In Defense of Flogging (2 page)

The actual flogging I propose is based on the Singapore and Malaysian models, but it's different in several important ways. Once you consent to be flogged—a luxury you don't have in Singapore or Malaysia—you'd be led into a room where an attending
physician would conduct an examination to make sure you're physically fit enough to be flogged, that you won't die under the intense shock of the cane. The punishment would not be a public spectacle but would not be closed to the public. There would be perhaps a dozen spectators, including bailiffs and other representatives of the court, a lawyer, a doctor, perhaps a court reporter, and maybe a few relatives of both parties, including the victim. After the doctor's approval, a guard would tie your arms and legs to a trestle-like whipping post designed specifically for this purpose. This strange piece of furniture resembles a large and sturdy wooden artist's easel, but in place of a painting or canvas, you would be tied somewhat spread-eagle to the front. Once the guard takes down your pants and adds a layer of padding over your back (to protect vital organs from errant strokes), the flogging would begin. An expert trained in the use of the cane would lash your rear end for the prescribed number of times. This flogging description from a Singapore newspaper captures the quick brutality of the procedure:

Your ten strokes would be over in about five minutes. My defense of flogging gives you a minute for every year you would otherwise have served in prison. You'll likely be in shock and perhaps even unconscious as the doctor treats the deep, bloody
furrows left in your behind. Then, once they've patched you up, you'd be allowed to leave the courthouse a free man—no striped pajamas, no gangs, no learning from other criminals, no fear. You'd never have to find out what the inside of a prison is like.

If that deal seems too good to be true, well, at least we've moved beyond the facile position that flogging is too painful or cruel to consider. Indeed, if you think that someone subjected to this punishment is getting off too easy—that a man with five years left to serve should not be freed after submitting to
only
ten brutal, skin-bursting, scarcreating lashes—if that's your reaction, then consider this: It would be ironic (actually quite disturbing) if prisons were to remain as they are precisely because of their unparalleled cruelty.

If, however, you think I'm a monster for even hypothetically considering flogging, think of this worse reality: 2.3 million Americans already live behind bars. That's more than 1 percent of our entire adult population. And if that doesn't sound like a lot, let's put this number in perspective. At a sold-out baseball game in Chicago, forty-one thousand people can watch the Cubs at Wrigley
Field. Two-point-three million is more than fiftysix sold-out ballgames. Two-point-three million is roughly the total number of American military personnel—army, navy, air force, marines, coast guard, reserves, and National Guard. Even the army of correctional officers needed to guard 2.3 million prisoners outnumbers the US Marines. If we condensed our nationwide penal system into a single city, it would be the fourth largest city in America, with a population greater than Baltimore, Boston, and San Francisco combined.

America now has more prisoners than any other country in the world. Ever. In sheer numbers and as a percentage of the population. 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 the chances of living through US incarceration are quite a bit higher). Despite our “land of the free” motto, we deem it necessary to incarcerate more of our people than the world's most draconian regimes. Think about it: We have more prisoners than China, and they have
a billion
more people than we do.

It didn't used to be this way. 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, we incarcerated 338,000 people. There was even talk of abolishing prison altogether and the hope that prisons would be left on the ash heap of history. But that didn't happen. The prison-abolition movement seems to have died right after a 1973 Presidential Advisory Commission said, “No new institutions for adults should be built, and existing institutions for juveniles should be closed,” and concluded, “The prison, the reformatory and the jail have achieved only a shocking level of failure.” Since then, even though violent crime in America has gone down, the incarceration rate has increased a whopping 500 percent.

Some have linked this drop in crime to the increase in prisons. To oversimplify a bit, if more muggers are behind bars for longer periods of time, they can't mug you as much. Granted, if everybody were in prison, there would be no crime on the street. But this extreme, appealing though it may be for its logical simplicity, fails for several reasons. Between 1947 and 1991 the prison population increased
from 259,000 to 1.2 million. During this time the homicide rate nearly doubled, from 6.1 to 10.5 per hundred thousand. Today the homicide rate is back to where it was in 1947—and yet now we have two million more people behind bars than we did then. Even if prison were responsible for some of the recent crime drop, we're not getting much bang for the buck.

To understand the uselessness of incarceration—to appreciate just how specious the connection between increased incarceration and decreased crime really is—consider New York City. Not only did New York drastically cut crime, it did so while incarcerating fewer people. New York has seen the most significant crime drop of any big city in America: real, substantial, sustained, and, over the past two decades, twice the national average. In 1990 there were 2,245 murders in New York City. In 2010 there were 532. During this period of decreasing crime—and while the city's population increased by more than a million people—the number of incarcerated New Yorkers actually
decreased
by eleven thousand. Less crime should equal fewer prisons. This seems obvious, but it's not the case in the rest of the nation. Had New York followed national
patterns and increased its incarceration rate by 65 percent, the city, with an additional fifty-eight thousand prisoners, may very well have bankrupted the state. To incarcerate that many more people from New York City would cost roughly $2 billion per year, nearly doubling the size and cost of the entire state's Department of Corrections.

