In Defense of Flogging
Page 1
Table of Contents
ALSO BY
Title Page
Dedication
Acknowledgements
NOTES
INDEX
Copyright Page
ALSO BY
Peter Moskos
Cop in the Hood: My Year Policing Baltimore’s Eastern District
To my father, Charles Moskos, who always loved a crazy idea
You’re about to get whipped. Mentally more than physically. It’s going to hurt—but it’s supposed to. Flogging is a series of hard, cracking lashes intended to cause jolting pain. Once the experience is over, you’ll never be the same.
I write in defense of flogging, something most people consider too radical for debate, not worthy of intellectual discussion. But please, don’t put down this book and move on, upset that I even broached the subject. If that’s your temptation, bear with me for just a bit longer. 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. And that, ultimately, is my goal. There are 2.3 million Americans in prison. That is too many. I want to reduce cruelty, and flogging may be the answer. My opening gambit is simple: Given the choice between five years in prison and ten brutal lashes, which would you choose?
I won’t dispute that flogging is a severe and even brutal form of punishment. Under the lash, skin is literally ripped from the body. But very little could be worse than years in prison—removed from society and all you love. Going to prison means losing a part of your life and everything you care for. Compared to this, flogging is just a few very painful strokes on the behind. And it’s over in a few minutes. If you had the choice, if you were given the option of staying out of jail, wouldn’t you choose to be flogged and released? Think about it: five years hard time or ten lashes on the behind? You’d probably choose flogging. Wouldn’t we all?
Having to make this choice isn’t as abstract as you may think. After all, who hasn’t committed a crime? Perhaps you’ve taken illegal drugs. Maybe you once got into a fight with a friend, stranger, or lover. Or you drove back from a bar drunk. Or you clicked on an online picture of somebody who turned out to be a bit young. Maybe you’re outdoorsy and were caught hunting without a permit. Or maybe you’re a boss who knowingly hired illegal immigrants. Perhaps you accepted a “gift” from a family member and told the IRS it was a loan. Or did you go for the white-collar big leagues and embezzle millions of dollars? In truth, you may be committing some crimes you don’t even know about. If your luck runs out, you can end up in jail for almost anything, big or small. And even if you’re convinced that you’re the most straitlaced, law-abiding person in the world, imagine that through some horrific twist of fate, you were accused of a crime. It’s not inconceivable; it happens all the time.
We send thousands of people to jail and prison every day, and each one experiences something similar to this. Imagine you’re in court, even though you never expected to be in this position. Maybe things got out of hand and one thing led to another, or maybe you’re even innocent. No matter, because now you’re standing in court, behind the defense table, looking up to the judge. He (because this isn’t a TV show, the judge will probably be a white man) looks at you tiredly, says “guilty,” sentences you to five years in prison, says a few more words, and bangs his gavel. You’re in shock. Your lawyer shrugs, trying to look sympathetic. But he doesn’t seem nearly as bothered as you are. You try to ignore the sobs of your family as a court officer cuffs your hands behind your back.
You’re guilty as charged. So whether you did it or not—it strangely doesn’t matter anymore—you’re officially a criminal. Five years in prison is a long time. Where were you five years ago? Perhaps you’ve accomplished a lot in the past half-decade. Perhaps you had ambitious plans for the next five years. Whatever your plans were, they’re not going to happen now. Before they lead you out the back of the courtroom to a holding room, you seriously ponder many things about prison you’ve tried hard to avoid. Your lover or spouse may leave you (or at least have an affair). Whatever you’re needed for, you’re not going to be there. If you have kids, they’re going to miss you, and be missed by you. Over the coming years, will your friends visit? And if they don’t, what can you do? There’s a very good chance that, when you emerge after your time is up, you’re going to be alone and unemployed.
Taking away a large portion of somebody’s life through incarceration is a strange concept, especially if it’s rooted not in actual punishment but rather in some hogwash about making you a better person (more on that later). But what about prison itself? Prison is first and foremost a home of involuntary confinement, a “total institution” of complete dominance and regulation. It’s a very strange home indeed that holds 2.3 million people against their will. But what is it like? Will you have to learn prison lingo? Will you be forced to wear funny striped pants and make friends with characters like the Birdman of Alcatraz? No, of course not. That was years ago, and a movie. But what’s it like today? Are there drugs, gangs, and long times in solitary? Will you come out stronger—or broken? Will you be raped? Hopefully it’s not like the brutal TV show Oz? God, you hope not. But you don’t know. And that’s the rub. Prison is a mystery to all but the millions of people forced to live and work in this gigantic government-run detention system. And as long as we don’t look at what happens on the inside, as long as we refuse to consider alternatives, nothing will change.
Is flogging still too cruel to contemplate? If so, given the hypothetical choice between prison and flogging, why did you choose flogging? Perhaps it’s not as crazy as you thought. And even if you’re adamant that flogging is a barbaric, inhuman form of punishment, how can offering the choice be so bad? If flogging were really worse than prison, nobody would choose it. So what’s the harm in offering corporal punishment as an alternative to incarceration? But of course most people would choose to be caned over being sent to prison. 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?
