In Defense of Flogging (8 page)

If history is our guide, communities that depend on systems of human bondage for their economic well-being will not give up without a fight. Just as slaveholding communities exerted their outsized political influence to resist the abolition of slavery, so too will corporations and modern
prison communities use their clout to stop penal reform and preserve the peculiar institution upon which their way of life depends. Flogging might be our best chance to break with the entire prison-industrial complex.

Profit and race are not the only factors associated with incarceration. Poverty, education, mental health, homelessness, addiction, one's neighborhood—these all have a huge impact on who goes to prison and who doesn't. When we ask prisons to function in a way for which they were never intended, the failure of incarceration becomes clear.

Think of a heroin addict arrested for drug possession—for the tenth time. Her guilt isn't in doubt. After all, she is an addict who buys and shoots up heroin every day. In front of the judge yet again, she is sentenced to probation and mandated treatment (which, not surprisingly, has a dismal failure rate—rehab works a lot better when people want to be clean). If she goes to jail, she loses any job she has and causes her family to suffer even more than they already do. Meanwhile, taxpayers
pay for her jail, police overtime, the court's expenses, and perhaps even raising her children.

If the heroin addict's first nine arrests didn't set her straight, the tenth time is unlikely to be the charm—and yet in drug-related cases like these, we waste considerable expense pursuing a mode of punishment that is almost guaranteed to fail. Because we lead the world in illegal drug consumption, clearly we're doing something wrong. We know drug prohibition can't work; nevertheless, the mere possession of illegal drugs is grounds for arrest. Because of this, our criminal justice system is chronically overburdened. If it were up to me, I'd regulate, restrict, and tax drugs. I'd provide drug treatment for anybody who wants it. I also believe that what you put in your body should not be a government matter but something that concerns you, your family, and your doctor. Even if you disagree, admit that incarcerating people for drug possession is not making any problem go away.

Just as jails have effectively become our unofficial national rehab center, prisons are now our largest mental institutions. Certainly not all mentally ill people are criminals, nor are all criminals
crazy, but more than half of all prisoners are classified as having mental health problems. That's not really surprising considering we're talking about incarcerated people. Who wouldn't have mental issues in prison? It's very much like Joseph Heller's original catch-22: To survive in prison you need to stay sane, but anybody who can stay sane in prison must be crazy. But more disturbingly, one-fourth of prisoners have a
history
of chronic mental illness, and two-thirds of these, 380,000 prisoners, were off their medications when they were arrested. Who knows how much crime we could prevent with proper mental health care? But the potential savings seem huge, both in terms of money and lives.

In fact, prisons today house far more of our mentally ill than do mental hospitals. In 1965 we had just 335,000 people in prison but 800,000 people in mental institutions. A lot of these “hospitals” were, in some ways—such as not being able to leave—very similar to prisons. Since 1965, however, the mental confinement rate has gone down 90 percent and the prison rate has increased fivefold. But it's not, as some people believe, that our prisons have simply taken the place of state-run mental hospitals. The two institutions never really
catered to the same clientele; prisoners tend to be young, whereas most people in mental hospitals were much older. And thanks to Medicare, antipsychotic medicines, and general changes in attitudes toward the elderly and mentally ill, we don't need or want to confine as many noncriminals as we once did. If we still played by 1965 rules on detention, we would currently have roughly 1.8 million people in our mental and criminal institutions combined. That's still half a million fewer than we have in prison today.

Although the mentally ill population in our jails and prisons can't be singly attributed to the closing of mental institutions, mental institutions may have disappeared just a bit faster than did their need. There is without doubt a serious mental health crisis in our prison system. As the nation's greatest provider of mental health services, prisons don't provide very well. Certainly some of today's homeless would have been institutionalized back in the day. Left on the street, however, many get arrested, and health care in jail and prisons (especially jail) is notoriously bad. On top of that, one cannot imagine an environment less conducive to healing and mental health recovery than involuntary confinement
surrounded by aggressive criminals—talk about a spiritual retreat from hell.

Just as we have adapted prisons to confine our mentally ill, a similar institution has come to house juvenile delinquents, with equally horrific consequences. The idea of having children sent to and kept in an institution—a practice known as juvenile detention, but really nothing more than incarceration for kids—began in 1825, when the House of Refuge opened in Manhattan. Like adult prisons, the nation's first juvenile prison didn't work very well. Press reports were, naturally, positive at first, but stories of kids being whipped and shackled soon reached the general public. Almost two centuries later, despite nearly two centuries of failure, the basic concept of juvenile detention persists. Perhaps, like with the penitentiary, people are happy to have others deal with their problems; troublesome people are out of sight and out of mind—picked up off the street and all but disappeared.

The horrors one finds in juvenile detention are particularly troubling because they happen to children, who make easier targets. We like to think of kids as more innocent than adults, or at least more redeemable. Instead, boys are routinely sedated with
psychotropic medicines (and yet, for instance, New York State's juvenile homes don't have a single full-time psychiatrist on staff) and subject to the same physical and mental horrors as their older counterparts. The
New York Times
editorial staff recently felt compelled to come out against “young people being battered and raped in juvenile corrections facilities all across the country.” One would hope such things go without saying, but apparently they don't. Twelve percent of youths in juvie homes reported being sexually victimized in the past year. In some juvenile facilities more than 30 percent of the boys say they're raped, mainly by staff members. Not surprisingly, self-inflicted injuries and suicide attempts are routine. We are warehousing our problem children in kiddie jail before they learn enough to graduate to adult prison.

