” of hanging, its “repugnant aspect,” endowed it with a unique capacity for general deterrence: “It is the question of giving an example to others; and when you hang a man, the criminal population and others are under an impression of horror; and that is what produces in hanging the more deterrent effect . . . it is what surrounds that hanging.” In other words, it was uncivilized for a criminal to die horribly, but the deterrent impact of particular execution methods hinged on their ability to deter crime and therefore to shore up civilized society. Like most of the witnesses who testified before the 1937 committee, Plouffe grounded his beliefs in personal impressions, not scientific data. To solidify his point that hanging, and hanging alone, deterred criminals, the psychiatrist recounted a conversation he had had with a petty criminal impressed by the death penalty’s deterrent message. When asked to explain why he had never taken a gun on his criminal escapades, the prisoner replied, “‘There is the rope—the g.d. rope. . . . That is a hell of a game.'”65 | 41 |
| The fact that newfangled methods of causing death came from the U.S., in contrast to the ancient English tradition of hanging, was another stroke against gas in the death penalty committee’s eyes. Members were reluctant to alter Canada’s penal repertoire because influential witnesses believed that “the rope” had almost mystical powers to instil respect for the law among British subjects. On the one hand, the Justice Department’s survey clearly indicated that U.S. wardens by the 1930s greatly preferred gas as a more reliable and less barbaric method of execution; on the other hand, as one MP observed, “we do have the fact that we have a better criminal record in this country where they hang people than they have down there where they do not.” As Gallagher advised, there was no reason to “increase the present punishment or its horror to the prisoner” but neither was there any reason to adopt a method “somewhat more humane, and something which the criminal would prefer to hanging.” Canada’s success in maintaining a murder rate lower than that of the U.S. during Prohibition suggested that “a change to something more lenient could hardly operate as a stronger deterrent.” The final report emphasized these contrasts between U.S. and Canadian culture (hinting that the former was less civilized than the latter) to support its recommendation that capital punishment by hanging be retained. J. Edgar Hoover’s “G-Men” and their Depression-era war on professional criminals gave Canadians even more reason to cling to British tradition and intimidate gangsters from moving into Canada. As Gallagher queried, “‘At this particular time, would it be wise to lessen in any degree, the punishment for crime? I doubt it.'” To further emphasize the cultural cogency of hanging, the final report included a letter from a prison chaplain who claimed that criminals’ knowledge of the scaffold ritual helped clerics to “prepare them for Heaven.” “Would it be the same with the lethal gas method? I do not believe it.” Deviating from tried and true cultural traditions and opting for American innovation would be unwise, Gallagher concurred, in deference to the British example: “In England they still have hanging as their mode of execution.”66 The 1937 committee ultimately agreed that if hanging suited the mother country, then surely it provided the right fit for Canadian penal policy, no matter what deadly inventions Americans might experiment with. | 42 |
| By the time that the Joint Committee began to deliberate in the mid-1950s, the evils of the Second World War and the rise of communist dictatorships had dramatically shaken faith in the progress of civilization. If the tidewaters of incivility seemed to have risen all around them, Canadians congratulated themselves for having maintained their elevated position throughout the war and into the Cold War era. In this context the Joint Committee’s task was to decide whether the retention of physical punishment was more or less likely to keep Canadians high and dry atop the plane of civility. On one side of this issue were those who argued that Canada had evolved too far to require such old-fashioned sanctions; on the other were those who claimed that Canada could not risk unleashing the tide of barbarism, so tenuously held back with stiff penalties. Predictably, committee members and witnesses took very seriously the fact that England’s Royal Commission on the Death Penalty had recommended that it be retained (while advising that its further use be limited). But just as Canadians began to feel that the Union Jack might not make a suitable symbol for an independent nation,67 so English penal fashion no longer dictated Canadian penal styles quite so authoritatively as it had in the 1930s. When Canadians looked around the world in the mid-1950s to determine which other states whipped and executed wrongdoers, they confronted disturbing evidence that they now numbered among the world’s least civilized nations. | 43 |
| Canada’s chauvinistic claims to civility were especially difficult to maintain when it came to sanctioning the use of corporal punishment in the postwar era. England had done away with judicially ordered sentences in 1948, and six U.S. states had abolished the penalty. Thus the lash was even more vulnerable than the noose to mutually reinforcing charges that it was both archaic and brutal. When Thorsten Sellin, the world’s reigning expert on the sociology of punishment in the 1950s, testified before the Joint Committee, he dismissed claims that whipping offenders had the capacity to reform or to deter. For Sellin, corporal punishment expressed the penal logic of retributivism, rather than the modern objectives of reform and reintegration: | 44 |
| [I]ts only purpose is to exact vengeance, a sordid motive for punishment, which has no place in a democratic penal code. As if conscious of this, the legislator usually hides the whipping post inside the walls of the prison, safe from public gaze, like the family skeleton. . . . The whipping post belongs to the trapping of a past age or to the tyrant’s arsenal of weapons.68 | |
| Not only did the infliction of corporal punishment fail to deter, according to Sellin’s evidence, but it also actually had decivilising effects. First, it embittered the men who endured it, and second, as Sellin pronounced, it had “a brutalising effect on those who inflict it.” The executive director of the John Howard Society applied Sellin’s argument to Canada. If the recommendations of the 1938 Archambault Royal Commission (which had called for a renewed commitment to progressive principles of penal management) were to be respected, one could hardly expect correctional officers to administer care one minute and a strapping the next. “Humane personnel,” he pointed out, would “Find it increasingly difficult to rationalise the use of the lash or the paddle with the methods now in use in progressive penal institutions.”69 | |
| Significantly, the supporters of corporal punishment now wanted to appear as civilized defenders of a civilized sanction. In an advanced society, the lash would be used sparingly as a last resort and as an inducement to reform. Proponents of corporal punishment argued manfully that physical sanctions and progressive penology were consistent because whipping could back up welfarist methods, such as probation. And advocates agreed that corporal punishment was suitable only for specific types of offenders, primarily male youth. In Ontario Prosecutor William Common’s opinion, “street corner hoodlums,” “joy-riders,” and “young thugs” were impervious to softer methods but cracked once faced with the pain and shame of a whipping. Delinquent toughs found it impossible to maintain their “anti-social” attitudes once they were “paddled by a burly policeman or prison attendant and received a certain number of straps over the buttocks.” But Common shrank from punitive or sadistic rationales, not to mention allusions to the homoerotic qualities of corporal punishment. As he concluded somberly, “it is the humiliation and indignity which accompanies corporal punishment which I think is a most emphatic deterrent.” The punishment of the body for Common was to be felt in the soul and inspire the development of self-discipline. Respectable men (most of whom as boys had likely had their hides tanned by parents or schoolmasters) had absorbed this lesson themselves and they had every reason to believe that strapping had certain character-building qualities. Some advocates spoke openly about their personal experiences. W. H. Mulligan, the police chief of Vancouver and the president of the Chief Constables Association of Canada, believed, like Common, that corporal punishment had a unique capacity to humiliate young men into improving. When asked what instrument he might recommend, he replied: “I was thinking of my own school days when we were caned with a willow cane on the hand.” Even the liberal-minded John Howard Society spokesman admitted that physical punishment could be an effective means of teaching young men (but not women) right from wrong. As A. M. Kirkpatrick recounted, “in my school days we were whipped and sometimes we knew we deserved it and that was all right.”70 | 45 |
