Corporal punishment is best defined as the use of physical pain, injury, discomfort or humiliation to penalise unruly or criminal behaviour. It has been widely applied in the context of criminal justice throughout human history. Where liberal democracies now overwhelmingly favour custodial sentences as a response to criminality, sentences incorporating flogging, whipping, beating and disfigurement were much more common before the nineteenth century.
Many non-western and non-liberal states retain corporal sentences. Saudi Arabia, Iran and Singapore are notable examples. Singapore uses caning to punish a wide range of criminal infractions, including motoring offences. Iranian and Saudi sentencing practices, drawing partly on conservative interpretations of Islam, include both flogging and permanent physical disfigurement – the later in response to violent or sex crimes.
Europe hastened to abandon corporal sentences during the eighteen hundreds. Changes in policy were motivated by a penal reform movement that condemned excessive and unregulated uses of physical punishment. The same group of reformers highlighted the potentially positive outcomes that could be achieved by encouraging criminals to address the causes of their criminality and to acquire skills that would allow them to reintegrate into society. Criminals were seen as individuals in need of “treatment” and “curing” rather than punishment.
Over the last forty years, since the beginning of the war on drugs and sudden jumps in crime rates in the United States during the 1980s, the rehabilitative mission of prisons in the US, the UK and many European states has largely been abandoned. The prison population in the US has spiralled to 2,300,000. The UK currently incarcerates 83,000 of its citizens. Lack of funds, increasing costs and restricted staffing levels mean that the intensive interaction with inmates rehabilitative schemes require can no longer be carried out. Prisons’ purpose has shifted back to the control and punishment of inmates. Prisons are widely described as a deterrent to criminality, despite the lack of any empirical link between the length of prison sentences and rates of offending.
Recently, radical criminologists such as Peter Moskos[i] have suggested using carefully applied, medically supervised corporal punishment as an alternative to prison. The debate around corporal punishment focuses on the efficacy of purely custodial sentences, and the nature of society’s need to punish harmful deviant behaviour. It also examines the growing popular support for reintroduction of corporal sentences in many liberal democracies. Inevitably, debates on corporal punishment must examine the moral arguments surrounding state sanctioned uses of physical harm.
[i] “In Defense of Flogging”, The Chronicle of Higher Education, 24 April 2011, http://chronicle.com/article/In-Defense-of-Flogging/127208/
he criminologist Peter Moskos[i] observes that most of us, if given the choice, would opt to receive ten lashes rather than spend five years in prison. Paradoxically, a significant number of us would condemn corporal punishment as barbaric and inhumane. If imprisonment is a more rational response to criminal behaviour, why would so many rational individuals opt to receive corporal punishment?
Contemporary prisons are the result of a failed utopian experiment. They serve no useful rehabilitative purpose, and exist only to fulfil a common desire to punish deviant behaviour and to segregate criminals from the public at large. Prisons harm inmates and obstruct attempts to reintegrate them into society. It may be necessary to incarcerate certain compulsive and habitually violent criminals, but for a majority of offenders, prison only serves exacerbate underlying social, economic and psychological problems that lead to criminality.
Using corporal punishment to reduce or replace custodial sentences would provide an effective way to fulfil the social need to punish criminals, while removing the harmful externalities of mass incarceration. Strictly supervised whipping or caning can adequately and proportionately express society’s anger with the criminal, while avoiding the dangers of long-term incarceration and reinvigorating the use of rehabilitation.
In the United States, the UK and many European countries, prison populations have increased dramatically, but reductions in rates of offending have been minimal or non existent. In the absence of funding, or coherent, centrally administered rehabilitation strategies, prisons have become places devoid of productive activity. Prisoners are not encouraged to address the causes of their offending, or to acquire skills that will help them to live independently in society following their release. Boredom, overcrowding and under-staffing have led to the emergence of gang- and drug-cultures in many prisons. Inmates incarcerated for minor offences quickly become complicit in gang violence, or fall prey to alcoholism and drug addiction. Gang associations and chemical dependencies carry over into inmates’ lives once they are released. The prison system serves only to breed criminality, not to cure it.
