theoria

Peter Moskos’s In Defense of Flogging presents a simple and radical argument: the penitentiary system, especially in the United States, is more or less a crime against humanity: not only does it fail to meet its stated objectives, but it is also exceptionally cruel forcing inmates to be subjected to beatings, rapes, overcrowding, no health care, and the like. This leaves us with few options. We can either ignore the problem, attempt to reform the system, abolish the system entirely (but leave open the issue of punishment), or introduce a new punishment into the administration of justice.

The proposed solution to the prison is probably one which no right-thinking person could agree with: flogging. Strangely, Moskos views this as the only humane solution: at least so long as corporal punishment is a free choice on the part of the criminal between flogging and incarceration. One might, of course, quibble as to whether it is a “free” choice when you are given the option of five to ten years in prison versus five to ten lashes. This is a point that Moskos does address directly–indeed, at the level of argumentation and evidence, the book is somewhat of a disappointment. (There is a bizarre footnote on Foucault’s Discipline and Punish [157-8] and an equally bizarre “reading” of Marx as being objectively in favour of prisons [102-3].) It is also disappointing–albeit not surprising that a former patrolman in Baltimore’s Eastern District (recall Herc, Carver et al in the Eastern Western)–would endorse dark alley beatings as a key component of justice. (You see, policemen are highly trained professionals who are, at the core, good people and they need a wide range of discretion to deal with wife-beaters, bullies, and dealers selling drugs around children–it’s all part of the game, as Omar Little might point out.)

Moskos’s view–and one that I agree with–is that the prison cannot be reformed. Reform and regulation, as animal advocates know, has the unfortunate consequence of legitimating a bad institution by making concerned people feel alright about their guilt. And, worse, reform and regulation leads to limited–at best–improvements in the quality of life of those trapped in the institution. Reform, in effect, is having your cake and eating it, too: it misses the point and, over time, leads to something far more monstrous than what you began with. Clearly, this should be unacceptable to any right thinking person. There are some good reasons to keep the prison in a minimal capacity, such as to prevent truly incorrigible people who have committed horrible crimes from ever hurting people again. He has in mind here repeat, violent sex offenders, serial killers, and the like: the sort of criminal that we routinely see on television, but rarely ever encounter in our lives. This seems agreeable and correct to me. I don’t see any good reason why Paul Bernado or Russell Williams should ever be allowed out of prison. The question remains, however, regarding what to do with the remaining 99.9% of prisoners.

The effectiveness of American prisons is confounded by the so-called War on Drugs; that is, while it is the case prisons don’t work anywhere, they are especially dysfunctional in the United States such that a strong case could be made that the penitentiary system is akin to the Gulag or Apartheid given that prisoners are overwhelmingly black, their rights and interests are significantly violated (many cannot vote while incarcerated and many are permanently disenfranchised after “doing their time”) and blacks are significantly more likely to be incarcerated for a crime that a white will not be incarcerated for (let alone prosecuted for). Much of Moskos’s argument comes down to efficiency: not only do prisons fail to meet their stated goals (a failure on any terms), their cost doesn’t justify that failure. Indeed, “the cynical among us might even say we’re spending billions of dollars to pay poor rural unemployed whites to guard poor urban unemployed blacks” [77]. Surely there are better means to address the socio-economic needs of the permanently poor than incarcerating the ones with dark skin and employing the ones with light skin to make sure the dark skinned ones don’t try to escape. Further, it must surely be the case that even the most generous social welfare system–complete with full medical!–would cost less than what the penitentiary system presently costs.

Predictably, given the above, the defence of flogging is primarily on economic grounds: lashing costs significantly less than incarceration, even when antibiotics are figured into the cost of lashing in the rare case of infection. Moskos is even willing to go so far as allow lashings to replace the criminal record: after all, if you’ve got giant scars on your ass, it’s pretty clear that they were inflicted by the judicial system. Moskos’s proposed system would allow for summary judgment: arrested, charged, guilty plea, lashing all in one night and, a month later, the criminal’s wounds are healed and he is able to return to work. While liberal human rights regimes defend the body’s integrity as sacred, it is kind of hard to argue with this logic: on the one hand, the criminal can freely submit to a lashing and get on with his life and, on the other hand, it’s not like bodily integrity is protected in any meaningful way in prison–indeed, the long-term physical, mental, social, and economic consequences of incarceration likely far outweigh the consequences of a half-hour of excruciating pain.

Despite the detour into back alley justice meted out by well-meaning, professional, and basically good cops in the second half of the book, there was one passage that was particularly interesting. Moskos notes the similarity between the factory farm/slaughterhouse and the prison [136-9]: both are excessively violent and are almost entirely closed to outsiders. This connection is often missed in discussions of animal rights and it is one that should be taken up more vigorously. There is no good reason to make the comparison between the animal abolitionism and slavery abolitionism but not also prison abolitionism. Sadly, Moskos’s solution to the slaughterhouse is to kill your own meat because it is the least that a meat eater can do–anything else is disrespectful, or some-such. It is a palpably silly argument, but at least Moskos’s thought is taking him, more or less, in the right direction.