At the Chronicle of Higher Education, Peter Moskos (who will be filling in for Radley Balko while away on vacation, presumably accompanying Kate and William on their honeymoon in order to guide the future King and Queen on how to rule an Empire) offers a provocative thought: What’s wrong with a decent flogging?
For most of the past two centuries, at least in so-called civilized societies, the ideal of punishment has been replaced by the hope of rehabilitation. The American penitentiary system was invented to replace punishment with “cure.” Prisons were built around the noble ideas of rehabilitation. In society, at least in liberal society, we’re supposed to be above punishment, as if punishment were somehow beneath us. The fact that prisons proved both inhumane and miserably ineffective did little to deter the utopian enthusiasm of those reformers who wished to abolish punishment.
Prisons today have all but abandoned rehabilitative ideals—which isn’t such a bad thing if one sees the notion as nothing more than paternalistic hogwash. All that is left is punishment, and we certainly could punish in a way that is much cheaper, honest, and even more humane. We could flog.
Ullstein Bild, The Granger Collection, A public flogging in Delaware in the early 1900s
Brutal? Barbaric? As Moskos notes, we locked up 1.3 million people between 1970 and 1990, and what did we accomplish? Not much.
We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do.
And yet we persist in our belief that this system is working. Or will work, if we just incarcerate a few more people. Or for a few more years. What is it about prisons that causes us to maintain our faith in their efficacy? What is it that makes us ignore that it’s a concept that’s been tried and failed, and failed miserably, to cure whatever ills it was meant to cure, such that it’s only grown monumentally without an end in sight? If insanity is to take the same course of action over and over, and expect a different result, then this is nuts.
So is flogging still too cruel to contemplate? Perhaps it’s not as crazy as you thought. And even if you’re adamant that flogging is a barbaric, inhumane form of punishment, how can offering criminals the choice of the lash in lieu of incarceration be so bad? If flogging were really worse than prison, nobody would choose it. Of course most people would choose the rattan cane over the prison cell. And that’s my point. Faced with the choice between hard time and the lash, the lash is better. What does that say about prison?
There is, of course, a gap in Moskos’ point, that being the sentencing goal of incapacitation, removing the defendant from society that he cannot do harm to others. A decent flogging aside, it would still leave the murderer free to murder, and we can’t have that. The victim of his murderous intent would likely find it entirely inadequate.
But then, incapacitation only applies to a limited number of convicted criminals, and certainly not those imprisoned over drugs crimes, victimless crimes, financial crimes. How many people would have enjoyed watching Bernie Madoff flogged?
Moskos suggests a ratio of two lashes per year in prison. That seems a bit light for shorter sentences, say under ten years, where perhaps a sliding scale might work better. For example five lashes per year for the first five, three for the next, and two thereafter. And as with Singapore, there should be a limit of, say, 24 lashes at a time, for the survival of the floggee. There are some details to work out, but what about the basic premise?
And I bet that if convicted criminals were offered the option of flogging over prison, that Moskos is absolutely correct that most would take it. Even if it doesn’t do a damn thing to change recidivism or improve social conditions, it’s cheaper, quicker and will sate that blood lust that permeates the system already.
Plus, it couldn’t do any worse than locking people away in prison for decades and expecting them to come out as happy, productive, law-abiding citizens.
That photograph is the ultimate caricature. I wonder how they found the guy holding the cane. He probably no more than walked into his job interview with that beard when they said, “you’re hired!”
I agree that most people would choose a flogging over prison time, and probably over fines as well.
With that in mind, if the experiment was done, and convicted persons really did choose overwhelmingly to take a flogging in lieu of time/fines, wouldn’t that “prove”, or help to prove, that with respect to the eighth amendment, flogging was a humane choice of punishment?
Then again, if you let a person choose their punishment it is not so punish-y, is it?
I was asked to be with a bar association group that was meeting with judges from China. We met, we talked. We talked specifically about the death penalty. Their position was it was far more cruel to spend life in prison than be executed, and thought we were terribly cruel in sentencing so many people to life without parole.
What’s cruel and unusual varies. Flogging is awfuly brutal, but at least it’s done and over, and people can move on. Not much you can do with a 25 year sentence except sit and wait.