The cost of incarcerating the average offender in the United Kingdom is estimated to be £45000 a year[ii]. Reduced spending on incarceration can be used to fuel an increase in spending on detoxification, rehabilitation and restorative justice schemes. Moreover damaging effects of prison will not cancel out the positive effects of rehabilitation.
The physical injuries resulting from whipping, although painful, are less severe than the subtler damage wrought on inmates by imprisonment.
[i] “In Defense of Flogging”, The Chronicle of Higher Education, 24 April 2011, http://chronicle.com/article/In-Defense-of-Flogging/127208/
What pretends to be an argument in support of the resolution is in fact an argument in favour of reforming the prison system. It is true that in an alarming number of prisons the rehabilitative objective of incarceration has been forgotten. In many other prisons, however, innovative rehabilitation programmes are flourishing. The prison system is not a monolith – it is a network of different institutions, each serving a specific purpose, each subject to different standards of management. Schemes such as the HOPE (Honest Opportunity Probation) drug offence sentencing programme in Hawaii[i] should be used as an example of best practice, communicated to other prisons and replicated in other jurisdictions.
Doubtless, knowledge sharing, professional standards and levels of accountability could be improved in many prisons. However, this does not mean that a prison sentence will inevitably lead to an offender suffering harm.
Moreover, if an increase in the prison population has failed to reduce rates of offending, an explanation could well be found in a poorly administered corpus of criminal law, rather than poorly run prisons. As a study conducted by The Economist points out, American law makers are fond of attaching criminal sanctions to otherwise innocuous misdemeanours in order to appear tough on crime. An increase in the number of activities being described as criminal can mask the success of prisons in reducing the number of individuals likely to commit truly harmful, truly criminal acts.
If we cannot be certain that the prison system has failed, if we cannot be certain that the prison system is uniformly harmful to inmates, why should we hasten to replace it with an untested alternative such as “supervised” flogging?
Finally, incarceration, apart from being used to punish criminals, also helps to protect the public, by physically preventing offenders from engaging in criminal activities. Dramatically reducing sentences or attempting to rehabilitate criminals within the community will not prevent them from carrying out further offences. Rehabilitation is not immediately effective; moreover, its usefulness is often reduced when the positive messages that it tries to communicate have to compete with poverty borne of long-term unemployment, or loyalty to a local gang.
The proposition assumes that the pain associated with corporal punishment will be sufficient to discourage offenders from engaging in further criminal activities while they are being rehabilitated. Empirical proof of this deterrent effect is hard to come by. A large number of offenders live lives characterised by chronic brutality, often the result of parental abuse or long term involvement in gang violence, and they may come to regard state administered flogging as little more than an occupational inconvenience, one more aggressive act among many.
[i] “A revival of flogging?”, The Economist, 25 April 2010, http://www.economist.com/blogs/democracyinamerica/2011/04/crime_and_punishment
The failures of the prison system are tolerated within political culture and by the public, partly because the privations of the prison environment are seen as a suitable punishment for criminal behaviour. Deprivation of liberty and the emptiness of criminal life are seen as retribution for criminals’ dishonest or violent activities.
Politicians dare not confront the damaging effects of imprisonment for fear of being labelled as “soft” on crime. There is greater political cache to be gained from introducing policies that prolong prison terms, and remove judges’ discretion to order non custodial sentences. Novel approaches to the problem of criminality are seen as signs of political weakness.
The use of monitored corporal punishment will keep offenders who have not committed serious crimes out of the prison system. At a nominal rate of five lashes for every year of incarceration, flogging will serve as a clear demonstration of societal disapproval, satisfying popular conceptions of retributive “justice”. Once the need to punish is satisfied, policy makers will be free to institute new rehabilitation schemes that address the root causes of criminal behaviour; these schemes can be set up without sacrificing political capital or appearing to prioritise the rights of criminals over victims or the public.
While the conservative press may advocate the reintroduction of corporal sentences, an equally vocal section of society would condemn any attempt to use flogging as a means of punishment. The inherently pragmatic political discourse that prevails in most liberal democracies would be as reluctant to replace prison with the lash as it currently is to reduce prison populations and confront under-investment in rehabilitation schemes.
