Features

May/June 2011 Bring Back the Lash

Why flogging is more humane than prison.

By Peter Moskos


Photo: Peter Dazeley

You’re about to get whipped. Mentally more than physically. It’s going to hurt—but it’s supposed to.

I write in defense of flogging, something most people consider too radical for debate and even unworthy of intellectual discussion. But please, don’t turn the page, upset I dared to broach the subject.

My defense of flogging—whipping, caning, lashing, call it what you will—is meant to be provocative, but only because something extreme is needed to shatter the status quo. There are 2.3 million Americans in our prisons and jails. That is too many. I want to reduce cruelty, and corporal punishment, once common in America and still practiced in places like Singapore, may be the answer.

So first let me begin with a simple question: Given the choice between five years in prison and ten brutal lashes, which would you choose?

Yes, flogging is a severe and even brutal form of punishment. Under the lash, skin is literally ripped from the body. But prison means losing a part of your life and everything you care for. Compared to this, flogging is just a few very painful strokes on the behind. And it’s over in a few minutes.

If you had the choice, if you were given the option of staying out of jail, wouldn’t you choose to be flogged and released?

Consider your answer to that question. Then consider the fact that the United States now has more prisoners than any other country in the world. Ever. In sheer numbers and as a percentage of the population. Our rate of incarceration is roughly seven times that of Canada or any Western European country. Despite our “land of the free” rhetoric, we deem it necessary to incarcerate more of our people than the world’s most draconian regimes. We have more prisoners than China, and they have a billion more people than we do. We have more prisoners than soldiers; prison guards outnumber Marines.

It wasn’t always this way. In 1970, just 338,000 Americans were behind bars. There was even talk of abolishing prison altogether. That didn’t happen. Instead, fear of crime led to “tough-on-crime” politics and the war on drugs. Crime has gone up and down since then, but the incarceration rate has only increased, a whopping 500 percent in the past forty years.

In truth, there is very little correlation between incarceration and the crime rate. From 1970 to 1991 crime rose while we locked up a million more people. Since then we’ve locked up another million and crime has gone down. Is there something so special about that second million? Were they the only ones who were “real criminals”? Did we simply get it wrong with the first 1.3 million people we put behind bars?

Today’s prison reformers—and I wish them well—tinker at the edges of a massive failed system. We need much more drastic action. To bring our incarceration back to a civilized level—one we used to have, and one much more befitting a rich, modern nation—we would have to reduce the number of prisoners by 85 percent. Without alternative punishments, this will not happen anytime soon. Even the most optimistically progressive opponent of prison has no plan to release two million prisoners.

Perhaps, as a law-abiding citizen, with all there is to worry about in the world today, you don’t have the fate of convicted criminals in our prison system at the top of your list of concerns. But who hasn’t, at some point, committed a crime? Perhaps you’ve taken illegal drugs. Maybe you once got into a fight with a friend, stranger, or lover that came to blows. Or you drove back from a bar drunk. Or you clicked on an online picture of somebody who turned out to be a bit young. Perhaps you accepted a “gift” from a family member and told the IRS it was a loan. Or did you go for the white-collar big leagues and embezzle millions of dollars? If your luck runs out, you can end up in jail for almost anything, big or small. Even if you have done nothing wrong, imagine that in a horrific twist of fate you are convicted of a crime you did not commit. It’s not inconceivable; it happens all the time.

As you sit in court on sentencing day, you begin to wonder what prison will be like. Are there drugs, gangs, and long times in solitary? Will you come out stronger—or broken? Will you be raped? Will it be like the brutal TV show Oz? God, you hope not. But you don’t know. And that’s the rub. Prison is a mystery to all but the millions of people forced to live and work in this gigantic government-run system of containment. And as long as we don’t look at what happens on the inside, as long as we refuse to consider alternatives, nothing will change.

Is flogging still too cruel to contemplate? If so, given the hypothetical choice between prison and flogging, why did you choose flogging? 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 to be caned over incarceration. 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?

