UNTIL early in this century, Maryland fairly regularly...

April 11, 1994|By THEO LIPPMAN JR.

UNTIL early in this century, Maryland fairly regularly resorted to the lash to punish felons. Even as late as 1939, a city judge sentenced a man to be whipped with the cat o' nine tails.

It was judged constitutional then. Attempts by enlightened members of Congress to forbid states from using the whipping post in the first decades of the century failed. Woodrow Wilson's attorney general said the Eighth Amendment's prohibition of cruel punishment didn't apply to the states, only to the federal government.

Congressional outrage was aimed at Delaware, which at the time was the only state inflicting lots of lashings and bragging about it. Best I can tell from old newspaper clippings, by the 1920s, Maryland rarely whipped prisoners. I'm surprised Maryland judges allowed it at all. In its own state constitution, Maryland has two Eighth Amendments, so to speak. Article 16 of the Declaration of Rights says, "no Law to inflict cruel and unusual pains and penalties ought to be made." Article 25 says, "cruel or unusual punishment. . . ought not be inflicted."

Maryland's use of the whipping post would surely be unconstitutional today. At one time, whipping was the sentence for forgery, theft, Sabbath breaking and blasphemy, among other crimes. Eventually, it only applied to wife beaters. Husband beaters weren't covered! What discrimination!

Delaware used the whipping post for numerous crimes in the 20th century: highway robbery (40 lashes), breaking and entering (20-40), arson and petty larceny (not more than 20), wife beating (5-20).

Lashed by national criticism, Delaware stood its ground. The governor of Delaware wrote a lengthy article in defense of his state's penal code for The Sun. He claimed only "sentimentalists" objected to the whipping post (called by Delawareans, sentimentally, "Red Hannah"). Not so. Numerous tough law enforcement officials, including a state's attorney in Baltimore City, called the practice "barbarous."

Another law enforcer in the state, however, urged in the 1920s that the state resume whipping all sorts of prisoners. He thought a year in prison and 10 lashes every 30 days would end recidivism.

Delaware's rationale was that lashing was a deterrent. Its politicos said that as a small, rural state lying between Philadelphia and Baltimore, it had to have tough laws to keep big city hoodlums away.

Did Red Hannah deter? Well, in 1928 the National Bureau of Casualty and Insurance Underwriters lowered premiums in Delaware for holdups, burglary and theft policies by 33 percent, and attributed this to crime reduction due to whipping.

Delaware kept its law until 1972. The last victim was whipped in 1952 for beating a woman. During one recent effort in the state legislature to revive the law, a columnist in the Singapore -- I mean Wilmington -- News Journal opined, "he hasn't been arrested even for jaywalking since that day."

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