Why we should consider flogging over prison

 

This article was first published in June, 2011

Peter Moskos, a former Baltimore beat cop who is now a criminologist at John Jay College of Criminal Justice in New York, found himself telling his fellow Americans how immorally dysfunctional, ruinously expensive and profoundly stupid their country’s prison system is, and even convincing some of such, but finding they didn’t much care: they just want criminals punished. Hence, the suggestion in the title of Moskos’s elegant and Swiftian polemic, In Defense of Flogging. In it he asks if you, dear reader, were ever convicted of a non-violent felony and were offered the chance of accepting—instead of a jail term—two flesh-lacerating, Singapore-style strokes of the cane for each year of your sentence, wouldn’t you take the flogging option? And if you would, how can you deny it to others? Moskos spoke with Maclean’s Senior Writer Brian Bethune.

Q: Your book is very Modest Proposal-ish; what was your aim in writing it?

A: I wanted people to look at things differently, to shake up thought patterns. My big fear—which has seemed not to come true, luckily—was that people wouldn’t read past the title and would just think I’m a crazy conservative flogging freak. As I say in the book, it is more thought experiment than policy proposal, but I don’t think it would be bad to offer the choice.

Q: That’s what I meant by Modest Proposal-ish, because I don’t think Swift really thought it was a good idea to eat Irish children, but you seemed convinced—at least halfway—by the end of your book?

A: More than halfway. I mean, exactly as written, I would prefer to get lashed rather than go to prison. So yeah, in that sense it’s not quite like A Modest Proposal.

Q: The prison numbers in your country are staggering.

A: These 2.3 million prisoners, somehow we’ve convinced ourselves that’s normal and rational, more prisoners than soldiers, more prisoners than China, more than one per cent of the adult population, seven times the incarceration rate of Canada or any Western European country. Normal. I say a few good things about Canada in the book, you know. Americans are weird, though. We refuse to look at other countries. Start with Canadians—I want to think you aren’t that different, so why can’t we do it more like Canada? If we still had a 1970 level of incarceration [which was the same as Canada’s then and now], I never would have written this.

Q: I really didn’t want to be the guy to tell you that our current federal government wants to change that—and not in a way you would advise. The Canadian government is about to go on a prison-building spree, and it doesn’t think prisoners spend enough time in jail—mandatory minimum sentences will be increased.

A: Really? That’s … Longer minimums? You know, the other thing I wrote we ought to look to Canada for is the shorter sentences. I mean, the mess we’re in here, is because of the drug war and this idea of adding another five years, another 10 years, you know, like it means nothing to the people involved. It certainly does nothing for crime prevention—what problem are we hoping to solve?

Q: It’s like Prohibition never happened. Anyone can just look back at the record, the growth of organized crime and everything that went wrong then, and at how the U.S. finally gave it up, and think,“Why do this again?”

A: I think that’s a damn good question. There’s this urge to be retributive, and that’s why… I mean, that comes out loud and clear.

Q: That’s what I liked best about your book, the explanation that even when Americans recognize how dysfunctional their penal system is, they don’t really care because punishing criminals takes priority.

A: Yes, and although I consider myself pretty liberal, I’m not against punishment. There’s nothing wrong with punishing someone who has done something wrong. Or with public safety. Lock up a pedophile and there are fewer raped children, [but] locking up a drug dealer just creates a job opening.

Q: Hence the flogging idea?

A: Exactly. I mean, if soft on criminals means shorter sentences you could say I’m soft on criminals, but if you wrap it in a pro-flogging argument it’s a little harder to get labelled as such and a little easier to be heard.

Q: The desire to see criminals punished—and punished more physically than the law allows—does that explain why people tolerate the horrible stuff that goes on in prison that’s not official, why they can joke about prison rape?

A: Yeah. That horrible punishments are being exacted but we as a society are not formally doing it—among some conservative Americans there’s a lot of, you know, “Oh, prison is just “three hots and a cot” and cable TV and whatever. I haven’t figured out whether they really believe that or not—they’ll joke about prison rape, too, so I don’t know if anyone really thinks prison is that soft. But it does come down to the idea that, yeah, they’re supposed to be punished.

Q: So you challenge people who reject flogging to consider whether they do so only because they think prison is more cruel and thus more fitting punishment. Do you fear some people will think flogging a great idea to add to a sentence?

A: I get some of that. When I talk to people the usual progression is, “Flogging’s cruel and barbaric,” moving very quickly to, “Only 10 lashes for five years?” Then I do worry, actually. On the one hand, once you start quibbling about the number of lashes, I’ve won. But on the other hand, people who say flogging’s not cruel enough… I mean, well, what have we become? God forbid I wake up a couple years from now and we have even longer sentences and we flog people. I mean, then I might jump out a window.

Q: I read somewhere, actually in a piece by Conrad Black, the most distinguished convicted Canadian felon I’m aware of, that 47 million Americans have a criminal record.

