In Defense of Flogging (7 page)

Given the poverty of the people filling our jails, it's almost as if we've reverted to a kind of eighteenth-century debtors' prison. In theory, our laws don't discriminate based on race or income, but think of the words from Anatole France's novel
The Red Lily
: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” To ask that the chances of a person being caught and punished for any given crime be roughly equal, regardless of race, would seem reasonable. If you do have to sleep under a bridge, beg in the streets, or decide to take drugs (not so many people steal bread these days), there's a greater chance you'll be arrested and incarcerated for it if you're black, especially when it comes to drugs, thanks in part to cruelly long mandatory sentences for crack cocaine. Survey after survey shows that compared to whites, blacks have similar if not lower levels of legal and illegal drug use. Yet in city after city, blacks are four, five, and even ten times more likely to be arrested for marijuana possession. The disproportionate incarceration of African Americans is partly due to
increased poverty among blacks, partly due to higher rates of crime (particularly violent crime among young, black, male high school dropouts), partly because of greater police presence, and partly because the criminal justice system is unfair.

The racial problems in criminal justice can be traced back to two related practices: slavery and disenfranchisement. Slavery was a part of America before the country even existed. The nation's Founding Fathers were, to put it mildly, men of comfortable means. Although today a debate on slavery would be absurd and even offensive, back then many seemingly decent men argued in favor of slavery, or at least the postponement of its demise. There was even such a thing as antislavery slave owners. Take John Jay, the noted abolitionist and the first Supreme Court Chief Justice. Jay was lauded for buying slaves in order to free them, but he didn't free these men and women until they had worked off the purchase price. Better than nothing, I suppose, but the moral clarity at the time was as clear as mud.

The institution of slavery in the United States led to the subversion of any underlying democratic principles. Even after the United States gained independence and accepted that slavery would persist
in the new, “free” republic, the Founding Fathers needed to figure out the nuts and bolts of political representation. In many states—take South Carolina, for instance, where 43 percent of residents were slaves—slavery would never have survived a democratic vote. So democracy was limited in order to perpetuate slavery.

What's more, the long-lasting if ultimately unsuccessful compromise (though it did last for over a century) was infamous. The Three-Fifths Rule stipulated that for the purposes of counting people to determine representation in government, slaves were three-fifths of a person. Slave owners, knowing full well that slaves wouldn't be allowed to vote, were the ones who disingenuously advocated full representation because any “representation” given to slaves would immediately pass into their masters' hands. Think about it: Under the Three-Fifths Rule, one man with five slaves held the political representation of four people (five, if you count his disenfranchised wife). After the first census in the United States, in 1790, Maine and Massachusetts were the only slave-free states. One in five Americans was a slave—numbers that surely made the newly empowered beneficiaries of the Three-Fifths
compromise breathe a sigh of relief. After the Civil War, however, freed slaves made up about one-third of the South's population, and in Deep South states such as Mississippi and Louisiana, blacks were an absolute majority. This potential for political power threatened white supremacy, so many states simply denied blacks the basic rights of citizenship.

Disenfranchisement—to deprive people of the right to vote—is an essential principle in any apartheid state and was instrumental in codifying the postbellum repression of blacks. The effects of disenfranchisement were especially clear in a town in Wyoming County that had a population of six thousand, just half of whom were free. Unemancipated residents couldn't vote but nonetheless counted toward their white captors' political representation. Curiously, this particular community isn't even in a slave state, and even more disturbing, this situation lasted until 2010. Wyoming County is in New York, and the town in question is Attica, home of Attica Prison. In 2010 New York finally passed a state law to count prisoners, for representational purposes, as being from their home district. Until then, prisoners surrendered their political representation in the State House and US House of
Representatives to their mostly white captors in the prison's district.

Even when prisoners are counted in their home district for political representation, most can't vote, not even after being freed. In Florida more than 800,000 supposedly free men and women were prohibited from voting in the 2004 presidential election—a race decided by a few hundred votes—because of a past felony conviction. Nationwide 5.3 million Americans are denied the vote. Outcomes in small-town elections can be even more glaring. In Anamosa, Iowa, Danny Young was elected to the city council to represent 1,400 local people, just 58 of whom were not prisoners. When asked if he considered the prisoners to be his constituents, Mr. Young said, “They don't vote, so, I guess, not really.” Young was elected with two votes—not by two votes, but
with
two votes (which, I should point out, is a troublesomely low voter turnout by any standard). The prisoners in his ward are denied any voice in their local government. I wouldn't be the first person to observe a transition in black America from slavery to segregation to incarceration. And although to say prison is modern-day slavery is a bit
extreme, it seems as if some people never received Lincoln's proclamation about emancipation. Today, the population of incarcerated black men tops 850,000, most of whom cannot vote and many of whom will be legally disenfranchised for the rest of their lives.

Of course we cannot deny that corporal punishment, like prison, also has painful links to racism. Just as police dogs and fire hoses may forever be linked with Selma and Birmingham, whipping, a favored mode of punishment among slaveholders, carries particular symbolism that harks back to the darkest era in American history. Pictures of the terribly scarred backs of escaped slaves remain indelible stains on our nation's conscience—proof of our country's original sin. This horrific legacy of racism is troublesome, to say the least, but it is not in and of itself a valid reason to favor incarceration over corporal punishment. To argue against flogging because of past and present racism sorely misses the point. Indeed, flogging might even help illuminate racial injustice already present in the criminal justice system. When you enter any jail or prison in the United States you'll likely face a sea
of black and brown faces. One can assume that the racial makeup of those being caned would be similar. But the inequities present in the status quo are not at all worsened by offering a choice of punishment.

