Submitted by Charlton Stanley, guest blogger

There is no dispute that jails are overcrowded. Many counties spend millions on new and improved jails, only to have them fill to capacity the first day they open. This is nothing new. Some judges have found themselves faced with the dilemma of sentencing a defendant to jail, but there is literally, “No room at the inn.” Some chief judges have been forced to order felony inmates released before their sentences were up, simply to make room for new inmates.

 Some judges, especially at the municipal and county levels, have turned to creative sentencing. Some of the sentences seem to fit the crime and make one smile at the same time, such as sentencing young adults with ‘boom-box’ cars ticketed for loud music to spend anywhere from an hour to all day listening to classical music, jazz, bagpipes and oriental music. There was one judge who played saxophone in a jazz band, and he would throw in a few recordings of his own music. I don’t know how good the judge is on the sax, or whether that might come under the heading of cruel and unusual punishment.

There are a number of cases where slumlords were ordered to live in their own slum properties. One of those cases was used as the story line on a TV crime drama program several years ago.

Public shaming has been tried as an alternative sentence. Wearing sandwich board signs in public proclaiming their idiocy to their friends and neighbors, wearing a chicken suit, and whatever else the judge thought appropriate. When the Stolen Valor Act was in effect, one defendant was sentenced to 500 hours of community service working with groundskeepers tending the graves at the nearest National Cemetery. I don’t have a problem with making the sentence fit the offense, but some go too far, and some are far too lenient. Lack of consistency or rules for alternative sentences results in lack of fairness to both victims and defendants. It is the other extreme from mandatory minimum sentences where the judge has no discretion at all.

This weekend, Jonathan Turley, our blog host, debated Professor Peter Moskos on NPR. Mr. Moskos is a former police officer and now teaches law. He has written on the subject of alternative punishment, and the title of his most recent book, In Defense of Flogging, is provocative if nothing else. He also authored a column in the Washington Times entitled, Bring Back the Lash: Why flogging is more humane than prison.

Sorry, Professor Moskos. Fifty years after Dr. King gave his famous speech on the steps of the Lincoln Memorial, I don’t think we want to go there.

Ever again.

From his Washington Times article, Professor Moskos poses a hypothetical:

So first let me begin with a simple question: Given the choice between five years in prison and ten brutal lashes, which would you choose?

Yes, flogging is a severe and even brutal form of punishment. Under the lash, skin is literally ripped from the body. But prison means losing a part of your life and everything you care for. Compared to this, flogging is just a few very painful strokes on the behind. And it’s over in a few minutes.

If you had the choice, if you were given the option of staying out of jail, wouldn’t you choose to be flogged and released?

This is a false equivalence. If a felon has done something serious enough to warrant five years, that does not equate with ten lashes, and no judge would trade ten lashes for five years in prison. Professor Moskos mentions the physical experience, but focusing on the physical side of lashes ignores potential psychological effects. Psychological problems are likely to include post-traumatic stress disorder, not to mention the psychological effect of being disfigured for life like the man in the photo above. Imagine being a young person who could never take off their shirt or go to the beach again for the rest of their life. The risk of internal injury is also very real. That could include broken ribs, kidney damage or a ruptured spleen. Is the court prepared to pay for surgery, or a possible kidney transplant? What if a rib is broken, punctures a lung and causes a fatal hemothorax? What if being disfigured triggers suicidal depression? The risk of lashes being a death sentence may be slim, but it is still a real risk and that has to be taken into consideration.

Corporal punishment does not work when it comes to changing behavior. That corporal punishment can have long-term negative consequences is well established in the scientific literature. If a punishment is to be effective, it must be designed to decrease unwanted behavior, not increase it. Dr. B. F. Skinner of Harvard devoted his life to studying how to change or modify behavior. His work built on that of his predecessors, including Ivan Pavlov, Edward Lee Thorndike and John B. Watson. Since Skinner retired in 1974, researchers have continued to build on the knowledge base these scientists built. Behavior can be changed and shaped, but producing effective change requires work, thoughtfulness and time. Beating someone is a simplistic solution that not only doesn’t work, it may increase the unwanted behavior. However, given the current climate of politics by simplistic slogans, and desire for quick solutions that don’t cost anything, the idea of bringing back seventeenth century punishments may be popular in some circles.

The elephant in the room that government and politicians ignore is the real reason jails are bursting at the seams. The “war on drugs” has made felons out of many who would never have had difficulty with the law if it were not for drugs. Like the Eighteenth Amendment, the war on drugs has created a whole new criminal class that did not even exist a century ago. When I read the local arrest list, it seems that the large majority of those arrests are for some kind of drug offense.  Debating the war on drugs” is a needed conversation, but beyond the scope of the debate on alternative sentences.

Most of these creative punishments we hear about are at the local level, usually municipal courts. One of the most colorful judges in the country in this regard is Painesville, Ohio Municipal Court Judge Michael Cicconetti:

My question of the day is: What do you think of creative punishments; how could they be more or less standardized, and how far is too far?