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Judicial CP - June 2011

Corpun file 23331

Wall Street Journal "Ideas Market" blog, 2 June 2011


Imprisonment and the Lash

By Peter Moskos

Associated Press
A masked religious official whips a convicted gambler with a rattan cane outside the main mosque in the town of Bireun, Indonesia in 2005.

Not too long ago, in 1970, America had 380,000 incarcerated people. That was considered normal. Today, thanks in large part to a misguided war on drugs and get-tough sentencing laws, there are 2.3 million Americans behind bars. Something has gone terribly wrong. Never in the history of the world has a country locked up so many of its people. We have more prisoners than soldiers. We have more prisons than China, and they have a billion more people than we do.

The problem is so abysmal in California that the Supreme Court ordered 33,000 prisoners to be housed elsewhere or released. But even this is a drop in the bucket, compared to what is needed to bring our levels of incarceration back to what is acceptable for a free and civilized republic. Were California to return to its 1970s rate of incarceration, it would have to release more than 120,000 criminals.

Today's prison reformers -- and I wish them well -- tinker with the machinery of incarceration while being dismissed too readily as soft on criminals. And even the most progressive reformer has no plan to reduce our prison population by 85%. I do: let's bring back the lash.

If you think flogging is too cruel to even consider, what would you do if given the choice between five years in prison and 10 brutal lashes? You'd probably choose the lash. Wouldn't we all? What does that say about prison?

We should offer criminals the choice between the status quo of prison and being caned, Singapore-style. If flogging were really so horrible, nobody would choose it. But of course most people would. And that's my point. I defend flogging because something radical is needed to reduce the cruelty of incarceration.

Prisons fail because they don't do what they were designed to do: cure criminals. In the late 18th century, the flawed do-gooder logic went like this: Just as hospitals cure the physically sick, the penitentiary would heal the criminal ill. It didn't work. Charles Dickens toured the first prison and noted with despair, "I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body."

In state after state, the penitentiary replaced corporal punishment. In theory, it was supposed to replace punishment entirely. Now all we have are prisons. They don't rehabilitate. They can't. All they do is take a troubled person, isolate him from normal society and house him with a bunch of criminals.

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, solitary confinement and triple-stacked bunks.

In much of America, prisons have become nothing more than a massive government-run -- one might even say "socialist" -- job program. To oversimplify, but just a bit, we pay poor unemployed rural whites to guard poor unemployed urban blacks. Prison guards and private prisons advocate for more and more prisoners, literally profiting from human bondage. Such a peculiar institution should be unconscionable.

Of course some people are simply too dangerous to release. Pedophiles, terrorists and the truly psychopathic come to mind, but they're relatively few in number. And these people are kept behind bars not only to punish, but also because we're afraid of them.

Our gulag of incarceration is less a function less of crime (which has gone up and down while our prison population goes only up) than our desire to punish. Since our only real goal is to punish, we should do so better, more honestly, and much more cheaply than we do now. And flogging avoids all the hogwash about prisons somehow being good for the soul.

Corporal punishment is an effective and comparatively humane way to bring our prison population back in line with human decency. By merely offering the choice of the lash, our prison population would plummet. Not only would this save tens of billions of dollars, it would save prisons for those who truly need to be there.

With the consent of the flogged, it's hard to criticize my modest proposal as too brutal. Ironically, once people think about it, they often say flogging isn't harsh enough. While it's good to move beyond the facile position that flogging is too cruel to consider, if flogging isn't harsh enough -- if we need to keep people locked up for years precisely because overcrowded prisons are so unbelievably horrific -- then we've become perhaps a truly evil society.

Bringing back the lash is one way to destroy prison -- if not completely, then at least for the millions of Americans for whom the punishment of prison is far, far worse than the crime they have committed. Would flogging in lieu of prison simply replace one evil with another? Well, yes. But at least it's the lesser of two evils.