If you're not convinced, think of the inverse. What if we currently had a system of flogging but no prisons? Would you be pleased with a book called
In Defense of Prisons
? In this book I could propose that rather than punishing convicts quickly and letting them get on with their lives, we could place these men and women in grim institutions far away from their homes and completely shut off from the outside world. Visitors, press, and all communication in and out would be restricted or heavily censored. And there they would stay for years. This would not be progress but instead the cruelest proposal of all. As a semipublic happening, flogging, for better and for worse, would air the dirty laundry of race and punishment in ways that prisons, by their very nature removed from society, cannot. To highlight an injustice is in no way to condone it. Quite the opposite.

The survival of mass incarceration can be traced, in no small degree, to the same kinds of economic pressures that once drove slavery itself. Incarceration is a business. In President Dwight Eisenhower's 1961 farewell address, he warned of a “military-industrial complex” that could control our national politics. And the “Prison-Industrial Complex” is a similar concept: not a conspiracy theory but rather a political confluence of various interest groups that benefit from the business of incarceration.

Poor rural districts see prisons not as an economic burden but as a lucrative market and potential employment opportunity. The cynical among us might even say we're spending billions of dollars to pay poor rural unemployed whites to guard poor urban unemployed blacks. In the 1980s New York Democratic Governor Mario Cuomo used a public agency to fund upstate prison construction in conservative Republican districts. The terrible irony about this particular agency, the Urban Development Corporation, is that it was created in 1968 to honor the legacy of Martin Luther King Jr. by building housing for the poor. Urban districts go along with prison building partly out of political
necessity and partly because so many of their residents have been given, through prison, to rival districts.

Labor unions are another factor in prison construction; the various prison guard unions have always been major players in the prison-industrial complex. The California prison-guard union (euphemistically called the Correctional Peace Officers Association) represents thirty thousand workers in a $7-billion-a-year industry and has a war chest of about $22 million. It gives out money to politicians, literally and figuratively left and right. Being a correctional officer is a difficult job, and I've got nothing against unions. I myself am a union man (in a public-sector union, at that). I want unions to lobby for better pay and benefits and against prison privatization. But correctional officer unions should have no voice in lawmaking and sentencing policy. Doing so is an immoral and fiscal conflict of interest. When unions lobby to criminalize more people for longer times, prisons effectively become a new Works Progress Administration for our era, but without any of the constructive infrastructure, education, or culture. The horribly predictable results include more money going to incarceration than to higher education. Other effects of union clout
are less obvious and even more devious. For instance, the California union gives money to local district attorneys' campaign funds. In at least two elections the union gave tens of thousands of dollars to the opponents of a district attorney who attempted to prosecute a guard for assault. Needless to say, there haven't been many prosecutions since.

In states without strong unions, private prisons are perhaps an even more devious player in the prison-industrial complex. In states with more influential unions, such as New York and Illinois, private prisons are prohibited altogether. But nationwide, private companies hold about 9 percent of the country's prisoners, generally in low- and medium-security institutions, which are cheaper and easier to manage. This web of corporations, shareholders, lobbyists, politics, and money is the prison-industrial complex in action. Now, some could argue that private prisons simply provide a needed service more efficiently than the government manages to. Others, myself included, cannot fathom how we give public money to private companies so they can profit from incarceration.

In truth, private prisons rarely save much money. The savings that do exist come mostly from
labor; the average pay in private prisons is three-quarters of that found in public prisons. In 2009 the profits of CCA, the largest private prison company, were $155 million, or $5.35 per prisoner per day. If this money were not profit but wages split among the company's seventeen thousand employees, pay would increase to roughly the same level as unionized prison guards. One could say that prison corporations take public money from union workers and give it to private investors. Meanwhile, private-sector prison guards—faced with a starting salary between $11 and $13 an hour, limited benefits, and a very tough job—have a turnover rate of 40 percent annually.

Were private prisons simply providing a needed service in response to public demand, perhaps their use could be justified. But private prisons actively boost supply and then find ways to fill the beds. Take, for instance, the small town of California City, population nine thousand, in California's Mojave Desert. In 1996 CCA started building a 2,300-bed private prison purely on speculation; there was no guarantee the state would provide inmates. The president of the company predicted, “They'll avail themselves of it,” while a local politician boasted,
“If we build it, they will come.” They did build it, but the state of California, after intense union lobbying, did not provide any prisoners. Desperate, the company turned to the federal government and received federal prisoners, mostly immigrants in the country illegally who were facing deportation. Thinking about the four hundred additional jobs to guard these mostly nonviolent foreigners, the mayor exclaimed, “It's a trip.” The city clerk expressed disappointment only in that the noncitizens wouldn't come quickly enough to count as official town residents in the 2000 census. In 2008, after losing a bid to a rival private prison company and threatened with closure, the California City Prison received another federal contract to fill the beds with immigrants. Meanwhile, the CCA and other private prison groups lobby for and even help draft tough anti-immigration laws, such as Arizona's controversial SB-1070.