It should be noted that corporal punishment was initially abandoned as a result of the activities of penal reform campaigners in the early eighteen hundreds. These thinkers, politicians and professionals were able to convince members of a much more conservative political class of the wisdom of sentences focussed on rehabilitation. Moreover, they sold the idea of penal reform to a public who lacked the robust defences against disorder and criminality (the police, electronic surveillance, cheap insurance) that we take for granted today. Victorian-era citizens had much more to fear from crime than we do. If such dramatic change could be brought about in the nineteenth century, why should it be out of the grasp of politicians in the twenty first?
A custodial sentence is capable of destroying the relationships and livelihood of an offender. Imprisonment means that an offender will be unable to work and will lose his job, if he has one. Statistics sourced from the Pew Foundation indicate that a criminal record can reduce the likelihood of a black, male American securing a job by up to 57%[i]. The isolation inherent in imprisonment can lead to the breakup of marriages and to the decay of relationships between parents and children. The stigma associated with a custodial sentence may result in an offender being shunned by his friends, his family and his community. He will, in effect, be left with no sources of support once he is released. A former inmate will be left with no incentive to adjust his behaviour and disengage with criminality[ii]. The Pew Foundation notes that 43% of offenders in the United States were returned to prison within three years of release[iii].
The long-term damage done to an offender’s life is not an intended consequence of custodial sentencing. However, it cannot be claimed to be a proportionate response to crime, as it affects both serious offenders and those accused of non-violent offences such as burglary or fraud. The decay of an offender’s relationships and social support structures is yet another harmful externality of custodial punishment.
A corporal sentence caters to the social imperative to punish criminals, but it also allows offenders to remain with their families and to avoid financial hardship by remaining in employment. In Moskos’ own words, corporal punishment allows society to express its disapproval quickly and efficiently, leaving the offenders to “move on” with the process of reform.
It is in the interests of any effective system of rehabilitation to ensure that a non-violent offender remains in contact with their family and remains in employment (excepting, of course, offenders who have attack or abused family members). Families, spouses and social networks can play an important role in supporting and encouraging an offender to engage with rehabilitation programmes. Wives and children can effectively monitor an offender’s behaviour when trained staff are unavailable, integrating the reform process with the offender’s day to day life.
[ii] “A Plague of Prisons: The Epidemiology of Mass Incarceration in America”. Drucker, E. The New Press
Rehabilitation programmes are not a panacea – nor are they instantly or reliably effective. The risk of an individual committing crime can only be reduced by long-term engagement with reform schemes. In 2009 violations of parole- the rules, conditions and schemes offenders are required to engage with on being released from prison- led to a third of all state prison admissions in the United States[i].
This being the case, the best location in which to rehabilitate offender is prison. Prison serves, in some cases, to separate prisoners from poverty and desperation, and to help them access the structure and routine that was missing from their lives.
Moreover, contrary to the proposition’s argument, offenders are less likely to originate from stable family environments, to have secure employment, or to have the skills that will let them seek employment in the future.
Additionally, it does not seem proportionate for a white collar fraudster, whose actions could affect the livelihoods of thousands of individuals, to receive a flogging while retaining his freedom and his assets.
Prison also quarantines offenders from the influence of gangs or damaged family structures. Offenders may have difficulty cutting themselves off from close knit social groups of this type; the activities of these groups (drug taking, organised violence) may compete with the positive behaviours fostered by rehabilitation.
It cannot be assumed that dramatic changes in an offender’s behaviour can be brought about without a correspondingly dramatic change in their environment and lifestyle. Criminality is as dependent on context and environment as it is on the choices and values of the criminal.
If there are minimal restraints put on an offender’s freedom while he rehabilitates, it will be easier for him to avoid complying with rehabilitation programmes. As noted above, the threat of further floggings will not motivate offenders who have become habituated to brutality and violence.
Even though liberal democratic systems of justice continue to place an emphasis on punishment rather than rehabilitation, sentences are still required to be proportionate to the crime that they punish. Further, a sentence must only punish those judged responsible for the crime. Collective punishment and guilt by association are not tolerated within rational, liberal systems of criminal law.