| Virtually everyone agreed that corporal punishment, if used at all, had to be restricted to cocky young men and male prisoners who became violent or mutinous. No one took seriously the prospect of whipping females, and most found explicit talk about bodies of either gender and punishment vaguely embarrassing. Wardens provided committee members with exhaustive details about the placement of prisoners on strapping tables, their immobilization, and the exposure of their bare flesh. Had sexologists or psychiatrists been called as witnesses, they might have pointed out the voyeuristic and sado-masochistic subtext of such acts.71 This was precisely the Pandora’s box of barbarous impulses that Joint Committee members preferred to keep tightly lidded. Titillating notions popped out at several points, but teasing and jokes nervously sublimated them. When the presiding chairman asked William Common why youth gang “molls” were not “spanked” along with their male compatriots, he rattled the prosecutor, provoking him to assert that “assaulting females” was “more or less revolting to the average man.” The Joint Committee’s unofficial gadfly, Harold Winch, punched holes in Common’s chivalrous armor. As he reminded the prosecutor, the “average” man might very well spank his errant daughter when she was naughty. And if legislators were so chivalrous, Winch added, why did they not exempt women from the death penalty? As pointed as this heckling was, it still delicately sidestepped the scandalous prospect of “burly” male guards strapping or paddling women’s bare buttocks. The Joint Committee members confronted the pornographic qualities of physical punishment again when members debated the prospect of observing an actual whipping. MP Ann Shipley, one of three women on the committee, shocked her fellow members when she argued that watching lashes and whips in action would be more instructive than merely gazing at them and listening to prison officials describe them. The warden of the Kingston penitentiary politely declined her request, protesting that the prospect would be “very embarrassing” (to whom, he did not specify).72 Again, the notion of respectable ladies gawking at stripped men receiving lashings was treated as something of a farce.73 One member kidded that they ought to watch a hanging while they were at it, and another man piped in that they might as well see a murder take place if they really wanted to be thorough! | 46 |
| The 1954 committee members’ bantering over issues of pain and death exposed a deep current of shared cultural convictions concerning crucial differences between men’s and women’s bodies. Furthermore, it raised the issue of who should and who should not witness the infliction of corporal and capital punishment. It was one thing for male guards and prison officials to attend to their distasteful duties but it was out of the question for respectable people, particularly women, to gaze upon the punished body. As Garland observes, ideas about punishment are “enmeshed with wider belief-systems and mentalities, deriving their sense and credibility from their ability to resonate with established ways of thinking and understanding.”74 Conversely, some ideas seem intuitively to be nonsensical or incredible—jokes. In this instance, acknowledging the sexual undercurrent of physical punishment was taboo because modern penal mentalities turned (in Eliasian terms) on privatizing disturbing or inappropriately pleasurable events and on preserving containment fields for male and female bodies.75 Even opponents of whipping felt too uncomfortable to address the possibility that the pain of corporal punishment could be twisted into witnesses’ sadistic pleasure.76 | 47 |
| The philosophical and aesthetic qualities of the death penalty were no less difficult for the committee to evaluate. Like the 1937 commissioners, these 1954 committee members recommended that the death penalty be retained, although some members, such as Harold Winch, dissented. But this latter group was more deeply concerned than its 1937 counterpart that its support for the death penalty not appear vengeful. Indeed, by the 1950s, retentionists articulated unemotional and high-minded rationales for the death penalty to counter arguments that sanctioning capital punishment retarded Canada’s march toward humane enlightenment. In the postwar era penal critics scored points by accusing capital punishment retentionists of clinging to barbaric practices favored by uncivilized regimes of the past and present.77 When the 1937 committee expressed its support for the death penalty, members were convinced that they stood on solid philosophical ground; when the 1954 committee recommended retention, members clearly understood that they were on the defensive. | 48 |
| By the 1950s, totalitarian states emerged as the barbaric dystopias against which Canada’s progressiveness could be measured. Thus, a lawyer representing the Canadian Welfare Council appeared before the 1954 committee and quoted at length from an article by Rabbi Feinberg, a passionate opponent of the death penalty. “‘Our civilisation is challenged by communism,'” Feinberg had declared. “‘In contrast to the amorality of the Soviet state . . . the western democracies claim that they are identified with ethics and religion. . . .'” It was not enough for states to operate rationally; in fact, fascist states had shown what the apotheosis of modern efficiency could produce. The rabbi feared that Canada would pursue a similarly regressive course if it retained capital punishment: “‘Once the Canadian people begin to regard the state as an impersonal, inhuman, monolith apart from themselves, the state ceases to be a servant and becomes the master—and we are psychologically on the road to totalitarianism.'”78 | 49 |
| While only a few 1954 committee members advanced religious arguments or made contemporary political observations, most critics of corporal punishment and the death penalty connected retentionism with retrogressive thinking. During an exchange with a doctor who had witnessed executions, for instance, an MP asked whether he considered hanging a “merciful death” or “an archaic way of execution.” The doctor replied that he found it archaic. “And perhaps actually inhuman?” the MP pressed. “Actually, yes,” was his reply. Such exchanges, in which old-fashioned styles of punishment were discursively linked with less civilized approaches to criminal justice, came up repeatedly in the Joint Committee’s deliberations. Of course, imprisonment was “archaic” compared to modern therapeutic ideals of healing and reform. But the death penalty, and hanging in particular, had acquired a uniquely antiquated image by mid-century, when many U.S. states had switched to lethal gas and electrocution. As one opponent to hanging boasted, “We as a dominion have progressed too far in the forefront of world leadership to retain this method from the dark ages.” Thus, if Canada wanted to claim membership among the world’s most civilized nations, then it had to confront the fact that retaining the death penalty by hanging appeared to leave the country with one foot in the past and the other in the camp of dictatorships.79 | 50 |