Sometime in the past few decades we seem to have lost the concept of justice in a free society. Now we settle for simple efficiency of process. We tried rehabilitation and ended up with supermax and solitary confinement. Crime, violence, and drug prohibition help explain why so many people are behind bars. But they don’t explain why so many people are behind bars.

I am not proposing to completely end confinement or shut down every prison. Some inmates are, of course, too violent and hazardous to simply flog and release. Pedophiles, terrorists, serial rapists, and murderers, for example, need to remain behind bars—but they are relatively few in number. They are being kept in prison not only to punish them, but also because we don’t want them to hurt us. We’re afraid of them. But for the millions of other prisoners—particularly those caught up in the war on drugs (which I for one would end tomorrow if I could)—the lash is better than a prison cell. Why not at least offer the choice?

Peter Moskos is a sociologist at John Jay College of Criminal Justice and the Graduate Center of the City University of New York.

Comments

  • Mahesh Paolini-Subramanya on May 11, 2011 10:50 AM:

    This article seems equally valid if you substitute 'waterboarded", "amputate an arm", "lose an eye", "remove a kidney", etc.
    Which may very well be the core issue with the argument...

    Note that this is not really a defense of incarceration, just this particular alternative...

  • N.D. on May 11, 2011 11:13 AM:

    I agree completely. The prison system is broken, and recidivism rates are extraordinary.
    Public shaming and/or corporal punishment would be extremely effective in discouraging crimes, not just punishing offenses already committed.
    It sounds radical until you realize that for most of history this is the way communities dealt with minor offenses. Just whip the suckers. No need for multi-million dollar prisons to house the people who get caught with a dimebag and a roll of bills.

  • DrJeffreyP on May 11, 2011 12:16 PM:

    Dr. Moskos seems to suggest here that crime went down before incarceration, not as a result of incarceration. In other words, is it not possible that crime decreased as incarceration increased?

    That said, I'm fine with corporal punishment, be it flogging, amputation or whatever. I'm confident that such would significantly reduce crime.

    Here's the rub. Many, mostly on the left, don't want to accept waterboarding even in the wake of the death of UBL. If we can't waterboard for actionable intelligence, how can we corporally punish a bad guy?

  • Justice on May 11, 2011 12:21 PM:

    Indeed, this is a Modest Proposal. It is cost effective and utilitarian. I will start researching flogging products and processes so I can invest and prosper in the return to the old way of justice.

  • The Unreal on May 11, 2011 3:44 PM:

    Re: Justice

    I see you've made a Swift reply.

  • Chris in Baltimore on May 12, 2011 1:12 AM:

    You write: "From 1970 to 1991 crime rose while we locked up a million more people. Since then we’ve locked up another million and crime has gone down. Is there something so special about that second million?"

    Yes: we kept them in prison! From 1964 to 1980, crime rates exploded while incarceration rates barely budged. As incarceration rates finally ascended, crime rates first plateaued and then declined.

    Something broke in the mid-1960's, and until we figure out what it was and how to fix it, going back to 1960's-level incarceration rates would be suicidal.

  • European on May 12, 2011 9:33 PM:

    @Chris in Baltimore:
    no, USA had started locking up more and more people for victimless crimes. Most of USA prisoners can't even be locked in Europe.

    @DrJeffreyP
    experience and statistics from North Africa and Middle East don't support your ideas that corporal punishment reduces crime. And why would you support arm amputation? Such punishment disable people and put even more burden on family and society than prisons.

  • Pyre on May 12, 2011 10:11 PM:

    "Perhaps you are concerned that the practice [of flogging] is torture. It is not. Torture is meant to achieve a goal, and until that goal is achieved, it continues. Punishment is finite...."

    Peter Moskos, your misleading attempt to redefine flogging as non-torture (because it's not for "punishment") fails upon examination:

    The two most frequently cited definitions of torture are the World Medical Association's (WMA) 1975 Declaration of Tokyo and the definition given by the 1984 United Nations Convention Against Torture.

    The 1975 WMA Declaration defines torture as: "The deliberate, systematic, or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason." The 1984 United Nations Convention Against Torture expands upon this definition, distinguishing the legal and political components typically associated with torture:

    Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

    — "Torture." International Encyclopedia of the Social Sciences. 2008. Encyclopedia.com. [emphases added]

  • ShadeTail on May 12, 2011 11:15 PM:

    Prison, flogging, whatever you choose, it's just a symptom of a much larger issue. The criminal justice system has never been about criminal justice, it's been about revenge for the rest of us. At least here in America, people want criminals to suffer. Even the trial is considered by many people merely a formality, and "innocent until proven guilty" is at best a burden to be dealt with, often just a joke to laugh at.

    People being tortured? A good chunk of America are barbaric enough to *love* that, even though it's been shown to be ineffective. Fair trials? The Supreme Court recently ruled that prosecutors can hide exonerating evidence without penalty, and that's just the latest attack against our rights. Humane punishment? Just mention prison rape and see how many people laugh at the thought.

    No, Americans by and large do not care about actual justice. It's all about feeling satisfaction at the pain inflicted on the "criminal". Until *that* changes, nothing changes. Moskos' article is merely dancing around the edges of that simple truth.

  • low-tech cyclist on May 13, 2011 8:33 AM:

    Exactly why should this be either-or? The problem is we've got too many people in prison who not only shouldn't be there, but shouldn't get a flogging either.

    If the point of this exercise is to find an alternative to prison that might go over well with the wingnuts, it just might succeed in some limited sense. But there are two problems:

    1) If evil and immoral people on the right want to argue for floggings as a legitimate form of punishment, let them be all alone in doing so. Let's not give an idea as abhorrent as this the least bit of 'even the liberal Washington Monthly' bipartisan cover. All we're doing here is diving into their mud pool.

    2) You think it would actually reduce the number of people in prison? Good luck with that. You know what'll happen: when the wingnuts got in a position to do so, they'd make sure it was a both-and rather than an either-or - they'd have people flogged, and THEN sent to prison.

    Count on it.

    This idea is both immoral and stupid. I would encourage the Washington Monthly to remove this article from its website. Let Peter Moskos post it on his personal web page, and in place of the article, the Monthly can post a link to Moskos' personal page, along with a note saying that on further reflection, they didn't want their good name sullied by association with such an appalling idea.

  • Alex on May 13, 2011 10:52 AM:

    Unfortunately, knowing unrepentant ex-cons, and 'scared of jail' white collar model citizens; my opinion is divided on this.

    In my heart that feels we've evolved just fine for millions of years and as animals, we understand pain as punishment and deterrent. Plus, as humans, we have shame, and having a permanent mark of your crime (or if the idea of corporal punishment leads to amputation, having a missing "robbery" finger) would shame the criminal-- again deterring others from trying to get away with it. And it would help "us regular folk" to know who the "bad guys" are.

    But my brain, when thinking of civility, and then thinking, "would I want to be flogged? Would I want my children flogged for some stupid drunken mistake, or for having a couple of joints in their car?" It makes it really difficult to reconcile corporal punishment with the visceral feeling that we're physically harming people...

    To which I remind myself, jail is sometimes a far worse punishment, and for some, they don't care about time in jail, they'll go back to doing what they used to do, law be damned-- and then I'm back at zero on what I think.

    I suppose if this could be established as the new way to deal with crime, if everyone knew the rules and accepted them; there'd be no excuse for you doing something that earned you a flogging-- if it's understand that you'd get whipped (and everything that comes with that) and we go all in as a society, I would be on board with this. Obviously we can't just have a powerful majority thinking this is the best way to deal with Americans, while millions oppose it.

  • Alex on May 13, 2011 10:55 AM:

    two typos:
    "if it's underSTOOD"
    and a "powerful MINORITY."

  • chi res on May 13, 2011 12:23 PM:

    No, no, no! Flogging will heal too easily. We need to give 'em something they'll remember.

