. . . 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?
“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?”
I am not sure, though I do not think five lashes would be the same as five years in prison. 30 – 50 lashes with an implement would be typical of a higher punishment, I would think. Witness the calendar of the captain of the U.S.S. Constitution – http://www.polkcounty.org/timonier/calendar/aug.html:
“Private John Fording court martialled for sleeping on post and awarded
50 lashes; Private Samuel Peacock court martialled for mutinous and
seditious conduct and awarded 100.”
“A Marine given 12 lashes for mutinous conduct.”
“A man given 12 lashes for insolence.”
It may be that people would choose flogging because, while they can imagine what incarceration would be like, they have no idea of the amount of pain incurred by a flogging, nor the physical scarring caused by it. Such a punishment would come close to torture, it seems to me.
Jonathan, I chose 5 for continuity sake, but you’re right that most of the time people are flogged many more than five times. And flogging as it currently exists even today in places like Singapore is incredibly violent and, as you say, “close to torture.” Again, the question about which you would rather have, incarceration or torture, is really more of a rhetorical question meant to get you to think about how “close to torture” incarceration may also be in our current system.
Thanks for this it is certainly thought provoking. But the book also seems to assume punishment as a model for the way that we treat crime, rather than rehabilitation. While I would acknowledge the failure of the current system, it still seems that we shouldn’t slip so easily into punishment. And certainly not all imprisonment is punishment related, even if most of it is.
Also, the argument from Moskos really just smacks of Foucault’s _Discipline and Punish_. Do you have a sense of what he thinks of Foucault? Does he intentionally draw from him??
I think Moskos is not arguing that we should reduce the purpose of the criminal justice system solely to punishment. Rather, I think he is trying to satirically reveal how poorly our current system does at “rehabilitation.” What we call rehabilitation (extensive incarceration) is much more of a punishment than traditional forms of punishment like flogging. But you are right–our failure at rehabilitating need not mean we stop trying to rehabilitate better in the future.
I don’t know what he thinks of Foucault. The book isn’t out yet, but maybe I will do a follow-up when it becomes available.
I think a post on treatment of crime, particularly retribution versus rehabilitation, would be very interesting. There seems to be an assumption in Christian circles that rehabilitation is the primary goal. However, while it is one goal (if possible), the CCC statement on punishment is definitely broader and gives priority to a different aim:
“The efforts of the state to curb the spread of behavior harmful to people’s rights and to the basic rules of civil society correspond to the requirement of safeguarding the common good. Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people’s safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party.” – 2266
We actually have a contributor, Kathryn Getek Soltis, who would be well qualified to do such a post. Maybe I can encourage her to do a more informed response to this rhetorical post!
I would be very interested in her thoughts, as well! See if this post lures her out….
Actually, Jonathan and Beth, in theological (and other, including criminological) circles more attention is being given to restorative justice, which can encompass the other types you’ve mentioned, including restitution (which I think is referred to rather than retribution in such circles these days) and possibly even reconciliation (John Paul II’s speeches and writings on mercy, forgiveness, and justice can come into play here too). In these ways, attention is given to the wronged (society as well as the victim) and to the wrongdoer (the perpetrator), with the goal of restoring all involved. Of course, this does not always mean that all wrongdoers are allowed to be released from incarceration back into society. Here, however, is where work is being done by some theologians (myself included) and others on coming up with creative new ways to provide, for example, a real life for even lifers (thus, following up on a memo John Howard Yoder provided me before his death, I am using the cities of refuge/sanctuary in the Hebrew scriptures as possibly fertile soil upon which to construct equivalents today).
That is a good thing to hear. As a regular reader of the Mirror of Justice blog and someone with a passing interest in punishment theory (even going so far as amateur jottings), I have encountered some of the writings of Marc DeGirolami, Paul Robinson and John Darley. I especially recommend the writings of Robinson and Darley on empirical desert (as well as less academic writings of those like C.S. Lewis).
I just stumbled across these comments (thanks to the wonders of “google alerts”). They’re incredibly thoughtful, which is exactly the kind of discussion I wish to provoke with my book.
I don’t want to restate everything I wrote in my book (which, of course, I hope you’ll read–it is now available), but Beth does seems to understand my position pretty well.
I should add that am more than a bit skeptical regarding “rehabilitation.” I’m not against “help,” mind you, but rehabilitation has a bad track record. Historically, with the invention of the penitentiary, its motives were questionable and its results were dismal. More recently, I think the public has been duped to want to believe that “rehabilitation” actually goes on in prison and prison reformers and prisoner advocates have inadvertently assisted the creation of our horrible prison state but making people believe that prison “isn’t so bad” because of all those (virtually nonexistent) rehabilitation programs.
One of my arguments is that prison is a strange hybrid in that it was designed to “cure” but now simply punishes. And it doesn’t even do that well. It is best to separate punishment from rehabilitation or help. We need both; now we have neither. If nothing else, flogging is simply less deceitful than prison. It is honest punishment.
As to Foucault, to put it a bit too bluntly: I don’t like him. More accurately, I’m not fond of his writing. I think his arguments are surprisingly simple, and then clouded by awkward and verbose prose. I address him in but one footnote. And in that footnote I am so bold as to suggest that his entire “Discipline and Punish” can be summarized in two haikus:
more like prisons every day
resistance is futile
from body to mind
a new system of control
Well, Peter, I couldn’t have asked for a more ideal response to all the comments on this post. I’ve been holding back replying because I haven’t read the book yet, only the article. I think your book will definitely initiate some interesting conversations about the purpose of rehabilitation in the criminal justice system, which the Roman Catholic Catechism recognizes as one of the three purposes of imprisonment, which Emily noted in her post on California Prisoners and the Common Good. In this post, Emily argues that Catholics should be skeptical of California’s plan to build more prisons in order to accommodate the growing inmate population. Are there alternatives (besides the honest punishment of flogging) that might replace imprisonment and still achieve the goal of both punishment and rehabilitation for certain types of offenders, say drug offenders or petty thiefs? It’s one thing to say that prisons do a bad job rehabilitating; it is quite another thing to say that rehabilitation can simply not be achieved by the criminal justice system. In challenging prisons, we don’t want to throw out the baby with the bathwater.
I enjoyed your haiku very much.
I’d love to hear your comments after you read the book.
As to the potential of rehabilitation, I do not think there is potential for rehabilitation in the prison system (despite a few individual exceptions). In the criminal justice system? Yes. Potentially. But not in the prison system.
Rehabilitation (or as I prefer to say, “help”) is needed. But it needs to be separated from incarceration. For people to keep pining for effective rehab in prison in the face of 200 years of abject failure is more than a bit naive. In the book (pp 102-103) I compare it to the utopian hopes (and failures) of communism.