Alternative Sentences and Punishment: Creative or Inhumane?

Submitted by Charlton Stanley, guest blogger

pilloryThere 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.flogging scars

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?

51 thoughts on “Alternative Sentences and Punishment: Creative or Inhumane?”

  1. I’m old enough to remember ‘reform’ schools & the concept of people getting to become better people while ‘inside’ – now the focus is somehow on punishment. Ever heard the term “gladiator units.” I guess that’s when the therapy is letting young men beat the excess energy out of each other.
    As an alternative I wouldn’t mind seeing inmates work, get a taste of what labor can earn.
    As for Singapore, that’s where an uninsured friend got a quote for a liver transplant, 1/3 the cost of ‘in the USA’ & that included his wife in a (next door) 5 star hotel as he recuperated.

  2. David, I did not say incarceration did not work. In fact, I said nothing at all about incarceration other than our jails and prisons are overcrowded, and we need to find solutions to the problem. I said that corporal punishment has been shown empirically not to work, and more likely to increase the unwanted behavior than extinguish it.

    If you go to the link to the 2002 press release from the American Psychological Association, they report on the (then) latest meta analysis of studies on corporal punishment. In the eleven years since 2002, researchers continue to explore behavioral science, publishing hundreds of papers. I will save you the trouble of looking it up that press release:

    Obviously, studies on various kinds of reinforcers go back more than a hundred years. Ivan Pavlov presented his research findings to the academic community in 1903, and the field of behavioral research took off. Skinner started doing research and publishing papers on behaviorism in the early 1930s. FWIW, Pavlov was awarded the 1904 Nobel Prize in Physiology and Medicine.

  3. Thanks, David. At first I couldn’t open your link, so I did a Google search for “Linda Bruntmyer” and I found this Times piece in which she and her son are mentioned:

    I guess, too, the rational fear would be, is caning a slippery slope to hand severing for theft? Once you cross the line of bodily integrity. But it’s sure not like people care about anyone’s bodily integrity now.

    I can see above that caning has its own retributive cheerleaders.

  4. My ideal penal system would be rehabilitation.

    That said, if it’s going to be retribution, caning at times could be more honest. Ours sometimes seems like a huge creaky system of idealism-based self-deception for the production of make-work. It entangles defendants for months and years of their short human lives. They slip up; they get further entangled. It goes on and on.

    Not to mention what happens inside. Prison is not so different than Ariel Castro’s basement:

    “‘While I was in an Arkansas state prison, I was raped by at least 27 different inmates over a nine-month period,” said Bryson Martel Spruce, a bisexual former inmate. ‘I don’t have to tell you that it was the worst nine months of my life.'”

    “Spruce contracted HIV as a result of the attacks. ‘Standards are needed to protect people like me,’ he said before he died in 2010.”

    Prison ra pe has been subject of popular jokes for years. How many times have you heard people from all walks of life cheerleading the prospect of an unpopular defendant being rap ed in prison?

    Prison as more enlightened than caning is just creepy fake nice, not honest real nice.

    1. Excellent points, VV. I read some of the other testimonies your link led me toward.

      Here’s the case of a 16 year old who set a dumpster on fire in his neighborhood and caused about $500 worth of damage. He was sentenced to 10 years. In prison he was raped and beaten many times until he eventually hanged himself at the age of 17. I don’t think incarceration was the right response to his crime. I say, let the teenager do restitution toward those he harmed instead.

  5. I was listening to NPR this weekend and heard Professor Turley discussing torture with Professor Moskos who advocates corporal punishment as an alternative to imprisonment. Professor Turley strongly opposed any use of torture, broadly conceived. At one point he said emphatically that we should not tolerate torture including corporal punishment even if the convicted person would prefer a public whipping to a prison sentence on the grounds of what such a policy would “do to us.” He said that our history of shaming and corporal punishment was barbaric.

    My question for Professor Turley and anyone else who takes such exception to physical punishments is what is so objectionable to such punishment? What would inflicting comparable pain on perpetrators that they inflicted on their victims as we simultaneously deter similar acts of unjust aggression do to us other than to demonstrate our commitment to justice and the protection of the innocent? These sorts of vague appeals need to be more clearly delineated and defended. My hunch is that Professor Turley and others who take this stance are assuming some sort of extreme humanitarian position that sees all pain as intrinsically evil and all pleasure as intrinsically good. I do not share this moral insight as foundational. I see the infliction of pain in proportional retaliation as not only justifiable but as a positive good as it redresses the moral imbalance in the universe when another is wronged.

    By the way, my motivation for flogging is quite the opposite of Professor Moskos. I want the perpetrator to feel the pain as intensely and to the degree that the victim felt the pain unjustly inflicted on him/her by the aggressor.

  6. The conclusion of Beccaria’s essay on Crimes and Punishments:
    It is better to prevent crimes than to punish them. This is the fundamental principle of good legislation, which is the art of conducting men to the maximum of happiness, and to the minimum of misery, if we may apply this mathematical expression to the good and evil of life…. Would you prevent crimes? Let the laws be clear and simple, let the entire force of the nation be united in their defence, let them be intended rather to favour every individual than any particular classes of men; let the laws be feared, and the laws only. The fear of the laws is salutary, but the fear of men is a fruitful and fatal source of crimes.
    Cesare Beccaria, An Essay on Crimes and Punishments, E. D. Ingraham, trans. (Philadelphia: H. Nicklin, 1819)

    We’ve progressed little, in nearly two-and-a-half centuries, if we’re still having these arguments.

  7. “Somehow I think caning would have gotten LiLo’s attention a lot sooner.”


    Because a scarring beating always helps an unbalanced drug addict who was raised by crazy parents and exposed to the full psychological pressure of the wonderfully unstable world of the Hollywood machine in her formative years.

