Reconsidering Judicial Corporal Punishment
A humanitarian case for bringing back flogging. Hear me out.
American prisons can be pretty terrible places. They are violent and overcrowded. They are not therapeutic: the goal of rehabilitating convicts has yielded mixed results at best, and if there is a right way to do it, we sure haven’t figured it out. Prisons are often a training ground for repeat felons, reinforcing criminal and gang culture. Abuse of inmates by staff is not exactly unheard of. Our legal system is backlogged and strained, leading to all kinds of very bad upstream and downstream problems, not the least being victims’ families having to wait sometimes years for justice to be served, if it is at all (“justice delayed is justice denied”). Prison reform is an admirable goal, but we’re capable of doing more than one thing at a time. So, while we’re working on that, perhaps we should explore other options as well.
According to Wikipedia’s article on judicial corporal punishment, “In the United States, judicial flogging was last used in 1952 in Delaware when a wife-beater got 20 lashes. In Delaware, the criminal code permitted floggings until 1972.” After 52 years, we should revisit judicial corporal punishment as a viable means of dispensing justice for convicted adults and, for some otherwise destined for incarceration, a form of (potential) humanitarian aid. Here, I will briefly lay out a few arguments in favor, and anticipate a few objections. This certainly isn’t a hill I’m going to die on, but the more I think about it, the less outlandish it seems.
Proposal: Judicial corporal punishment, specifically flogging, should be reinstated as an optional alternative punishment for certain crimes. The particular form of flogging (whipping, caning, etc) would be pre-determined and standardized (medical supervision and proper training for those administering the punishment would be essential to ensure it is carried out humanely and fairly). In such eligible cases, the convict could have the choice of whatever the normal jail/prison sentence would be, or flogging. A convict should never be sentenced to flogging against his will. If flogging is chosen, it would be carried out within the day, with the guilty party being released promptly after the punishment has been administered. What crimes the flogging alternative would be available for is a practical question that need not be addressed here, but the range is presumably various low-and-mid-level offenses. For obvious reasons, the punishment would not be carried out in public, as was once common.1
Some arguments in favor (in no particular order of importance):
More convicts choosing flogging will reduce dangerous overcrowding in prisons, benefitting both prisoners and staff. Prison is, in my estimation, usually best reserved for those unfortunate, unreformable people who are too dangerous to be around others and must therefore be sequestered away from society for a very long time. These are mostly people who (a) commit heinous offenses and can never be trusted with freedom again and/or (b) inveterate repeat offenders. Prison is less ideally suited to housing a core group of career criminals who can influence a rotating supply of young, impressionable men, many of whom are only there for 1-5 years.
Reduced number of convicts being inducted into prison gangs.
A few minutes of flogging is far less expensive than warehousing people in prison for years. Money saved from expenses on overcrowded prisons could go toward improving and reforming the ones we already have.
Reduced strain on the legal system by cutting the number of cases going through endless appeals and other bureaucratic delays. Costs are reduced and valuable human labor time is freed up for more important things.
Convicts may be more willing to testify against gang members or other criminals if they aren’t worried about being locked up among them and being known as a snitch.
Convicts with families or others to support can get back to work immediately if they so choose, instead leaving struggling dependents behind while they are behind bars. This may help local economies as well by preventing loss of working-age men.
Fewer absent fathers.
Prison can derail your life, to put it mildly. Especially for younger offenders, a quick, painful punishment administered relatively closer in time to the infraction might have a deterrent effect on him and/or his associates that other more drawn-out legal processes don’t. This isn’t certain, but I suspect it is true for a good number of people. Young men who may be teetering on the edge of a criminal life but who still have some prospects may be better served with painful punishments that also keep them out of prison.
Flogging is more easily regularized than prison. One’s man’s prison term may be relatively uneventful while another’s is a fight for survival. All things considered, reliable and standardized punishment is truer to the spirit of justice, more ethical, not to mention more efficient and convenient.
The speed of the punishment and ease of re-administration makes getting frequently re-arrested a much more painful prospect.
Some might object: corporal punishment is cruel and people just shouldn’t be subjected to that kind of violence. It’s barbaric. After all, most countries have outlawed it for a reason and there’s a bunch of humanitarian declarations saying how bad it is, and it will be fought on 8th Amendment grounds (cruel and unusual punishment). Ok, but is corporal punishment so obviously crueler than prison? And more to the point, is it crueler than a prison beating? Or a prison knifing? Or a prison rape? Or murder? We must balance our instinctive aversion to something more easily and vividly imaginable, like flogging, with the less obvious but potentially more damaging effects of incarceration.
