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The Policy Initiative That Dare Not Speak Its Name

I've had this thought from time to time that the United States went astray in its abandonment of corporal punishment in favor of the prison system. The initial idea had something to do with rehabilitation of offenders, but for various reasons (some good, some bad) this goal has been essentially abandonded. This leaves us with a system of punishment that's really no less cruel than simply having the state inflict pain or permanent disfigurement on people. In particular, in practice prison really is a form of corporal punishment in light of the violence that takes place in the American penal system. But unlike in a system where a judge sentences you to X lashes, or to having a hand chopped off or what have you, the violence that will be inflicted upon a convicted felon is only incidentally related to the severity of his offense. Other factors like how "tough" you are and whether or not you can join a prison gang or whatever factor more heavily in the equation. All this seems rather wrong. Corporal punishment would dole out cruelty with greater precision. It would also dole it out at much less cost, which would open up funds for non-punitive crime control measures, including both more and better police, and the sort of social programs (and drug treatment) that liberals rightly maintain could prevent people from turning to crime in the first place.

I bring this all up because Brad Plumer just did a post along these lines (he has "Koranic justice" in mind, I was thinking more of Singapore) with an assist from an old New Republic article. Now all we need to do is find someone at The Nation to get on board and corporal punishment will become the new liberal orthodoxy! Brad brings some additional considerations to the table including the contention that corporal punishment would be a "better deterrent (less abstract than a prison sentence; loss of hand can prevent further crime) and less conducive to recidivism (doesn't corrupt you like prison does)." At least one counterveiling consideration is that prison has an "incapacitation effect" where as long as the offender is behind bars, he's not out on the streets victimizing new people -- or at least he's not victimizing non-felons. You wouldn't really want to convict, say, a rapist, flog him for a little while, and then have him back out on the streets shortly thereafter. I believe Saudi Arabia handles this by doling out copious quantities of capital punishment for major offenders, which is obviously deeply at odds with western norms. Even here in the allegedly execution-happy US of A, the ratio of executions to murders is extremely low. In practice, outside of Texas and Virginia hardly anyone is put to death.

The whole thing, moreover, is extraordinarily distasteful, and I'm certainly disinclined to go around campaigning for corporal punishment. But it does seem to me that the subject could stand some serious scrutiny and analysis, since it's not clear to me that the actually existing prison system (as opposed to some idealized alternative) is more humane in any substantive way. It may just be a huge waste of money compared to direct infliction of physical harm.

December 27, 2004 | Permalink

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» Spank Me from Pandagon
Matt's got a modest proposal for corporral punishment that would be a lot easier to ignore if it didn't actually sound better than our current system.... [Read More]

Tracked on Dec 27, 2004 11:50:50 AM

» Whip Me, Beat Me, Make Me Wear Plaid from Patridiot Watch
Or, maybe just stick me in the stocks for a couple days and make we wear a scarlet letter of some sort. Matthew Yglesias is supporting a return to corporal punishment as an option to our current penal system. I'm not so opposed to it, really, unless it... [Read More]

Tracked on Dec 27, 2004 12:00:01 PM

» The doing / allowing distinction from The Ethical Werewolf
I imagine that lots of the resistance to this idea comes from the different attitudes people have to doing harms (for example, by flogging a criminal) and allowing harms (for example, by putting a criminal in prison where other prisoners keep raping ... [Read More]

Tracked on Dec 27, 2004 12:19:55 PM

» 40 Lashes and the Stock Market from The Cardinal Collective
So did Santa Claus bring you enough controversy? No? Well how about CRIME AND PUNISHMENT: Matthew Yglesias takes on the subject of corporeal punishment: I've had this thought from time to time that the United States went astray in its... [Read More]

Tracked on Dec 27, 2004 12:48:20 PM

Comments

You, sir, need to own up to reading Discipline and Punish.

Posted by: bobo brooks | Dec 27, 2004 10:51:37 AM

Now all we need to do is find someone at The Nation to get on board

Paging Christopher Hitchens... Mr. Hitchens, please call your office...

Posted by: Jeremy Osner | Dec 27, 2004 10:52:02 AM

That people would even consider corporal punishment seems to me symptomatic of a general decline in empathy -- it is, perhaps, the same moral derangement, which has led the Bushies to bring back torture as an interrogation technique.