If you think the choice between flogging and prison is a false choice, that there should be a third option, go right ahead and propose it. Perhaps there is another way—neither incarceration nor flogging—that punishes the guilty, provides the convicted with a halfway decent chance of a future, expresses society’s disapproval, and satisfies a victim’s sense of justice. It’s possible, but I doubt it. Do not let eternal optimism damn the future.
Prisons don’t work, but unfortunately neither does traditional opposition to them. Without more radical debate, preachers for prison reform will never be heard beyond the choir. There is no shortage of ideas on such things as rehab, job training, indeterminate sentencing, restorative justice, prison survival, and reentry. A search for “prison” books on Amazon.com yields 23,000 results (and almost none are pro-penitentiary). By contrast, a similar search for “flogging” reveals 247 books (and most are about sex). There are many, many books out there about the evils of prison—and to what end? Over the past decades reformers have preached with rational passion and barely controlled anger about the horrors of prison growth; all the while, the government has not so quietly built the largest prison system the world has ever seen.
If we wish to punish criminals, and we do, flogging a man—shaming him and hurting him briefly—is better than the long-term mental torture of incarceration. Over the past two centuries, flogging has gradually disappeared from our criminal code. Although sixty years have passed since the last legal judicial flogging in America, corporal punishment has a long history in American criminal justice.
Many undoubtedly see the demise of flogging as a sign of pro
gress—the end of one more barbarity. Flogging may indeed be barbaric, but maybe barbarism has a bad rap. To the ancient Greeks, after all, barbarians were just foreigners who talked funny: “Bar-bar-bar!” Athenians howled, politically incorrect before their time. Similarly, my defense of flogging may sound barbaric and otherworldly to modern Western ears. But barbaric or not, if we don’t discuss flogging, we’re stuck with something far worse. In the world of punishment, we’re lost; it’s time to admit as much and ask directions. For now, let’s at least backtrack from this horribly mistaken journey we’ve taken into the Bizarro World of mass incarceration.
I don’t want to add caning to an already brutal system of prison; instead, I propose an alternative to incarceration, what might be called “flog-and-release.” Deciding between prison and the lash is truly a choice between the lesser of two evils, but at least it is a choice. No matter what you would choose, if you would want that choice for yourself, why, in the name of compassion and humanity, would you deny that choice to others?
So no, in case you were wondering, this discussion of flogging won’t be anything kinky. Outside of an intellectual game, more thought experiment than policy proposal, there’s very little pleasure here. My intention is to shock the elite and shake up the debate. My argument is painful and meant to be, but I hope we’ll have some fun along the way. And if you’re not careful, you may learn something before it’s done. Allow me to defend flogging.
Let’s return to your day in court. Before you’re led out of the courtroom, the judge calls for order and offers you the flogging option. “Five years or ten lashes,” he says. If you choose flogging, an appointed state flogger will cane you immediately. Ten lashes, a little rubbing alcohol, a few bandages, and you’d be free to go home and sleep in your own bed. No holding cell. No lock-up. A quick and painful caning, and you’ll be on your way. Would you choose years in the joint over a brief punishment, however cruel? Before you started reading, you probably couldn’t imagine wanting to be flogged. But now, I assume, to avoid prison, you’ve chosen it for yourself. Though it’s strange to conceive of being sentenced to a legal flogging, you can probably imagine what it would be like to be caned. Hopefully you’ve never seen anybody flogged or experienced this personally, but it’s not hard to imagine the process.
Consider the case of Aaron Cohen, a New Zealander arrested with his drug-addicted mother for possessing heroin in Malaysia. His mother was sentenced to death and Aaron was sentenced to six lashes plus life in prison. Ultimately, in 1996, five years after Aaron was flogged, his mother’s life was spared, and they were both released. In a magazine interview, Aaron described being flogged:I got six. It’s just incredible pain. More like a burning—like someone sticking an iron on your bum. . . . Afterwards my bum looked like a side of beef. There was three lines of raw skin with blood oozing out. . . . . You can’t sleep and can only walk like a duck. Your whole backside is three or four times bigger—swollen, black and blue. I made a full recovery within a month and am left with only slight scarring. Emotionally, I’m okay. I haven’t had any nightmares about that day, although I’m starting to dream about the prison.
