Suggest adding the whipping post to America’s system of criminal justice and most people recoil in horror. But offer a choice between five years in prison or 10 lashes and almost everybody picks the lash. What does that say about prison?
America has a prison problem. Never in the history of the world has a country locked up so many of its people. We have more prisons than China, and it has a billion more people than we do. Forty years ago America had 338,000 people behind bars. Today 2.3 million are incarcerated. We have more prisoners than soldiers. Something has gone terribly wrong.
The problem — mostly due to longer and mandatory sentences combined with an idiotic war on drugs — is so abysmal that the Supreme Court recently ordered 33,000 prisoners in California to be housed elsewhere or released. If California could simply return to its 1970 level of incarceration, the savings from its $9 billion prison budget would cut the state’s budget deficit in half. But doing so would require the release of 125,000 inmates, and not even the most progressive reformer has a plan to reduce the prison population by 85 percent.
I do: Bring back the lash. Give convicts the choice of flogging in lieu of incarceration.
Ironically, when the penitentiary was invented in post-revolutionary Philadelphia, it was designed to replace the very punishment I propose. Corporal punishment, said one early advocate of prisons, was a relic of “barbarous” British imperialism ill-suited to “a new country, simple manners, and a popular form of government.” State by state, starting with Pennsylvania in 1790 and ending with Delaware in 1972 (20 years after the last flogging), corporal punishment was struck from the criminal code.
The idea was that penitentiaries would heal the criminally ill just as hospitals cured the physically sick. It didn’t work. Yet despite — or perhaps because of — the failures of the first prisons, states authorized more and larger prisons. With flogging banned and crime not cured, there was simply no alternative. We tried rehabilitation and ended up with supermax. We tried to be humane and ended up with more prisoners than Stalin had at the height of the Soviet Gulag. Somewhere in the process, we lost the concept of justice and punishment in a free society.
Today, the prison-industrial complex has become little more than a massive government-run make-work program that profits from human bondage. To oversimplify — just a bit — we pay poor, unemployed rural whites to guard poor, unemployed urban blacks.
Of course some people are simply too dangerous to release — pedophiles, terrorists and the truly psychopathic, for instance. But they’re relatively few in number. And we keep these people behind bars because we’re afraid of them.
As to the other 2 million common criminals, the 2 million more than we had in 1970, we can’t and won’t keep them locked up forever. Ninety-five percent of prisoners are eventually released. The question is not if but when and how.
Incarceration not only fails to deter crime but in many ways can increase it. For crime driven by economic demand, such as drug dealing, arresting one seller creates a job opening for others, who might fight over the vacant position.
Incarceration destroys families and jobs, exactly what people need to have in order to stay away from crime. Incarcerated criminals are more likely to reoffend than similar people given alternative sentences. To break the cycle of crime, people need help. And they would need less help if they were never incarcerated in the first place.
Flogging, as practiced in Singapore or Malaysia, is honest, cheap and, compared to prison, humane. Caning succeeds in part simply because it is not incarceration. Along with saving tens of billions of dollars a year, corporal punishment avoids all the hogwash about prisons somehow being good for the soul.
Some would argue that flogging isn’t harsh enough. While this moves beyond the facile belief that flogging is too cruel to consider, if flogging shouldn’t be offered because it’s too soft — if we need to keep people locked up precisely because overcrowded jails and prisons are so unbelievably horrific — then perhaps we need to question our humanity.
Is there a third way, something better than both flogging and prison? I hope so. But until we figure out what that is and have the political fortitude to adopt it, we should not let the perfect be the enemy of the good. Flogging may be distasteful, but surely there’s little harm in offering the choice. If it takes a defense of flogging to make us face the truth about prison and punishment, I say bring on the lash.
Peter Moskos, the author of “In Defense of Flogging,” is an assistant professor of law and police science at John Jay College of Criminal Justice and is on the faculty of the City University of New York’s doctoral program in sociology.