Prisons are enormously costly because the incapacitation involved takes the prisoner out of the economy, entirely. The technology of 24/7 monitoring exists today, at rapidly diminishing cost, and could be usefully applied to all but the most pathologically violent offenders. If we can cheaply monitor the whereabouts of a miscreant, then a judge can impose meaningful restrictions on associations; a burglar, certainly, and probably a drug dealer would be out of business, without the expense of State housing and food.

Posted by: Bruce Wilder | Dec 27, 2004 10:56:44 AM

I wonder if this would be good politics too. It seems like the kind of thing that would play well in the red states, though I could just be engaging in some dumb stereotyping here.

Posted by: Ethical Werewolf | Dec 27, 2004 11:10:35 AM

As punishment for dealing crack, you are hereby sentenced to have all your teeth forcibly removed and replaced with metallic dentures.

Oh, I see you're a repeat offender.

Posted by: Grumpy | Dec 27, 2004 11:18:17 AM

No thanks. Violence begets violence and more anger. And it's hypocritical to use violence to punish violence. Blessed are the peacemakers.....

Posted by: Deborah White | Dec 27, 2004 11:25:24 AM

Matt, you realize your reasoning here is of the form, "our current system is inhumane and inefficient, so why not replace it with a system that is equally inhumane but more efficient?" Somehow that doesn't seem liek the right way to go about it.

Posted by: bza | Dec 27, 2004 11:33:04 AM

Look, I'll trade an inhumane, inefficient system for an inhumane, efficient one any day.

Posted by: Ethical Werewolf | Dec 27, 2004 11:36:23 AM

Why would corporal punishment deter? You have the same problem of "toughness"--"Man, Jackie took twenty lashes and didn't made a sound, he's badass!" And as you say, this method has noincapacitation effect, nor chance for rehabilitation. You can't get your offender to take the GED or produce cheap tennis shoes while he's getting his hand cut off.

Betting pool on how long it would take certain conservative members of Congress to propose flogging for homosexual acts?

Posted by: mythago | Dec 27, 2004 11:37:03 AM

There are essentially two kinds of corporal punishment -- punishments that inflict pain but are not principally designed to permanently incapacitate, and those that are designed to permanently incapacitate (lopping off limbs, capital punishment, etc.).

The former kind of corporal punishment might be particularly effective and economical as a voluntary option for first-time relatively minor offenders who accept responsibility.

The second kind is, IMO, of virtually no practical utility and has no place in civilized society whatsoever.

Posted by: cmdicely | Dec 27, 2004 11:38:55 AM

Why, yes, of course. And after we've scared the bejeezus out of the lower orders, the only problem we'd be left with is a depraved upper class that can't even imagine making things better. What a jolly time we would have then!

Maybe we should start by remembering that half of our prisoners are there for 'drug crimes', but not one drug 'kingpin' is among them. Rob a bank (average takings: $2000) and go to jail, OWN a bank and defraud investors of $1,000,000 and you go to the Grand Caymans, where all the really cool guys have their offshore accounts.

It is sad and yet heartening to see that we really can't expect any help from the people with money who went to the big-name schools. Yes, we deserve better, but for the little guy it's also nice to see that they really do put their pants on one leg at a time.

Our drug problem, in spite of falling prices and the failure of interdiction, has never become big enough to be a real problem. In contrast, our prison problem is collapsing the economies of entire states. Today the devastation is gutting highway budgets, schools, and healthcare programs for children. But we all know nothing will change until the people demand that our rulers make a choice- either give up their war toys, or cut back on locking up the poor.

So it's kinda cool that good things still can only come from the lower classes. And kinda sick that being lower class is the reason people go to jail.

Wonder if we'll figure it out before the roof falls in?

Posted by: serial catowner | Dec 27, 2004 11:57:27 AM

If the intention is to get criminals to stop doing it, then we should consider the results of behavioral psychology.

Negative reinforcement works. It works best when it's really and truly something the victim does not like. It works best when the negative reinforcement is applied immediately after the action to be negatively reinforced. It works best when, at the beginning of training, the negative reinforcement is applied consistently -- it happens every time and immediately. If you don't want to have to keep doing it consistently then it works best if it becomes gradually intermittent. (Then if it stops the victim won't immediately realise that it's stopped or that he's found a loophole.) The victim will of course learn to avoid the behavior that calls up negative reinforcement and will also try to avoid the negative reinforcer and everything connected with it. And of course the negative reinforcement should stop immediately when the offending behavior stops.

