by Peter Moskos
If you think flogging lets people off too easily, we could debate the appropriate number of lashes. But if you think flogging should not be a choice because it’s not cruel enough, if your opposition to flogging is based on the idea that whipping is too soft, if you want all convicts to suffer the worst possible pain imaginable (including but not limited to rape and insanity), if you think prisons are great precisely because they torture so cruelly and horribly, then you need to take a deep look at your own humanity, because you might be a very evil person.
Violence may seem an unsavory alternative to prison, but punishment must by definition hurt in some way, be it emotionally, psychologically, monetarily, or physically. Punishment must cause pain. Physical violence has the advantage of being honest, inexpensive, and easy to understand. For many Americans violence is part of life. It is not incomprehensible that when softer cajoling and rational persuasion fail, corporal discipline, or at least the threat of it, is an effective deterrent and can even make a substantial difference on the course of a person’s life. For many children growing up in disadvantaged neighborhoods, the challenge isn’t to follow the social norms of one’s peers but to actively resist them. Many of my students tell me they wouldn’t be in college if not for corporal punishment. More interesting is that they tell me they’re eternally grateful for this discipline. These are college students making it. Without grandpa’s belt, they tell me, or at least the threat of it, they’d be in the streets, in prison, or dead.
I don’t mean to defend child abuse or unprovoked violence, but wishing away violence is not the solution. Two dozen nations have even gone so far as to outlaw parental spanking, even in the home, often on the assumption that physical discipline equals or inevitably leads to child abuse. By American standards a ban on spanking is extreme, but whatever standards one uses, this resistance to violence is not entirely logical. Far too many who oppose corporal punishment can be a bit clueless about the fundamental realities in so many people’s lives. Our society has a homicide rate three times that found in Western Europe and an imprisonment rate seven times higher. We don’t get these disgraceful realities from being pacifist (which is too often a luxury of the well-off). This is a tough country, and sometimes, even if it’s not ideal, order is maintained through force, or at least the threat of retaliation. Those with more means may scorn such a violence-dependent life, but those with more means can pay other people, such as police officers, to do their violence for them.
Certainly, for good and bad, violence can have a lasting impact. I still remember when I was in third grade and some kid I didn’t even know hit me. For no reason. He just came up and punched me. Bam! As a wronged eight-year-old, my first reaction was to find the nearest adult—who happened to be a worker, not a teacher—and mustered up all the righteous indignation I could. “He hit me!” I said, looking up expectantly while a large woman gazed down with a quizzical look. Her four words still ring in my ears: “Well . . . hit him back!”
Hit him back?
The thought of hitting him back had not occurred to me. I was a naive kid and I wasn’t raised that way. So I did nothing. I never saw that other kid again. Looking back, I suppose I got punked, but if your upbringing was similar to mine, maybe you don’t even know what getting “punked” or being “dissed” means. Or maybe, if you are a bit more street-savvy but more mature, you do know these words but still find the concepts quite laughable. If some stranger bumps into you or steps on your shoes or even straight-up insults you, you might just laugh it off. Why up the ante over a perceived slight and risk trouble? You have too much to lose. You’re above it. You can always walk away.
But what if you get disrespected every time you leave the house? Is it ever okay to hit back? There’s a simple rule that many people live by: Those who do wrong deserve to be beat. It may not be the most enlightened strategy, and maybe you disagree, but it is tried and true. And somewhat disturbingly, it probably works better than jail. But outside of selfdefense and limited parental discipline, you’re really never legally allowed to hit somebody. Although too much violence is admittedly very bad, it doesn’t necessarily follow that a little is a terrible thing.
Violence can be an important tool, especially when used as a last resort. Twenty years after I got hit in third grade, when I was working as a police officer on the rough streets of Baltimore, I didn’t have a chip on my shoulder or a grudge to settle. But I knew I couldn’t get punked. For a police officer, it isn’t safe. An unanswered threat one day is a potential 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. “Don’t fight the police,” a friend’s father said. “They’re not in the habit of losing.” Admittedly, I’m not a brawler. Quite the opposite. But still, like all police, I needed to be able to prove my authority. Without an “or else!”—without the threat of force—people won’t do what they need to do, even if a police officer is the one doing the telling.
But because police can’t use force all the time, they rely on locking people up. Arrests, however, haven’t always been the main tool in the law enforcement kit. Like many police, I heard stories from my fellow officers about policing in the “good old days”—which you’ve always just missed—when some minor offenders would be given a choice between handcuffs or a minor beat-down. Given a choice between a night in jail and going out back and taking a punch or two, most offenders, I was told, stoically (if not happily) chose the more honorable “beat and release” over the indignity of a night in Central Booking.
By the time I hit the streets, the “beat and release,” or crimes “abated by beating,” were already history. Word undoubtedly came down from above that corporal (and illegal) alternatives to incarceration were no longer acceptable. But without a corporal option, there’s no middle ground between letting someone go and locking him up. So instead of hitting back, police arrest. That was fine by me because I wasn’t raised to hit back. But now, for something minor, instead of a warning or a crack on the head, a disrespectful kid gets locked up. Instead of a lump and a lesson, the hoodlum has to deal with too-tight handcuffs, a strip search, hunger, boredom, being surrounded by criminals, a temperature in jail that is always too hot or too cold, and an arrest record. Is that progress?
Back in the day, or so I’ve been told, police might beat a wife beater. Consider this recollection of a long-retired Atlanta police officer, lamenting the demise of old-school policing:I miss those days before Rodney King. Back then you could roll up on a scene, domestic or just some street drama, and you know who the bad guy is. No Law & Order bullshit, no big mystery. He knew it, you knew it, and he knew that you knew it. You simply ask him the question: Do you want to go to jail or do you want to settle it right here? Most would take the medicine right there. You give them a bit of a thumping and go on your way. Nothing excessive, nothing truly abusive. The street had a feel for how much was the right dose and if you were good you would work within that.
Alas, not all police are good, and extralegal authority can easily be abused, but that does not negate the potential benefits of legal and consensual corporal punishment.
Now police have no choice but to lock up offenders, especially in cases of domestic assault, where mandatory arrest laws all but cuff the police. Laws such as these, which limit discretion, are a good example of good intentions run amok. If a couple fights, police simply lock up the winner. Any sign of injury means somebody is going to jail. Period. End of story. But of course that never really is the end of the story. Jail never is. Logically, different situations require different responses. This is why we pay and train police officers. When we take away discretion, we make things worse.
Once I responded to a domestic call after a man came home, admitted to catting around, got yelled at, and earned a big fat lip when his wife slugged him. He deserved it, he told me (and he probably did). But while his wife was yelling, neighbors called the police. Guess what? She went to jail. That’s the wa
y it is—mandatory arrest for domestic violence—that’s what the law says. In other instances, a girlfriend who had been beaten would point to her kids and beg me not to take away the babies’ working father. But I had no choice. If I didn’t make an arrest and then something happened, it would be on me. A week later, I’d be back at the same home for another fight, only now he was unemployed, having lost his job from the earlier arrest. Still later, such couples would often show up in court all lovey-dovey to have the charges dropped. These people needed help, but it wasn’t going to come from me. Of course police still have some discretion, but when it comes to punishing wrongdoing, the only legal option is to arrest. But arrests don’t work. The same people get locked up again and again for the same crime.
When I policed in Baltimore, there were one hundred thousand arrests a year, with twenty thousand of those happening in the district I patrolled. That’s a lot of arrests, especially for an area with fewer than forty-five thousand people. In such neighborhoods, police arrest on a massive and almost incomprehensible scale. Who benefits from these arrests except the lawyers, police, and correctional officers who get paid? Of course there is plenty of serious crime, and sometimes you need to slap on the cuffs. But the bulk of arrests are for minor things—things that people in better neighborhoods usually get away with—drinking, drug possession, disorderly conduct, loitering, and even simple assault.
Maybe the old option of the “beat and release” wasn’t so bad. Compared to court, police punishment can be quicker, more proportionate, and even more consistent—the three factors that just happen to meet Beccaria’s original concept of deterrence. The bygone system of discretion and giving a choice made sure some minor offenders received a less destructive option than building a rap sheet. “You know,” a friend of mine, a retired ranking African American police officer, said:When I was growing up in Baltimore, police would whup your ass. I don’t think that was such a bad thing. I’m pro–corporal punishment. But the thing is, police would know you and who your parents were. If your parents would beat you, they’d just hand you over. But if there was no discipline at home, they would take you somewhere and work you over. It worked. Certainly better than it works today. At least after a beating you had essentially a clean slate. And a good lesson. What happens today is a joke. You just go through the system and come out the other end. Where’s the lesson in that? It just teaches you the system doesn’t care.
So rather than take flogging off the table as punishment, it would be better to wipe incarceration from the debate and then figure out the best way to administer justice.
Just as my friend was familiar with the concept of “beat and release” well before he became a police officer, most of the people I arrested were no strangers to old-fashioned beat-downs. The rules were simple because that way everybody understands. If we don’t punish wrongdoers, the worst among us will keep doing wrong. Many didn’t seem to mind the basic concept, at least in response to wrongdoing. For a lot of people, violence is nothing more than a fact of life. You get your butt kicked and move on. It happens. The world, or at least their world, was a violent place. People in rough neighborhoods develop attitudes and toughness as survival mechanisms not because they’re bad people but because they don’t have other resources on which to rely. Different environments may require different attitudes toward discipline, parenting, and social control—different strokes for different folks, if you will.
Because corporal punishment may often be preferable to arrest, why not offer flogging as a legalized form of the old “beat and release”? In the long run, a criminal conviction is far more damaging than a violent but brief lashing. It might be a crazy world when flogging is a better choice than what we now call “justice,” but over a lifetime, for instance, a typical released inmate will earn 40 percent less than a similar nonincarcerated person. Flogging is brutal—hell, flogging is supposed to be brutal—but brief, intense pain is better than long, drawn-out confinement. Punish and be done with it. Hurt a man physically, but don’t, as incarceration does, destroy his life.