| Lest it seem thoroughly out of touch with modern penal methods, the Joint Committee spent much time evaluating the relative humaneness of new techniques of death. By the 1950s, lethal gas and the electric chair had been in use for decades and lethal injection, a technique that the 1937 committee did not consider, had recently made its appearance.80 While specific tales of bungled hangings were not the prime focus of the committee’s inquiries, as they had been in 1937, witnesses in the 1950s spoke more philosophically about hanging as a penalty whose time had passed. Furthermore, like stone cutting or other trades overshadowed by the rise of modern machinery, hanging seemed to have become a lost art by mid-century. According to Toronto’s sheriff: “Shortly we may . . . Find ourselves in the position of having a considerable number of condemned prisoners on our hands with no one trained to carry out the orders of the court.” If amateurs stepped in, he feared that prisoners would be “tortured as they probably were in the dark ages. . . .” Anecdotal evidence from various wardens, indicating that some of the condemned dangled for as long as forty minutes before dying, suggested that the incumbent “Mr. Ellis” was no master at the craft himself.81 In contrast, witnesses mentioned that in England hanging was still conducted as a trade in which newcomers had to train as apprentices.82 As the Final Report noted, skilled hangmen could conduct executions “with less anguish to the condemned person” than either gas or electrocution entailed; unfortunately, evidence of bungled executions had “indicated that hangings in Canada were not conducted with the same degree of precision as in the United Kingdom.” The rope, a penal tradition so passionately defended by Gallagher before the 1937 Death Committee, had become outmoded in Canada by the 1950s. Even the death penalty’s supporters concluded: “hanging [is] regarded generally as being an obsolete, if not a barbaric method of execution.”83 | 51 |
| If Canada was to retain the death penalty (and the Joint Committee eventually affirmed its necessity), then it required a more up-to-date, humane method. Technology promised to link modernity to civility. The prize went to the electric chair on several grounds, the chief of which was its scientific advantages. Lethal gas was actually the more modern method but its humanitarian appeal, so great in the 1920s and 1930s, had faded in the aftermath of the Second World War. Aside from its tainted association with Nazi mass executions, gas had two significant drawbacks. First, chamber leaks had exposed prison staff to dangerous fumes; second, evidence had mounted that condemned persons typically struggled to hold their breath and thereby suffered a long and agonizing death. The electric chair was hardly foolproof either. Although this execution method had been used since the 1890s, accidents still happened: Flesh was burned, hair was set ablaze, blood gushed out of orifices. Perhaps surprisingly, such “repulsive” results did not outweigh its potential in the Joint Committee’s mind to deliver death in a humane manner. Members were impressed that two independent medical experts, one of whom was a neurologist, determined that electrocution was “the most satisfactory method.” In keeping with the psychiatric profession’s enthusiasm for electro-convulsive therapy in the 1950s, expert medical witnesses assured the committee that “a series of shocks of alternating low and high voltages” could deliver death without distress to the condemned or, just as important, to prison staff. As the Final Report concluded, “it is the only method of execution where it could be established that unconsciousness was produced instantaneously and that death was painless.” True, the administration of massive shocks had produced some egregious results, but the committee was optimistic because “experts maintained that properly conducted electrocutions would not result in any burning or mutilation of the body.” Electrocution thus offered everything a civilized country sought in an execution method: it lessened the margin for human error; the executioner performed his duty from a distance; and the condemned was launched into oblivion in a matter of seconds, painlessly and tidily. Even Thorsten Sellin endorsed electrocution as a highly efficient method.84 | 52 |
| This idealized image of machine-like efficiency, so appealing in an era when streamlining dominated architecture and consumer product design, exerted a powerful hold over a committee in search of a perfectly calibrated execution technique. Simple efficiency was clearly insufficient for Canadians eager to find the most civilized way possible to put criminals to death, however. Death could be countenanced as a deterrent, but only if it minimized suffering on the part of the condemned and those assigned to carry out executions. To proceed otherwise would leave Canada on all fours with the most barbaric retentionist countries.85 | 53 |
| A further distinction between the 1937 and 1954 committees was the attention that the latter paid to the witnesses of capital punishment, both those who participated and those who merely observed the proceedings. By the time the Joint Committee met, it had been close to a century since the federal government had determined that public executions were to be prohibited.86 Consequently, official concern shifted from monitoring crowd behavior to considering the feelings of institutional witnesses, namely the condemned person’s fellow prisoners and the men who carried out the procedure. Committee members were disturbed to discover that these were not the only observers, however. In some provinces, notably Ontario, Quebec, and the Maritimes, executions were carried out in local jails that were typically located in city centers. In smaller locales, where executions were infrequent, scaffolds had to be built from scratch, and the sawing of wood and hammering of nails provided a percussive prelude to the ceremonies. In towns like Woodstock, buildings surrounding the local jail supplied rooftop vantage points, and towering trees provided perches for impromptu observers eager to peer inside jail yards.87 Even at larger city jails, like Montreal’s Bordeaux Prison and Toronto’s Don Jail, both of which had permanent, enclosed execution chambers, knowledge of an impending hanging could draw hundreds of spectators whose only visual reward was a death notice pinned to the jail door. None of these unofficial participants was interviewed, but criminal justice personnel uniformly depicted onlookers not simply as “curious” but always as “morbidly” interested in proceedings. Unruly crowds—uncivilized witnesses who scandalously derived pleasure from death—presented a considerable problem for witnesses and committee members. | 54 |
| Both supporters and opponents of the death penalty were embarrassed to admit that executions frequently inspired undignified behavior. Representatives of the Welfare Council argued that “the brutalising presence of the death penalty . . . [produced] an atmosphere fouled by the morbidity, melodrama and horror associated with executions.” The carnivalesque crowd was hardly a thing of the past, according to newspaper writers who covered hangings. For instance, while the committee was deliberating in 1954, a man was executed in the town of Cornwall, Ontario. The Toronto Star reported that a crowd of approximately five hundred could see the top of the scaffold from the street. The reporter dismissed any hope that they registered the deterrent message: “‘The crowd, most of them teenagers, including many young girls, was in a holiday mood, shooting off firecrackers, joking and laughing for more than two hours before the execution took place.'”88 The emotional impact of executions on other prisoners was no less worrisome. Warden Christie of British Columbia’s Oakalla Prison, a man who had officiated at three executions, observed the death penalty’s decivilizing effects on other prisoners. When a hanging was conducted, he commented, prisoners “tend more to identify with the person being hanged, and feel an increased welling-up of a morbid and repressive hatred against authority and society and all it stands for.” | 55 |
