In Defense of Flogging

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To my father, Charles Moskos, who always loved a crazy idea

Y
ou'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 progress—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: