Peter Moskos, a professor at John Jay College of Criminal Justice and City University of New York, has advanced a modest proposal for reducing prison overcrowding: Instead of imprisoning them, let felons and misdemeanants (!) choose to be flogged, at the rate of two lashes for each year of incarceration. (One lash minimum for a misdemeanor.) This scheme has three advantages over our current prison system: (1) it's cheap; (2) it's cheap; and (3) it's cheap.
Professor Moskos has obviously thought about this idea at some length. "In large cities one caning trestle should be in the courthouse and another in Central Booking," he writes, "so that those arrested on misdemeanors could immediately consent to be flogged. After an arrest or conviction, one could accept a flogging plea and go to the caning room." Notice: no need for even an arraignment. This is Swift justice.
Delaware administered the last judicial flogging in the U.S. in 1952. Outside the Islamic world (with a few notable exceptions), flogging is upstream from the general historical current. "From being an art of unbearable sensations," historian and social critic Michel Foucault wrote, "punishment has become an economy of suspended rights." Moskos probably wouldn't approve of the citation to Foucault because he doesn't like him. Foucault is, however, probably the only historian of penology with (ahem!) relevant firsthand experience. He and Moskos both express low regard for the results of prison reform.
In Defense of Flogging is actually about prisons, and how and why they don't work. Moskos incorporates a brisk and readable history of the development of prisons, and wonders at our addiction to them, notwithstanding our bad results. "Sometime in the past few decades we seem to have lost the concept of justice in a free society," he writes. "Now we settle for simple efficiency of process. We tried rehabilitation and ended up with supermax and solitary confinement."
"Given the choice between five years in prison and ten brutal lashes, which would you choose?" he asks rhetorically. So total has been the failure of the prison system and its attendant cruelty that, for Moskos, the choice is clear.
Perhaps most would choose ten of the best; but perhaps not. The curious can find videos of judicial floggings on the Internet, often from Malaysia (for example, this
video).
One immediately foreseeable problem is that Moskos's equation of two lashes per year of prison time falls well short of the historical practice. The Old Testament's maximum sentence was 40. The log of the U.S.S. Constitution for 1805 records 50 lashes administered for sleeping on post, and 100 for "mutinous and seditious conduct." Moskos recommends a 30-stroke maximum sentence. Can anyone really think that that maximum would be observed the next time a crime involving a white female child occurred?
Ben Pesta is a white-collar and criminal defense attorney in Century City.
Kari Santos
Daily Journal Staff Writer