| And finally there were the feelings of prison workers to consider. A long-serving jail surgeon, Dr. Maclean, told the 1954 committee members that the pronouncement of a death sentence “converts the county jail from a reform institution to a house of death. A pall of depression from that moment falls over staff and inmates alike. . . .” Morbid crowds gathered voluntarily to satisfy their curiosity but officials were forced to witness the proceedings. To illustrate his point, he told the committee about his experience of having attended a double execution, after which he had to “pick his way around the evidences of physical revolt left by the small audience of police[men]. . . . This spectacle was too much for them—for me also—it was four or five days before I felt able to resume my work.”89 The jail surgeon’s stomach-churning story graphically illustrated that retaining old-style punishment in a supposedly modern country was literally revolting to those with refined sensibilities. | 56 |
| Given the Joint Committee’s concern over the civility of execution techniques, its final recommendation in favor of the electric chair or the gas chamber, rather than lethal injection, might seem odd. In fact, a genre of quasi-lethal injection was already practiced in prisons where jail surgeons sometimes injected condemned persons with morphine prior to execution. The drugs did not kill inmates, but they rendered them more pliable and reduced the likelihood of disturbing emotional scenes on the scaffold. One jail surgeon testified that a higher dose would allow a doctor to “terminate life very pleasantly, painlessly.” But the prospect of having doctors administer lethal doses worried witnesses who found the fusion of medicine and death uncomfortable. For one thing, lethal injection, unlike other available methods, required close and intimate connection between the prisoner and the person who injected the needle. Thorsten Sellin was not a medical expert but he had strong feelings on this matter. In fact, this was the only point in his testimony at which he identified emotionally with his fellow professionals: “I would think that [injecting poison] would be most objectionable to the person who has to impose that punishment, because it is such a direct personal contact.” Jail surgeon Dr. Maclean agreed with the sociologist. In comparison to hanging, electrocuting, or gassing—methods that could be “used from a distance”—drug injection was “too close to the human element.”90 The other objection concerned the status of the individual who would carry out such an execution. Committee members were given conflicting advice about the technical skills required to administer an injection. Dr. Hill of Toronto’s Don Jail considered the procedure so simple that “a layman could administer it, or the man could administer it himself.”91 Hill’s colleague, Dr. McLean, thought otherwise. Only a doctor could determine the correct dose, but no doctor, bound by the Hippocratic Oath, would be willing to administer it. “Doctors are in a healing profession, not a killing profession,” he stressed. | 57 |
| The Joint Committee’s Final Report in 1956 confirmed and amplified this doctor’s argument, emphasizing that intravenous injection was a professional technique, not a prison worker’s trade. While the talents of men assigned to hang, electrocute, or gas prisoners were discussed in terms of “competence,” the Joint Committee spoke reverently about medical expertise. As the Final Report judged, “an intravenous injection is a delicate operation requiring the subject to keep absolutely still. . . .” Furthermore, “it was not reasonable to expect a medical doctor to perform a task so repugnant to the tradition of the medical profession.”92 Thus, lower-class men willing to don uniforms and undertake disagreeable jobs could legitimately be called upon to perform the distasteful duties of executions, but respectable members of a highly civilized profession, garbed in white coats, were above the nasty business of capital punishment. Once again, the sentiments of those believed to possess refined sensibilities (as opposed to condemned persons or uncouth guards and executioners) were uppermost in the Joint Committee’s concerns about the death penalty’s decivilizing effects. | 58 |
| Both the Joint Committee and the 1937 Death Penalty Committee found ways to reconcile physical punishment with Canadian aspirations toward enlightened, humane penal policy. But in the process of reviewing prevailing techniques and evaluating alternatives, they dredged up a considerable degree of cultural ambivalence about these sanctions and their underlying rationales. Conflicting evidence on the capacity of whips and straps to reform criminals led the Joint Committee to conclude that corporal punishment should play only a limited role in institutional discipline. In summarizing their disapproval of judicially ordered whippings, the committee’s Final Report declared that the lash “could only be justified as a punitive, retributive measure which [is] considered out of step with modern penal theory.”93 The growing gap between techniques and rationales appeared in discussions about the death penalty as well. While the quickness and thoroughness of capital punishment concerned both committees, they were also looking for methods that could meet a conflicting set of aesthetic and dramaturgical criteria: the procedure had to be painless, clean, and dignified, but it also had to be sufficiently frightening to inspire respect for the law. Like Goldielocks’s search for porridge, these policy advisers sought an execution method that was not too hot, not too cold, but just right. In the 1930s trading a tried and true technique for an American innovation seemed too risky; by the 1950s discomfort with old-fashioned sanctions had grown, spurring the 1954 Joint Committee to recommend “the modern method of electrocution.” Redirecting the theatrics of punishment was equally important to those who claimed that the death penalty remained a necessary deterrent. Both committees urged that the sight lines be narrowed and the general audience be restricted to reading reviews of the performance without attending in person. As all but a few witnesses and committee members agreed, transferring executions to central prisons from major towns and cities would ensure that the death penalty would be carried out “in an atmosphere of greater decency and dignity. . . .”94 Civilizing the death penalty was difficult, it seemed, but achievable. | 59 |
Conclusion | |
| Penal theorists and criminal justice historians generally agree that modern nations rejected physical punishment not because they failed to rationalize them but because intentional physical harm disturbed sensibilities and conflicted with changing cultural norms about suffering, which included the pains of the punished as well as the distress of those performing or witnessing punishment. As Garland puts it, “our modern sensibilities—or at least those of the sectors of society which are influential in policy-making—have been attuned to abhor physical violence and bodily suffering.”95 What this article indicates, however, is that refined sensibilities about pain and suffering could coexist, albeit uneasily, with rationales for their retention in state punishment. While ordinary Canadians’ feelings on such matters are difficult to assess, other than through crude measurements such as Gallup polls, the 1937 and 1954 committees allowed a cross section of citizens, including parliamentarians, doctors, social scientists, law men, and prison workers, to express what they thought about physical sanctions. Squeamish as many felt, they were skittish about endorsing the abolition of corporal or capital punishment. | 60 |
| Committee members’ questions and the testimony they elicited suggest that the term “modern sensibilities” requires greater cultural and temporal specificity if it is to have analytical purchase.96 There was a uniquely Canadian flavor to the ways in which these investigators expressed opinions about corporal and capital punishment, and those opinions altered over the mid-twentieth century. Although both committees consulted with U.S. experts, including Thorsten Sellin and wardens from lethal gas states, they took their advice with an ounce of maple syrup. In matters of criminal justice policy, Canadians considered themselves more civilized than Americans. In 1937, that chauvinism led not to advice that the death penalty be modernized but rather to the endorsement of execution by the traditional British method of hanging. In the 1950s Canadian concerns about American gangsterism underpinned retentionists’ arguments that capital punishment was a vital form of protection for Canadian society. Committee members expressed their elevated sensitivities repeatedly through their disapproval of whipping women, their inquiries about the degree of pain and suffering caused by corporal and capital punishment, and their disgust at tales of incompetent hangmen. Yet their worries did not translate into certainty that Canada could dispense with punishing criminals’ bodies. These men and women of distinctly modern sensibilities rationalized the retention of corporal and capital punishment in part because older penal certainties held but also because uniquely Canadian rationales appeared to justify their retention.97 | 61 |
