Flogging

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Flogging was a punishment for crimes most common in ancient times. It involved whipping, usually on the back, with long strands of leather hide sometimes embedded with bone or glass to rip flesh. In the Jewish custom, 40 lashes was the most that was allowed as anything beyond this was considered to put the life of the recipient in danger. In practice Jews stopped at 39 lashes in case there was a miscount. Roman flogging knew no such limits and it was not uncommon for prisoners to die from flogging alone.

Jesus was flogged by the Romans. The number of lashes received is unknown. Under Roman law, scourging was a preliminary to crucifixion in every case, and its primary purpose was to weaken the prisoner, lessen his resistance, and hasten his death. The only practical limitation on the number of lashes was that he had to be kept alive for the crucifixion.

The last U.S. state to abolish whipping as a punishment for crime was Delaware, which eliminated the practice in 1972. The last flogging occurred in 1952, when John P. Barbieri, then about 21, received 20 lashes of the cat-o-nine tails on his bare back for breaking and entering.

In the early 1960's, there was talk of reinstituting whipping in Delaware, and Barbieri's case was mentioned in the newspapers. Naturally, he was chagrined and embarrassed to have all his neighbors and friends find out that he was last person to be horsewhipped in the State of Delaware, so he sued the newspaper for invasion of privacy. The Supreme Court of Delaware ruled against him, holding that his punishment was a matter of public concern, both at the time he received it and later on, when the practice was being discussed in the newspaper and elsewhere. Barbieri v. News-Journal Co., 56 Del. 67, 189 A.2d 773 (1963).

For various offenses, the Delaware statute authorized or directed the court to impose a sentence of "stripes," consisting of not less than five nor more than sixty lashes to be "well laid" on the prisoner's bare back. In jurisdictions where whipping was imposed as a punishment, the prisoner typically was required to strip to the waist and was bound by his wrists to a post or other device while the whipping was administered. Whipping was commonly used in the 19th century, particularly in frontier jurisdictions that had inadequate jail facilities. It is possible that a lack of respect for the Constitution allowed a liberal state like Delaware to continue violating the Eighth Amendment. Conservative newspapers and politicians were some of the most vocally opposed to the practice.

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