Along with a fondness for cricket and warm beer, the British exported the lash throughout their colonial empire (though we’ve moved on to baseball and cold beer). Although flogging is no longer on the books in any American state, it is still legal in thirty-three countries. But in nations where flogging is legal, at least if one judges by how often it is administered, only Singapore, Malaysia, and Brunei seem to thoroughly enjoy the process.
Both Amnesty International and the UN Human Rights Committee criticize flogging as cruel, degrading, and contrary to human rights law. Indeed, these organizations criticize all forms of corporal punishment. Yet the corporal-punishment holdouts seem to apply flogging with unrepentant zeal. Malaysia flogs perhaps 16,000 people a year. Singapore, with a population one-fifth of Malaysia, canes more than 6,000 a year. Singapore also has a very high incarceration rate of 267 per 100,000. Now, admittedly Singapore is a safe country, but if we’re really looking for a role model, perhaps we should look at Japan, a country with low crime, no corporal punishment (though it does have the death penalty), and an incarceration rate one-fourth of Singapore’s.
Recently I took the train to Singapore, from Thailand south through Malaysia, and I passed something of a landmark to caning. In 1976, at the border crossing leaving Thailand, Malaysian authorities caught Australian Robert Symes with four pounds of marijuana. Symes later said it was “fine grass” meant for himself and his stoner friends in Bali. But because it was such a large amount, Symes was convicted of drug trafficking. He narrowly escaped the death penalty and received prison plus six lashes. After being released, he described his caning in a magazine interview:The men responsible for administering this punishment know precisely what they are doing. They are pros. People about to be caned are given incredibly thorough medical checks before the punishment is administered—far more detailed checks than those given when a prisoner is admitted to a prison. If you die in prison from some ailment or other, too bad. But if you die from having your bum whacked, somebody somewhere is going to look bad.
I was untied, and iodine was applied liberally to my wounds with a cotton swab. It stung like hell. . . . .
The cane had chewed hungrily through layers of skin and soft tissue, and had left furrows that were . . . bloody pulp. The scars would never heal.
Perhaps the most famous case (at least in America) of modern flogging occurred in Singapore. Michael Fay was convicted in 1994 of spray-painting cars. (Fay admitted to stealing road signs but later claimed his vandalism confession was coerced.) After three months in jail, Fay received—and not by choice—four lashes. Although Fay’s Singapore experience was not exceptionally different from what Symes went through in Malaysia, his story attracted massive attention in the United States because he was American, a teenager, and committed what here would barely be punished. After his caning, Fay appeared on Larry King Live and described his experience:FAY: The trestle, there was buckles on, for the feet, and there was buckles for the arms.
KING: Are you, like, prone?
FAY: Can I . . . can . . .
KING: Yeah, please.
FAY: I was bent over halfway. I mean, my back was bent, in a 90-degree [angle]. And I was buckled like this, so I couldn’t get out of the buckle with my, my hands and my feet.
KING: Like a kid being spanked?
FAY: Exactly. . . . . But much worse.
KING: Then what did they do? So you can’t move your hands?
FAY: Right. You cannot move your hands or your feet. So you’re stuck there. So, then the flogger . . . tested the cane a few times, to make sure. He would whip it. Yeah, whip it in the air. . . . He was actually in a T-shirt that said something like “Police Commandos.” And he was wearing, like, army pants. . . . They yell out, “Count one.” And he comes out and on the third step, and he’s whipping, as he’s going, on each step. And . . .
KING: Can you hear the whip?
FAY: Yes, you . . . yes, I can. And
on the third, third step, he strikes. And he cuts open your buttocks.
KING: And there’s a lot of pain? FAY: There’s a lot of pain.
Fay’s ordeal inspired strong reactions among Americans. In Dayton, Ohio, where Fay’s father lived, a newspaper poll found two-to-one support for his punishment. Although many Americans were shocked at the thought of Fay being whipped, the fact is that he may have gotten off somewhat easy. Others have described far worse.
After his release, Fay returned to America and severely burnt himself while huffing butane. Because his family wasn’t poor, he went into rehab. After a low-level drug arrest in 1998, he disappeared from the public’s eye. Though he may still have the scars to remind him of his flogging, it seems as though the lash did not set Fay down a better path. But at least, it could be said, he never committed another act of vandalism in Singapore.
At this point the more open-minded reader may like pain as punishment but dislike the symbolism and messiness of flogging. Why not just build some kind of pain machine, push a button, and be done with it? A machine, perhaps much more than a person, could guarantee consistency of pain and also spare a person from having to administer the punishment.
Despite our best attempts—and yes, people have tried—a flogging machine is not a viable possibility. Disciplining machines are too ineffectual, too impersonal, and simply too bizarre to do the job. Consider this 1898 New York Times account of an “electric spanking chair” at a girls’ school:It consists of a seatless chair on which the girls are placed. It is high enough from the ground to allow four paddles to be operated by electric wires. Straps hold the victim’s wrists to the arm of the chair. . . . . Bad girls are strapped in the chair, an attendant presses a button, and the chair does the rest. The Kansas authorities will be asked in a few days to explain this system.
