Book review: In Defense of Flogging

Peter Moskos's book In Defense of Flogging engages with the intriguing idea that flogging might be better than imprisonment, but does it make a convincing case? Shubham Sharma tries to find out.

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PETER Moskos suggests that "if you think the choice between flogging and prison is a false choice… think again". He seems to favour corporal punishment over imprisonment by giving the example of the failure of the US incarceration regime.

Before we explore the question as to whether flogging is a better punitive measure vis-à-vis incarceration (in the light of arguments presented by Moskos), I would like to draw attention to an Indian film Do Ankhen Barah Haath (Two Eyes and Twelve Hands).

The discussion would provide a novel and hopeful option that goes beyond punitive measures. This example contains many risks of utopian idealism but as world history teaches us, today's idealism is tomorrow's realism, so we must discuss it.

A film that fired the nation's imagination

Do Ankhen Barah Haath was released in 1957, exactly ten years after India's independence. The makers claimed that the movie was based on a real incident.

A young jail superintendent embarks upon a unique experiment. He requests the government to allow him to take six prisoners on death row on an ennobling journey, a journey wherein the convicts would be staying with the superintendent in a remote and secluded place of the country sans governmental intervention.

The beginning is tough. The convicts are flummoxed. The superintendent tasks them to improve the land and adopt farming. Albeit reluctantly, the convicts follow through.

There comes a time when they hatch a plan to kill the superintendent. They fail, not because the superintendent was good at self-defence, but because their conscience pricks and stops them from committing such a dastardly act.

Also read: The story of Umar Khalid's bail application before the Supreme Court of India

Eventually, the convicts master farming and succeed in producing a good harvest. They are tasked with selling the produce at the nearest haat (makeshift market).

The dominant merchants become envious of the fresh entrants. The convicts are beaten by the henchmen of the merchants. The former, going against our expectations, do not retaliate and return the next day to hawk their wares.

One evening, when the convicts are away and the superintendent is alone, the merchants attack the house, set the fields ablaze, and kill the superintendent. The convicts are aghast to see their guardian angel dead.

A senior superintendent arrives at the scene. He offers the convicts permanent respite on behalf of the government and sets them free.

Instead of going back to their families and spending the rest of their lives with their children, the convicts decide to stay back in their new abode for the rest of their lives. The movie ends with the magical appearance of the eyes of the dead superintendent in the skies and six prisoners raising their twelve hands in reverence. 

Do Ankhen Barah Haath succeeded in firing the imagination of a generation of Indians. It provided a break from the circular rigmarole of crime and punishment.

The fact that the experiment was actually done (although the makers did not specify where and by whom) goes a long way in diluting the utopian element and strengthening the mettle of human corrigibility.

However, the diminutive sample size of the experiment and the sheer courage of the superintendent make the practical application of the experiment in modern and complex societies too risky to be tried on a larger scale.

What the experiment teaches us best is that between flogging and jailing, there exists a vast gray area that remains macro-sociologically unexplored. Cesare Beccaria's classical thesis is that crime arises not out of morality or the lack of it but rational calculation of the cost and benefit of committing is challenged here.

Also read: Bhima Koregaon: The process continues to clot as punishment as another year passes by

The convicts, both, during the initial stage of the experiment and after the death of the superintendent, would have chosen to go their ways. Instead, they upended the (un)scientific strictures of self-interest and rational cost–benefit analysis and forged a new (yet anthropologically the oldest) foundation of collective human behaviour— cooperation.

Moskos's book

Let us return to our main question and Moskos' book.

In the choice between flogging and jailing, Moskos marshalls many strands of evidence to prove the inefficacy of jailing. It ranges from the economic (the high cost of maintaining prisons), social (a demographic change brought about by immigration) and psychological (the long-term impact of jailing on the minds of convicts).

The latter bit is very intriguing, whilst Moskos discusses the plight of juvenile correction homes (which to Moskos are no less than adult prisons).

He shows that up to 30 percent of the children are subject to sexual abuse, and self-harm and suicide are rife. The State spends US $200,00 to detain one child per year.

Ninety percent of those released are rearrested by the time they are twenty-eight. My estimates show that US $200,000 could fully cover the college degree expenses (including tuition, dorm and recreation) of an in-state student at the University of Connecticut.

I think that is the same for most public universities in the US. Average US national estimates put correction spending at somewhere between US $60 billion and US $78 billion per year. This is a lot of money. Flogging would require only a trestle and a casually employed whipper.

