John Roman On The Calculus of Flogging

Flogging conjures up grotesque images. American slaves flogged by their overseer. Conscripted sailors flogged by their masters. Such an idea wouldn’t get any traction in a civilized society like ours, right?

Maybe. John Jay College of Criminal Justice Professor Peter Moskos has floated a proposal to replace each year of prison with two lashes. His motives seem pure—he believes the American prison system is completely dysfunctional and that millions, maybe billions, could be saved with this simple change in punishment, with no effect on public safety.

Putting aside for a moment the moral baseness of the idea and that pesky Eight Amendment proscription against torture, cruel, inhuman, or degrading punishment(flogging has to be four-for-four on that one), let’s consider if it would even work.

There is a long and fascinating law and economics literature on the relative merits of severity versus certainty as ways to prevent crime. The idea is straightforward. The main aim of punishment is to set society’s costs of incarcerating a criminal in prison equal to the benefits of keeping that person from running amuck on the streets. (Rehabilitation can also correct, but that is a separate issue).

Flogging, in this case, is just a different way of meting out a severe punishment that substitutes intensity for duration. The big question, then, is whether criminals will commit new crimes once back on the streets after being flogged – new crimes that certainly would have been prevented by incarceration in an expensive prison cell.

The answer is, of course, that if the punishments are to be equivalent, then society would have to consider these two choices to be at least about equal (I don’t think flogging advocates want less severe penalties for criminals). But, if the punishment is of the same severity, why would it yield anything different than the status quo?

More important, it’s the wrong question. The right question is whether certainty or severity is the best tool to induce people to self-regulate and desist from crime.

The answer is that question is crystal clear: certainty wins, hands down.

Consider a typical 17- year-old running with some kids who are, however fleetingly, weighing the consequences of beating up a rival. Suppose they know from past experience that they probably won’t get caught and punished, but that if they are, they will get 6 months in a juvenile detention center.

Now suppose the law changes: though the kids are still relatively unlikely to be caught and punished, they can expect to spend one year in juvenile detention — twice as long for the same crime. Will this change their behavior in that brief moment of self-reflection? Not likely.

Now suppose, instead, that the law changes and through some magic the likelihood that they will be caught and punished doubles. Is that information likely to change their behavior? It just might, which is a big improvement. In fact, the research suggests that if certainty increases, severity can decrease, and outcomes will still improve.

This simple idea is being taken very seriously in criminal and juvenile justice circles at the moment. Flogging? Not so much.

The above story is reprinted with permission from Reclaiming Futures, a national initiative working to improve alcohol and drug treatment outcomes for youth in the juvenile justice system.