    I’m sure that would have cleared the problem right up.

  8. i am still facing attack by drogba by cocody elecronic and digital video atack i want the authority to call drogba to order to stop further attack he also want to kill oroto arike and debo. drogba associated with civil battle of lfe village to battle my family. This is geting uncontrolable situation.He said he want to kill me with the electronic atack
    benjamin bush

  9. I’m with Dredd upthread at 4:37pm: If you’re advocating whipping people you’ve got some serious kinks in your mainspring.

    I’m also kind of surprised that the Professor would appear on air to debate the issue. Srsly. If Moskos wasn’t being given an on-air forum and a respected lawyer to debate he’d just be another loony on his soapbox in a park being laughed at. NPR? V. Johnathan Turley? Really, this guy Moskos and his kinky idea is being given way too much respect.

  10. Squeeky Fromm, Girl Reporter 1, August 25, 2013 at 3:41 pm

    Caning isn’t legal in this country, but it sure works in Singapore. They have one of the lowest crime rates in the world.

    Singapore is not exactly known for their human rights, they make Texas look like Norway. Caning is never the only punishment, it is combined with imprisonment. If you over stay your visa by 3 months, you will get caned. If they find significant amounts of heroin or cocaine on your person and believe you are trafficking, you will get executed. This is a country that has forgone trials, forcing imprisonment for certain types of major crimes.

    1. Ishobo wrote: “Singapore is not exactly known for their human rights…”

      It depends on how you define human rights. Have you ever been there? Singapore is one of the best places I have ever visited. It is a very civilized society, clean and green. Although it is expensive, the people there earn a very high wage and are very happy. The chinese singaporeans report to me that they have great opportunity there and do not sense bigotry or prejudice at all. I suppose on paper you might think it to have a rather draconian government, but the true results are in the civilization created there. Crime is low, people are happy, and there is a lot of money being shared among everyone in the community. Cross over the bridge into Malaysia and it is like a timewarp back into a less developed country.

  11. davidm2575,
    I am not at all surprised that you are in favor of punishments that are proven by a hundred years of research to not work.

    As for restitution, how is somebody who has no assets and no job going to make restitution? Most of them don’t have a pot to piss in or a window to throw it out of. So, how is restitution made? Especially if somebody died? How do you propose to fix that?

    1. OS wrote: “I am not at all surprised that you are in favor of punishments that are proven by a hundred years of research to not work.”

      You must know something I don’t know. Where is the hundred years of research that shows incarceration works best? Care to share some of it?

      OS wrote: “As for restitution, how is somebody who has no assets and no job going to make restitution? Most of them don’t have a pot to piss in or a window to throw it out of. So, how is restitution made?”

      The majority of people have a job or are capable of working. He also can be ordered to work for the person from whom he stole. If a man robs someone of $100, make him pay back $500. If he has no job or money, let him work for the victim. He can mow grass, clean his house, wash his car, etc. If the man wants nothing to do with him, make him wash the police cars at the police station or do other labor, and take the money that would have been paid to someone else for that job and send it to the victim. There are lots of alternatives. Why would sending him to prison for 10 years be better? That would cost the taxpayer over $250,000 and just make the person more likely to commit crime when he gets out. When he gets out, you are guaranteeing that he has no job and is less likely to get a job because of his conviction and spending a lazy life in prison for the last 10 years. In a restitution scheme, he is more likely to keep his existing job, and in some cases he actually finds a job through the process.

      I know a homeless man who served 5 days in jail for sitting on a park bench after 10 pm. He has no money. Why not make him clean up the park for 5 days instead? Why would a fine that he is unable to pay and incarcerating the man be better? Save the taxpayer some money.

      OS wrote: “Especially if somebody died? How do you propose to fix that?”

      Restitution does not fit every crime. For murder, the death penalty is a better fit. In some cases of manslaughter, better the man pay the victim’s surviving family with 20 years, recognizing the pain and suffering he has caused them, than to just remove him from society for 20 years, costing taxpayers hundreds of thousands of dollars.

  12. Professor Moskos,

    You are Shia or Shi’ite?

    Go start trouble somewhere else.

    You can not solve a problem without addressing the cause.

    You address the effect or affect.

    Your way is doomed to being doomed dood.

  13. traveling limey,

    You are correct. There is a neologism making the rounds: “Profitized.” Education, corrections, even warfare. Privatized? Call it what it really is; we are being profitized.

  14. THE HUGE OUTPOINT IS THAT THE USA HAS WAY MORE PERSONS IN JAIL THAN ANY OTHER NATION IN THE WORLD. I put that in caps as it is the first thing to be addressed & nothing more can or should be done until this situation is addressed & handled. Cops & judges, laws, lawmakers, attitudes, expectancies …all have something to do with it. I personally think that cops & judges often try very hard to increase the prison population.

  15. Catana,
    I had to use a photo that was well out of copyright. If you want to see something more modern, there are still places where this type of flogging and caning goes on. The links below take you to two recent images of what a cane or flogging whip does. Trigger warning — these images are very graphic.×343.jpg

  16. America’s only real crime problem is its propensity towards savage and inhuman punishment, directed largely at the poor, the dispossessed, and those whose skin colour alone stupidly arouses suspicion.

  17. @darrens:

    I don’t know what effect flogging would have nowadays. I read that Singapore has a lot of positive and negative reinforcements. My GUESS is that caning or flogging would cut down on a lot of petty crime like shoplifting and street theft. I mean, is an Iphone worth 6 lashes? Or if they steal a pair of shoes next time, is it worth 8 lashes? Maybe DWI’s? Somehow I think caning would have gotten LiLo’s attention a lot sooner.

    Squeeky Fromm
    Girl Reporter

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