. . . Or just skeptical of the justice of the criminal justice system?

Peter Moskos’ new book In Defense of Flogging appears to be less about flogging and more about the failure of the contemporary prison system.

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. We are in denial about the brutality of the uniquely American invention of mass incarceration. 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, 338,000 Americans were incarcerated. There was even hope that prisons would simply fade into the dustbin of history. That didn’t happen.

From 1970 to 1990, crime rose while we locked up a million more people. Since then we’ve locked up another million and crime has gone down. In truth there is very little correlation between incarceration and the crime rate. Is there something so special about that second million behind bars? 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, should we let them out?

America now has more prisoners, 2.3 million, than any other country in the world. Ever. 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 admittedly the chances of living through American incarceration are quite a bit higher). We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do.

The modern prison system, argues Moskos, was designed for rehabilitation but that is exactly what the system does not do: “Incarceration, for adults as well as children, does little but make people more criminal.” Prisons should own up to what they are actually doing, which is not rehabilitating, but rather, punishing, and should consider if there is a cheaper, more honest, and even more humane way of accomplishing this goal. Enter flogging.

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?

Aquinas says that there are two vices opposed to vengeance (i.e., the infliction of evil on one who has sinned): ne by way of excess, namely, the sin of cruelty or brutality, which exceeds the measure in punishing: while the other is a vice by way of deficiency and consists in being remiss in punishing, wherefore it is written (Proverbs 13:24): “He that spareth the rod hateth his son.” (II-II, Q. 108, art. 2, ad. 3). At first glance, flogging seems like a vice of excess in its physical brutality. But by drawing our attention to the fact that most of us would choose to be flogged than go to prison, Moskos makes a compelling argument that prison is actually more excessive, more brutal, and more inhumane than more physical forms of punishment like flogging. If given the choice between five years in prison and five (very painful) lashes, which would you choose? What does your choice say about the justice of our criminal justice system?