In Defense of Flogging (10 page)

Perhaps the hearts of early prison reformers were in the right place. But the same could be said, in another unusual comparison, of Dr. Victor Frankenstein. The doctor was a smart man—undoubtedly charming at times—even if perhaps a bit eccentric
at committee meetings. Dr. Frankenstein did not want to create a monster. Based on his beliefs about human nature, he wanted to create life from death. But unlike most prison advocates, the good doctor was quick to realize the potential danger of his creation: “Now that I had finished, the beauty of the dream vanished, the breathless horror and disgust filled my heart. . . . . Mingled with this horror, I felt the bitterness of disappointment: dreams that had been my food and pleasant rest . . . were now . . . a hell to me.” Like Frankenstein's beast (at least in the movie version), the prison monster has escaped and taken on a life of its own, and is wreaking havoc. It needs to be destroyed—though preferably not by a mob with flaming torches—and replaced with some more natural, manageable, and human system.

But, you may protest, just because our prisons are a mess doesn't mean we should adopt something as horrible as flogging! If we were willing to tax more and spend wisely, we too, like most of Western Europe, could have a decent economy, good public schools, paid vacation, longer lives, less violence, shorter prison sentences, and an incarceration rate that's a fraction of what we have now. So it's with a tinge of regret and envy that I note, of
course, that this is not our system. Americans like guns, cowboys, individualism, and being tough. If American politicians can lose votes by seeming to enjoy European pleasures, true European-style socialism and radical penal reform have no chance.

Yes, we could do better with what we have, but in the real world of deficits, budget cuts, victims' rights groups, and correctional officers' unions, money that could be spent elsewhere or saved will almost invariably not be spent helping criminals. As long as politicians tarred as “soft on crime” lose elections, essential criminal justice reform will go nowhere. Prison reform is a noble goal, but at the end of the day it's just another pie-in-the-sky dream—and one that, by attempting to repair a fundamentally irreparable system, causes millions of Americans to suffer with more of the status quo.

The ghastly nature of involuntary incarceration makes it even more imperative that we differentiate between reality and fantasy. Why not improve our criminal justice services? Why not, indeed? And while we're at it, let's fix our schools, courts, public transportation, and health care. We could even eliminate or fix the death penalty—after all, it's also a mess! Crime would go down because people with
doctors, meds, and enough money to get by generally don't go out robbing and killing. And undoubtedly, if parents did a better job raising their children, there would be fewer future adults to punish.

In the meantime, please show me an effective court system that convicts actual offenders and protects the innocent, or a humane prison that houses only the guilty. Show me an enlightened jail that takes in our poorest, meanest, and most desperate and churns out hardworking, industrious taxpayers. You can't. Nor will you ever. Only in a utopian world can we rehabilitate criminals, and our vision for the future should not be blinded by a Big Rock Candy Mountain mirage where handouts grow on bushes and the lakes are filled with stew.

There is some good news, however: Finally, after four decades of unprecedented increase, in much of the nation (though not all of the nation), prison growth has essentially stopped. This is a thin silver lining to cloudy economic times. Most states are trying to figure out ways to reduce incarceration costs, which can be done by everything from skimping on meals to closing entire institutions. Three big states—New York, New Jersey, and Texas—have managed to reduce the number of people incarcerated,
and indeed, by the time you read this, there is a good chance that, after an incredible forty-year run, fewer Americans will be incarcerated than were in the previous year. I hope so, and if so, great. But signs that prison growth has stopped should not be cause for celebration. It's setting the bar way too low. Keeping 2.3 million people incarcerated is wrong.

We live in a nation that incarcerates more of its population than any other, and that includes authoritarian China (which has an incarceration rate of 180 per 100,000, including political prisoners), theocratic Iran (220), and communist Cuba (530). America's incarceration rate, 750, is five times the world's average. Other than Cuba, the only countries that even come close to America are Russia (629) and Rwanda (604). This is not good company to be in. Democratic countries we're less ashamed to compare ourselves to—England, France, Germany, Spain, Canada—all have incarceration rates nearer to 100. Interestingly, for most of the twentieth century, so did the United States.

We might consider 100 per 100,000 a somewhat “natural” rate of incarceration—if there were such a thing. From 1860 to 1904 the American incarceration rate increased from 60 to 110 per
100,000. And there it remained, give or take, until the 1970s and the war on drugs. A few people are so dangerous they need to be confined and kept away from us, but that number is probably closer to Japan's incarceration rate of 60 than America's 750.

Despite our astonishingly high rates of incarceration, there is still an active pro-prison camp that wants to build more prisons. When not talking about job creation for economically disadvantaged white communities, these people fall back on the smug assertion that we need to keep locking up more people as long as more people keep violating the law. But for consensual crimes—such as drug use, in which there are no victims—what is gained from incarceration?

