I truly don't know which I would choose. I have a strong aversion to pain. I also have a strong love of freedom. An attorney named Harvey Silverglate has written that Americans unknowingly commit three felonies per day. I'd have to read his book to figure out just how he is counting that. But let's assume that we do "break the law" from time to time, even the most upright or self-righteous among us, and a day comes that we are caught doing so. How will we fare? Very likely, not well at all. The laws are now written so tightly that police officers are required to make an arrest for any infraction. They ignore many infractions, otherwise they'd be constantly busy making arrests, which means our chances of being arrested are wholly arbitrary. But should that day come, and we are arrested, now what? What if the one arrested is not an amorphous "we" but you?
The prospect is not pretty. If the alleged offense for which you were brought in is at all serious, it could take a year for "the state" just to prepare to prosecute you. Just getting to an arraignment, at which you can plead Guilty or Not Guilty, can take weeks or months. During this time, if you cannot make bail, you will be jailed. Suppose you did do something illegal, even without realizing it at the time, but you know you did it, the police know it, and your guilt is clear. If you plead Guilty, now what? Most likely, more time incarcerated will follow, this time in a prison facility, not just the county jail.
Months or years later, you leave the prison, probably at 2AM, possibly having been transported to some standard drop-off point, with a "free" pass to two subway rides in your pocket and little else. If you are lucky, someone who cares about you will pick you up and whisk you away to continue your life. Unless you are very rich, though, you need a job. You'll never get back the job you had before. You'll never get a job nearly as good. Your income will probably be half what it was before if you do find a job. Big if; unemployment among convicted felons is about 50%.
The bottom line is this: A bad brush with the law and a bit of prison time are certain to shorten your life. You'll be poorer. You'll have worse medical care, or none at all that you can afford. You are now "known to the authorities" and are more likely to be arrested again for offenses such as "driving while ex-con".
Suppose there were an alternative. Upon your arrest, an advocate tells you, "If you want to try to beat this charge, go ahead. But if you know you did it, you have another choice. The typical sentence for conviction is five years. If you sign this form right here, you will instead be flogged, ten lashes. After that you will be free. No conviction or arrest record. No prison time. Return to your life, with a couple days off to heal until you can sit down. What do you say?" Indeed, what do you say?
This is the opening premise of In Defense of Flogging by Peter Moskos. This is a thought experiment, with unsurprising results. Most people would answer, after some thought, that they'd prefer the quicker, painful choice. Among those who have experienced incarceration, nearly 100% would choose a few lashes over a return to prison.
The author is not proposing that we re-institute flogging, which was used in the U.S. as recently as 1957. He is instead trying to induce us to look unflinchingly at the "corrections" system we have, to see that it is irredeemably broken, and perhaps to convince us to change it.
Fact: Fifty years ago about a third of a million Americans were in prisons, or 100 per 100,000.
Fact: Today there are 2.3 million, or 750 per 100,000. This is the highest in the world, higher than China (180/100,000 including political prisoners), Cuba (530/100,000) or Iran (220). Cuba is fourth; second and third are Russia (630) and Rwanda (605). Is that the company we like to keep? Shouldn't we instead become more like Japan, with 60/100,000? Or the European nations, which average about 100? If we have 2.3 million in prison, why do we have such a huge murder rate? Didn't we already lock up all the murderers?
Actually, no. In America, because of "no snitch" culture in the more crime-ridden neighborhoods, most murderers are never caught. Most of the two million added since 1970 are the spinoffs of the War on Drugs and a series of "get tough" laws that have led to huge increases in incarceration for "nonviolent offenders".
The bulk of the book is an unblinking look at the origins, growth and failures of the prison system. Prisons don't rehabilitate. They punish. And they are institutions of advanced criminal theory and practice. Whenever state and local governments have to cut budgets, they tend to cut programs that might help ex-cons. When several prisoners were told it costs an average %46,000 yearly to keep one person imprisoned, they all said, "Hell, I'd go straight if I had even half that kind of income."
Hmmm. 2.3 million times $46,000 is $105.8 billion. There are about 40 million poor in the U.S. in some 15 million families. A hundred billion spread out to those 15 million families comes to $7,000 each. That would raise many of them above the "poverty line", and greatly help the rest. I wonder how many kids with no hope today would see some hope in that? Maybe a lot of them would not choose to be drug dealers, often the only "job" opening in poor neighborhoods.
The author, being a former policeman, doesn't discuss legalizing drugs, except for a sentence or two, but I see clearly that the war on drugs has done much more harm than good, just as Prohibition did 80 years ago. It is time to repeal the war on drugs. Expand the age limit on alcohol to be an age limit on all recreational substances, and impose taxes on their use as we do for alcoholic and nicotinic substances.
What if we released all nonviolent offenders and imposed different punishments for such offenses? We could close 2/3 or more of our prisons. There would be some social disruption, always a problem during a recession. So, re-educate former prison guards to be job training counselors for the former prisoners. (But choose carefully; some of the former guards are actually vicious, violent bastards who managed to channel their sadism into the quasilegal arena of prisoner abuse. They belong in the slimmed-down prison system along with the genuinely violent, evil people we will still need to incarcerate.)
Why do we need to incarcerate anybody? Some people are, simply put, evil and can never be allowed to circulate freely in society. I think of not just the murderers, but persons such as the evil pediatrician in Delaware to videotaped himself raping 3-year-old girls as they screamed and fought. He has at least 100 known victims. He must never be allowed human contact again; I would advise capital punishment for such crimes. Since that is unlikely, prison is the sad, but better, alternative, infinitely preferable to release. But why put a kid who is caught with a couple ounces of pot into the same prison? It makes no sense.
Prisons destroy lives. We use them to brush under the rug millions of people we don't want to deal with. Some lives need to be destroyed. The "best" countries demonstrate that the number is in the range of 60-80 per 100,000. That would be less than 250,000 in the U.S. Whether we re-institute flogging as an alternative to prison, we must change things so as to reduce our incarceration rate to 1/5 or 1/10 what it is today.
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