And so Peter Moskos wants to bring back flogging. Not because he wants to beat prisoners but rather because making the punishment a more unpleasant spectacle for the voters who demand harsh sentences for minor offences might make them reduce their demand for punishment. Moskos proposes allowing convicts to choose two lashes per year of incarceration in lieu of incarceration. He writes:
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?The essay engages and provokes throughout. Moskos argues that incarceration replicates one of the harsher historic punishments - banishment.
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.
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?
I'm pulled to agree with Moskos. But I worry. I worry that the best evidence seems to suggest that prison deters crime mainly through incapacitation - criminals cannot commit crimes except against other criminals while behind bars. There's good evidence for deterrent effects through things like California's three strikes legislation, but incapacitation matters a lot. Longer term crime rates could go down with a switch from prisons to flogging if those committing crimes were better able to maintain a connection to the community and if prisons encourage recidivism. But rates would almost have to increase in the short term: those viewing flogging as much cheaper than a jail term would expect a reduction in the effective expected punishment for a criminal act. I'd hope that Moskos's prescription would maintain the use of prisons as preventative detention for the really scary crazy dangerous cases.
A decade ago I would have worried that reducing the price of punishment experienced by the state would increase the total amount of punishment. If it's expensive to keep a prisoner for a year, the state might be reluctant to put marginal offenders in jail. That's not proven much of a constraint, so I worry rather less about that now.
But I do worry that the mob used to enjoy the spectacle of a public hanging.
There’s a fascination about a hanging, or a good flogging, and the first time I saw a man shot from a gun – at Kabul, that was – I couldn’t take my eyes off it. I’ve noticed, too, that the most pious and humanitarian folk always make sure they get a good view, and while they look grim or pitying or shocked they take care to miss none of the best bits.Bonus points for those who pick the quote without Googling.
I hope men would recoil and think better of a public flogging of a cancer sufferer whose only crime was smoking a weed that stopped his chronic vomiting long enough to let him eat. But an awful lot of people enjoy watching Cops. I worry Moskos might be overly optimistic about the elasticity of public willingness to punish with respect to the unpleasantness of the display. I wonder how many would really be averse to seeing the violence inherent in the system.