A: That sounds about right: 2.3 million prisoners, five to 600,000 released every year, yeah. The vast majority, they all get out eventually, and then most end up back in. So much of that is drug-war-related. I do sort of assume that the vast majority are in a way guilty as charged, if not more so—because many, many have plea-bargained down—but why is it 2.3 million today as opposed to 300,000 only 40 years ago? I think there is a lot of crime caused by desperation, and it doesn’t mean that people commit crime because they’re poor, but certainly a lot of people who are poor commit crime and they might not if they weren’t poor. You understand the difference there? That’s not news, but it comes up when I hear people say poverty doesn’t affect crime—that crime is still going down in America even though the economy is bad. Then I say, unemployment may be up nationwide, but unemployment in the eastern district of Baltimore where I policed has been 20-30 per cent for decades. It doesn’t really matter what’s going on in some union town right now.

Q: You want to reduce the prison population by 85 per cent, and think the way to do that is by removing the drug users and the Bernie Madoffs?

A: Yes, but I don’t think we can now, so many of these people are damaged goods once they’ve spent much time in prison. It would have to be over a generation. But certainly, yeah, white collar crime. Why not flog Bernie Madoff? Well, he’d probably die, and that’s not my goal either. What is a good way to punish Bernie Madoff? Let’s assume he’s too old to get flogged. I don’t actually know, but there’s gotta be some way we could do it better than paying to imprison him.

Q: What do you make of the relationship between prison and mental illness?

A: There’s no straight line between closing the mental institutions and filling the prisons but there is some sort of relationship. And it’s hard to tell how much mental illness among prisoners came in with them and how much is because of prison. I just imagine the real tragedy is there’s probably a huge number of people who went in a little bit f–ked up and left completely insane because it’s just a horrible treatment. One of the pictures that the Supreme Court released in the California decision a few weeks ago, shows those cages where mentally ill people are kept, sort of metal phone booths—what could be possibly worse for someone who’s already screwed up a bit? Could you imagine telling some rich person who needs rehab, “Oh, we’ll just send you to prison for a month. I’m sure they’ll take good care of you.” I mean, we know that’s a joke and yet somehow for other ill people we say, “Oh, that’s okay.”

Q: You write that “a cynic”— I presume that’s not you— would think that the system is actually designed to work the way it does, paying poor rural whites to warehouse poor urban blacks.

A: That cynic would be me. I actually pull my punches a little bit when it comes to making a racism argument, though I buy it. I was very conscious in writing this book of trying not to alienate the conservative side. I know this in a way from my police background: the second you mention, “The system’s racist,” one-third of the country simply puts down the book and says, “Oh, it’s one of those guys.” So yeah, that’s why I write, “a cynic might say.” Then I am very cynical. That is absolutely what we’re doing. But you don’t even have to be cynical. I mean, politicians don’t even pretend they’re doing otherwise. The problem is the other side is not screaming bloody murder and saying, you know, “This is immoral, this is slavery, you’re profiting from human bondage.”

Q: You also believe that to convict somebody of a felony now is to hang him out to dry for life. The old concept of having paid your debt to society just doesn’t exist any more.

A: True, and that’s why it’s wrong that prosecutors here, for some minor thing or some drug crime, will allow you to plead guilty to a felony for time served. That’s just mean. If you’re willing to give them time served and let them walk, why do you want to give them a criminal record? I mean, either they should be in jail, or be free. But it’s all because of some internal bureaucratic stat about getting a felony conviction for the prosecutor. Everyone’s got their own little game to play, but that prosecutorial part of it is not well known.

Q: You don’t touch the death penalty at all?

A: I tried to stay away from that. I write a book called In Defense of Flogging, I don’t need to muddle it with a death penalty argument. I’m not a fan. At some level I think killing is wrong, but I don’t have sympathy for most of the people sentenced—I’m not a passionate anti-death penalty person. In truth, given all the other problems of the justice system, the numbers are so small, I think there are bigger fish to fry. Ironically, in terms of mental health and care, death row is probably the best prison situation to be in. There’s a little more public eye on that, to ensure at least minimal levels of official treatment are actually given to death row prisoners.

Q: Another Canadian angle you might consider is that the leader of the opposition in Ontario, the man who will be running to be premier this fall, wants to bring back the roadside work gang. That would certainly be an easier sell than flogging, but in your book you see positives in chain gangs: to the surprise of tough-on-crime supporters, they’re popular among convicts.

A: There is some great hypocrisy involved in judicial punishment. One of my dear friends and colleagues hates my idea. She does death penalty mitigation cases, you know, she fights the good fight, but she still can’t get past the idea that flogging is wrong. But I find it weird that people who claim to speak for the prisoners basically want to keep them in cages all the time—and then they’ll fight for better prison libraries or whatever. It’s like they’re missing the big picture. If I were in prison, of course I would prefer to be outside doing physical labour. It’s not physical labour but prison life that kills a person. It’s so bad inside that the outside jobs are often sought after. So, yeah, call them work crews and let them do it. At the same time the retributive side can feel the cons are being punished.