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In Defense of Flogging

FLogging [1]2,772 words

Peter Moskos
In Defense of Flogging [2]
New York: Basic Books, 2011

Are you a coward? Did you drop out of nursing school because taking a blood sample would “violate the patient’s bodily integrity?” Then In Defense of Flogging is not for you. If, on the other hand, you intend to make America great again, Peter Moskos’ book is a good place to start. Whether Moskos intended this or not, his book is a valuable contribution towards a future alt-right criminal justice policy.

As the title implies, this book defends corporal punishment, specifically the lash. Moskos proposes this as an alternative to incarceration which in his view, given the harsh reality of prison, most offenders would freely choose. As he noted in an interview, many have bemoaned the ills of incarceration in books few people read, but he hoped to break out of this pattern by presenting a real alternative. Unfortunately, no candidate for office has included his suggestions in their platform as yet, but this is not for lack of merit.

Thankfully, Moskos is quite explicit about what he is advocating. This means not only proposing rules as to the circumstances of the flogging, but describing the procedure itself. Malaysia currently practices flogging, so he cites the testimony of a New Zealander who had the misfortune of being convicted of heroin possession in that country:

I got six. It’s just incredible pain. More like a burning — like someone sticking an iron on your bum. . . . Afterwards my bum looked like a side of beef. There was three lines of raw skin with blood oozing out. . . . You can’t sleep and can only walk like a duck. Your whole backside is three or four times bigger — swollen, black and blue. I made a full recovery within a month and am left with only slight scarring. (10)

In Singapore, flogging is done with a wooden rod, and the offender often goes into shock after four blows. A doctor is however available to treat the wounds, which Moskos approves of.

Despite the topic, the phrase “bleeding heart” comes to mind more than once while reading this text. To the author’s credit, he does admit that blacks have higher rates of crime than whites, particularly violent crime, and that this contributes to their higher incarceration rate. He does not blame crime entirely on external circumstances, admitting that “crime is often an act of free will” (27) and, contrary to the theory that crime comes from desperate poverty, that “not so many people steal bread these days” (70).

However, there is still a great deal of hand-wringing concerning racial disparities in the criminal justice system, as well as the “circumstances that contribute to crime.” Moskos believes for some reason that “To ask that the chances of a person being caught and punished for any given crime be roughly equal, regardless of race, would seem reasonable” (70). He even complains about slavery.

The above are peripheral issues, though, and do not detract from the substance of the book, which is a set of arguments in the direction the reader might have guessed from the title. These are mainly presented as a contrast with the prison system which essentially replaced flogging beginning in the late 18th century, and the author briefly covers the origins of the new and more “enlightened” system.

What is now known as the classical school of criminology is based on the ideas of Cesare Beccaria, an Italian philosopher and politician. In the 1764 Essay on Crimes and Punishments, he proposed that criminals are acting on their own free will and responding to incentives, rather than simply being possessed by the devil as the popular superstitions of the time held. His response to this was of course to give the criminal incentives, particularly negative incentives, to avoid crime. This attitude towards judicial punishment is now known as deterrence, and contributed to the development of the penitentiary in Britain and the United States.

The penitentiary was originally intended not only as a deterrent to crime but as a place to do penance, along with hard labor. A British Calvinist named John Howard, disgusted by the conditions prevalent in jails in the 1770s, first developed the idea of putting prisoners into individual cells. His belief was that solitary confinement provided the opportunity for a prisoner to be cured of his criminality through the intervention of the Almighty.

The first penitentiary in the United States was commissioned in 1790 by the state of Pennsylvania. The impetus came from the Philadelphia Society for Alleviating the Miseries of Public Prisons, established three years previously by the Founding Father Benjamin Rush. In accordance with their recommendations, flogging was abolished in the same set of criminal code reforms which established the new institution. Many in this era believed that they were replacing a “barbarous” British system with one more suited to “a new country, simple manners, and a popular form of government” (37).

Unlike the existing jails, the penitentiary segregated prisoners by various characteristics including race and gender, as well as prohibited alcohol. Partly this was an attempt to protect the inmates’ health, both physical and moral; as with the penitentiary in England, such institutions in the New World were ostensibly for the prisoner’s own good.

On the topic of naïve attitudes toward human nature, Moskos draws parallels between prison and communism. The author judges both as having “in [their] idealism a certain enduring appeal,” especially to those who know little of the relevant reality, but characterizes the prison system as an escaped monster like that of Dr. Frankenstein, one which needs to be destroyed (102).
Among the many legitimate objections to the penitentiary is that it is not actually less cruel than corporal punishment. It takes away far more of the offender’s life, often a matter of years rather than the minutes necessary for a flogging. Aside from the issue of the abuses that inmates manage to inflict on each other, cruelty by the authorities in prisons was noticeable early on. In Pennsylvania at Walnut Street, the first American penitentiary, a doctor’s report from 1811 refers to starvation as a deliberate punishment.

Moskos gets at the issue of skewed moral priorities in those who would condemn flogging as immoral, particularly while condoning 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” (147-148). In other words, the issue is feeling morally superior to corporal punishment and wanting to protect oneself from the loss of that feeling. The contemporary use of long-term solitary confinement is a good example of this; it causes more serious psychological harm than a simple beating would, but is still more permissible than so much as smacking an offender.

As for the common justifications for prison, Moskos is not alone in not thinking much of deterrence. Although he does not admit the racial differences in time preference, Moskos does grant that criminals tend to have little concern for consequences. The idea that criminals can be deterred from crime by the threat of future punishment “depends on a certain level of rational thought and long-term comprehension,” but there is “little evidence that most criminals consider possible punishment before committing a crime,” as they do not expect to be caught. (29)

The author is similarly unimpressed by the idea that prison serves to rehabilitate offenders. Support for this view comes for example from Professor Robert Martinson’s 1974 article in Public Interest,What Works? [3]” which essentially agreed with the 1973 Presidential Advisory Commission conclusion that “[t]he prison, the reformatory and the jail have achieved only a shocking level of failure” (15).

As Moskos puts it, “If we were to grade prisons” at the functions they purportedly serve — “rehabilitiation, incapacitation, and punishment/deterrence — the only good grade comes from incapacitation: Here prisons get a gold star.” (89) Prison does indeed keep people reliably within the walls of an institution, at least if we discount parole or other circumstances of early release.

Despite this language, Moskos does not seem to agree with the view of incapacitation advanced by the late political scientist James Q. Wilson. Wilson, also known for the broken windows theory [4] of policing, argues in his 1975 work Thinking About Crime that even if it does not serve to deter crime, incarceration still holds down the crime rate in that it prevents criminals from committing crimes for the duration of their sentence. As evidence against this theory, Moskos cites statistics suggesting that crime rates can continue rising while incarceration rates rise, for example in New York City.

Moskos does of course admit that certain individuals are very dangerous and will be less so behind bars. However, he apparently considers crimes short of murder, terrorism, and pedophilia to not be serious enough to warrant incarceration. As he puts it, “[p]edophiles, psychopathic killers, and terrorists immediately come to mind” as people who “may indeed need to be kept away from us as along as they are alive” (92). But the vast majority of inmates are in his view “mediocre people,” albeit often repeat offenders.

Regarding exactly how many people fit the “monster” description, he seems to think it is less than ten percent of the current prison population; “that number is probably closer to Japan’s incarceration rate of 60 [per 100,000] than America’s 750” (108).

Moskos grants that the need for criminal justice is partly a matter of retribution. He refers to a hypothetical device which would suddenly cure the criminal of his antisocial inclinations. Crime victims, he admits, would justifiably not be satisfied with such a device; even though it would remove the threat from the offender, it could not provide a feeling of justice because there would be no punishment involved. Flogging does not suffer from this flaw.

Punishment “must by definition hurt in some way,” and of course flogging fits the bill here (114). The author goes on to argue that some of his students profess their gratitude to being subject to corporal punishment growing up, in that it helped them stay away from an antisocial lifestyle or even an early death. In this sense apparently punishment can indeed deter crime.

According to the author’s anecdotal report, not only was corporal punishment used by police in the not-so-distant past, it was also offered as an option which many offenders would freely take over jail. Although the idea here is not flogging but something less dramatic, Moskos implies support for this as well, and understandably so. For any who do believe in deterrence, Moskos adds that “Compared to court, police punishment can be quicker, more proportionate, and even more consistent,” which are the same three factors cited by Beccaria as key to effective deterrence (122).

In connection with this, he makes a point similar to one noted recently by the German police chief Tania Kambouri concerning the need to make very clear that the police are in charge. Allowing signs of disrespect to go unanswered risks inviting serious attacks. Moskos is a former police officer himself, and testifies that during his time walking the beat in Baltimore, “I knew . . . An unanswered threat one day is a potentital threat every day to come. Passivity invites danger and can get you killed, and so police officers have to adopt a ‘hit him back’ mentality” (117). This is much more difficult when no cheap and immediate means of punishment is allowed.

