In Defense of Flogging (14 page)

Flogging is not a slippery step toward amputation, public stoning, or sharia law. This is not the first step on a path to hell. A lesser society might go down this road by
imposing
flogging on its citizens and then descending into mob rule and blood sport. But we are a stable democracy with a longstanding tradition of deference to the rule of law. As an alternative to prison, the option of flogging does not mark a shift toward some barbaric dark age.

Quite the contrary. For those who suffer under the yoke of incarceration, for the millions of Americans behind bars, the age already is dark. Indeed, we would be deeply deluded—if not downright duplicitous—to express horror at the violence inherent in legal judicial flogging and, by doing so, condone the much more insidious violence inherent in jail and prison. Opposition to flogging often
seems to come not from a desire to protect the person being flogged but from a more selfish desire to protect the punisher.

Differences in political opinion should make little difference when considering flogging as an acceptable substitute for prison. If you're conservative, flogging holds appeal as efficient, cheap, and old-fashioned punishment for wrongdoing. It's a “get tough” approach too; at least symbolically, nothing is tougher than the lash. If you're liberal and your goal is to punish more effectively and humanely, then you first must accept that the present system is an inhumane failure. Do not seek minor improvements to our prison system; think instead of massive replacements. Prisons can be improved, but they cannot be reformed. The best prison in the world is still a prison. And an institution whose purpose is forced detention will forever and inevitably remain dysfunctional. Our responsibility as men and women of conscience is to find a functional solution—and flogging may well be it. Let the person being punished decide.

Maybe by this point you're convinced that flogging is a viable alternative, but you still don't feel comfortable with the lash. You're confused because
you agree that the case for flogging is a sound one, but deep down you still know that flogging is wrong. You know what? I agree. Other things being equal, I don't want to live with flogging, either. But we have to face the world we live in. If the mere thought of purposefully inflicting pain offends your sensibilities, consider how Charles Dickens summoned up his own moral courage after witnessing the effects of solitary life in a prison cell:

Since his day, prison has not gotten better; we have gotten worse. And since Dickens's time we still
have not devised a better way to punish. Without an alternative such as flogging, we all consent to the horrors Dickens describes.

With the invention of prisons, confident penology experts could boast (and perhaps even believe) that the massive fortifications of the prison wall were modern displays of science and technology. The move away from punishment toward cure was indeed a monumental change, a genuine (if misguided) moral and scientific revolution. But truthfully, I can't think of another institution that has failed as mightily as the prison has—at each and every one of its initial objectives—and then, over the course of two hundred years, expanded and been rewarded with everincreasing civic and political power.

To not debate the effectiveness of prison would be like accepting a health care system that diagnosed illnesses with phrenology (the “science” of determining character through skull shape) and treated them with Wilhelm Reich's orgone accumulators (something even crazier). The fact that prisons have so completely failed—and done so in such a spectacular manner—should matter more than it does.

Flogging could restore legitimacy to a criminal justice system that is in desperate need of it. Since
flogging's demise, have we as a society really progressed? Or did we take the noble but flawed ideal of criminal rehabilitation and distort it into a perverse system of almost unimaginable cruelty? The lash, which metes out punishment without falsely promising betterment, is an unequivocal expression of society's condemnation. For those flogged, it is brief, painful, and very easy to comprehend.

Without a radical defense of flogging, how else are we to change our current defective system of justice? Reformers laud bits of incremental improvement that come at a glacial pace. But, at best, these only tinker with the massive machinery of incarceration. Bringing back the lash is one way to destroy it—if not completely, then at least for the millions of Americans for whom the punishment of prison is far, far worse than the crime they have committed.

Years from now, if we're lucky, future generations will look back to this age of mass incarceration with bemused wonder, seeing it as just another unfortunate blotch on our country's otherwise noble democratic ideals. Either that or they will judge us as willing collaborators in an unparalleled atrocity of human bondage. Let us hope for the former, but
future moral condemnation is all but assured; consider the three predictive factors listed by Princeton philosophy professor Kwame Anthony Appiah. First, the case against the institution is long established and doesn't “emerge in a blinding moment of moral clarity.” Certainly, though my defense of flogging may be novel, people have long taken moral stands against prisons. Second, according to Appiah, defenders tend to invoke tradition, human nature, or necessity rather than moral arguments, which are essentially ceded to opponents. Today, prison's biggest supporters emphasize the necessity of jobs and economic development. Finally, supporters tend to practice “strategic ignorance, avoiding truths that might force them to face the evils in which they're complicit.” Today, nobody but the most naive person argues that prisons are good for prisoners or that solitary confinement is a path toward spiritual salvation. And yet still people fool themselves with talk of country-club prisons and “three hots and a cot.” This somehow implies that because prisons could actually be worse, then somehow they must be good.

People will look back to our age of incarceration and, thinking of us, ask: “Did they not know? Did
they not care?” We must find a replacement, and flogging, however harsh, is one such alternative. Over the past two centuries we somehow decided that flogging is beneath us in much the same arbitrary and mistaken way we determined prisons are good. That Americans will someday have to reckon with the immorality of mass incarceration seems abundantly clear. Let us pray the judge of history is lenient. If not, I hate to think of how we would be punished.

In a short book like this, I have inevitably had to gloss over some of the issues related to flogging: the moral qualms, the spattered blood, lawsuits, policy details, and a certain retrograde feeling to the whole proposition. I've allowed myself to do so because, at the end of the day, these details are less important than the larger theme. My intention is to open your eyes to our massive and horrible system of incarceration. I am willing to defend flogging to start an honest discussion on punishment and alternatives to prison. I've tried to convince you to accept flogging, but I've done so in order to convince you that the status quo of incarceration is much, much
worse. If you feel half-convinced and slightly queasy, well, good. That was my goal.

