In 1776, Congress approved New Articles of War drafted by John Adams, with the assistance of Thomas Jefferson and the approval of Edward Rutledge and James Wilson, granting American commanders the power to impose 100 lashes, more than the 39 found insufficient by General Washington. The Founders intended to impose corporal punishment judiciously, as an example for all to see, and they knew a little would go a long way. The Founders, descendants of Puritans or slaveholders, transferred their knowledge to young, mostly white soldiers. On Feb. 3, 1781, just a few months before the Battle of Yorktown, Washington requested additional authority to impose corporal punishment:
"To the President of Congress, [from] Head Quarters, New Windsor, February 3, 1781
Sir: I have on different occasions done myself the honor to represent to Congress the inconveniences arising from the want of a proper gradation of punishments in our military code; but as no determination has been communicated to me, I conclude a multiplicity of business may have diverted their attention from the object. As I am convinced a great part of the vices of our discipline springs from this source, I take the liberty again to renew the subject. The highest corporal punishment we are allowed to give is an hundred lashes; between that and death there are no degrees. Instances dayly occurring of offences for which the former is intirely inadequate. Courts Martial to preserve some proportion between the crime and the punishment are obliged to pronounce sentence of death. Capital sentences on this account become more frequent in our service than in any other, so frequent as to render their execution in most cases inexpedient; and it happens from this, that greater offences often escape punishment while lesser are commonly punished, which cannot but operate as an encouragement to the commission of the former. The inconveniences of this defect are obvious. Congress are sensible of the necessity of punishment in an army, of the justice and policy of a due proportion between the crime and the penalty, and of course of the necessity of proper degrees in the latter. I shall therefore content myself with observing, that it appears to me indispensable there should be an extension of the present corporal punishment; and also that it would be useful to authorise Courts Martial to sentence delinquents to labor at public works, perhaps even for some crimes, particularly desertion, to transfer them from the land to the sea service, where they have less opportunity to indulge their inconstancy. A variety in punishments is of utility as well as a proportion. The number of lashes may either be indefinite, left to the discretion of the Court to fix, or limited to a larger number; in this case, I would recommend five hundred.
There is one evil however, which I shall particularize, resulting from the imperfection of our regulations in this respect: It is the increase of arbitrary punishments. Officers finding discipline cannot be maintained by a regular course of proceeding are tempted to use their own discretion, which sometimes occasions excesses, to correct which the interests of discipline will not permit much rigor. Prompt, and therefore arbitrary, punishments are not to be avoided in an army; but the necessity for them will be more or less, in proportion as the military laws have more or less vigor. . . . I have the honor etc
[/s/ Gen. George Washington]"
Washington understood the advantages of various types of punishment as well as necessity for multiple gradations of punishment. He appreciated the importance of proportionality and sought to limit arbitrary punishments with a more complex system of formal punishments. No martinet, Washington saw the big picture in 1757: “Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.”
Cities, counties, states and the federal government ought to study how discipline was imposed when Washington was winning America's freedom. Considering the massive budgetary and social costs of incarceration, and the 7.3 million Americans in the correctional population, the United States cannot afford the current wasteful and ineffective path. Judicial corporal punishment
deserves another look. This is another way of saying that the American correctional crisis