"Should Flogging Be an Alternative to Prison?"
June 27th, 2011
Flogging someone with a cane causes intense pain and permanent bodily damage. An Australian who was flogged for drug trafficking in Malaysia in the 1970s recalled that the cane "chewed hungrily through layers of" his "skin and soft tissue" and "left furrows" on him that were "bloody pulp."
It's tough stuff and generally considered a barbaric punishment that the 21st century Western world would and should never consider. That makes it a bit startling to find a new book by a serious U.S. academic arguing that the U.S. should start flogging criminals. Peter Moskos' In Defense of Flogging might seem like a satire — akin to Jonathan Swift's "A Modest Proposal," an essay advocating the eating of children — but it is as serious as a wooden stick lashing into a blood-splattered back.
Despite what you may think, Moskos is not pushing flogging as part of a "get tougher on criminals" campaign. In fact Moskos, who teaches at John Jay College of Criminal Justice, begins not by arguing that the justice system is too soft on criminals, but the opposite. So before you accuse him of advocating a cruel and unusual form of punishment, he offers this reminder: in the U.S., there are 2.3 million inmates incarcerated in barbaric conditions. American prisons are bleak and violent, and sexual assault is rampant.
And, Moskos points out, imprisonment is not just cruel — it is ineffective. The original idea for the penitentiary was that criminals would become penitent and turn away from their lives of crime. Today, prisons are criminogenic — they help train inmates in how to commit crimes on release.
Flogging, Moskos argues, is an appealing alternative. Why not give convicts a choice, he says: let them substitute flogging for imprisonment under a formula of two lashes for every year of their sentence.
There would, he says, be advantages all around. Convicts would be able to replace soul-crushing years behind bars with intense but short-lived physical pain. When the flogging was over, they could get on with their lives. For those who say flogging is too cruel, Moskos has a simple retort: it would only be imposed if the convicts themselves chose it.
At the same time, Moskos says, society would benefit. Under his proposal, the most dangerous criminals would not be eligible for flogging; the worst offenders, including serial killers and child molesters, would still be locked up and kept off the streets. But even so, he guesses the prison population could decline from 2.3 million to 300,000. That would free up much of the $60 billion or more the U.S. spends on prisons for more socially useful purposes.
We associate flogging with authoritarian nations like Singapore and Malaysia. The practice, however, has deep roots in America. The "lash" was used brutally against slaves, of course, but common criminals were also flogged throughout the 1800s. And it took a long time to die out: as recently as 1952, Delaware administered 20 lashes to a convicted burglar.
Flogging could have more of a chance for a comeback than some might think. In fact, there could be a surprising amount of grass-roots support. In 1994, an American teenager named Michael Fay was famously convicted of spray-painting cars in Singapore and was flogged as part of his punishment. Fay's ordeal received intense media attention — the number of lashes was reduced from six to four after President Clinton appealed — much of it critical of Singapore. But as Moskos notes, a newspaper poll in Dayton, Ohio, where Fay's father lived, found that respondents supported the punishment by a 2-1 margin, and at a time of rising juvenile crime, many Americans seemed to echo that sentiment.
There would be legal issues, of course, but Moskos believes flogging would pass constitutional muster. He notes that the Supreme Court upheld corporal punishment in schools in 1977, rejecting a claim that it violated the Eighth Amendment bar on "cruel and unusual" punishment. Moskos also argues that the fact that convicts would be choosing it for themselves should remove the constitutional question.
Moskos insists there would be no "slippery slope," that flogging would not lead to amputations or stonings of criminals. But once we make inflicting pain on people an option, it seems likely or at least possible that states and localities would come up with their own ghoulish variations. Not long ago, another academic wrote a book arguing that we should use electric shocks to punish criminals.
As for the remedy that most legal observers are pushing for rather than flogging — i.e., making our current prisons less barbaric — Moskos is dismissive of that happening anytime soon. Certainly the federal and state governments could focus on reducing overcrowding and violence in prisons, putting in place effective drug treatment and educational programs, and getting serious about alternatives to incarceration and helping prisoners re-enter society when they are released. But, in the eyes of Moskos: "Prison reformers — and I wish them well — tinker at the edges of a massive failed system."
Reading In Defense of Flogging is a lot like reading Woody Allen's classic "My Speech to the Graduates," in which he declares, "More than at any other time in history, mankind faces a crossroads. One path leads to despair and utter hopelessness. The other, to total extinction. Let us pray we have the wisdom to choose correctly."
Moskos would have us believe that there are only two alternatives for dealing with crime: the prolonged cruelty of incarceration or the briefer but more intense cruelty of flogging. But there has to be another way, doesn't there?
[Cohen, a former TIME writer and a former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for TIME.com, appears every Monday.]