Crime and punishment: To flog or not to flog?

By a number of standards, the U.S. prison system is in disarray. One proposal to fix some of these problems suggests that incarceration rates could decline from 2.3 million to approximately 300,000 and redirect much of the $60 billion plus spent on the prison system to other societal needs. The solution? Flogging.

Flogging is a form a corporal punishment where the offender is beaten—usually with a whip or a cane. The process causes severe pain, but has been used by America in the past and is currently used by other countries. In a new book, In Defense of Flogging, author Peter Moskos argues that using flogging as an alternative to incarceration for certain criminals would be more cost effective and less cruel than the current prison system. The idea is both controversial and intriguing.

While the concept deserves a great deal of thought and study to form an educated opinion, a random sampling of some of my questions includes the following:

Does the crime fit the punishment?

Moskos argues that flogging would be voluntary and not made available to the most dangerous offenders. Consider crimes punishable of one to five years in jail: does, say, four lashings with the cane fit the crime? Would there be varying numbers of lashings for certain levels of lower-tier crimes? Is flogging too lenient? Too severe?

Is flogging a successful deterrent to crime?

The punitive approach to justice asks whether or not the punishment fits the crime. A restorative approach where the goal is not merely to punish but to rehabilitate asks if flogging would be a successful deterrent to crime? If you knew that you could commit a crime and receive as punishment a short, but intense period of pain, would you be more or less likely to commit the crime again?

 

Truly cost effective?

If you would be more likely to commit the crime again, is flogging as an alternative to incarceration truly cost effective? The fiscal costs of crime go far beyond the amount spent on incarceration, and there are social costs to crime as well. If recidivism rates were to increase while incarceration rates were to decline, would flogging truly be a cost-effective solution?

 

What of the impact on therapeutic justice?

While much is wrong with the criminal justice system, a therapeutic approach to justice is one area where there seems to be light at the end of the tunnel. This approach mingles many different disciplines in an attempt to make law a therapeutic vehicle where the focus of the criminal justice system is not on past behavior and punishment, but current and future behavior. Progeny of this approach include specialty courts such as drug courts which appear to be making significant progress. Does this approach go by the wayside if flogging becomes a popular alternative to already-innovative therapeutic approaches to crime?

 

Potential for discrimination?

In Moskos’ proposal, flogging would be voluntary for eligible offenders. What of convicts who elect to receive flogging as opposed to incarceration but are deemed to be physically incapable of surviving the requisite number of lashings? Are there legal concerns of equity or discrimination if a desired punishment for an identical crime in an identical jurisdiction is offered to one but not to another?

Pre-flogging drug tests?

It is the 21^st century and there are plenty of illicit substances available to dull physical and emotional pain. If inflicting punishment is a central motive in the flogging proposal, will recipients be tested prior to the flogging to ensure their senses will be fully alert to the pain?

America’s reputation for human rights?

Flogging isn’t exactly lining people up and shooting them or putting them in holes and throwing stones at their heads, but as an unconventional (and possibly effective) alternative, it does raise eyebrows in a country known for advertising its commitment to human rights. Would the institution of flogging, albeit voluntary, damage America’s reputation for human rights? Does the emphasis on lower-tier crimes add to this potential or would it be viewed globally as an act of mercy to spare convicts from years of incarceration? And what happens if a flogging recipient dies in the process or the immediate aftermath of the punishment? Would America lose credibility in calling on other countries to end their human rights violations, or is the comparison more apples to oranges than substantive?

These are only a few of many questions which could be asked about the proposal to make flogging an alternative to incarceration in certain situations. The idea is definitely controversial, but it is also intriguing. Is there enough validity to the idea that it should be seriously evaluated in policy discussions or are the potential unintended consequences to severe to seriously consider? Whatever the outcome, Peter Moskos has produced a thought-provoking contribution to criminal justice literature.

A return to sportsmanship

I love sports, basketball and football in particular. There is nothing quite like the smell of the air when football season starts in the fall, or sitting in a cold car catching the last few minutes of a Cinderella game on the radio during March Madness.

I am also a dying breed of fan that refuses to boo when a ref blows a call and who cheers whenever either team scores. I always considered myself the epitome of sportsmanship. You can imagine my surprise when I found myself cheering recently not because my team won a game—but because another team lost.

On June 12, the Dallas Mavericks won the NBA title by defeating the Miami Heat in six games of a seven game series. Personally, I’m not a fan of either team, which is why I found it odd that I was so invested in the final outcome. More importantly, I found it disturbing that I wasn’t cheering for a particular team to win, but for the Miami Heat to lose.

Why? I think it had everything to do with LeBron James. I didn’t like the way he left Cleveland. His infamous egotistical “Decision” turned him from a sports legend with oodles of fans to an exceptional athlete who was almost universally hated. I was among those who didn’t have the most positive feelings for LeBron because of the way he acted, but I also felt bad as I watched him pretend like it didn’t hurt to be so widely disliked. I was about to set my childish grudge aside when I saw video footage of him and another teammate mocking an opponent. Instantly, I felt justified in being annoyed and began again to root for LeBron and Company to lose.

When I found out that the Mavericks had defeated the Heat, I felt a sense of elation—and then a feeling of sadness. I was elated that LeBron finally got his comeuppance, but saddened that I was taking joy not in one player’s or team’s victory—but in their defeat. So much for being the epitome of sportsmanship.

It is difficult to justify LeBron’s behavior over the last year, but it is also difficult to justify such poignant animosity for him—especially when looking at what he has not done. LeBron may have acted arrogant and childish, but he did not have adulterous affairs, he was not cited for driving under the influence of drugs or alcohol, and he was not arrested on weapons charges. There were no public confessions of misdeeds, no instances of reckless behavior, no prison sentences—only arrogance.

In choosing to root against LeBron James, I was guilty of the same misdeeds I attributed to him—childishness. It is unfortunate that sports fans today are often just as proud of who they want to lose as who they want to win. I am saddened to have been part of that group, but am determined to return more fully to the role of an educated—and grown-up—sports fan.

As I recommit to step up the level of my own sportsmanship, I would invite all of us who live (perhaps more fully than we should) for a good game to set aside some of our more base passions and enjoy the purity of the game for what it can and should be.