Prison utterly fails at all of this. It's usually long-delayed. It doesn't stop. For some people it isn't that bad. It usually doesn't happen -- people usually get away with crimes. (Not counting political crimes. Much much easier to catch somebody uttering-and-publishing than to catch a thief.)

Corporal punishment is better in not lasting as long. It still has the problems that a few people like it, and it would be long-delayed, and it would usually not be applied.

It would likely be possible to design electronic equipment to heterodyne nerve signals, and use it for torture without much physical damage. (You can't avoid all physical damage; the body's responses to torture would cause some damage in itself.) You might be able to show people what it feels like when their various appendages are burned off one at a time, etc. But when the victims believe it was just bad luck that they got caught that one time last year, after a year of waiting for trial etc, it wouldn't bring about much behavior change. And if they believe that they aren't actually being done any damage it's a lot easier to tough it out.

Monitoring is likely to have bad side effects unless it's very carefully done. If we tend to assume that someone who's being monitored is guilty of crimes that happen when he's there, then the natural approach is for others to commit crimes when they see him -- so he'll get the blame. He could carry a cellphone and call 911 every time he notices? Give him a video camera and let him record what he sees happening, for his own defense? Again it would seem this would work better to deter political crimes than other crimes.

Posted by: J Thomas | Dec 27, 2004 12:02:12 PM

Mythago touches on it, but it really is the main point: No prisons means no prison labor.

Besides which, you really must consider the extent to which prison system is focused on imposing a complete dehumanization on inmates. This is no passing whim nor is it a mere expedient management technique. This is a goal of the system: to render a segment of the population psychologically crippled.

Recidivism, a logical consequence of this crippling, is like employee retention.

Posted by: chimneyswift | Dec 27, 2004 12:07:16 PM

There was a post on Crooked Timber a few days ago to the effect that social stigma is the most effective way to control behavior ... maybe we just need a return to ye olde stockades. Fire up the tomatoes!

Posted by: praktike | Dec 27, 2004 12:15:05 PM

Big screens with messages of encouragement and positive reinforcement, no subversive literature, and rats in face-cages. I think we may be getting somewhere.

Posted by: bob mcmanus | Dec 27, 2004 12:39:03 PM

Stockades and public flogging for people who park in handicapped spaces!

Posted by: def | Dec 27, 2004 12:51:22 PM

Well, it might be the case, if deterrment worked. But just like investing in the stock market, criminals fall victim to the same fallacies that keep them from making rational decisions about their behavior.

For example,

Self-attribution Bias: We attribute our successes to ourselves, and we blame our losses on others or bad luck. This hobbles us in two ways. First, we don't learn from our mistakes because we don't see them as mistakes. Second, we assume we are skilled or smart when we're just lucky.

Overoptimism: We tend to be overoptimistic and overconfident. According to James Montier, when students are asked whether they will perform in the top half of their class, an average of 80 percent say yes. This tendency makes it easier for part-time hobbyists to dismiss a century's worth of academic research showing that only a tiny fraction of full-time professionals can beat the market.

Hindsight Bias: When we reflect on the past, we imagine that we knew what was going to happen when we didn't. As James Montier puts it, "You didn't know it all along, you just think you did." This allows us to imagine, for example, that we knew that the tech boom of the late '90s was a bubble and that everyone who suggested otherwise was an idiot or crook. It also makes us overconfident about our ability to predict what will happen next.

In other words, it's not the type of deterrent that fails to modify criminal behavior, but the fact that the human brain is not wired for deterrent to work at all (especially among those most likely to commit crimes.)

So where does this leave us with punishment? Well, on the one hand, we shouldn't downplay the most effective part of incarceration, one that Matt metions:


At least one counterveiling consideration is that prison has an "incapacitation effect" where as long as the offender is behind bars, he's not out on the streets victimizing new people -- or at least he's not victimizing non-felons.


So we should make sure that whatever sort of criminal punishment should incorporate this piece.

Secondly, corporeal punishment relies on people who are clearly not rational to behave more rationally. That sounds like a recipe for failure to me. Rather than giving in to this constant drumbeat about making prisons tougher for prisoners, shouldn't we as a society try to develop institutions that are rational rather than giving in to the irrational impulses engendered in all of us?

