In Defense of Flogging (9 page)

Although the prison system is unarguably broken, many people have yet to acknowledge that the problem is the system itself and not just the way it's run. Today's prison reformers still seem to believe, or at least want to believe, that the problem of prisons rests more in the details of prison administration than the basic tenets of the penitentiary model. To attack prisons in their entirety, reformers would have to abandon the penitentiary's restorative ideals—something they're loath to do. Though the idea of rehabilitative prisons may have officially been abandoned with the Supreme Court's 1989
Mistretta
decision, reformers still cling to the concept that prisons can reform. Their reluctance to let go is understandable. Like education, job training, and drug treatment, rehabilitation is tough to be against. What's the alternative? Still, the premise of rehabilitation is often flawed. How, after all, can one
be “habilitated” in the mainstream values and skills of the educated working class when isolated from them in a “total institution” while surrounded by undereducated criminals with similar antisocial attitudes? Gathering criminals in one place does nothing but teach advanced criminality. If rehabilitation is to ever work, it's going to happen outside prison walls.

Without the noble ideal of rehabilitation, prisons only hold and punish. And as a system of punishment, prisons leave much to be desired. Despite the horrid conditions, many people continue to believe that penitentiaries do nothing but coddle criminals. After all, some critics argue, with rent-free recreation and cable TV, prison is a veritable country club! As common as it is misguided, this belief causes the public to demand even more punishment. Elected officials respond by getting “tougher” on crime. But without alternatives, tougher just means more prison.

No matter how tough we get, because prisons do not punish in a comprehensible manner, incarceration will never satisfy the public's legitimate desire for punishment. But when incarceration is all we have, the only way to give more punishment is
to pile on the years. Without satisfactory punishment, the public brays for more punishment. And so the cycle continues. Ten years not enough? Give him twenty! Why? Because he
deserves
it. Consider convicted felons Dudley Kyzer and Darron Anderson. The former received ten thousand years
plus
two life terms for a triple murder; the latter received twenty-two hundred years for rape, kidnapping, and robbery. A judge, on an appeal by Mr. Anderson, added nine thousand years to his sentence (a second appeal knocked off five hundred years). Mr. Anderson's release is set for the year 12744. Clearly, this is absurd.

If you think that “getting tough on crime” works, that if only we added enough years and made incarceration bad enough, then nobody would risk committing crimes, please meet Sheriff Joe Arpaio of Maricopa County, Arizona. Sheriff Joe, who likes to be known as “America's Toughest Sheriff,” is proud of the harsh conditions in his jail: striped uniforms, pink underwear, chain gangs, sleeping in tents, no coffee, and cheap food. Arpaio proudly says his feedings cost just twenty-two cents per person per meal, twice a day. But it's not just about frugality. Arpaio says prisoners deserve to be
punished: “I don't want criminals to be happy and comfortable in my jail. If you don't want to be there, don't commit the crime.” Fair enough—until we consider that 70 percent of his inmates are technically innocent “pretrial detainees.” When jail is used for pretrial detention, it is supposed to hold, not punish. But perhaps more important than Arpaio's inability to understand legal nuances is that his much-touted “get tough” policies don't work, at least not in any way that deters crime or prevents recidivism.

A few years back Arpaio commissioned a study to examine and highlight his successes. Two recruited professors looked at people sentenced and released from his jail before and after Sheriff Joe was elected. But their findings don't support Arpaio. They found no difference in the recidivism between offenders released before Sheriff Joe took over and those released a few years later, after he “got tough” and introduced his unique brand of hospitality. Nor has Arpaio deterred other people from getting into trouble. Since he took over, the jail's population has more than doubled, to ten thousand prisoners.

Honestly, though, the recidivism rate probably means little to Arpaio and his numerous fans
(Arpaio has won by a wide margin every election since 1993). For these people the issue is less about facts and figures than a deep-rooted desire to punish criminals. But it would be nice if those who advocated get-tough approaches would at least be honest and say their policies are more about vengeance than preventing crime. In an era when ignoring data and being contradicted by so-called “libs” is a rite of passage for conservative politicians, Sheriff Joe and his supporters simply discount any opponents as politically biased.

In the study of Arpaio's effectiveness, the Arizona professors started with the premise that for get-tough policies to deter, inmates must actually dislike the policies. And although Arpaio's gimmicks may garner contempt from liberals and applause from conservatives, in truth they may matter very little. The professors interviewed hundreds of inmates about their attitudes toward Arpaio's jail. Inmates disliked being incarcerated, but beyond that, Arpaio's policies garnered little hatred.

Regardless of anything happening in jail, a third of the inmates believed they'd be back no matter what. The real-life conditions that led them to crime in the first place—mentioned most were alcohol,
drugs, inability to pay child support, and not having a driver's license needed to get to work—weren't going to change upon their release. Among other inmates with more long-term plans to stay out of jail, the most complained-about aspects of incarceration were hardly unique to Maricopa County: lack of recreation, cold food, group quarters, and cigarette bans. It doesn't matter what color the underwear is—jail is jail. The “toughness” Arpaio has tried to bring to his jail may pale in comparison with the fundamental hardships of most prisoners' lives.