| Both committees expressed “modern” sensibilities about physical punishment, but their political, economic, and cultural reference points differed. That the 1954 Joint Committee expressed slightly different concerns than did their earlier counterparts was more than the product of the committees’ distinct mandates. Rather, these subtle differences underline the importance of historicising more precisely what we mean by “modern” when we talk about sensibilities and mentalities. By the 1950s, members and witnesses were exercised about procedural fairness and administrative efficiency and deeply concerned about the vicissitudes of discretionary justice, matters that barely elicited comment in the 1937 committee’s proceedings. Another distinction was the Joint Committee’s respect for experts and the promise of science, whether it manifested itself in the design of foolproof electric chairs or in cures for psychopaths whom less civilized people might whip. Finally, despite the Second World War’s terrible toll, the 1950s was a much more optimistic and ambitious (not to mention more prosperous) decade in Canada than the glum 1930s, during which economic disaster and political unrest drained compassion for criminals. | 62 |
| Difficult questions about punishment (how distressing should punishment be? ought the public be urged to witness or prevented from seeing punishment? which penalties reform and which deter?) are raised in every period but such questions accrue distinct cultural and political meanings in different historical contexts. The mid-twentieth century was not the first time when political leaders tried to reconcile the purposes and methods of punishment. Since the Enlightenment critics and reformers, notably Bentham and Beccaria, expressed many of the same desires for a better fit between punishment’s aims and practices.98 For instance, when Bentham criticised the variability of penal pain in the 1780s he wrote for an audience well acquainted with corporal punishment in all walks of life—on streets, in homes, at schools, in workshops, in slave quarters.99 When Canadian committee members considered the same issues almost two centuries later they were shocked at the prospect that the public might merely see pictures of paddles and whips. By the mid-twentieth century these penal implements had become so evidently old fashioned that retentionists struggled to find high-minded procedural ideals to justify their continued use. Similarly it would have been perfectly plausible by the mid-twentieth century for Canadians to adopt new mechanical or medical techniques for inflicting death. Yet parliamentarians decided that methods other than the noose clashed with the traditional deterrent symbolism of British justice.100 Thus, only by probing the meanings that historical actors attribute to different forms of and rationales for punishment can we chart the changing currents of penal culture. | 63 |
| Just as the cultural values associated with different forms of punishment are plastic, so, too, are the notions of civility by which they are evaluated, as Norbert Elias’s work suggests. Determining punishment’s civil or uncivil qualities is a matter of subjective judgment, rooted in culturally and historically specific modes of cognition. Thus, Robert van Krieken notes that state-sanctioned violence occurs not only in societies “whose members regard themselves as civilized, but in the name of civilization.“101 Participants in penal debates evaluate the appropriateness of penal techniques and their administration against sets of ideals associated with particular times, places, and tastes, not against some ontologically fixed category of “goodness.” Those ideals may be shared by people whose opinions on specific forms of punishment differ, as the committee proceedings confirm. Both opponents and supporters of bodily punishment in the 1937 and 1954 commissions framed their arguments with claims of civilizing objectives: to instil respect for law; to instruct others on costs of violating law; to hurt as little as possible; to ensure fair and equal justice. Any hint of brutality—a long time to die, a sadistic guard wielding a lash, a semi-naked female body on the whipping table, the opportunity for audiences to gather at executions—revolted supporters of bodily punishment as much as it disturbed opponents. In a period when experts like Sellin had only begun to amass data that cast doubt on physical punishment’s deterrent effects, it was still possible to make lofty claims about corporal and capital punishment’s civilizing effects and their capacity to convey powerful lessons about civilized society’s intolerance of crime. | 64 |
| By the 1960s and 1970s, when evidence mounted against deterrence-based justifications for physical forms of punishment, abolitionists gained the upper hand in political debates.102 Abolishing corporal and capital punishment did not put the matter of physical sanctions to rest, however. In 1976, when Canada formally abolished the death penalty, U.S. states resumed the practice after the brief hiatus that the 1973 Furman decision had introduced. Canada’s membership among abolitionist countries became unique because the country (and most of the Canadian population) borders the only democracy in the world where executions continue to take place.103 Nor has corporal punishment vanished from the Canadian political landscape: public opinion polls conducted in the wake of the Michael Fay caning case in Singapore revealed that many North Americans support the reintroduction of the lash, even for petty offenders.104 Punishment of the body disappeared from the Canadian Criminal Code by the mid-1970s but its poetic appeal lingers in contemporary penal culture. In the words of the anonymous prisoner who testified before the 1954 committee, determining how best to punish remains “a hell of a game.” | 65 |
| Carolyn Strange is an associate professor of criminology and history at the University of Toronto. She is grateful for the comments and criticism received from Michael Kempa, Tina Loo, John Pratt, Greg Smith, Christopher Tomlins, Robert van Krieken, the Yale Legal History Group, and several anonymous readers. Alison Bashford’s insight and support were invaluable and deeply appreciated. Notes1 For exceptions among the early modernists, see John Beattie, Crime and the Courts in England, 1688–1800 (Princeton: Princeton University Press, 1996) and J. S. Cockburn, “Punishment and Brutalization in the English Enlightenment,” Law and History Review 12.1 (1994): 155–79. For a study that traces punishment of the body into the twentieth century, see Richard J. Evans, Rituals of Retribution: Capital Punishment in Germany, 1600–1987 (Oxford: Oxford University Press, 1996). The resumption of executions in the U.S. in 1976 has inspired a host of studies of the death penalty in the recent past. For an excellent overview, see Austin Sarat, ed., The Killing State: Capital Punishment in Law, Politics, and Culture (New York: Oxford University Press, 1999).2 David Garland, Punishment and Welfare: A History of Penal Strategies (Aldershot: Gower, 1985). Garland identified the complex array of therapeutic strategies (such as probation, indeterminate sentences, psychiatric case work) that emerged in concert with the rise of the welfare state in the late nineteenth and early twentieth century.3 In Foucault’s words, “One no longer touched the body, or at least as little as possible, and then only to reach something other than the body itself. . . . The body now serves as an instrument or intermediary. . . . From becoming an art of unbearable sensation punishment has become an economy of suspended rights.” Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (London: Allen Lane, 1977), 11.4 Recent examples include Philip Rawlings, Crime and Power: A History of Criminal Justice, 1688–1998 (London: Longman, 1999); Robert Weiss, Social History of Crime, Policing and Punishment (Aldershot: Ashgate, 1999); and Samuel Walker, Popular Justice: A History of American Criminal Justice (New York: Oxford University Press, 1998).5 George Lucas, “Is Hermeneutics Philosophy? Interpretation and Overinterpretation of the Past,” History of European Ideas 20.2 (1995): 177–94, 186. Here Lucas is condensing Godamer’s observation that “a legal order that has become obsolete and antiquated is a constant source of legal difficulties, for meaningful interpretation requires adaptation to the actual situation.” Hans-Georg Godamer, Reason in the Age of Science, trans. Frederick G. Lawrence (Cambridge: MIT Press, 1981), 95.6 I have examined the struggle to repeal Canadian death penalty statutes elsewhere. See Carolyn Strange, “The Lottery of Death: Capital Punishment in Canada, 1867–1976,” Manitoba Law Journal 23.3 (1996): 593–619.7 Pietre Spierenburg, The Spectacle of Suffering (London: Cambridge, 1984); V. A. C. Gatrell, The Hanging Tree: Execution and the English People (Oxford: Oxford University Press, 1994).8 Randall McGowen, “Civilising Punishment: The End of the Public Execution in England,” Journal of British Studies 33 (July 1994): 257–82, 282. See also Thomas Laqueur, “Crowds, Carnival and the State in English Executions, 1604–1868,” in The First Modern Society: Essays in English History in Honour of Lawrence Stone, ed. A. L. Beier, David Canadine, and James Rosenheim (New York: Cambridge University Press, 1989): 305–55.9 Elias argued that there was no such thing as modernity, since civilization is always in process. Bruno LaTour agrees. See his We Have Never Been Modern (Cambridge, Mass.: Harvard University Press, 1993). I use the term in an empirically grounded Weberian sense, since one can document the rise, in the mid-nineteenth century, of new institutions, practices, routines, and experts, who worked toward the calculability and rationalization of personal, social, political, and economic life. These principles of objectivity and scientific rigor did not tame irrationality, however. For the psychic strictures of modernity, see Anthony Giddens, Modernity and Self-Identity (Stanford: Stanford University Press, 1981).10 Stephan Mennell, “Decivilising Processes: Theoretical Significance and Some Lines of Research,” International Sociology 5 (1990): 205–33; John Pratt, “Towards the ‘Decivilising’ of Punishment?,” Social and Legal Studies 7.4 (December 1998): 487–515. I am grateful to John Pratt for sharing an earlier version of his article.11 Norbert Elias, The Germans: Power Struggles and the Development of Habitus in the Nineteenth and Twentieth Centuries, ed. Michael Schröter, trans. Eric Dunning and Stephen Mennell (Cambridge: Polity Press, 1996 [1989]), 308.12 Stefan Breur, “The Dénouements of Civilisation: Norbert Elias and Modernity,” International Social Science Journal, no. 128 (1991): 414, as quoted in Robert van Krieken, Norbert Elias (London: Routledge, 1998), 12613 Robert van Krieken argues that recent forms of “modern barbarism” continue to be justified in the name of their civilizing mission. See his “The Barbarism of Civilisation: Cultural Genocide and the ‘Stolen Generations,'” British Journal of Sociology 50.2 (June 1999): 297–315.14 This was not the case until the early nineteenth century, before which time women were subjected to public whippings and punishment in the stocks and pillories. In England, those convicted of petty treason were also burnt at the stake, a penalty to which men were not subjected. For an excellent account of the decline in the public physical punishment of females, see Greg T. Smith, “Civilized People Do Not Want to See That Sort of Thing: The Decline of Physical Punishment in London, 1760–1840,” in Qualities of Mercy: Justice, Punishment and Discretion, ed. Carolyn Strange (Vancouver: University of British Columbia Press, 1996): 21–51.15 Former colonies fell under federal criminal justice policy once they joined Confederation. The Revised Statutes of Canada (R.S.C.) exempted women from judicially ordered corporal punishment. R.S.C. 1886, c. 181, s. 30.16 In 1921, whipping was added as a sentencing option for robbery; in addition, both attempted rape and rape were made punishable by flogging. For a full list of the offenses subject to judicial whipping sentences at the time of the committee’s deliberations, see Criminal Code of Canada, with Annotations by J. C. Martin (Toronto: Cartwright, 1955), 978–79.17 Home Office, Report of the Departmental Committee on Corporal Punishment (London: His Majesty’s Printing Office, 1938).18 Canada, Report of the Royal Commission to Investigate the Penal System of Canada (Archambault) (Ottawa: King’s Printer, 1938). Serious rioting at the Kingston Penitentiary in the early 1930s produced political pressure for the federal government to review penal policy and to refocus on the reform potential of incarceration.19 For further details on lobbying efforts and parliamentary maneuvering, see Strange, “The Lottery of Death.”20 In 1954, shortly after the Joint Committee began to deliberate, the Criminal Code was amended to restrict the number of offenses for which sentences of corporal punishment could be ordered. Gross indecency, assault on a sovereign, and “assaults on wife or other female” were removed.21 James Struthers, No Fault of Their Own: Unemployment and the Canadian Welfare State, 1914–1941 (Toronto: University of Toronto Press, 1983); John Herd Thompson, with Alan Seager, Canada, 1922–1939: Decades of Discord (Toronto: McLelland and Steward, 1985).22 In 1931 alone, twenty-Five men were executed (out of thirty-two condemned to death). From Confederation to 1930, approximately half of those sentenced to death had been executed: over the 1930s, that rate rose to 61 percent, although the per annum rate declined sharply by the decade’s end. In 1936, the number of executions fell to fourteen, and by 1940 it sank to nine. Figures compiled from Ministry of the Solicitor General, Capital Punishment: Material Relating to Its Purpose and Value (Ottawa: Information Canada, 1965), appendix B, table A.23 On 28 January 1937, “Bill 6, An Act to Amend the Criminal Code (Death Penalty)” reached second reading, with the recommendation that the issue be studied by a special committee that was struck on 2 February 1937. The committee (hereafter Death Committee) met four times in February and March 1937, tabling its report to Parliament on 17 March 1937.24 Donald Creighton, The Forked Road: Canada 1939–1957 (Toronto: McClelland and Stewart, 1976), 107–925 Canada, House of Commons, Debates, 15 December 1953, 943 (hereafter Debates). Work on overhauling the Criminal Code began in 1948 and was completed in 1956.26 Lay Police Magistrate Haig-Brown, quoted in Debates, 13 August 1956, 748927 Stuart Garson, Debates, 15 December 1953, 941. The legal defense of insanity was the fourth issue left unresolved in revisions to the Criminal Code.28 Donald Creighton sums up the period effectively when he says that the post-war decade was “a sober and conventional period which kept the law and retained established customs.” The Forked Road, 245.29 The committee presented its final reports on each of these three issues separately.30 Rogers Brubaker, The Limits of Rationality: An Essay on the Social and Moral Thought of Max Weber (London: Allen and Unwin, 1984). For analyses of the dysfunctionality of modern bureaucracies, see Dennis Wrong, ed., Max Weber (Englewood Cliffs, N.J.: Prentice Hall, 1970).31 In England, the privatization of capital punishment subjected executions to the prison regime. According to McGowen what had been “ceremonial and festive” became “petty, tedious, and mean.” McGowen, “Civilising Punishment,” 281.32 Nevada was the first state to introduce lethal gas in 1924. Death Committee, 1.33 Death Committee, 4.34 Ibid., 58–59. Apparently the reigning “Mr. Ellis” had been hired because of his experience in the Indian Army (where he acquired his skills