No Comment, Six Questions — July 21, 2011, 1:59 pm

In Defense of Flogging: Six Questions for Peter Moskos

Peter Moskos, a former Baltimore policeman who now serves as a professor at John Jay College of Criminal Justice in New York City, is disgusted with the nation’s prison system. His novel solution: bring back flogging. He argues that the tactic could help reduce the prison population, the recidivism that jail breeds, and the cost of running the world’s most expensive and least effective prison system. I put six questions to Professor Moskos about his new book, In Defense of Flogging:

1. You make a case for flogging as a substitute for confinement. Explain what form flogging would take and how, in your model, it would be factored into sentencing?


I propose giving a choice for people to receive a flogging in lieu of jail or prison time. My goal is to be more humane. Given the choice between ten lashes and five years in prison, who wouldn’t choose the lash? I know I would. Because flogging would happen only with the consent of the flogged, it would be hard to argue that it’s too cruel to consider. If the choice were so bad, nobody would choose it.

I think one lash for every six months of potential incarceration is a fair deal. Some people say flogging isn’t harsh enough. Others say it may be too soft — though I really hope we haven’t reached the point in our society where whipping is considered too light a punishment.

The actual flogging would be done as it is in Singapore and Malaysia, where it involves tying a person down, spread-eagled, on a large structure, pulling down his or her pants, and flogging the bare behind with a rattan cane. Make no mistake: it’s painful and bloody. It’s not a gentle spanking. But the process is over in a few minutes. Then a doctor can tend to the wounds and the person can go home.

I think merely presenting the choice helps us question the purpose of prison, and suggests how destructive incarceration is for the individual and society. It’s worse than flogging.

2. In 1850, Herman Melville wrote: “We assert that flogging in the navy is opposed to the essential dignity of man, which no legislator has a right to violate; that it is oppressive, and glaringly unequal in its operations; that it is utterly repugnant to the spirit of our democratic institutions; indeed, that it involves a lingering trait of the worst times of a barbarous feudal aristocracy; in a word, we denounce it as religiously, morally, and immutably wrong.” Soon afterward, the publisher of Harper’s sent a copy of Melville’s screed to every member of Congress, which subsequently banned naval flogging. What did Melville and Harper’s get wrong?

The problem — and our shame — is that prisons, though never designed for this purpose, have become the only way we punish. In an ironic twist, we designed the prison system to replace flogging. The penitentiary was supposed to be a kinder and gentler sentence, one geared to personal salvation, less crime, and a better life for all. It was, in short, intended to serve the function of a reformatron. Needless to say, it didn’t work….

Before we had prisons, harsh confinement was used alongside corporal punishment. But such incarceration generally had another purpose, such as holding a person until trial, or until a debt was paid. Confinement was a means to an end: People weren’t sentenced to confinement; they were held until something else could happen.

—From In Defense of Flogging. Reprinted by permission of Basic Books, © 2011 Peter Moskos.

Keep in mind that Melville was focused specifically on flogging aboard Navy ships, because they were free from judicial oversight. After Congress banned naval flogging, the practice continued as criminal punishment for another hundred years. Today, most of Melville’s arguments against punishment — that it is arbitrary, ineffective, and unequally applied to rich and poor — would be better applied to prison.

Certainly Melville believed that flogging was morally abhorrent, and he may have been right. But nowadays flogging is the lesser of two evils. I’m not so much pro-flogging as pro-choice. How else are we going to reduce our prison population by 85 percent? That’s what we would need to do to get back in line with the rest of the civilized world.

I can only hope the current publisher of Harper’s will send a copy of my anti-prison screed to every member of Congress today. I’m no Melville, so I doubt my book would cause lawmakers to ban anything. But banning prison, except for the most dangerous recidivists, is precisely what we need to consider.

3. You give physicians a role in the process, saying that no one should be flogged unless a doctor has confirmed that he is up to taking the lashes. But doesn’t this put a participating physician in an ethical quandary? Most medical ethicists now agree, for instance, that attending and supervising an execution by injection is inconsistent with a doctor’s ethical duties.

One obvious difference is that flogging is not a death sentence. And unlike at an execution by lethal injection, the doctor at a flogging would not potentially be participating in the punishment. A better analogy would be a physician’s presence at a boxing match. If somebody consents to being battered, the least a doctor can do is tend to the wounds. While this role may not suit all physicians, some are happy to do the work.

I think most ethicists would have a tough time defending the status quo of incarceration. And yet doctors continue to treat prisoners (as they should) — in the process perpetuating a penitentiary system that, at least in California, is unconstitutional precisely because of its horrible medical care. Calls for improving prison conditions, while essential, tend to miss the big picture. We really need to be working toward the abolition of this horribly peculiar institution. But to succeed, we will need alternative forms of punishment.

4. Some claim that increased incarceration has contributed to a drop in crime. If that’s so, and if the prison population were to decrease as much as you propose, wouldn’t the public be jeopardized?

