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 21st 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.