Imprisoning or fining an offender often places an intolerable burden on the offender’s family. If the offender is a breadwinner, the family is denied the income that he would otherwise provide. They may be forced to use inadequate benefit systems. Other members of the family may be forced to take up a second job, adversely affecting childcare arrangements. Any fines that an offender is ordered to pay are often impact upon his family, damaging household budgets and forcing other family members into debt.
The negative effects of a custodial sentence extend beyond the offender himself. Financial and social deprivation may have a minimal impact on an offender while his is imprisoned, but may cause considerable suffering within his family. Sudden social isolation and poverty have themselves been shown to provoke criminality and increase childhood deviance.
Corporal sentences allow a punishment to be targeted only at the criminal, not at their families.
Through their actions, career criminals and drug offenders often subject their families to misery far in excess of the temporary absence of a loved one, or transient financial hardship. The damaging processes of taking drugs and supporting a habit are normalised for children living with addicts; children exposed to drugs in this way are much more likely to develop an addiction themselves. Criminals who make a business out of thievery may use the family home to store acquisitions. Wives and members of an extended family may be coerced into trading stolen goods. Offenders who trade drugs or store stolen goods in leased or social housing risk eviction if their activities are discovered. This, in turn, would lead to their families being displaced or left homeless. Siblings and parents of gang members can often be the targets of violence resulting from feuds and “territorial disputes”.
As noted above, rehabilitation does not offer an immediate “cure” for criminality. Neither can it protect families who, through ignorance or misfortune, are maintained by the proceeds of criminal activity. Although a significant number of prison inmates may be normally honest citizens who have made bad or impulsive choices, an equally large number are poorly socialised members of chaotic families. The environment of lawlessness that such individuals create in family homes creates a situation that may lead their spouses and children into deviance themselves.
Under these circumstances, isolating an offender from his family may give the family an opportunity to break free of a pattern of daily life that would otherwise be saturated with criminality.
The proposition does nothing to address the root cause of overcrowding in prisons and “over-inclusive” penal codes. The problems inherent in the status quo are not solved by flogging. The strain placed on penal institutions and systems of sentencing originates in a political culture that cynically exploits public fear of crime and social breakdown to win votes and project power.
As noted above, many law makers frequently set out to “discover” or “invent” new forms of criminal offence, in order to appear proactive in reducing criminality or protecting communities from state or corporate graft[i]. Dogmatic and over-zealous responses to existing problems can also transform civil or disciplinary issues into crimes. A case in point is Indian anti corruption campaigners’ insistence on the use of a broad and open definition of “bribery” in a proposed open-government law. Under the “three strikes” implemented in the US state of California, approximately 3700 non-violent repeat offenders are serving life sentences[ii]. A US medical specialist received a twenty five year prison term when a number of his patients, without his knowledge, were found to have been illegal selling the drugs he had prescribed to them. Additionally, the practice of electing judicial officials in states such as the US incentives candidates to hand out sentences or file charges that generate a positive public response, whether or not they are suitable response to the actions and circumstances of offenders[iii].
The resolution purports to discipline and restrain criminals, but does nothing to discipline and restrain law makers. Simply replacing custodial sentences with flogging will do nothing to address the factors that have led to an unreasonable expansion of penal law. The process of excessive criminalisation may even be accelerated, as the reduced cost of flogging over imprisonment encourages policy makers to turn to corporal punishment as a populist, knee-jerk response to civil disorder or moral panics.
Evidence of the inappropriate use of corporal punishment has already emerged from states such as Singapore, where, in 1995 a 48-year-old French citizen was caned for breaking the conditions of his Visa. Corporal sentences have also been given to Singaporean citizens convicted of vandalism and criticising Singapore’s judiciary. In Malaysia during 2010 and 2009[iv], state-sanctioned religious courts ordered the caning of four women who had admitted to extra marital affairs and drinking alcohol[v] – the first sentences of their kind in the history of the modern Malaysian state.
[iv] “Malaysia canes women for adultery”, Al Jazeera English, 18 February 2010, http://english.aljazeera.net/news/asia-pacific/2010/02/201021844619366612.html
[v] “Malaysia in heated debate over caning of woman”, World Corporal Punishment Research, 25 July 2009, http://www.corpun.com/09archive/myj00907.htm#21492
The opposition is unable to conclusively prove that the growth in the prison population and the reduced effectiveness of rehabilitation is a direct result of over-criminalisation.