Please do not close this book thinking once again that somehow things really aren't that bad or that prison is just the way it has to be. Prisons continue to perpetuate crime, drain our wallets, and cause untold human suffering because we—good people, people of conscience—do nothing. Tomorrow, 2.3 million Americans—mothers, fathers, sons, and daughters—will wake up behind bars. If one person behind bars is tragic, are 2.3 million simply a statistic? Many have done some very bad things, but each one is still a human being. Do we leave them to rot in prison because we cannot bear to confront the necessary reality of punishment? Are Americans so evil that we must confine more of our own people than every other nation in the world?

I hope you can see that we need to find a new way to punish, an option that won't subject offenders and society to this expensive and immoral failure. If flogging is that option, well, then bring on the lash.

Writing a book can be quite lonely, but it is never solitary. This book would never have been written were it not for the ideas and help of others. Dan Baum and Margaret Knox planted the seed for
In Defense of Flogging
over dinner in New Orleans in 2007—the first of many such dinners, I'm happy to say—when the conversation turned to parental support for illegal corporal punishment in public schools. When I mentioned this phrase to Tim Sullivan, my editor at the time, he informed me in no uncertain terms that he was going to publish a book by that name, I was going to write it, and there would be no question mark in the title.

In the subsequent years, many others have helped tremendously. In particular I thank Lara Heimert and Alex Littlefield at Basic Books, who took on this project and managed, in very short time, to whip chaos into something approaching a proper book.

Maurice Punch helped with his inspiration and curry dinners; Graeme Newman defended corporal punishment long before I ever thought of the idea, and did so far more persuasively than I ever will. Mitch Duneier, as always, has been incredibly supportive (to me and seemingly everybody
who has ever crossed his path). C. Farrell helped immeasurably with his personal assistance and encyclopedic (and sane) corporal-punishment website. Jennifer Wynn hated this idea from day one and yet, because it is her nature, couldn't help but be supportive and helpful. Andrew Moskos, my brother, always thinks of funny things to say. And special thanks to my mother, Ilca Moskos, who isn't afraid to tell me when my writing “isn't quite there yet.” (Strangely, and despite my memories to the contrary, she claims never to have spanked me.)

Thanks also to all those who gave me ideas and comments, engaged me in conversation, and helped me get tenure: Elijah Anderson, Howard Becker, Rod Ben Zeev, Joel and Kaori Busch, Lawrence Campbell, Effie Papatzkou Cochran, Jane De Lung, Brandon del Pozo, Gary Alan Fine, Neill Franklin, Lior Gideon, Jim Greer, Maki Haberfeld, Jennifer Hunt, Maurice Jacobs, Daphne Keller, Harry Levine, Jim and Masha Lidbury, Patty Jean Lidbury, John Van Maanen, Saskia Maas, Peter Manning, Timothy Manrow, Gloria Marshall, Jeff Mellow, Jaqueline Nieves, Zoë Pagnamenta, Orlando Patterson, Jackie Pica, Joseph Pollini, Karine Schafer, Dorothy Schulz, Wesley Skogan, Barry Spunt, Howard Taylor, Katie Trainor, Leon Vainikos, Melissa Veronesi, Charles Westoff, Chris Winship, the St. Nicolaas Boat Club of Amsterdam, and all my colleagues and students at John Jay College of Criminal Justice, LaGuardia Community College, and the City University of New York's Sociology Graduate Center.

And finally, to twist a phrase a friend once told me: “Don't marry for copy-editing skills; hang around copy editors and fall in love.” So special thanks to Zora O'Neill and her eagle eye.

1
whipping, caning, lashing, call it what you will
: Technically, what I propose is caning and not whipping: A whip is made of flexible leather, whereas the cane is a more rigid stick; a whip is snapped and cracked, but a cane is simply swung with great force. Both whipping and caning fall under the more general category of flogging. But the differences between whipping and caning are all but irrelevant to my defense of flogging (though the whip does have more troubling racial symbolism in the United States). For all practical purposes, the concepts of whipping and caning can be considered one and the same.

3
jail for almost anything, big or small
: Harvey A. Silverglate,
Three Felonies a Day: How the Feds Target the Innocent
(New York: Encounter Books, 2009). The author estimates that most Americans unknowingly commit three felonies a day with enforcement simply subject to the whims of prosecutorial discretion.

5
a “total institution” of complete dominance and regulation
: Erving Goffman,
Asylums: Essays on the Social Situation of Mental Patients and Other Inmates
(New York: Penguin, 1968). Michel Foucault would later combine Goffman's concept of total institution with Bentham's Panopticon to create his classic
Discipline and Punish
. Not completely by accident, I give Foucault short shrift in this book. Considering Foucault's
mighty influence in the philosophy of punishment, one could, if one were so inclined, add some variation of “as Foucault alludes to” to the beginning of almost every paragraph; I am not so inclined. With no disrespect to hundreds of graduate-student seminars and dissertations, I think Foucault is overrated. In what is considered academic sacrilege, I do not like Foucault. Mostly I dislike his style of writing (though this might be a problem of translation, as I do not speak the original French). Too often Foucault disguises rather simple concepts in verbosity and awkward prose. I believe
Discipline and Punish
can be well summarized in nothing more than two simple seventeen-syllable haikus: