More than any other definite institutions (as distinct from cultural trends or mentalities), the abortion industry created by Roe v. Wade and the American prison system deface our republic. The former, while more scandalous and abhorrent, has at least been met with ever-growing popular resistance. The latter, however, in the rare moments that it flickers onto the public consciousness, figures as a remote, surreal, but necessary hell to which we consign the wicked. In his popular tract In Defense of Flogging, former Baltimore cop Peter Moskos tries to remedy this neglect.
This short book might have been shorter, and stronger, with more disciplined exposition, but Moskos explicates the core of the matter well enough. The public, or at any rate, the legislators, want prisons to do three quite distinct things: to punish, to reform, and to contain criminals. Happily, perhaps, the modern American prison represents the summit of human achievement on the third score. As Moskos puts it, “through technology, experience, and an unhealthy dose of inhumanity we’ve pretty much mastered the art of keeping people behind walls.” But incarceration is considerably worse than useless as a tool of reformation, and only a sadist (or, at best, someone who has not made the proper study or effort of imagination) could call it a means of rational and proportionate retribution.
Moskos shows quite easily why this is so. Prisons do not reform because they collect hardened and desperate people and require them to socialize each other in an atmosphere of constant coercion, fear, and drug addiction, or else they impose a solitude that destroys sanity; they interrupt such legitimate income and healthy social influence as these people might have enjoyed; they encumber them with a stigma that makes it unlikely that they will enjoy legitimate income in the future. The typical prisoner is thus shaped, handled, and released (if he is released) like a boomerang.
Prisons, at least in their current form, are an inappropriate means of punishment in a republic committed to the rule of law, because in addition to the fairly definite and reasonable penalty of “tightly restricted movement,” they also inflict the pain of anxiety about a large set of possible sufferings of indefinite intensity, duration, and frequency. Prisoners, with good reason, live in fear of mutilation, rape, repeated beatings, death, disease, psychological torture, humiliation, loss of valued relationships and goods, and catastrophic reentry into society. Even if you suppose that immersion in such a nightmare is proportionate punishment for some very grave crimes, what percentage of the 2.3 million Americans behind bars have committed such crimes?
We should also remember that this punishment unjustly hurts people besides the convict. In the first place, natural affection as well as moral and religious beliefs lead many to value the lives, health, and company even of the wretches that prisoners are generally presumed to be. This, however, is not the only source of injury. Moskos lays it out clearly and amply: “Even bad people have some attributes that help their family and community function. From behind bars a prisoner can’t be a father, hold a job, maintain a relationship, or take care of elderly grandparents. His girlfriend suffers, his baby’s mother suffers. Their children suffer. Because of this, in the long run, we all suffer.” We all suffer because families and neighborhoods fray for want of parenting and productive labor, creating a country that is poorer and, ironically, more hospitable to crime.
This last point suggests a major theme of In Defense of Flogging. Prisons do not merely fail to punish or reform, but they also cost us mightily. If the social cost just indicated seems too abstract or indirect to seize your attention, consider the cash alone: “Estimates put corrections spending at somewhere between $60 billion and $78 billion. Either amount could safely be called ‘real money.’ . . . Nationwide, on average, it costs $26,000 [per prisoner] for each year of incarceration.” Although the cost is somewhat flexible (and indeed varies considerably across American jurisdictions), there is a necessarily high baseline: “Prisons are not expensive because they ‘coddle’ prisoners . . . prisons cost so much because we have to keep people alive while holding them against their will. . . . Prisoners require human observation and intervention, and it’s not a nine-to-five operation. . . . To have one guard on duty 24/7 requires six employees (taking into account three shifts, weekends, and holidays).”
If it is granted that this status quo is unacceptable, the next steps in the reasoning are simple enough. Some small percentage of criminals must be contained in the interests of basic social order, so let us contain them. Rehabilitation in prison is rare, accidental, and indeed, even miraculous; since prison does nothing reliable to that end, we must give up the goal or find some other means. If the justice and wisdom of using the many and various tortures of incarceration as punishment is doubtful, and if it is clear that prison is egregiously expensive, then we must consider alternatives. As the title of the book indicates, Moskos recommends that we add flogging—caning, to be exact—to our repertoire of punishments.
It’s important to say that Moskos seems to mean this seriously. There are some slight hints of retreat, as when he describes his argument as “more thought experiment than policy proposal,” and his light, slightly crude, popular tone, combined with his wearisomely frequent insistence that he himself finds flogging very distasteful, sometimes gives the book a tentative and embarrassed feel. But there is no real question that (i) Moskos thinks caning better than incarceration and (ii) can’t think of anything better than caning. The conclusion is irresistible.
Flogging a la Moskos would be an option offered to convicts who are not “imminent and grave” dangers to society and administered only to those who have been declared medically fit to withstand the trauma; a trained flogger would inflict a prescribed number of strokes to the buttocks in the presence of witnesses, including a doctor who would order the flogging stopped if the criminal’s health seemed in serious jeopardy. It would be intensely painful and leave permanent scars; the former is precisely the point while the latter is a tolerable side effect. Moskos is confident that given the choice between, say, five years in a mysterious and sinister place, separated from all you know and love, and intense but brief pain and humiliation, most people would choose the latter. The suggestion of flogging may seem deliberately extreme, a punishment suggested to underscore just how bad prison is, but is there any other punishment 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?” He is inclined to doubt it.
The obvious objection that flogging is cruel is met with the obvious (and to my mind satisfying) answer implied above: cruel compared to what? (By way of supplement one may add that a culture addicted to pleasure cannot reliably distinguish between justice and cruelty.) But this obvious objection is not the only one. Some argue that punishing mostly black prisoners with the lash would be racially insensitive, given our legacy of slavery. Pragmatists say it would be ruled unconstitutional, while the gruffer sort of conservative suggests that it wouldn’t be harsh enough. Finally, there is the claim that flogging, whatever its inherent moral qualities, would lead us toward a more brutal culture.
In response to the charge of racial insensitivity, Moskos makes a surprising move. Having throughout the book faulted the prison system for disproportionately affecting poor minorities (he does not hesitate to make dark allusions, calling prison a “peculiar institution”), he is prepared to take a faintly Marxist tack: he positively welcomes the chance to heighten the contradictions of our egalitarian society by presenting the spectacle of blacks being caned (though perhaps whipping would be a bridge too far).
As for constitutionality, the author is hopeful. Despite the recorded statements of even so un-therapeutic a character as Justice Antonin Scalia—who said he could not imagine himself “upholding a statute that imposes the punishment of flogging”—Moskos does not think that there is a constitutional barrier to his idea. He points out, rightly enough, that principals can still beat disobedient schoolchildren, but he supplements this with the less convincing suggestion that flogging might escape constitutional restrictions if it is voluntary. It is true that there are many unwise activities that are legal conditional upon consent, but so long as caning counts as punishment administered by the state (and legal reasoning seems to demand that it be so understood), how can it avoid the test of the Eighth Amendment? This critical question is for lawyers to debate.
Those who think flogging too soft are first invited to “debate the appropriate number of lashes.” But to the hardcore, Moskos can offer nothing but an earnest (if funny) exhortation to examine their own souls: “If you want all convicts to suffer the worst possible pain imaginable (including but not limited to rape and insanity), if you think prisons are great precisely because they torture so cruelly and horribly, then you need to take a deep look at your own humanity, because you might be a very evil person.”
Much energy, perhaps too much, is devoted to insisting that flogging “is not a slippery slope toward amputation, public stoning, and sharia law.” He does not say what seems probable enough, that a successful experiment with flogging might indeed lead to a greater range and variety of corporal punishments. But so long as proportionality, transparency, the rule of law, and human health are respected, what would be so bad about that? The sole problem, it seems, is that corporal punishments provide starker, simpler images to the squeamish. Perhaps the vaunted mildness of the modern era has no moral significance other than the fear of the sight of blood, which is compatible with any degree of wickedness. Thus we tolerate or even endorse what we find difficult to imagine or easy to euphemize, whether it happens in the darkness of a cell or in a private office between a woman and her doctor.
Some will not bother debating flogging because they continue to hope for prison reform. Moskos is, naturally, in favor of improving prisons, and he has the imagination and breadth of vision to see allies in the most unlikely places. For example, although he judges famously tough Arizona sheriff Joe Arpaio to be an “egotistical, xenophopic, opportunistic SOB,” he recognizes that Arpaio’s “tent cities” and chain gangs, meant to be especially harsh and humiliating, are popular with inmates because they provide “emotional and physical release from the monotony of confinement.” His conclusion is priceless: “So I raise my middle finger to you, Joe, but urge you to keep the ideas coming.”
If Moskos is willing (metaphorically) to keep such uncongenial company, it should be no trouble for him to give a fair hearing to rigorous and reasonable scholars like Byron Johnson of Baylor University, whose More God, Less Crime argues that the criminal justice system can and should harness the power of religion. Still, all in all, it is hard to disagree with Moskos’s final verdict that prison reform can do little. True-believing reformers are, he suggests, now in the position of unconverted communists, shutting their eyes to reality. He speaks, with evident yearning, of the “true European-style socialism” that he supposes would allow America to reduce crime and make prisons more humane without resort to flogging, but regrets that Americans (who like “guns, cowboys, individualism, and being tough”) will not stand for it.
Of course, some of us are more sympathetic to the features of American culture that make prison reform difficult. Indeed, perhaps the most effective strategy for Moskos, at least over the long haul, would be a direct and consistent appeal to the American reverence for individual freedom. In its noblest manifestations, this reverence includes recognition of moral agency and responsibility. Those who recognize and affirm moral agency demand that evil be punished, severely, if the crime deserves it, but they also abhor “management” (whether for sake of containment or therapy) that treats the free individual like an unruly beast or broken machine. Such true individualists hate arrangements that destroy or degrade the human person, even for the sake of punishment. They see that properly human rehabilitation is impossible without cooperation and choice. As Moskos says, somewhat belatedly, even criminals are human beings. They cannot flourish without freedom—and that in dangerous quantities.