And though the problems of juvie homes are really no different from those in any other system of incarceration, the financial costs of holding children are staggering. Leaving aside any costs associated with the actual crime and arrest, New York State spends more than $200,000 a year simply to detain and “treat” one child. And to what end? Ninety percent of released boys are rearrested by
the time they're twenty-eight, and we probably lose track of the remaining 10 percent. As with prisons, it seems as if we're only willing to spend money on people after they mess up. Some of this $200,000 per year could be much better spent improving the lives of these children (and their poor parents) at a much earlier stage.

One significant reason that American prisons are so frequently misused these days—as drug treatment centers, juvenile penitentiaries, and housing for the mentally ill—is that we seem unwilling or unable to invest in people who may not be, to put it mildly, model citizens. If we're going to spend taxpayer money to prevent crime, spending it on people would be better than building more prisons. But this is not the choice America makes. We throw people in choppy waters and let them sink or swim. If they start to sink and curse us, we drag them out of the water and lock them up. We could just give them swimming lessons. In jail, violent offenders are mixed with immigrants who may have committed no crime other than crossing our border. We throw lifers in the same cell block as people who serve twelve months. Kids get raped. The mentally ill are left to fend for themselves in some antipsychotic
medicinal haze. Given the impossible task of total control, some guards inevitably abuse their authority. Meanwhile, the taxpayer—the poor taxpayer—given no alternative, is forced to pick up the tab.

Houses of detention—prisons, jails, juvie homes, mental institutions . . . call them what you will—have failed unequivocally at the basic tasks we've set out for them because people who aren't free want first and foremost to be free. Personal improvement and everything else comes later. But without rehabilitation, prisons have few other purposes. One is incapacitation, the idea of keeping criminals away from the rest of us. Another is punishment, intended for retribution and also deterrence, both for the offender and any others who may contemplate similarly nefarious deeds. If we were to grade prisons at these functions—rehabilitation, incapacitation, and punishment/deterrence—the only good grade comes from incapacitation: Here prisons get a gold star. Through technology, experience, and an unhealthy dose of inhumanity, we've pretty much mastered the art of keeping people behind walls. But for the vast majority of these people, prison neither rehabilitates nor deters. And when it comes to getting an apartment, a job, or college aid, the
concept of “having done one's time” and getting on with life no longer exists. A felon is a felon for life. So prisons warehouse criminals, whether they be rich, poor, white, or black—but mostly poor and nonwhite.

Institutionalization—in prisons, asylums, and public housing—has effectively created a disposable class of people to be locked away and discarded. This was not always the case. Historically, even though great efforts were made in early America to keep “outsiders” and the “undeserving” poor off public welfare rolls, society's undesirables—the destitute, disabled, insane, and even criminals—were still considered part of the community. The proverbial village idiot may have been mocked, beat up, and even abused, but he was still the
village's
idiot. Some combination of religious charity, public duty, and familial obligation provided (not always adequately) for society's least wanted. Then reformers got involved. Although designed in part to benefit the public in a free and self-governing society, the almshouse, orphanage, public hospital, and prison all shared a similar and more nefarious purpose: to effectively manage and remove society's least wanted.

In the colonial era exile as a punishment was a last resort, and a severe one at that. Prisons, whether or not it was their intention, brought back exile—but now as the first and, in many cases, only resort. In being, as a contemporary observer aptly described Newgate Prison, “unseen from the world,” prisons severed the essential link between a community and punishment. Public punishment and shame became isolation and containment. Without being visible, convicts went from being part of “us”—the greater community—to a more foreign “them.” So now we wait for the troubled and unproductive to break the law. And then we hold them for months and years, again and again, until they age out of crime or die. This is what happens when we take traditional punishment such as flogging out of the arsenal. We've run out of options.

Certainly for some, prison has a place in our society. A few people need to be locked up because we're afraid of what they'll do to us. Pedophiles, psychopathic killers, and terrorists immediately come to mind. Hannibal Lecter may be the most well-known case study of a man who needs to remain behind bars (albeit a fictional one, lest we
forget); his real-life equivalents—such as Jeffrey Dahmer, John Wayne Gacy, Willie Bosket, Theodore Kaczynski, Khalid Shaikh Mohammed—may indeed need to be kept away from us as long as they are alive. We're afraid of them. These people are not only being punished for what they did; they're being kept behind bars so they can't hurt us anymore. For these nasty folk—mind you, they're few and far between—prisons contain and do so rather well. But prisons and jails are not filled with monsters; rather, they're filled with a lot of mediocre people—a very few bad ones too—who did something wrong, and often did that something more than once.

Sometime in the past few decades we seem to have lost the concept of justice in a free society. Now we settle for simple efficiency of process. We tried rehabilitation and ended up with supermax and solitary confinement. Crime, violence, and drug prohibition help explain why so
many
people are behind bars. But none of this explains why there are so many people
behind bars
. That fact represents a much deeper problem, one that we have yet to confront. If we can't guarantee some degree of public safety while providing a minimal level of humanity for those we shackle; if justice isn't the goal;
if we're not willing to invest in education, rehabilitation, mental health care, infrastructure, job creation, or troubled neighborhoods, then we have no choice: It's time to short-circuit the entire criminal justice system by bringing back the lash.