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?
I make my case with ONE change in the turn of phrase, “staying out of prison.”
Interesting that corporal punishment can by used by the State on children (notably in schools), but never on adults.
Would the debate be different if the pain were applied by machine rather than a human, or achieved through a technology (like a taser) rather than a whip? Of course these sanitized extrajudicial punishments are routinely meted out today and cause little objection, unless they result in death. Sometimes not even then.
The core of the problem is that there are too many crimes, not that there are too many incarcerated. Drug prohibition must end.
squeeky:
We did have flogging on the books in several states, it was practiced in Delaware and some of the southern states during the 1800’s and later. Delaware had it on the law books until the early 70’s but it was unused. During those times the crime rate in the US was not the lowest in the world.
There are a lot more issues in a society for which it might or might have lower crime rates but a single issue such as caning is not sufficient to prove either way.
how does this shaming judge feel about judges who don’t recuse themselves when they should, or leo’s who overstep their bounds.
good for thee,but not for me?
The town crier newspaper during feudal times: Propagandizing For Our Lords … (“somebody has to do it” ®).
I support alternative sentencing as well as corporal punishment. Also, something you did not mention is restitution. I prefer restitution over incarceration. Incarceration for the most part does not work well. The prison culture often turns wrongly convicted innocents into criminals, and it often hardens criminals. You talk about the psychological effects of a flogging but fail to consider the psychological effects of prolonged incarceration.
I’m not in favor of corporal punishment, but it still bothers me that there are two falsehoods here, both of which may be accidental. From Mosko, the statement that the skin is stripped from the body. That entirely depends on the instrument used, how hard it’s used, and how many lashes are given. Anyone who’s done even minimal research knows that a whipping doesn’t necessarily do any damage, even though it will be very painful. From the guest, the photo used is of someone who has been whipped severely, more than once, with the purpose of doing as much damage as possible. Rational discussion has to be based on facts.
nick spin 1, August 25, 2013 at 2:59 pm
…Legalize cannabis and you’ll have ~30% more room in prisons. …
=======================
There, somebody got to the point.
What we need in Amurka is more room in prisons.
“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?”
I think one should not avoid the foreplay.
To go straight to kinky sex is teenage at best.
For instance, I am at this moment working on my December sex foreplay.
Be convicted, be sincere, be Amukan, wait until the jury returns with the verdict before fondling oneself over the punishment.
Unless feudalism is you game.
Caning isn’t legal in this country, but it sure works in Singapore. They have one of the lowest crime rates in the world. Plus, I am not aware of any deaths from caning. The criminals may have a little trouble sitting down for a while. . .
Squeeky Fromm
Girl Reporter
Arbitrary and Capricious
http://www.liveleak.com/view?i=3c9_1304013159
caning in Singapore.
The public sector and private sector lobby is fighting to keep cannabis illegal for their own self interest. Legalize cannabis and you’ll have ~30% more room in prisons. Focus efforts on education and treatment for hard core drugs, eventually less incarcerations will result. AFSCME, police unions, big Pharma and the liquor industry is where you need to direct your outrage.
There is only one drug war I believe in: the war on Oil-Qaeda.
There is the holy drug and the rabbit hole drug.
When ya gonna lose the indoctrination folks?
When ya gonna quit the McPropaganda?
gFox,
Where are you getting your claim that the unintended consequences of these “alternative” sentences are equal to the unintended consequences of normal prison time?
Barbarism has many faces.
Unintended consequences extend to prison. Some unintended consequences of prison time include rape, serious bodily injury, lasting psychological harm and death (not from the death penalty). Not to mention a host of other issues related to prison “culture” like increased criminalisation. Therefore none of the unintended consequences arguments carry any weight as the relative proportion and risks are about the same for flogging say; one should look at places like Iran where flogging takes place, also practitioners of hard sadomasochism for actual instances of unintentional consequences.
A sensible approach to recreational drug use would definitely alleviate prison overcrowding. if there is still an issue then maybe we should revisit alternative sentences. The biggest issue to come from recreational drug legalisation and regulation is likely to be a bunch of private prison companies going bankrupt.
Interesting. A French guy named Michael Foucault wrote a book about this which I read in college about 9 or 10 years ago:
From Wiki:
I have also read in another book, that other unintended results occurred. In some of the German camps, sexual arousal and satisfaction occurred during floggings. I would not underestimate this factor.
Squeeky Fromm
Girl Reporter
raff,
It had occurred to me the woman sentenced to spend the night in the woods, as well as the officers guarding her, are at risk for tick and insect borne diseases. What if she ends up in the hospital with Lyme disease? Or some kind of avian flu?
The Law of Unintended Consequences.
Scary ideas OS! I think Prof. Moskos might change his mind if he was the one receiving the 10 lashes. You are so right that the politicians helped create the prison crisis with the war on drugs and with the privatization of prisons.
While Judge Cicconetti is amusing, he is also scary. What happens when the defendant is sitting by the side of the road holding a sign as part of his punishment from the court and get’s hit by a car careening off the road?