executing deserters and saboteurs, one assumes), 62–63.35 Ibid., 24. Dr. Plouffe, an alienist superintendent of the criminally insane at Montreal’s Bordeaux Prison agreed, but he refused to respond to a question about whether or not it was difficult for guards and professionals to care for a prisoner for months, only to kill him or her. Ibid., 58.36 In response to the report, the National Parole Board was established in 1958. Canada, Department of Justice, “Committee Appointed to Inquire into the Principles and Procedures Followed in the Remission Service of the Department of Justice in Canada (Fauteux Report)” (Ottawa: Queen’s Printer, 1956).37 When members of or witnesses before the 1954 committee raised issues concerning insanity, the chair or other members typically reminded them that theirs was not the appropriate forum for such discussions. For the terms of the Royal Commission’s appointment, see Debates, 15 December 1953, 941.38 Joint Committee of the Senate and the House of Commons on Capital and Corporal Punishment and Lotteries, “Minutes and Proceedings of Evidence” (Ottawa: Queen’s Printer, 1954), vol. 3, 132 (hereafter, Joint Minutes).39 The 1930s were peak years in judicial sentences of corporal punishment. In that period, approximately 10 percent of convictions for offenses subject to the possibility of corporal punishment provisions resulted in such sentences. By the 1950s, that rate had dropped to 1.5 percent. Canada, Joint Committee of the Senate and the House of Commons, “Final Report on Corporal Punishment,” Journals of the Senate, 11 July 1956, 557d and 557e.40 Except in jokes, as I discuss below. Section 1060, subsection 4 of the Criminal Code prohibited the infliction of corporal punishment on females.41 The 1938 Archambault Committee’s exposure of institutionalized prisoner abuse was a major source of embarrassment for the federal government. By the time the Ouimet Committee on the penitentiary services reported in 1969, the practice had ceased altogether. Canada, Correctional Service of Canada, “Fifty Years of Human Rights Developments in Federal Corrections” (Ottawa, 1998), 10. This observation applies only to recorded punishments and to federal, not provincial prisons, jails, or reformatories.42 The Criminal Code specified the cat-o-nine-tails, unless the sentence called for another instrument. Since corporal punishment was also carried out in provincial penal institutions, further variations were possible (usually a leather lash or paddle of some sort).43 Senator Muriel McQueen Fergusson, Joint Committee, Joint Minutes, 1:44.44 In its 1954 interim report, the Joint Committee indicated that the following practitioner’s guide was on order: Charles Duff, A new handbook on hanging, being a short introduction to the fine art of execution, containing much useful information on neck-breaking, throttling, strangling, asphyxiation, decapitation, and electrocution, rev. ed. (London: Melrose, 1954).45 As late as 1966, the majority of Canadians still accepted the use of corporal punishment in schools. When asked if they thought that school officials should “ever have the right to give pupils ‘a licking’?” 51 percent said yes. Gallup Poll of Canada, Canadian Institute of Public Opinion, press release, 8 January 1966.46 Joint Committee Minutes, 657.47 Joint Minutes, 5:235.48 Jeremy Bentham, “Of Circumstances Influencing Sensibility,” Introduction to the Principles of Morals and Legislation (1780), quoted in Mary Peter Mack, ed., A Bentham Reader (New York: Pegasus, 1969): 101–649 Joint Committee, “Final Report on Corporal Punishment,” 557g, 557f.50 Death Committee, 3651 Gallup polls indicated that Canadians’ support for the death penalty dropped sharply over the 1950s. In 1950, 70 percent favored it; by 1960, only 51 percent of Canadians continued to support the death penalty. Statistics quoted in Department of the Solicitor General, Capital Punishment. New Material, 1965–1972 (Ottawa: Information Canada, 1972), 69.52 The New Democratic Party, the political inheritor of the C.C.F., was the only party to vote consistently in favour of abolition in the 1960s up to the most recent vote in 1986. For a detailed analysis of the party breakdown in voting, see David Chandler, Capital Punishment in Canada (Ottawa: McClelland and Steward, 1976): 74–144.53 Joint Committee of the Senate and the House of Commons on Capital and Corporal Punishment and Lotteries, “Minutes and Proceedings of Evidence, No. 1” (Ottawa: Queen’s Printer, 1954), 111, 119, 77.54 The Final Report summarized testimony on this matter by commenting that professional criminals were “already hardened” and that they regarded imprisonment merely “as an occupational hazard.” Joint Report, 545k. Testimony from law enforcement witnesses was considerably more colorful, however. RCMP Commissioner Nicholson was one of many witnesses who warned of an “influx of gangsters” if Canada abolished the death penalty. Joint Committee Minutes, vol. 15, 626.55 Canada, Debates, 13 August 1956, 749256 The Final Report emphasized that the Archambault Report’s advice on prescribing reasonable limits for the use of corporal punishment be observed. Essentially, it advocated restricting corporal punishment to acts of violence or insurrection. Joint Report, Corporal Punishment, 557n.57 Quoted in Jonathan Fletcher, Violence and Civilisation: An Introduction to the Work of Norbert Elias (Cambridge: Polity, 1997), 46.58 For a discussion of the methodological and theoretical issues such an analysis entails, see Barbara Hudson, “Punishment and Governance,” Social and Legal Studies 7.4 (1998): 581–87.59 For exceptions, see Smith, “Civilized People.” Myra Glenn observes in her analysis of antebellum debates about corporal punishment that advocates associated whipping with manliness (the ability to withstand pain stoically) whereas opponents argued that it emasculated men (putting them in a posture of humiliating subservience). Glenn, Campaigns against Corporal Punishment: Prisoners, Sailors, Women, and Children in Antebellum America (Albany: State University of New York Press, 1984), 117–19.60 For criticism of gender blindness in Elias’s work, see Jennifer Hargreaves, “Sex, Gender and the Body in Sport and Leisure: Has There been a Civilising Process?” in Sport and Leisure in the Civilising Process: Critique and Counter Critique, ed. Eric Dunning and Chris Rojeck (London: Macmillan, 1992): 161–82. In response to Hargreave’s critique, Dunning admitted that he and Elias had “in the past been too silent on questions of gender,” but that they “needed feminists . . . to point out the unexamined masculinist assumptions in [their] work.” Quoted in van Krieken, Norbert Elias, 159–60.61 C. Claxton, Death Committee, 10. Claxton referred to a 1933 article, “Capital Punishment by Lethal Gas,” published in the American Mercury, in which a lawyer claimed to have witnessed executions where the condemned appeared to have endured horrible distress. Every U.S. warden polled agreed that gas was the most humane method available.62 Hyndman, Death Committee, 13. Dr. Blair, the bill’s sponsor appeared to have taken him seriously. Nitrous oxide was unsuitable because it could induce “an excitable convulsive condition.”63 Ibid., 5.64 Ibid., 31, 33, 38.65 Ibid., 50.66 Ibid., 62, 32, 67, 61.67 The promise of a distinctive Canadian flag was first introduced in 1945. Debates raged into the 1950s and Canada finally flew the maple leaf for the first time in 1965. Jack Granatstein, Canada: 1957–1967: The Years of Uncertainty and Innovation (Toronto: McClelland and Stewart, 1986): 201–5.68 Joint Committee Minutes, 17:714. Sellin was quoting from his foreword to Robert Graham Caldwell, Red Hannah: Delaware’s Whipping Post (Philadelphia: University of Pennsylvania Press, 1947). The 1938 Cadogan Committee had similarly concluded that corporal punishment had no discernible deterrent effect.69 Ibid., 14:599, 603.70 Ibid., 135–37, 352, 613.71 Given that sado-masochistic rituals often dramatize images of state punishment (ruthless prison guards and vulnerable inmates acting out scenes of torture and sexual slavery, for instance), the line between state sanctions and subversive sexual play are not nearly so distinct as respectable advocates of physical punishment would care to admit. This issue has arisen recently in regard to concerns