It may be true that the list of non-traditional crimes is expanding, but the harm that the resolution is seeking to address arises in the prison system, not in politician’s manifestos.
The majority of offenders imprisoned in the USA and the UK have committed genuine crimes, albeit of a petty or non violent nature. Once exposed to the prison system the criminal tendencies of these individuals are entrenched, rather than eliminated. The prison system does not transform unwitting and harmless offenders into criminals – it makes criminals out of desperate, poorly socialised or ignorant offenders. The prison system harms those placed in its care because it is no longer able to carry out its rehabilitative objectives.
The failure to rehabilitate those convicted of “ordinary” criminality impacts on the prison system itself, when recidivism and social exclusion lead to offenders being repeatedly convicted.
The root cause of the problems in the status quo is not the creation of too many crimes, but a failure to accept the contemporary reality of crime and criminal behaviour. Flogging would allow policy makers to engage with this reality, while satisfying the fundamental need to see wrongdoing punished.
The danger posed by over-inclusive corporal sentences is neatly eliminated by the balancing of judicial and legislative power in liberal democracies. Judges are given discretion in order to allow them to mitigate the effects of atavistic, unreasonable, disproportionate or populist manipulations of the law. If a judge believes that flogging would be excessive or unnecessary, given the nature of an offence, he will usually be free to hand down a different sentence
The “packaging” of flogging with a revitalised approach to rehabilitation that proposition suggests may be a feasible response to some crimes, but politicians are much more likely to treat the lash as a panacea for any activity or trend that affects the public’s confidence in the justice system.
The public and the mass media are not inclined the probe the depths of criminal sentencing. Criminals are hard to sympathise with, and public confidence rests largely on the visible aspects of a sentence – has a criminal been locked away? Will they be closely monitored on release? Has a criminal received a sufficient number of lashes? As a consequence, as with custodial sentences, cutbacks to reform programmes can be achieved with little objection, leaving only the empty and brutal gesture of flogging itself. Political reality will neutralise the aspirations of the proposition
Lawmakers are currently too keen to invoke imprisonment as a response to crime. They are likely to be just as hasty in ordering the use of whipping as a sanction for criminality. A 1995 US Department of State Report on the use on penal practices in Singapore noted that 3244 sentences had incorporated caning[i]. A subsequent Department of State briefing published in 2008 stated that the Singaporean judiciary had handed down 6404 sentences that included either mandatory or discretionary use of caning[ii]. The corporal sentences handed down to Malaysian women that were discussed above were widely held to have been influenced by a clamp-down on “moral” offences mounted by the Malaysian judiciary[iii].
Flogging will not prevent politicians from making grabs for political capital by criminalising the ill-judged actions of otherwise harmless, well-adjusted and compliant members of society. Moreover, law makers are likely to discount or overlook the close link between flogging and rehabilitation that the proposition case is dependent on.
[i] “Singapore Human Rights Practices, 1994”, US Department of State, February 1995, http://dosfan.lib.uic.edu/ERC/democracy/1995_hrp_report/95hrp_report_eap/Singapore.html
[ii] “Singapore”, Bureau of Democracy, Human Rights and Labor, US Department of State, 11 March 2008, http://www.state.gov/g/drl/rls/hrrpt/2007/100537.htm
[iii] “Malaysia canes women for adultery”, Al Jazeera English, 18 February 2010, http://english.aljazeera.net/news/asia-pacific/2010/02/201021844619366612.html
There is political capital to be gained from adopting a hard line stance on law and order issues, but there is also political capital to be gained from showing that a particular policy has had a positive effect on reoffending. The Pew Foundation report cited above has also determined that some 90% of US voters were in favour of reducing the length of prison sentences and “strengthening” probation and parole systems[i].
The opposition assumes that politicians are interested only in cheap, hollow, short term solutions to problem. However, a large number of policy makers are genuinely public spirited, with a sincere interest in solving long-standing social problems. The adversarial nature of politics tends to prevent politicians from seeking elaborate or novel solutions to such issues. Spending money on intangible rehabilitation programmes will always provoke more criticism than spending money on training more police officers.