Some might object: corporal punishment could cause lasting psychological harm or other negative long term effects. Really, worse lasting psychological harm than locking someone up with violent psychopaths for years? See point above. Also, remember that my proposal calls for giving convicts a choice between the two punishments.
Some might object: this punishment could be abused or otherwise used in a discriminatory way, especially against minorities or other people at risk of abuse by the legal system. Again, many criticisms of corporal punishment seem to apply to prisons as well. There is certainly no shortage of arguments that prisons are rife with racial discrimination, that the prison system is abused and mismanaged and corrupt, etc. The option of judicial corporal punishment could easily lead to fewer minorities in prison.
Some might object: flogging may not be the worst thing in the world, but it’s settling for something decidedly suboptimal. We have options that are better than both the status quo prison system and flogging, and we should therefore focus our effort and money on those. I haven’t yet seen too many other proposals that seem like they’d be (a) humane, (b) effective, and (c) economically/logistically feasible. But I’m always open to new evidence and welcome any workable solutions!
Some might object: the optics of this are just too bad and even if it would work in theory, the public won’t go for it. I think this is one of the strongest counterarguments, although it is a practical consideration, not one of principle. The presentation and optics would, of course, have to be carefully thought through, with any perception of bias, abuse, or incompetence being addressed and dealt with swiftly. Whether this was done on a state vs federal level would presumably be a major factor in the public response. Federalism could come in handy here: a few states piloting the idea seems like the most sensible course.
So there’s a brief humanitarian case for reinstating flogging. Reasonable people can disagree, of course. And I’m not 100% convinced myself, but I’m more in favor now than when I started writing. I think the stipulation that the convict is flogged only if he chooses it as an alternative to prison as usual is essential for making it ethically palatable for most Americans.
What good arguments for/against have I missed? I’m especially interested to hear from anyone who’s had close experience with the criminal justice system, whether on the enforcement or offending side of the coin.
Public punishment + camera phones virtually guarantees that the guilty party’s sentence would be uploaded for the whole world to see. Humiliating someone in view of the entire human race is not the goal of this proposal.
I'm a retired school psychologist, and my bias is against physical discipline for the reasons listed in the APA article below. Granted, this is about using it on children, and perhaps it would be different with adults, but I still worry about the message we're sending, and whether this might lead to more acceptance of corporal punishment with children. It's been an uphill battle just to get it out of schools, and that battle is still not won. I'd hate to see us backslide. I also think that the difficulty in deciding who is going to be eligible for this form of punishment is glossed over here. Presumably we would only use violence (yes, flogging is a form of violence) with non-violent offenders. Would this lead them to become more aggressive/violent? Also, as somebody who has worked in a detention facility for adolescent male offenders, I've had many a young man tell me about all the crimes he committed for which he did NOT get caught. It's not that easy to know who is violent and who isn't based solely on the crime for which they were arrested. Some kids welcome spanking with a defiant attitude and it serves as no deterrent at all (not surprising since it teaches them nothing). I suspect there would be some adults like that, for whom the removal of the threat of imprisonment would increase their tendency to commit a crime. I agree the current system is in need of reform, but I worry that this "simple" solution would remove the pressure to actually do something more meaningful. But nice try! :)
https://www.apa.org/monitor/2019/05/physical-discipline
Very unconvinced here -- unless MAYBE if you want to use “punishment” as simple retribution. To work as a genuine deterrent you'd probably need to make it pretty severe (cf. Singapore judicial caning, tho they have it in addition to prison) which then makes the "cruel and inhumane" case against it much stronger and would make it much less suitable for low level offences.
So, when humane/not severe probably pretty useless as a deterrent, obviously sending a wrong message about use of violence, and if voluntarily chosen as a swap, likely to be chosen by people for whom it's not a big deal at all and might be a fairly low price to risk paying for certain crimes.
Alternative to prison for low level offences other than financial penalties include electronic tagging (reduction of freedom without being imprisoned in a secure facility) and doing a number of hours of unpaid but useful work, on top of more "social work" type interventions to reduce reoffending. I don't have handy data on how well these work, in what context of at all, or whether any are widely used in the US system and to what effect, though.