Moskos shows evidence of the high rate of imprisonment and writes, ''We live in a nation that incarcerates more of its population than any other, and that includes authoritarian China (which has an incarceration rate of 180 per 100,000, including political prisoners), theocratic Iran (220), and communist Cuba (530).

Also read: SC extends stay on sentence of five policemen convicted for flogging and videographing detainees

"America's incarceration rate, 750, is five times the world's average. Other than Cuba, the only countries that even come close to the US are Russia (629) and Rwanda (604). This is not a good company to be in. Democratic countries we are less ashamed to compare ourselves to— England, France, Germany, Spain and Canada— all have incarceration rates nearer to 100 (p 59-60).''

In light of this, jailing does not seem to be a very viable alternative to flogging. On flogging, Moskos argues that in the US, the Supreme Court has not ruled against it and therefore it is not unconstitutional.

In the 1968 Jackson versus Bishop, the court of appeals banned whippings in the context of prison discipline— and thus ended the practice of prison wardens carrying around whips.

Moskos is also very particular about the rules of flogging— such as consent, a strict upper limit, a premium on the physical health of the convict, etc.— to avoid it from becoming a spectacle for bemusement.

The proposition is scintillating, even more so if one is in the position of choosing between flogging or incarceration.

If I am pitchforked in such a situation, I would prefer to be flogged. Incarceration would make me lose precious time that I would have used to spend time with family, friends and colleagues.

It would also destroy my work life by numbing any inherent or budding creativity in me. My mind would treat the incarceration period as years or decades lost getting over which would be very difficult.

The nature of incarceration in India (it is the country where the likelihood of my incarceration is the highest) is, for lack of a better word, pathetic. There is a high chance that I would be intermittently infected by some viral or vector-borne disease.

Private or solitary cells are reserved for big fishes and run-of-the-mill prisoners are crammed into jam-packed dormitories with no privacy whatsoever.

Also read: Gujarat HC sentences four policemen to 14 days imprisonment for flogging two detainees

Intra-prison crime rates are very high too. There will always remain a chance of being hurt or beaten by one of the many dominant gangs. But even if I were a Norwegian (jails in Norway are very lax and humane), I would prefer flogging because after all prisons are prisons at the end of the day, no matter how luxurious.

Flogging would be extremely painful and degrading in the moment, but would save me time and the company of my loved ones.

The notorious part about flogging is the public display of it. Pakistan under the military dictatorship of Zia ul Haq had the provision of public flogging as prescribed in the Sharia followed by incarceration (an idea against which Moskos makes a vehement case).

For all purposes, public flogging became a spectacle, a picnic of sorts for both the masses and the urban middle class. The initiation of public flogging was deemed to be in partial fulfillment of Islamic law.

There are brutal accounts of blind women sleeping on the city sidewalks being picked up on false charges of adultery and publicly flogged just to maintain the continuity in the chain of public flogging. Zia also shored up his Islamic credentials with sanctions of Sharia-oriented public flogging.

Blinded by the whip?

If such a situation prevails, where the debate(s) about the efficacy of punitive measures are not at stake, the convict is a 'hit-me-on-my-nose clown', and flogging becomes the welcome drink at the long luncheon of incarceration, the debate about flogging or jailing runs miserably out of steam.

It is these questions that remain unanswered. Moskos' argument paints a monochromatic picture of the US society and does not discuss anything about other more complex societies.

Another problem is his lack of proper treatment of the question of race. Whipping was prevalent against the slaves in the antebellum US. A white man flogging a black man might have severe psychological impacts on the minds of black convicts. The extreme right might use it as a notorious (re)assertion of white power.

Also read: Can Father Stan Swamy's PIL be the blueprint for justice to thousands of undertrials lodged under UAPA?

Clandestinely taken pictures and videos of the flogging of blacks will circulate and make the whole exercise counterproductive. Unfortunately, given the current political situation in the US, the appetite for such nefarious content might be very high. The counter-protests against the Black Lives Matter movement serve as solid evidence of this.

But this should not take away from Moskos the immense merit of his book. The intellectual grit with which he has argued his case borders on a realistic version of humanitarianism. He declared at the end that he had come to this conclusion after brooding over the issue for a very long time.

Coming back to Do Ankhen Barah Haath, I think a world beyond the option of flogging and jailing is possible. Despite being small and obscure, the experiment had succeeded.

The only question is, are there so many Samaritans left in this largely dog-eat-dog world to stake their lives for it?

I do not know. I have always been skeptical (despite being deeply respectful) of individual moral or even radical agencies. The failure of Gandhianism in India is one such example. For a big change to arrive, social structures need to change. The fulcrum of which is mass collective action.