What we have in America is a massive, terrifying, and out-of-control experiment in incarceration. Our system has effectively become a gulag—a model that cannot coexist with a free and civilized nation. And only when reformers confront this harsh reality will we be able to stop tinkering with our broken system and move on to something, such as flogging, that works better, or at least does less harm.

In twenty-first-century America, could we have court-sanctioned flogging? It's unclear, but it's not currently prohibited. The Supreme Court has never explicitly ruled on the matter, and until it does, we should assume it's constitutional. There is some interesting precedent (which some mistakenly believe bans flogging), such as
Jackson v. Bishop
. This 1968 Court of Appeals decision was very unsympathetic to corporal punishment but only banned whippings in the context of prison discipline—and thus ended the practice of prison wardens carrying around whips. But prison discipline is not the same as legally sanctioned criminal punishment. Discipline is at the discretion (and potential abuse) of a warden and issued for administrative violations, whereas court-sanctioned criminal punishment follows law and due process and has constitutional safeguards.

Additionally, the Supreme Court has since noted that though it affirmed
Bishop
, that case has never been “embraced by the Court.” In other words, don't read too much into the lesser court's decision, especially with regard to precedent. The Supreme Court has since, in the 1977
Ingraham v. Wright
, upheld the right of public schools to use
corporal punishment (in some ways the same punishment
Bishop
said may not be used in prison), and twenty-two states still permit corporal punishment in school. But the Court's pro-flogging decision in
Ingraham
was more technical than philosophical, based on the grounds that constitutional criminal justice protections, such as due process and prohibitions against cruel and unusual punishment, do not extend to schoolchildren.

Given the more conservative makeup of the present Supreme Court (and the fact that it is still constitutional for principals to beat disobedient schoolchildren), it's not hard to imagine judicial flogging could pass constitutional muster. Although one unexpected “no” vote might come from conservative Justice Antonin Scalia, who wrote, “I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.” Another “no” vote is more predictable, coming from liberal Justice Stephen Breyer, who said, “Flogging as a punishment might have been fine in the 18th century. That doesn't mean that it would be OK, and not cruel and unusual, today.” Breyer embraces the idea that constitutional standards of punishment evolve over time. Were flogging
found to violate Eighth Amendment prohibitions against cruel and usual punishment, the 1957 decision
Trop v. Dulles
, which invoked “the evolving standards of decency that mark the progress of a maturing society,” would assuredly come into play.

In any event, the matter of flogging's constitutionality may, in the end, be moot. In my proposed flogging no one is ever forced to be flogged. And the court hears only cases in which a victim has suffered actual harm. Just as people can waive certain constitutional rights—such as the right to a jury trial when accepting a guilty plea—they might likewise willingly cede protection from cruel and unusual punishment if flogging were, in fact, found to be cruel and unusual. With the consent of the flogged, flogging would simply be an option—probably a popular one—in lieu of the status quo. It is difficult to argue that giving a choice to the convicted is morally or constitutionally indecent.

To flog with consent is key. Without consent, caning could indeed be torturous, cruel, and unusual. With consent, however, many illegal, dangerous, and even stupid activities become acceptable: boxing, mixed martial arts, BASE jumping, bull riding, sadomasochism, figure-eight car racing, and,
of course, sex—which does, for some, include flogging. Almost anything that involves adults that does not actually kill becomes legal with consent (though there are a few peculiar exceptions, such as drug possession, having sex for money, and working for less than minimum wage).

However, some would oppose flogging precisely
because
it is an option. If I were speaking at my college about the horrors of prison and the need for change, some conservative student, perhaps a police officer, would raise a hand and say, “This is exactly why we need prison. Flogging is too soft! We shouldn't give criminals any more choice than they gave their victim!” Now, no matter your belief about the severity of prison—whether you think that prison is an almost indescribably hideous institution or a luxury resort—please understand that prison may be too hard or too soft, but it can't be both. I call this the Goldilocks Dilemma.

Every conscientious reader should confront the question of which is harsher: prison or flogging. Not that punishment should be judged by harshness alone, but how you assess their comparative harshness has very real consequences as to how we proceed. If we as a society cannot even reach consensus
about what prison
is
, how can we ever discuss what needs to be done? And even if we can't agree which form of punishment is harsher, in order to have any discussion at all—be it on prison reform, overhauling the entire penal system, or just kicking up our heels and doing nothing—we can at least agree that prison and flogging have different degrees of harshness.

I hope you agree that flogging, harsh though it is, is a far better choice than prison. And if you think, as I suspect some do, that both prison and flogging are cruel but flogging is still beyond the pale, then ask yourself why you would choose the lash for yourself to avoid prison and yet still refuse to give that choice to others. If you wouldn't choose the lash for yourself, I may never convince you that flogging is a better option (though I appreciate you reading this far), but hopefully you've been convinced that prison is not the answer.

If you think flogging lets people off too easily, we could debate the appropriate number of lashes. But if you think flogging should not be a choice because it's not cruel enough, if your opposition to flogging is based on the idea that whipping is too soft, 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.