Posted by: Kilroy Was Here | Dec 27, 2004 12:55:49 PM

You assume that corporal punishment (or more accurately torture/maiming) has a strong deterrent effect. Whilst it may seem to be obvious to those of us with a seemingly ‘normal’ pathology that actions that bring such pain should be avoided it is not necessarily that simple. I use as an example from my own experiences in Northern Ireland paramilitary punishment beatings. For many years due to the ‘troubles’ the police could not operate properly in many areas and a form of vigilante justice was instead exercised by the paramilitaries (loyalist and republican). This involved known ‘anti-social’ offenders (burglars/car thieves etc) being given what were euphemistically known as ‘punishment beatings’. The beatings in question were very severe and generally operated on a kind of gradated scale. First offence, maybe they drop a breeze block(large concrete brick) on your hands/fingers, maybe the beat you with bats/hurly sticks (usually studded with nails). As you move up the chain then out come the guns for a kneecapping, sometimes its through the fleshy parts, calf’s, flab under upper arms, buttocks etc maybe if you are bad actually through the joints, both knees and elbows. When all this had failed and you were still anti-social then it was exile to the mainland UK or if you ignored this death by execution. I cant imagine a more violent brutal regime of ‘corporal’ punishment. The obvious question is did it work? I worked as a criminal defense lawyer and had many clients who had suffered such beatings and it never acted to deter their behavior. In many instances others working with such offenders would tell you that these beatings had next to no deterrent effect. They were tremendously popular with local communities and helped to give political support to terrorists but as a crime prevention or control method: useless. If we want to create a more terrifying government for ourselves and win some cheap political support from angry sadists then hey go for it but perhaps if we want to stop crime we might consider that further brutalizing people, already largely brutalized by our society, might not be the best method. The USA locks up 10 times as many people as Europe in a far more brutal prison system and yet has higher crime rates than any European country (except in some categories the UK, not murders, which country incidentally accounts for a big chunk of Europe’s prison population and locks up more than any other European nation; anybody else notice a pattern?).

Ultimately tackling crime in the USA will be about tackling what’s wrong with our society, not beating peoples feet with canes, but I have absolutely no faith in our political systems ability to do that.

Posted by: Duncan | Dec 27, 2004 1:03:54 PM

But just like investing in the stock market, criminals fall victim to the same fallacies that keep them from making rational decisions about their behavior.


I think it is a mistake to equate criminality with irrationality. Certainly, one purpose of criminal law is an effort to make desirable behavior as universally as possible also the clear rational choice, but I hardly think it succeeds at that goal.

Posted by: cmdicely | Dec 27, 2004 1:10:32 PM

James Oleson, a professor of law and criminology, currently doing a Supreme Court fellowship, published a similar Swiftian proposal in the California Law Review a couple years back entitled "The Punitive Coma", suggesting that we should consider rendering felons unconscious for the duration of their sentences. I believe only the abstract is readily available on the web, but if you have access to the article, it's a fascinating read.

Posted by: Hamilton Lovecraft | Dec 27, 2004 1:43:21 PM

Geez, Matt, the USA's already well down the path of state torture, 'disappearing' federal suspects, and an ever-widening gap between the poor and the affluent -- so why not take the last step toward turning the country into a banana republic?

As a mind experiment your post is mildly interesting, but as a serious policy suggestion you'd better re-examine whether the means of punishment is the real problem with our justice system. Maybe you should re-examine the war on drugs.

Posted by: ScrewyRabbit | Dec 27, 2004 1:44:18 PM

BTW, was "The Policy Initiative That Dare Not Speak Its Name" an oblique reference to sodomy in prison? Karma, dude, karma...

Posted by: ScrewyRabbit | Dec 27, 2004 1:46:51 PM

Prison is also an opportunity to indoctrinate convicts into Christianity, as this post from "Night Light" called "The God Gulag" discusses:

http://thenightlight.blogspot.com/2004/11/god-gulag.html

Posted by: B Kleinman | Dec 27, 2004 1:51:48 PM

Corporal punishment is one of those ideas for which it's possible to find many theoretical arguments, particularly given the disasterous effects of the current penal system. And perhaps in some ideal universe, it might work. But think about the society we actually live in, and the kind of justice we're actually producing. What is to prevent any system of coporal punishment from degenerating into a socially acceptable system of sadism towards the poor, the undeserving, the black, and any other group we don't like? Does anybody actually believe that the rich and the poor will both be writhing under the lash for the same offenses? You might argue that there are plenty of inequities in the present system, but thats no reason to give the rich and self-satisfied the pleasure of actually torturing their social inferiors

Posted by: Paul Gottlieb | Dec 27, 2004 1:58:57 PM

Paul Gottlieb.....Agreed!

Posted by: Deborah White | Dec 27, 2004 2:01:50 PM

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