The War On Drugs Has Overpopulated Our Prisons. What if We Gave Prisoners the Option of Being Flogged Instead of Jailed?

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Since Gov. Dannel Malloy is hunting for ways to cut prison costs — he's already called for closing prisons and slashing 1,000 corrections jobs — maybe he'd be interested in an innovative suggestion that could dramatically reduce the number of people behind bars: flogging.

The idea is to give folks convicted of crime a choice between prison and taking two strokes of a whip for every year of their sentence. Two years, four lashes; five years, 10 lashes. It would be far cheaper than keeping someone in prison at a cost of $40,000 a year.

What would you do if you were convicted, say for selling marijuana, and had the choice between a brief whipping or spending a year or two in prison?

Flogging as an alternative sentence system is the provocative theme of a new book, In Defense of Flogging, by a professor named Peter Moskos, who teaches at the John Jay College of Criminal Justice in New York City. His theory is that, yes, flogging may be cruel and inhuman, but years in often dangerous prisons jammed with prisoners from America's 40-year-long "War on Drugs" quagmire can also be cruel, inhuman and futile to boot.

"My book is not a policy proposal," Moskos says. "I wanted to get people talking. … I would be very surprised if someone adopted this, and somewhat queasy as well."

"I'm not pro-flogging, I'm pro-choice," explains Moskos, who has taught at John Jay College since 2004. "It [flogging] is evil, but it is the lesser of two evils."

Of course, there might be a few minor objections to reviving flogging as a criminal penalty.

"We'd have to amend the U.S. Constitution," says Michael Lawlor, the governor's top criminal justice adviser and the Malloy administration's point man on stuff like alternative sentencing and cutting our prison population.

"I don't think flogging is a permissible punishment in the United States," agrees state Sen. John Kissel, the top Republican on the General Assembly's Judiciary Committee. Personally, Kissel adds, he doubts he'd choose whipping over prison: "Physical pain is not my favorite thing."

Moskos doesn't think flogging is prohibited at the moment. "It's not unconstitutional because the [U.S. Supreme] court has never banned flogging," he says. The reason there's been no such ruling is that a legal challenge to flogging has never reached the nation's highest court.

"Delaware was the last state to strip [flogging] from its criminal code in 1972," he says. Moskos also argues that legal challenges could be questionable under his theoretical system because flogging would be a convicted person's choice: "No one would be forced to be flogged."

There's also the racial issue. State legislative studies indicate that blacks and other minorities make up something like 72 percent of Connecticut's inmate population. So chances are that most of those flogged would be people of color, and that would conjure up dark emotions surrounding America's guilt complex for centuries of slavery, chain gangs, whipping posts before town halls and midnight lynch mobs of cowards in white hoods.

Moskos doesn't believe such images should necessarily rule out the revival of flogging. "It would highlight the racial injustices in our prison system," he says, arguing that those injustices are now often hidden because "prisons are out of sight, out of mind."

Race, alternative sentencing, and the incredibly high cost of America's immense prison system are all tangled up together in the growing debate over this nation's seemingly endless, frustrating War on Drugs. And that's the point that Moskos is trying to make.

He points out that America now has 2.3 million prison inmates. Even China, with a billion more people, doesn't have that many of its citizens locked up. Moskos says he wrote the book in an effort to jumpstart the debate over ending the war on drugs, which he and many other experts argue is primarily responsible for the vast number of people we are keeping in prison.

Connecticut's Department of Corrections reports that this state had 3,326 people in its prisons in 1970, just before the War on Drugs was declared. By 1980, the number was up to 4,147. Ten years later, there were 9,589 Connecticut inmates. And then the shit really hit the fan.

By 2000, Connecticut's prison population had rocketed to 17,459, an astonishing 425 percent increase over what it had been before the War on Drugs was launched. (The growth rate has slowed since then: last year the number of inmates was 18,431.) Connecticut's overall population increase since 1970 has been less than 18 percent.

At $40,000 per inmate annually, Moskos estimates Connecticut could cut its current budget problem almost in half if it could return to the 1970 level of prison population. But he warns there would be a lot of political opposition to that kind of a radical change.

Moskos believes the "real legacy [of slavery] is making money off of human bondage," and is convinced America's prison system has become a self-perpetuating economic engine dependent on high numbers of prisoners to sustain itself. "We're hiring poor suburban white people to guard poor urban black people," he says, adding the system has become a weird sort of jobs program.

Former state Rep. Bill Dyson of New Haven, who was the longtime chairman of the legislature's Appropriations Committee, has the similar opinions about those involved in the prison system. "You have a population of people in whose interest it is to keep these prisons open," he says. "Without the prison population remaining the same as it is or expanding, they lose jobs."

Malloy is already proposing to close two state prisons and make a dramatic cut in the number of prison staff, which jumped from 1,422 in 1970 to nearly 6,500 last year.

Lawlor agrees that the War on Drugs has been the biggest factor in the vast expansion of the prison system, and agrees with Moskos that this hugely expensive effort hasn't achieved its objectives.

"If the goal was to reduce the number of people using drugs ... it looks like that number is more or less the same as it was 40 years ago," Lawlor says.

Connecticut officially decriminalized possession of small amounts of marijuana as of July 1. This state and others have for several years been attempting to reform its laws and sentencing procedures to provide non-prison alternatives for nonviolent offenders.

All this is coming at a time when violent crime rates — which many experts expected to rise because of the economic recession — are dropping like a rock. According to a recent national report, the 2010 rate for crimes like murder and robbery was lower than it has been for 40 years.

According to a New York Times article, experts say the drop in crime doesn't necessarily appear to be tied to all those people now behind bars. The percentage of people in prison has also been slowly declining as more states move toward alternative sentencing, and many experts are puzzled because they would have expected that more people released from prison would result in higher crime rates.

Lawlor and others doubt decriminalization of marijuana in Connecticut and other states is going to lead to a complete end of the War on Drugs any time soon.

"I don't know if I see it [pot decriminalization] as the beginning of the end," says David Haseltine, president of the University of Connecticut's chapter of Students for Sensible Drug Policy, "because public attitudes haven't really changed with regards to other drugs."

Lawlor adds that one of the nation's biggest addiction problems right now "is the abuse of legal drugs" prescribed by doctors, such as potent painkillers like Oxycontin or Percocet.

The goal, according to these advocates of alternative sentencing, should be to use something other than traditional prisons to deal with people involved with illegal drugs. If nothing else, says Dyson, it's a hell of a lot cheaper. "You can get first-class care [for a drug addict] for $20,000 a year," he says.

And there are better ways of punishing people than flogging, argues Lawlor, if that's what your goal is. He says lots of people would really suffer if they were deprived of the Internet, or the ability to leave their home, or drive, or watch TV, or consume alcohol or be put on some public list like a sex offender registry.

"For some people, that's a worse penalty [than prison]," he argues.

The way Dyson looks at it, "Flogging is out, but everything else is on the table."

Write to ghladky@hartfordadvocate.com

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