Indeed, the political camps for and against Sheriff Joe may be staked out on the wrong side of his policies. The irony about a man who says, “I want to make it so terrible that nobody will want to come back” is that deep down, and without him wanting it, some of his policies might not be bad. Tent cities, even in an Arizona summer, can be preferred to stuffy indoor cells. Inmates dismissed chain gangs (“work crews” is the politically correct term) as publicity stunts, and yet whatever their symbolism, they remain highly desired assignments. And the reason should be obvious: Inmates will welcome anything that provides an emotional and physical release from the monotony of confinement.

Unfortunately, by attacking the ideas of Joe Arpaio, his more liberal opponents may be hurting the very inmates in whose name they claim to speak. Time and time again we see that inmates don't want to be locked inside. Any and every alternative to wasting away in a jail should be heralded, no matter who it comes from. Plus, I'm quite fond of some of his ideas, like the one linking TV power to electricity-generating exercise bicycles. If you want to watch the tube, keep pedaling. Why not?

Not liking Joe Arpaio is one thing. After all,
I
don't like Joe Arpaio. I think he's an egotistical, xenophobic, opportunistic SOB. There are better ways to punish criminals than a “get tough” jail. But until we provide alternatives and acknowledge the necessity of punishment, true reform will be a pipe dream and we'll be left with Arpaio's gimmicks. So I raise my middle finger to you, Joe, but urge you to keep the ideas coming.

If prisons are broken, then so, too, is prison reform. With the exception of a few Supreme Court decisions in their favor, prison reformers have an awfully bad track record over the past two hundred years.
But the last forty years stand out as particularly dismal: Calls for less incarceration have been met with a skyrocketing prison population. This, however, isn't surprising, as any reform movement that desires an improved system of evil
should
be doomed to failure. It's like asking for comfier seats on the train to Auschwitz: It sort of misses the big picture.

At one time America had punishment other than incarceration. But as we built up our prison system in the nineteenth and twentieth centuries, we simultaneously dismantled our most trusted alternative: the institution of flogging. In 1972 Delaware, the country's “first state,” became the last to strike corporal punishment from the criminal code. This was twenty years after the state's last flogging. On June 16, 1952, convicted burglar John Barbieri, aged thirty, was tied to “Red Hannah,” as the whipping post was known, and received twenty lashes on the back with the “cat-o'-nine-tails.” Seeing how every other state had already given up flogging, perhaps Delaware's stubborn refusal in keeping the lash was due to its proximity to and rivalry with neighboring Pennsylvania, where flogging was first banned and the prison movement began.

In the debate between flogging and prison, both sides saw prison as the “softer” of the two options. The only real question was which one was better. Anti-floggers in the late 1700s saw prison as a modern cure for crime. But the pro-flogging Delaware
Gazette
saw through this nonsense: “The Penitentiary punishment,” wrote the
Gazette
in 1852, “scarcely ever reforms the criminal, and we believe that it is much less efficient than our old fashioned mode of whipping and pillory.”

A stated goal of the pro-prison camp was nothing less than the complete elimination of criminal punishment. In its place would be scientific treatment. One anti-flogging academic in 1947 quite typically hoped for an “emphasis upon the understanding of the causes of crime [and] the rehabilitation of the individual. . . . . [Focus] upon the criminal rather than upon the crime, upon the person in a situation rather than upon”—and here's the kicker—“legal abstractions.” Of course these “legal abstractions” are nothing less than an independent judiciary, the Bill of Rights, and the rule of law. But at least this professor was honest, just one in a long line of misguided dreamers seduced
by the curative ideals of the penitentiary. It remains important, both logically and morally, to resist the seduction of these utopian dreams.

Prison reform, somewhat like communism, has in its idealism a certain enduring appeal—especially if all you know about communism is
The Communist Manifesto
and a rousing round of “The Internationale.” In some circles even today, prison reformers' beliefs, much like those of communism, reflect a dogmatic faith that an ineffectual system can be salvaged to help society improve. This wouldn't matter so much if these were lofty statements of ideals, like, say, wanting world peace. In reality, however, advocates impose their dreams on millions of people with catastrophic effects. Just like early communists who wanted a more just world, one might forgive the early Quaker prison advocates who didn't yet know the horrific consequences of their ideas. But for modern reformers to maintain a utopian vision of incarceration that flies in the face of two centuries of real-world failure is inexcusable. True believers, by and large, never admit failure. They just try harder.

Let's look at some of the theoretical parallels between prison and communism. First, both began
with noble ideals. Communism was supposed to let the hard-working masses throw off their chains of oppression; prisons were intended to cure criminals. But just as Marx built his theory on shaky pilings (such as the assumption that people actually want to work), the ideological foundation of the penitentiary system rests on the loopy theory that specially enlightened professionals can “cure” criminals. Additionally, both prison and communism rely on theories of mandatory “reeducation” toward some administrative or party line. Finally, both communism and prison have been tried in many forms and variations, none of which have succeeded by any democratic standard (hence walls to keep people in). Technically, of course, saying something does not work is not the same as saying that something
could not
work, but constant failure, especially when we're experimenting on real people, should give more freedom-loving and ethically inclined people serious pause.