Unfortunately, the eugenic argument for prison is not covered here. We have all heard of strange sexual behaviors being practiced in prison, but procreation is not often one of them. On the other hand, criminals on the outside are notorious for reckless reproduction. These men are often the sons of criminal fathers, so it follows that the fewer sons they have, the fewer offenders there will be. This is similar to something which has already been argued [5] by economist Stephen Levitt, although in connection with something more dramatic than prison, namely abortion, which is beyond the scope of this article.

This argument might also explain why higher incarceration rates are not immediately followed by lower crime. A convict’s sons do not of course come out of the womb committing crimes, so his not having any will not have any effect right away. Generally, offenders are not getting in serious enough trouble to contribute to the crime rate until at least the age of puberty, and more likely their mid-teens. To expect a 15-year gap between a jump in incarceration rates and a reduction in crime rates, then, would be reasonable.

Unfortunately, Moskos does not consider the possibility of anything approximating sterilization, not even of those he considers real-life Hannibal Lecters. As an aspect of eugenics, such policies are widely considered unthinkable thanks to a desperate desire to have nothing in common with a German political party from the 1930s and ’40s. However, the policy has a history in the US, not only during the early 20th century, when fascism was popular among many Americans, but more recently as well.

An organization called Project Prevention, originally founded in 1997 in California, has demonstrated how negative eugenics can still be conducted in the current year. Despite charges of “racism,” the organization has provided voluntary long-term birth control to approximately 6,000 [6] drug users and alcoholics, people deemed to be unfit to care for children. Most are white women, but many blacks and some of other races have been involved as well.

The organization notes that their efforts are “unlike incarceration . . . extremely cost effective,” at only $300 per patient for a one-time procedure. Considering the costs imposed on society by children born into this type of situation, including those for drug treatment, hospitalization, foster care, and the criminal justice system, this is a great success. A similar program aimed at single mothers in Colorado, although unrelated to drug abuse, has also had impressive results [7].

One more argument is that flogging is less impersonal than prison, making it more difficult to become desensitized or indifferent to. This distinguishes it from prison in making it less likely to be overused. This also distinguishes it from proposed alternate methods of corporal punishment such as electric shocks or anything else administered by means of a machine.

Along similar lines, flogging is “honest, inexpensive, and easy to understand” (114).

The honesty element is in line with the alt-Right meme of the red pill, the acceptance of a harsh truth rather than a pleasant lie such as the “rehabilitative” power or greater humanity of prison.

Flogging was traditionally public and thus more transparent, while prison is a private punishment. Not many ever visit a prison, let alone see any of the more unpleasant occurrences inside one. Contrary to the founding myth of the penitentiary as something more humane than corporal punishment, the abuses in this environment include high rates of rape. This is something which would certainly never be accepted as an explicit part of a criminal sentence, even in the “barbaric” 18th century.

The author’s proposed flogging system, though, would involve semi-public events. Along with representatives of the court, victims and their families as well as offenders’ families would be allowed to witness the whipping in person, and the punishment would be exactly what the court ordered.

Corporal punishment is obviously very cheap, especially in comparison to incarceration. The book goes into the massive costs of the current system, which it is unlikely that any reader would deny. The estimates the author cites suggest that incarceration costs vary “from a low of $13,000 per prisoner per [year] in Louisiana to $70,000 in New York City.” The national average is given as $26,000, and of course, as is so often pointed out, we have a higher proportion of inmates than any other nation in the world. Costs for flogging are not explicitly estimated here, but they would be limited to the costs for the equipment and the brief labor of the personnel involved, including a few law enforcement officers and a doctor.

The proposal here is one of voluntary flogging; the offender would need to choose this punishment over incarceration. Almost everyone would do so, assuming they understand what is implied in a prison sentence, but still getting consent would be important to overcome certain objections, such as the Eighth Amendment’s prohibition on cruel and unusual punishment.

Rather than deterrence and rehabilitation, policies focused on retribution and the safety of law-abiding citizens would be more in line with our values. An alt-right administration might push for the reinstatement of flogging and a move away from prison for less dangerous convicts, in combination with some kind of negative eugenics program to protect future generations. The “penitentiary” is a long outdated institution based on religious views which hardly anyone today still holds. Policies based on a more red-pilled view are long overdue.