Better policing and massive immigration—not increased incarceration—contributed to New York's crime drop. In the 1990s the NYPD got back in the crime
prevention
game: Drug dealers were pushed indoors, and crack receded in general. Also, police focused on quality-of-life issues, the so-called “broken windows.” At the same time more than one million foreign immigrants moved to New York City. Whether due to a strong work ethic, fear of deportation, traditional family values, or having the desire and means to emigrate in the first place, immigrants (nationwide and in New York City) have lower rates of crime and incarceration than native-born Americans. Astoundingly, today more than one in three New Yorkers are foreign born. Although policing in New York City deservedly received a lot of credit for the city's crime drop, strangely, few people credit immigrants and almost
nobody seemed to notice the winning strategy of “decarceration.”

Looking elsewhere in the United States, we can see even more refutations of the connection between imprisonment and crime rates. Crime rates have spiked and fallen quite independent of prison rates, which have only gone up. If we were to give increased incarceration credit for the crime drop of the past two decades, we could just as easily give it credit for the crime increase in the two decades before that. From 1970 to 1991 crime rose while we locked up a million more people. Since then we've locked up another million and crime has gone down. So what's so special about that
second
million? Were they the only ones who were “real criminals”? Did we simply get it wrong with the first 1.3 million people we put behind bars? Because the incarceration rate has only gone up since 1970, we could correlate anything with this increase. We could just as easily credit incarceration with the collapse of Communism or the Boston Red Sox winning the World Series.

One reason prison doesn't reduce crime is that many prison-worthy offenses—especially drug crimes—are economically demand-motivated. This
doesn't change when a drug dealer is locked up. Contrast that with, say, pedophilia: An active pedophile taken off the streets means fewer raped children. A child victim doesn't go out searching for another criminal abuser. But that's exactly what a drug addict does.

An arrest in the war on drugs usually creates a job opening. Arrest thousands of drugs dealers (and pay millions of dollars for their incarceration), and other needy or greedy people will take their place. Nothing else will change. As long as dealing drugs is profitable, which it can be, there will be a never-ending supply of arrestable and imprisonable offenders. The war on drugs may have started as a response to a drug problem, but it's created an even larger and entirely preventable
prohibition
problem.

Prison reformers—and I wish them well—tinker at the edges of a massive failed system. I'm all for what are called “intermediate sanctions”: House monitoring, GPS bracelets, intensive parole supervision, fines, restitution, drug courts, and day-reporting centers all show promise and deserve our full support. But we need much more drastic action. To bring our incarceration back to a civilized level—one we used to have and much more befitting a
rich, modern nation—we would have to reduce the number of prisoners by 85 percent. Without alternative punishments, this will not happen anytime soon. Even the most optimistically progressive opponent of prison has no plan to release two million prisoners.

There might be other ways to reduce the prison population, but none of these seem particularly viable. We could legalize and regulate drugs and also get soft on crime, but that's also not likely to happen anytime soon. And we can't and shouldn't just swing open the prison gates and shout, “Olly olly oxen free!” We need to maintain some balance of justice, punishment, and public safety.

As ugly as it may seem, corporal punishment would be an effective and, believe it or not, comparatively humane way to bring our prison population back in line with world standards. To those in prison we could offer the lash in exchange for sentence years, after the approval of some parole board designed to keep the truly dangerous behind bars. As a result, our prison population would plummet. This would not only save money but save prisons for those who truly deserve to be there: the uncontrollably dangerous. Let us not confuse a need
to incapacitate—because someone
will
commit a crime—with the concept of punishment—because someone
has
committed a crime.

Certainly mere drug offenders should not be kept in prison, nor should white-collar criminals. Bernard Madoff, famously convicted in 2009 for running a massive Ponzi scheme, is being incarcerated and costing the public even more money. Why? He's no threat to society. Nobody would give him a penny to invest. But Madoff did wrong and deserves to be punished. Better to cane him and let him go. Punishment is, after all, a vital goal of the criminal justice system. Even if the successful rehabilitation of criminals were always possible, it wouldn't be enough. When people commit a crime, they should be punished.

To understand how important punishment is to the notion of justice, imagine being the victim of a violent mugging. The last thing you remember before slipping into unconsciousness is the mugger pissing on you and laughing. Such things happen. Luckily, police catch the bastard, and he is quickly convicted. What should happen next?

What if there were some way to reform this violent criminal
without punishing him
? In
Sleeper
,
Woody Allen's futuristic movie from the 1970s, there's a device like a small walk-in closet called the “orgasmatron.” A person goes in and closes the door, lights flash, and three seconds later, well . . . that's why they call it the orgasmatron. Now imagine, if you will, a device similar to the orgasmatron called the “reformatron.” It's the perfect rehabilitation machine for criminals. Upon conviction, felons enter this box and close the door. Three seconds later they come out slightly disheveled and “cured” of all their criminal tendencies. Your mugger, therefore, would be ushered into the reformatron, which is conveniently located right in the courtroom. In he goes: The door closes, the lights flash, and three seconds later . . . success! The cured criminal thanks God, kisses his baby's mother, and walks out of the courtroom a free man to go home, relax, and think about job possibilities.

For many reformers in the criminal justice system, the reformatron is the ideal. But along with being fiction, the concept is disturbingly lacking in justice. If you were the victim of a violent mugging—if you had been beaten, pissed on, and robbed of your money, health, and dignity—would the reformatron
satisfy your sense of justice? The fact that the criminal wouldn't commit another crime is nice, but shouldn't a criminal be punished—not only for his sake but also for ours?