The Chronicle Review
April 24, 2011
A crazy idea came from a dinner in New Orleans. I had cold-called (or whatever the e-mail equivalent is) a writer and his wife because I was a fan of his work and thought we had much in common. They were gracious enough to arrange a meal and treat me, without much justification, as a professional equal more than a stalker. The conversation turned to corporal punishment in public schools. They were amazed not that such a peculiarity existed in a city ripe with oddities, but that such illegal punishments were administered at the urging of and with the full consent of the students' parents.
"Fascinating," I drolly replied, but I wasn't shocked. If I'd learned one thing as a police officer patrolling a poor neighborhood, it was the working- and lower-class populations' great fondness for corporal punishment. No punishment is as easy or seemingly satisfying as a physical beating. I learned this not because I beat people, but because the good citizens I swore to serve and protect often urged me to do so. It wasn't hard for me to resist (I liked my job, and besides, I wasn't raised that way), but I agreed that many of the disrespectful hoodlums deserved a beating. Why? Because, as the old-school thinking goes, when people do wrong, they deserve to be punished.
For most of the past two centuries, at least in so-called civilized societies, the ideal of punishment has been replaced by the hope of rehabilitation.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.
Incarceration, for adults as well as children, does little but make people more criminal. Alas, so successful were the "progressive" reformers of the past two centuries that today we don't have a system designed for punishment. Certainly released prisoners need help with life—jobs, housing, health care—but what they don't need is a failed concept of "rehabilitation." 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.
Over that New Orleans dinner, as the wine bottles emptied, somebody ruminated, "with consent of the flogged." I said, "in defense of flogging." We paused. If nothing else, all of us agreed it was a hell of a title!
Back home, I mentioned "in defense of flogging" to my editor and his eyes lit up. He told me in no uncertain terms that he was going to publish a book by that name, and I was going to write it. This was 2007, still more than a year before the publication of my first book. And while most young academics would love to have a second book project before they finished their first, I had one great fear: the title. Could it not be Why Prison? or even In Defense of Flogging? But my editor stuck to his guns (and noted that question marks in titles were bad form).
When I started writing In Defense of Flogging, I wasn't yet persuaded as to the book's basic premise. I, too, was opposed to flogging. It is barbaric, retrograde, and ugly. But as I researched, wrote, and thought, I convinced myself of the moral justness of my defense. Still, I dared not utter the four words in professional company until after I earned tenure. Is not publishing a provocatively titled intellectual book what academic freedom is all about?
Certainly In Defense of Flogging is more about the horrors of our prison-industrial complex than an ode to flogging. But I do defend flogging as the best way to jump-start the prison debate and reach beyond the liberal choir. Generally those who wish to lessen the suffering of prisoners get too readily dismissed as bleeding hearts or soft on criminals. All the while, the public's legitimate demand for punishment has created, because we lack alternatives, the biggest prison boom in the history of the world. Prison reformers—the same movement, it should be noted, that brought us prisons in the first place—have preached with barely controlled anger and rational passion about the horrors of incarceration. And to what end? Something needs to change.
Certainly my defense of flogging is more thought experiment than policy proposal. I do not expect to see flogging reinstated any time soon. And deep down, I wouldn't want to see it. And yet, in the course of writing what is, at its core, a quaintly retro abolish-prison book, I've come to see the benefits of wrapping a liberal argument in a conservative facade. If the notion of tying people to a rack and caning them on their behinds à la Singapore disturbs you, if it takes contemplating whipping to wake you up and to see prison for what it is, so be it! The passive moral high ground has gotten us nowhere.
The opening gambit of the book is surprisingly simple: If you were sentenced to five years in prison but had the option of receiving lashes instead, what would you choose? You would probably pick flogging. Wouldn't we all?
I propose we give convicts the choice of the lash at the rate of two lashes per year of incarceration. One cannot reasonably argue that merely offering this choice is somehow cruel, especially when the status quo of incarceration remains an option. Prison means losing a part of your life and everything you care for. Compared with this, flogging is just a few very painful strokes on the backside. And it's over in a few minutes. Often, and often very quickly, those who said flogging is too cruel to even consider suddenly say that flogging isn't cruel enough. Personally, I believe that literally ripping skin from the human body is cruel. Even Singapore limits the lash to 24 strokes out of concern for the criminal's survival. Now, flogging may be too harsh, or it may be too soft, but it really can't be both.
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. We are in denial about the brutality of the uniquely American invention of mass incarceration. In 1970, before the war on drugs and a plethora of get-tough laws increased sentence lengths and the number of nonviolent offenders in prison, 338,000 Americans were incarcerated. There was even hope that prisons would simply fade into the dustbin of history. That didn't happen.
From 1970 to 1990, crime rose while we locked up a million more people. Since then we've locked up another million and crime has gone down. In truth there is very little correlation between incarceration and the crime rate. Is there something so special about that second million behind bars? Were they the only ones who were "real criminals"? Did we simply get it wrong with the first 1.3 million we locked up? If so, should we let them out?
America now has more prisoners, 2.3 million, than any other country in the world. Ever. Our rate of incarceration is roughly seven times that of Canada or any Western European country. Stalin, at the height of the Soviet gulag, had fewer prisoners than America does now (although admittedly the chances of living through American incarceration are quite a bit higher). 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.
If 2.3-million prisoners doesn't sound like a lot, let me put this number in perspective. It's more than the total number of American military personnel—Army, Navy, Air Force, Marines, Coast Guard, Reserves, and National Guard. Even the army of correctional officers needed to guard 2.3-million prisoners outnumbers the U.S. Marines. If we condensed our nationwide penal system into a single city, it would be the fourth-largest city in America, with the population of Baltimore, Boston, and San Francisco combined.
When I was a police officer in Baltimore, I don't think anyone I arrested hadn't been arrested before. Even the juveniles I arrested all had records. Because not only does incarceration not "cure" criminality, in many ways it makes it worse. From behind bars, prisoners can't be parents, hold jobs, maintain relationships, or take care of their elders. Their spouse suffers. Their children suffer. And because of this, in the long run, we all suffer. Because one stint in prison so often leads to another, millions have come to alternate between incarceration and freedom while their families and communities suffer the economic, social, and political consequences of their absence.
Some time in the past few decades we've lost the concept of justice in a free society. Historically, even though great efforts were made to keep "outsiders" and the "undeserving" poor off public welfare rolls, society's undesirables—the destitute, the disabled, the insane, and of course criminals—were still considered part of the community. The proverbial village idiot may have been mocked, beat up, and abused, but there was no doubt he was the village's idiot. Some combination of religious charity, public duty, and family obligation provided (certainly not always adequately) for society's least wanted. Exile was a punishment of last resort, and a severe one at that. To be banished from the community was in some ways the ultimate punishment. And prisons, whether or not this was our intention, brought back banishment and exile, effectively creating a disposable class of people to be locked away and discarded. True evil happens in secret, when the masses of "decent" folks can't or don't want to see it happen.
In being, as a contemporary observer aptly described Newgate Prison, New York's first, "unseen from the world," prisons severed the essential link between a community and punishment. Public punishment and shame became isolation and containment. Without being visible, convicts went from being part of us, the greater community, to a more foreign "them." Now we simply wait for them —the troubled, the unproductive, the unlucky—to break the law. And then we hold them for months and years, again and again, until they age out of violent crime or die. All this because we've taken a traditional punishment such as flogging out of the arsenal. We've run out of choices, choices desperately needed if we're to have any hope of reducing our incarceration rate by 85 percent, back in line with the rest of free world, back to a level we used to have.
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?
Peter Moskos is an assistant professor of law, police science, and criminal-justice administration at John Jay College of Criminal Justice, and teaches at the City University of New York's doctoral program in sociology and at Laguardia Community College. He is a former Baltimore City police officer and author of Cop in the Hood (Princeton University Press, 2008). His book In Defense of Flogging will be published in June by Basic Books.