In Defense of Flogging

On July 4th, I wrote about the crime problem and its facade of being a path to cheap freedom through easy wealth as the first part of my tribute to Independence Day and our traditions of liberty. My unorthodox tribute was inspired by what I considered a rather shocking story in last week’s news concerning crime in America. Much to my surprise the story took a surprising new twist this week so I now present Part Two of my tribute to the spirit of American independence. (And, no, I am not referring to the Casey Anthony acquittal.)

My point in Monday’s posting was that crime does not buy freedom, quite the reverse. So even though the title, "Where Freedom is Cheap," was referring to the notion that "crime pays" is an illusion, the fact is we live in a country that makes it easier to pursue the promises of the Declaration of Independence than anyplace else in the world. In that sense, freedom is cheap, or at least cheapER, here than anywhere else. The fact that so much more opportunity exists here (relatively speaking) makes it easier for Americans to engage in the Declaration’s ideal of "pursuit of happiness" than anywhere else; Americans by and large can and do pursue their dreams without crime, something that is not true in many other countries. The proofs of this statement are (a) the American labor force has the highest productivity rate in the world and (b) America has by far the smallest underground economy in the world.

Because we have the smallest underground economy, we also have the smallest black market and the smallest underworld. Which is why the article announcing a new book about crime in America was so disturbing. This new book is titled, "In Defense of Flogging," and is authored by Peter Moskos, a college professor in Criminal Justice and a former police officer who has become so disillusioned with the way our system deals with crime and what a mess this has created for our prison system, that he has written this 154 page essay proposing to bring back public flogging as an alternative to prison.

This is not a Jonathan Swift style "modest proposal," nor is it political satire. He is completely serious that a return to public flogging, banned now for well over a century, would solve the prison problem, which has been much in the news lately due to the recent order of the Supreme Court that California release 33,000 of its prisoners to alleviate the severe overcrowding there. He advocates Singapore-style punishment – publicly administered ten strokes with a rattan cane on the bare as an option to prison sentences up to five years. Since prison has become so horrible, he argues that this is not inhumane when compared to the horrors of prison where inmates live in squalor and are routinely assaulted. That’s his argument: how is this possibly inhumane compared to prison?

His plan calls for it to be voluntary so no one can complain about it being cruel. And why would any convicted felon not want this option? Given the choice between a two minute whipping or five years in prison, how many will really choose prison? He predicts that it would immediately relieve the overcrowding problem and then force prison officials to clean up the whole rotten mess.

This is one of the most poorly thought out proposals that I’ve ever read in my life. There are so many problems with it I don’t even know where to begin. But the most shocking part, and the reason I’m writing about it, is because there are already a slew of reviews from respected journalists all over the Internet and, liberal and conservative alike all agree on two things: they all thought the idea absurd at first glance BUT, after reading the book, suddenly agree that it would be a really good idea to bring back public flogging. And an online poll at The Huffington Post shows a full 2 to 1 public majority in favor of the idea.

It is my position that the author lacks credentials on this issue and that his proposal ignores major problems that would likely result if such an absurd policy were to be adopted. For instance, what happens to an unsuspecting society when all these felons get tossed back on the streets after a public whipping? Would they be rehabilitated or would they just go back to crime? Are ten lashes enough? Does that really correlate to a crime that draws a five year sentence? In Singapore, they give six lashes just for misdemeanors. They also use public flogging as punishment for things that aren’t even crimes in America. In some countries (i.e. the Middle East), 40 lashes are routinely given to teenaged girls for just holding hands in public. Where is the sense of proportion? In this country some felons get as little as five years for manslaughter. Sometimes even murder is plea-bargained down to manslaughter. Are we going to send the message that you can kill someone and the penalty could be just a whipping? Where is the evidence that any of this would work? Is there ANY evidence that any of this would work?

Moskos answers all of the above with one simple response: he has no idea and what difference does it make anyway? Whatever happens, it cannot possibly be any worse than what we have now. And if you judge by the reviewers and the public poll, it seems most people think it couldn’t possibly have anything other than a positive effect. This is a rather large assumption that has no basis in fact.

Mr. Moskos is simply replacing one form of brutality with another without making any attempt to address the root causes. What’s so disturbing about this is that he seems to be aware of what the root causes are but has become so disillusioned that he no longer believes there’s anything to be done about it except for his proposal. I agree with his assessment of the causes. It’s true: the U.S. has seven times the incarceration rate of any other country in the world, worse even than China, worse even than Russia! Why? Well, contrary to what Moskos says, it’s not because we have more crime. Quite the contrary.

We have more prisoners for the simple reason that our law enforcement is so effective that we actually catch more of our criminals than other countries do. Other countries have fewer prisons for the simple reason that most of their criminals are not in prison. The criminals, specifically the underworld bosses, control the country and control law enforcement.

But Moskos does state two root causes that I completely agree with. Our outrageous incarceration rates are the result of two failed policies: (1) we have a hugely disproportionate number of felons who are in prison because of non-violent drug offenses, for which more constructive options than prison could certainly be made available. (2) The enormously politically popular "three strikes and you’re out" laws have exploded our prison rolls with a large percentage of lifers, many of whom are guilty of nothing more than habitual shoplifting or being caught with some marijuana. The "three strikes" laws have completely disenfranchised judges from exercising any discretion in the sentencing of non-violent offenders. (I’m not at all sure why the Supreme Court has never struck down these laws as unconstitutional.) But we don’t have more people in prison because we have more crime. We have more people in prison because we have more crimes that aren’t crimes elsewhere.

Moskos has given up on trying to change these laws and advocates public flogging as a quick and easy fix. Why has he given up? It is ironic that we are celebrating the anniversary of our liberties while at the same time proclaiming so little faith in the powers those liberties confer upon us. Of course, these laws can be changed. We the People have the power to change any laws we wish through our elected representatives, and a variety of other courses as well. That is exactly what we celebrate every July 4th. Nothing is impossible in the U.S.A. as long as we have the will to do it. But if we’ve lost faith in our own powers - well, isn’t that the real problem?

How absurd that on this of all weeks a book calling for a return to the archaic tradition of public flogging has become all the rage on the Internet, all because the author has lost faith in the powers each American has to solve our problems. How disturbing that it is the overwhelming consensus of the People (if you believe polls that is) that this book is on to something. Why has no one even questioned the fact that Moskos has no credentials whatsoever in penalogy? He may be serious about what he proposes. I’m quite certain his publisher is just out to make a buck.

So I am writing this as my concluding remarks to my 4th of July tribute. We need to be celebrating our powers as "We the People" and then exercising those powers through active citizenship, not throwing our hands up in frustration and celebrating a new book that turns the clock back 150 years with the promise of solving our problems with public floggings.