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05.27.11

California Prisons Overcrowded: Is Flogging the Answer?

The Supreme Court upheld a ruling ordering California to release 46,000 prisoners in order to alleviate overcrowding. Mansfield Frazier, who has done time, on why flogging may be more humane than a decrepit prison.

At first glace, the title of Peter Moskos’ new book, In Defense of Flogging, strikes you as a barbaric hoax being perpetrated by some sort of right-wing ideologue or kook. In fact, it initially appears to be an idea so outrageous, so provocative, as to not even rate a second thought; something to immediately be dismissed out-of-hand. Indeed, how can anyone—who considers themselves the least bit humane—even consider such an outdated form of punishment as flogging, even for the most serious and monstrous of law breakers?

But Moskos, an assistant professor of Law, Police Science and Criminal Justice at New York’s John Jay College of Criminal Justice, and a former Baltimore cop to boot, is painfully serious (pun intended). And the timing for his book could not be better, considering a recent Supreme Court decision that upheld a ruling ordering California to release about 46,000 inmates in an attempt to relieve its overcrowded prisons.

The wretched prison conditions cited in the Justice Anthony Kennedy’s majority decision makes the notion of corporal punishment a bit more palatable. Indeed, maybe even quite a bit more palatable than serving time in one of the hellholes California’s prisons have become.

If you were given a choice between 10 lashes and five years in a hellish California prison, which would you choose?

Justice Kennedy cited compelling evidence from over two decades of litigation: mentally ill prisoners going untreated for up to a year; suicidal inmates held for 24 hours in phone booth-size cages without toilets; and waiting lists of 700 inmates for a single doctor. Prisoners housed in gyms converted into triple-bunked living quarters that breed disease, violence, and victimizing of guards and inmates alike. In 2006, a federal judge found that substandard prison health care was responsible for the death of one inmate a week in the state’s prison system. “The medical and mental-health care provided by California's prisons falls below the standard of decency that inheres in the Eighth Amendment,” which bans cruel and unusual punishment, said Kennedy. And the food is supposedly worse than the conditions of confinement.

In light of the foregoing, Moskos puts forth a straightforward question: Is flogging malefactors any more inhumane than locking them away under such brutal conditions—often for relatively minor, nonviolent offenses? He’s not mandating the lash, but suggesting that those convicted of a criminal offense be given an option. Indeed, if you were given a choice between 10 lashes and five years in a California prison, which would you choose? You’d survive the lash, but perhaps not the prison.

If we’re capable of taking Moskos’ idea as a serious option to incarceration, it could have profound consequences for a nation that incarcerates its citizens at a rate that’s seven times as high as the other nations of the world. Clearly we have to find a way to reduce prison populations, and this just might be a logical one.

America, with 2.3 million people behind bars, has more prisoners than soldiers, Moskos writes. "Prisons do little but breed criminality and destroy family ties and job prospects… incarceration is long, torturous, and psychologically destructive.” The lash, he posits, while admittedly brutal, “is a short burst of searing pain,” but one that can “punish criminals, save money, spare families, and ensure that justice is served.”

As state after state grapples with budget deficits that threaten to push them into insolvency, almost invariably cost-cutter’s eyes focus on prisons, simply because they’ve proven to be financial rat holes, bottomless pits that suck up more tax dollars while offering little of value in return. Indeed, California, over the last decade, has built seven new prisons and not one new university.

Moskos writes that both ends of the political spectrum should look approvingly upon flogging as a substitute for prison. “If you’re a conservative, flogging holds appeal as efficient, cheap, and old-fashioned punishment for wrongdoing… it’s a get-tough approach… and nothing is tougher than the lash. If you’re a liberal and your goal is to punish more humanely, then you must accept that the present system is an inhumane failure.”

In Defense of Flogging forces the reader to confront issues surrounding incarceration that most Americans would prefer not to think about. While Moskos makes a compelling moral argument for allowing those convicted of crimes to be given a choice, he might have been better served if he had made it a financial argument instead. Most American taxpayers will willingly allow someone to be flogged into insensibility if it means they’re going to save a few bucks. Just look at the jeopardy we knowingly place prison guards in with inhumane overcrowding.   

Mansfield Frazier is a native Clevelander and former newspaper editor. His regular column can be seen on CoolCleveland.com. An avid gardener, he resides in the Hough neighborhood of Cleveland with his wife Brenda and their two dogs, Gypsy and Ginger.