    Let's cut some fingers off their children's hands every time they commit a crime. The worser the crime, the more fingers we chop off. We could put it on teevee too.

    If they don't have children, we cut the criminals' fingers off. Less effective, but a constant reminder.

  • paul on May 13, 2011 4:09 PM:

    The problem is that the current punishment of prison is considered too harsh for middle-class white people and (clearly) not harsh enough for poor people of any color. I'm not sure lashes would help with that, because anyone with a good lawyer coud hire expert witnesses to get their lashings reduced on the grounds that they were too delicate for the real thing.

    What we need is punishments that we all agree are not to harsh for even middle-class people to endure, so that more middle-class criminals can be punished, and having been convicted of something is not a virtually permanent sentence to the underclass. I think other industrialized countries handle this much better.

    Perhaps sentences should be years without a credit card or a cell phone.

  • Pyre on May 13, 2011 4:58 PM:

    I won't address chi res (who's being satiric), but Alex:

    Has it occurred to you that flogging-scars and amputations share the same defect as executions, versus imprisonment?

    Permanence; irreversibility in the event error (innocence) is later discovered.

    You can open the prison doors again. You can't un-execute, un-flog, or un-amputate.

    Do we have such an error-free justice system that we should remove the eraser from its pencil?

  • Ned on May 13, 2011 5:18 PM:

    Shame is a good idea, if the concept of a community existed for many criminals.

    For community, you need "family" and there are too many broken ones. Actually, that is part of the promise of America - get away from your family and old ways of doing things.

    It's actually rather easy to reduce the prison population - empty death row, either by eliminating capital punishment or by executing those found guilty (maybe make it a little harder to sentence death unless there is more than circumstantial evidence); get rid of all drug laws and release prisoners in jail for that. Put white-collar criminals in half-way houses and make them work....

  • Measure for Measure on May 13, 2011 6:02 PM:

    Writing an entire book about a half-serious, if modest, proposal is a little odd. Personally, I'd prefer to keep the taboo against torture and beatings intact.

    But I think that there may be scope for varying the intensity of punishment. New Jersey had a boot camp program for a few years that saved money. Critics noted that the savings came largely from shorter prison sentences. But what's wrong with that? It seems to me that such a set up is a win-win for the prisoner, the taxpayer and a public that craves retribution.

  • Wm. Posidon, PhD on June 01, 2011 4:07 AM:

    `Tis true that prison is inhumane; it reduces a human down to the level of a caged wild animal (& is inadvertently an insult to the animal kingdom to boot!); plus, if the person is married [& overwhelmingly the prisoner is male] then the wife and children suffer needlessly & mercilessly due to the loss of the husband's income (thus, yet another burden on society). So, yes initially, flogging does seem logical, however if we 'really' wanted to be 100% efficient in lowering crime & depleting the prisons, we could learn from Niccolo Machiavelli (Chairman Mao did). I heard once that China had an intersection where invariably drivers would run the red light and more often than not serious accidents occurred [& blocked traffic for hours - one wonders which was worse!]; the government got involved and posted warning of the death penalty for offenders. This worked for about 8 or 9 days & then things went back to the mess as before. The gov't took things to the next level: right in the middle of the intersection, they had a corpse dangling above the traffic light saying, "We mean business - Have a nice day";...they never had a problem at that intersection again(!). Thus, forget flogging - BRING BACK THE GUILOTINE!!!

  • mh on June 08, 2011 1:32 AM:

    I was robbed recently. It was a non violent crime and the police are certain these people, who used a baby as their cover, have done this before. They stole from me, not just financially. If they are caught, I want them to go to prison. Flogging wouldn't get them off the streets.

  • Steven on October 28, 2011 5:25 PM:

    I am sincerely disturbed by the number of pro-whipping people on here...and this is for N.D.: Why do you think there are still so many recidivists out there? C.P. is still used on tens of thousands of children every year in this country.

    @European: And let's especially take a long hard look at countries like Somalia as well......and for positive solutions, I think we should look to our friends in Scandinivia and much of the rest of Europe. They have it figured out. =)