about the possible erotic effects produced by asphyxiation through hanging. For nineteenth-century penal reformers’ concerns about the sado-masochistic aspects of whipping, see Glenn, Campaigns against Corporal Punishment, 47–49.72 Ibid., 145–46, 230–31. Winch betrayed his own chivalrous inclinations when he said that wife beaters were the only offenders for whom he could agree that the lash was appropriate. Ibid., 357.73 The scandalous female onlooker is a conventional trope in critiques of spectacular punishment’s brutalizing effects. Consider, for instance, Dickens’s Madame de Farge or the female spectators in Hogarth’s The Idle Apprentice. On carnivalesque spectatorship, see Laqueur, “Crowds, Carnival, and the State.”74 Garland, Punishment and Modern Society: A Study in Social Theory (Oxford: Clarendon Press, 1990), 198. As he continues, the “social meaning and motivations of punishment” are intelligible only if one decodes the “languages, discourses, and sign systems which embody cultural meanings.”75 I would add historians and penal theorists to the list of those who have declined to make the sexual aspects of corporal and even capital punishment explicit. Contemporary historians are not immune from the same social and cultural imperatives that civilized punishment.76 Perhaps this accounts for the controversy over newspaper pictures of the Kingston warden holding a strap and a cat-of-nine-tails. Several members thought it was a public service to publicize the image, but one member thought that the public was unable to discriminate and would think of the warden as “a pretty grim man.” Joint Committee Minutes, 221–22.77 As members of the Canada Welfare Council pointed out, “most of the West European and South and Central American countries, as well as six U.S. states, had abolished the death penalty by the post-war era.” Joint Committee Minutes, 409.78 Joint Committee Minutes, 415, 41479 Ibid., 415, 65080 Members briefly considered the guillotine and firing squad as options but did not take them seriously. Thorsten Sellin perhaps explained their reservations best when he answered an inquiry about the guillotine: “it is certainly a quick method but rather a messy one.” Joint Committee Minutes, 694.81 Ibid., 451–52. Because of the secrecy surrounding the hangman’s identity, it is difficult to ascertain who held this position when the Joint Committee met. The Final Report indicated that two provinces (probably Ontario and Quebec) had their own hangmen who acted as roving executioners for the other provinces. Joint Committee, “Final Report,” para. 86, u.82 Respected defense lawyer Arthur Maloney, an opponent of capital punishment, cited the U.K. Royal Commission on Capital Punishment to underline Canadian shortcomings in execution techniques. Officials contended that England had not had a botched execution in the past fifty years. Joint Committee Minutes, 169. On the craft tradition among English executioners, see Syd Dernley with David Newman, The Hangman’s Tale: Memoirs of a Public Executioner (London: Pan Books, 1989).83 Joint Committee, “Final Report,” para. 91, v. Unfortunately I have been unable to locate the minutes recording the testimony of the Illinois State Penitentiary warden (on electrocution) and the San Quentin Penitentiary warden (on gas). It is possible that this evidence was delivered in camera.84 Joint Committee Minutes, 694. Sellin responded to a question about whether or not the “ratio of inefficiency” was as great in regard to the electric chair as it was with hanging. As he replied, “I do not recall any case where electrocution has failed to kill a person promptly.”85 Joint Committee, Final Report, paragraphs 89–93, p, u, v.86 The amendment was made in 1868 but violated after the Northwest Rebellion. See Cyril Greenland, “The Last Public Execution in Canada: Eight Skeletons in the Closet of the Canadian Justice System,” Criminal Law Quarterly 29.4 (1987): 415. The scaffold was erected at a height of twenty feet inside the fort at Battleford and eight Aboriginal men, convicted of treason, were hanged en masse, 418–19.87 Hundreds clamored for perches to witness the execution of Reginald Birchall in Woodstock in 1890. Hilda Blake’s hanging was clearly visible from behind the fence at the Brandon (Manitoba) Provincial Jail in 1899. Frank Anderson, A Concise History of Capital Punishment in Canada (Calgary: Frontier Publishing Ltd., 1973), 43, 48.88 Joint Committee Minutes, 409, 648. The article was printed in the Toronto Daily Star, 26 May 1954.89 Ibid., 576, 64790 Ibid., 464, 694, 650.91 The presiding chairman dismissed the latter prospect on legal grounds. “If he gave it to himself it would be suicide.” Joint Committee Minutes, 467.92 Joint Committee Minutes, 650; Joint Committee Final Report, u.93 Joint Committee, Final Report on Corporal Punishment, 557g. The Saskatchewan Attorney-General was more direct: “We consider the use of corporal punishment . . . as an instrument of unadulterated revenge.” Joint Committee minutes, 783.94 Joint Committee, Final Report, para. 88, u.95 Garland, Punishment and Modern Society, 281.96 For a critique of ahistorical analyses of emotion, see Randall McGowen, “Revisiting the Hanging Tree: Gatrell on Emotion and History,” British Journal of Criminology 40 (2000): 1–13.97 Van Krieken, “The Barbarism of Civilisation.” I am grateful to Robert for underlining this application of Elias’s notions about civilizing and decivilizing processes.98 British historiography is especially well developed in this area. See Randall McGowen, “A Powerful Sympathy: Terror, the Prison, and Humanitarian Reform in Early Nineteenth-Century Britain,” Journal of British Studies 25 (1986): 312–34; Martin Wiener, Reconstructing the Criminal: Culture, Law, and Policy in England, 1830–1914 (New York: Cambridge University Press, 1990); and Simon Devereaux, “In Place of Death: Transportation, Penal Practices, and the English State, 1770–1830,” in Qualities of Mercy: Justice, Punishment, and Discretion, ed. Carolyn Strange (Vancouver: University of British Columbia Press, 1996): 52–76.99 As Elizabeth B. Clark argues in regard to antebellum America, emotionally powerful antislavery writings “expand[ed] the definition of cruel behaviour” and thereby made it imaginable for white Americans to care about the physical punishment of slaves. “‘The Sacred Rights of the Weak’: Pain, Sympathy, and the Culture of Individual Rights in Antebellum America,” Journal of American History 82.2 (1995): 463–93, 463.100 For a study of the cultural meanings of technology in domestic life, see Joy Parr, “What Makes Washday Less Blue? Gender, Nation, and Technology Choice in Post-War Canada,” Technology and Culture 38.1 (1997): 153–86.101 Van Krieken, “The Barbarism of Civilization,” 299.102 During the second moratorium on capital punishment, the governing Liberal party commissioned a University of Montreal academic to study the impact of the death penalty on Canadian murder rates. The resulting report concurred with Sellin’s findings: the death penalty had no demonstrable impact on the number of murders in Canada. Ezzat Fattah, A Study of the Deterrent Effect of Capital Punishment with Special Reference to the Canadian Situation (Ottawa: Information Canada, 1973).103 Although some states, notably those closest to the Canadian border, do not include death penalty statutes, federal penal sanctions include capital punishment. For this reason, Amnesty International defines the U.S. as a retentionist nation, both in law (after the landmark Supreme Court decision, Gregg v. Georgia, Supreme Court Reporter [1976]: 2909–50), and in practice.104 According to a Newsweek poll, over a third of U.S. respondents approved of Michael Fay’s caning (four strokes on bare buttocks with a wet cane) for spray-painting cars. Newsweek, 4 July 1994. Almost 90 percent of residents polled in Dayton, Ohio (Fay’s home town), believed that the punishment was just. Baltimore Sun, 14 April 1994, 1A. In 1996, the case inspired Canada’s right-wing Reform Party’s justice critic, Art Hanger, to pay a visit to Singapore, so that he might observe caning in person. When reporters asked if he had evidence to support its reintroduction to Canada, he replied: “It just seems like a good idea.” Ottawa Sun, 2 March 1996. | |
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