Flogging is indeed very harsh, but it’s not torture — not unless all corporal punishment is defined as torture. Indeed, to conflate flogging with torture does a grave disservice to the understanding of both. It is not only the physical act that defines torture but also the context, the psychological underpinnings, the lack of consent, and the open-ended potential. The US government has tortured people with euphemistically named “enhanced interrogation techniques.” This torture is not so much a punishment as a means to an end. This is not flogging.

—From In Defense of Flogging. Reprinted by permission of Basic Books, © 2011 Peter Moskos.

Let’s debunk the notion that the drop in crime is due to incarceration. In truth, there is very little correlation between incarceration and the crime rate. Between 1970 and 1990 the total prison population in the U.S. rose by a million, and crime rose, too. Since then we’ve locked up another million, and crime has gone down. Is there something 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 we locked up? If so, can we let them out?

This mess was not inevitable. We have seven times as many prisoners today as we did in 1970. We certainly do not have seven times as many criminals. Incarceration is less an effect of crime than of longer sentences and the war on drugs. Have we still not learned the lessons of prohibition?

We have more prisoners than soldiers, and more prison guards than U.S. Marines. We have more prisoners — by rate and number — than any other country in the history of the world: more than Stalin had at the height of the Soviet Gulag, and more than China has now. And China has a billion more people than we do! Something has gone terribly wrong.

I agree that some offenders usually need to be locked up — pedophiles, terrorists, serial rapists, murderers — but there aren’t very many of these people. And they need to be incarcerated because we have reason to fear them. For most other crimes, flogging would be better. Arresting a drug dealer, for instance, does not reduce drug use. It simply creates a job opening.

Incarceration can actually increase crime. We know that the children of incarcerated parents — and we’re dealing with well over a million such children — are more likely to become criminals. We also know that people who do time are more likely to commit crimes when they get out, and that 95 percent of prisoners are released. I believe crime has decreased not because of our massive level of incarceration, but despite it.

This gets to the core issue of prisons: they fail at their basic mission of “curing” the criminal. We need to abandon the utopian ideal that prison is good for the soul. What could be a worse environment for rehabilitation than years of confinement surrounded by a bunch of criminals?

We need to give criminals the resources they need to lead non-criminal lives. But giving housing, jobs, education, and health care to ex-convicts is a tough sell, especially when we don’t even give these essentials to non-criminals.

Without rehabilitation — which most prisons don’t even pretend to attempt — we’re left asking the basic question “Why prison?” The answer is always deterrence and punishment. Well, there’s no reason to think flogging would be any less of a deterrent than incarceration. And prisons don’t punish well, at least not relative to the amount we spend on them. Could we not spend the current $30,000 per year per prisoner more productively?

Admittedly there may be other, better ways to punish — methods that involve neither prison nor flogging. I certainly hope so. But as it stands, we’re stuck with prisons because we lack alternatives. Harsh as it may be, flogging is more humane, less destructive, and much cheaper than what we have now.

5. You propose flogging as an antidote to the prison industry. To what extent do you believe the decision to create and expand the for-profit prison industry has influenced the current bizarre dynamic, in which violent crime continues to fall but the prison population continues to grow?

Private prisons are a small but conspicuous sign of everything that has gone wrong. Ironically, they also fail at their basic mission of saving money. Sometimes they cost a bit less than government-run facilities, but this is usually because they hold lower-risk criminals, or immigrants who may not be criminals at all. Their profits come from paying lower wages. If one were to take the profits of the largest private-prison company and divide them among its workers, its guards would be making union wages.

These companies maximize shareholder profits via literal human bondage. This is a legacy of slavery, and it’s wrong. They also often build prisons with an “if you build it they will come” philosophy. In a calculated and immoral attempt to increase incarceration, they have even lobbied for, and in some cases actually drafted, “get tough” laws in various states. The Arizona anti-immigration bill comes to mind. On the plus side, because private prisons operate on a contract basis and hire non-union labor, they can be much easier to close. But generally they find ways to fill their bunks.

These private prisons are just one cog in the greater prison–industrial complex. States without private prisons usually have stronger correctional officers’ unions, which equate prisoners with job security. Try closing a prison and watch the resistance.

It’s to our shame that we’ve let prisons become a government-run make-work program. Personally, I have nothing against jobs programs — think of all the good the WPA did in the 1930s and 1940s. But back then we paid workers to build productive infrastructure. Now we pay poor rural whites to guard poor urban blacks.

6. Do you think flogging, as you recommend it, would withstand scrutiny under the U.S. Constitution, particularly in view of Justice Antonin Scalia’s suggestion in a 1988 address that he would oppose it?


There’s little that scares me more than the thought of being to the right of Antonin Scalia! But I actually agree with him on this one. Sentencing criminals to flogging would violate the Eighth Amendment’s prohibition of cruel and unusual punishment (though right now the practice is not prohibited, because the Court has never explicitly banned it). My purpose, however, is not to defend flogging. It’s to offer it as an option. And it’s hard to see how such a choice could be unconstitutional. With consent, an accused person could waive his rights in a plea agreement, in exactly the same way that those in the docket can wave their constitutional right to trial by jury.

The real shame is that incarceration hasn’t been banned by the Court. Nothing could be crueler. I only hope I live to see the day it is defined as unusual.

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