The resolution allows politicians to engage with the novel solution to criminality offered by rehabilitation while at the same time meeting a general demand for criminals to be visibly and strictly punished for their actions.
There will be a cynical minority of politicians who will see the dramatic nature of flogging as an opportunity to disguise cuts to reform programmes. Equally, there will be others who will use corporal sentences as an opportunity to address and resolve the politically intractable problem of criminal deviance.
How will the severity and legality of flogging be monitored? How will it be reconciled with existing liberal democratic value sets? The majority of western liberal democracies are party to inter-governmental and supranational agreements that expressly forbid states from using torture or degrading or inhuman punishments in any capacity.
The mark of a modern, liberal state is that it uses authority and engagement rather than raw power to protect its citizens. The use of force or power by the state and its agents is harder to regulate and costlier to compensate when it is misapplied. Liberal democracies, apart from being agents of realpolitik, are also aspirational bodies that should strive to reflect and adhere to the values they were created to defend. Arbitrary, coercive force and violence is one of the core harms that a state must guard against. Violence is said to be the preserve of criminals and those acting against the values of society. Therefore, as an aspirational body, the state should hold itself to a higher standard of behaviour than such individuals.
Violence, as most liberal constitutions make clear, should only ever be employed by the state as a last resort. Where a state has the means to do so, even if those means are costly or politically contentious, it should endeavour to achieve peace and order within its own borders without wielding power.
At its broadest, the liberal democratic ideology holds that the rights and autonomy of individual citizens should be only be infringed in order to protect the rights and autonomy of other citizens. This principle would be violated if the state resorted to corporal sentencing as a way of satisfying a mob-like demand for visible and harsh criminal sentencing.
No citizen of a liberal democracy has a right to demand that another citizen, criminal or not, should be subjected to unnecessary pain and suffering by the state.
As distasteful as debaters, moral philosophers and constitutional lawyers may find it, society still has a need to punish criminals. Although it seems to lack logic or reason (inflicting suffering on a criminal cannot be recompense for what he has taken, and may even prevent him from properly compensating his victim), a criminal justice system which does not punish will not command the confidence of the public.
If a criminal justice system is unable to command the confidence of the public, alternative methods of addressing criminal behaviour will be sought. Eliminating the role of punishment in criminal justice would put our entire judicial system at risk.
The resolution calls for a minimal and carefully controlled use of force by the state. This use of force is necessary in order to provide protection for the state’s citizens in the long term – by leaving the prison system free to treat and control offenders who are truly violent and dangerous, and by preventing the social exclusion of non-violent offenders.
While a state should endeavour to demonstrate the virtues of non violence and compromise, it can also fail in its duty to its citizens by being negligent of the needs of offenders, and wilfully ignorant of the most effective solutions to criminality.
“In Defense of Flogging”, The Chronicle of Higher Education, 24 April 2011, http://chronicle.com/article/In-Defense-of-Flogging/127208/
“Tough on Crime, Tough on Criminals”, The economist, 23 June 2011, http://www.economist.com/node/18867740
“A revival of flogging?”, The Economist, 25 April 2010, http://www.economist.com/blogs/democracyinamerica/2011/04/crime_and_punishment
“Tackling Recidivism: They All Come Home”, The Economist, 20 April 2011, http://www.economist.com/node/18587528
“A Plague of Prisons: The Epidemiology of Mass Incarceration in America”. Drucker, E. The New Press
“Rough Justice in America”, The Economist, 22 July 2010, http://www.economist.com/node/16636027
“Malaysia canes women for adultery”, Al Jazeera English, 18 February 2010, http://english.aljazeera.net/news/asia-pacific/2010/02/201021844619366612.html
“Malaysia in heated debate over caning of woman”, World Corporal Punishment Research, 25 July 2009, http://www.corpun.com/09archive/myj00907.htm#21492
“Singapore Human Rights Practices, 1994”, US Department of State, February 1995, http://dosfan.lib.uic.edu/ERC/democracy/1995_hrp_report/95hrp_report_eap/Singapore.html
“Singapore”, Bureau of Democracy, Human Rights and Labor, US Department of State, 11 March 2008, http://www.state.gov/g/drl/rls/hrrpt/2007/100537.htm