The actual flogging I propose is based on the Singapore and Malaysian models, but it’s different in several important ways. Once you consent to be flogged—a luxury you don’t have in Singapore or Malaysia—you’d be led into a room where an attending physician would conduct an examination to make sure you’re physically fit enough to be flogged, that you won’t die under the intense shock of the cane. The punishment would not be a public spectacle but would not be closed to the public. There would be perhaps a dozen spectators, including bailiffs and other representatives of the court, a lawyer, a doctor, perhaps a court reporter, and maybe a few relatives of both parties, including the victim. After the doctor’s approval, a guard would tie your arms and legs to a trestle-like whipping post designed specifically for this purpose. This strange piece of furniture resembles a large and sturdy wooden artist’s easel, but in place of a painting or canvas, you would be tied somewhat spread-eagle to the front. Once the guard takes down your pants and adds a layer of padding over your back (to protect vital organs from errant strokes), the flogging would begin. An expert trained in the use of the cane would lash your rear end for the prescribed number of times. This flogging description from a Singapore newspaper captures the quick brutality of the procedure:When caning, a warder, wielding a half-aninch-thick and four-feet-long cane, uses the whole of his body weight, and not just the strength of his arms, to strike. As a result the skin at the point of contact is usually split open and, after three strokes, the buttocks will be covered with blood. All the strokes prescribed by the court . . . are given at one and the same time, at half minute intervals. . . . .
The stroke follows the count, and the succeeding count is usually made about half a minute after the stroke has landed. Most of the prisoners put up a violent struggle after each of the first three strokes. Mr. Quek [the prison director] said: “After that, their struggles lessen as they become weaker. At the end of the caning, those who receive more than three strokes will be in a state of shock. Many will collapse, but the medical officer and his team of assistants are on hand to revive them and apply antiseptic on the caning wound.”
Your ten strokes would be over in about five minutes. My defense of flogging gives you a minute for every year you would otherwise have served in prison. You’ll likely be in shock and perhaps even unconscious as the doctor treats the deep, bloody furrows left in your behind. Then, once they’ve patched you up, you’d be allowed to leave the courthouse a free man—no striped pajamas, no gangs, no learning from other criminals, no fear. You’d never have to find out what the inside of a prison is like.
If that deal seems too good to be true, well, at least we’ve moved beyond the facile position that flogging is too painful or cruel to consider. Indeed, if you think that someone subjected to this punishment is getting off too easy—that a man with five years left to serve should not be freed after submitting to only ten brutal, skin-bursting, scarcreating lashes—if that’s your reaction, then consider this: It would be ironic (actually quite disturbing) if prisons were to remain as they are precisely because of their unparalleled cruelty.
If, however, you think I’m a monster for even hypothetically considering flogging, think of this worse reality: 2.3 million Americans already live behind bars. That’s more than 1 percent of our entire adult population. And if that doesn’t sound like a lot, let’s put this number in perspective. At a sold-out baseball game in Chicago, forty-one thousand people can watch the Cubs at Wrigley Field. Two-point-three million is more than fiftysix sold-out ballgames. Two-point-three million is roughly 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 US Marines. If we condensed our nationwide penal system into a single city, it would be the fourth largest city in America, with a population greater than Baltimore, Boston, and San Francisco combined.
America now has more prisoners than any other country in the world. Ever. In sheer numbers and as a percentage of the population. 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 the chances of living through US incarceration are quite a bit higher). Despite our “land of the free” motto, we deem it necessary to incarcerate more of our people than the world’s most draconian regimes. Think about it: We have more prisoners than China, and they have a billion more people than we do.
It didn’t used to be this way. 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, we incarcerated 338,000 people. There was even talk of abolishing prison altogether and the hope that prisons would be left on the ash heap of history. But that didn’t happen. The prison-abol
ition movement seems to have died right after a 1973 Presidential Advisory Commission said, “No new institutions for adults should be built, and existing institutions for juveniles should be closed,” and concluded, “The prison, the reformatory and the jail have achieved only a shocking level of failure.” Since then, even though violent crime in America has gone down, the incarceration rate has increased a whopping 500 percent.
Some have linked this drop in crime to the increase in prisons. To oversimplify a bit, if more muggers are behind bars for longer periods of time, they can’t mug you as much. Granted, if everybody were in prison, there would be no crime on the street. But this extreme, appealing though it may be for its logical simplicity, fails for several reasons. Between 1947 and 1991 the prison population increased from 259,000 to 1.2 million. During this time the homicide rate nearly doubled, from 6.1 to 10.5 per hundred thousand. Today the homicide rate is back to where it was in 1947—and yet now we have two million more people behind bars than we did then. Even if prison were responsible for some of the recent crime drop, we’re not getting much bang for the buck.
To understand the uselessness of incarceration—to appreciate just how specious the connection between increased incarceration and decreased crime really is—consider New York City. Not only did New York drastically cut crime, it did so while incarcerating fewer people. New York has seen the most significant crime drop of any big city in America: real, substantial, sustained, and, over the past two decades, twice the national average. In 1990 there were 2,245 murders in New York City. In 2010 there were 532. During this period of decreasing crime—and while the city’s population increased by more than a million people—the number of incarcerated New Yorkers actually decreased by eleven thousand. Less crime should equal fewer prisons. This seems obvious, but it’s not the case in the rest of the nation. Had New York followed national patterns and increased its incarceration rate by 65 percent, the city, with an additional fifty-eight thousand prisoners, may very well have bankrupted the state. To incarcerate that many more people from New York City would cost roughly $2 billion per year, nearly doubling the size and cost of the entire state’s Department of Corrections.