Peter Moskos is an assistant professor at John Jay College of Criminal Justice and the CUNY Doctoral Program in Sociology. He is the author of "In Defense of Flogging" (Basic Books).

Copyright 2008 Dow Jones & Company, Inc. All Rights Reserved

Corpun file 23352


The Washington Times, 3 June 2011

Book Review

Lash and Release

By Nicole Russell

By Peter Moskos
Basic Books, $20, 183 pages

Imagine being mugged. Imagine a few weeks later, standing in a courtroom watching as your assailant is tied to a post, stripped from the buttocks down and struck with a cane -- half an inch thick; four feet long -- 10 times. Over the course of five minutes, the criminal's skin on his buttocks splits open, oozing blood and creating life-long scars. When complete, your thief receives medical treatment and is released. No time in prison. No parole hearings. Do you feel justice was served? Equally important: Does the thief rob again or do his scars sway him otherwise?

Such is the essence of Peter Moskos' book "In Defense of Flogging." As a former Baltimore City police officer, assistant professor of law, police science and criminal justice administration at John Jay College of Criminal Justice, Mr. Moskos is not unfamiliar with the legal or criminal aspects of justice. He readily employs this background to describe the ills of today's criminal justice system and his radical alternative.

For nearly two-thirds of "Flogging," which has no chapter titles or breaks -- odd for a book of 150 pages -- Mr. Moskos' volume reads more like an endless treatise against incarceration, a vendetta against prisons, than a vindication of flogging. Philosophically, prisons don't make sense: They are misused; rather than enforcing punishment and being an effective deterrent, they are drug treatment centers, juvenile penitentiaries and housing for the mentally ill. Practically, they're useless too: From the cost per prisoner to the conditions inside (including sexual and physical assault), Mr. Moskos cites the many ills of the prison system and the subsequent need for reform.

Mr. Moskos' argument contains holes. He's as concerned with what goes on after a criminal is released as he is while he's incarcerated. "Of the more than seven hundred thousand prisoners released each other, two-thirds are rearrested within three years, and half end up back in prison. ... Whatever circumstances led somebody to commit a crime probably haven't changed by the time they're freed." Assuming this sad statement is true, Mr. Moskos fails to persuade how flogging would serve as a more effective deterrent.

Later Mr. Moskos writes, "Why incapacitate criminals in a non-rehabilitative environment never meant for punishment? This is more torturous than flogging could ever be." If a prisoner is incarcerated for multiple years, endures abuse the entire time, then is released and returns to a life of crime, how would a five- or even 10-minute flogging (or, Mr. Moskos argues, 30 lashes would be the maximum amount of flogging a criminal should endure) deter such a determined criminal? Further, how do 15 lashes guarantee punishment and rehabilitation?

Mr. Moskos claims the benefits of flogging would cancel out the errors of the prison system. He prefers the Malaysian and Singapore flogging models which are efficient and orderly; also criminals should only be flogged after consenting to it (if they decline, they head to prison). Upon consenting, they would receive two lashes per year of incarceration, thus shrinking the size of the prison population and eventually saving money.

The intense, physical pain and violent nature of the lashing, combined with the twinge of public shame would not only adequately offer punishment, which the current system fails to do, the memory of the lash would deter future crimes.

While Mr. Moskos admits "Flogging" presents a philosophical argument rather than a how-to guide, practical questions still arise regarding certain types of criminals and crimes. Are 10, 20, even 30 lashes enough for say, the abduction, rape and murder of a child? While some crimes and their lashing-equivalent aren't mentioned, Mr. Moskos does argue that prison is appropriate for really bad criminals -- the Jeffrey Dahmers, the Khalid Shaikh Mohammeds -- because it literally bars them from the public. Lashing is reserved for mediocre people who make bad choices.

"Flogging" is intriguing, even in -- or because of -- its shocking premise. As a case against prisons, Mr. Moskos' is airtight; as for the case for flogging, it's as limp as it is dubious.

Nicole Russell has written for, Politico, National Review Online and the American Spectator.

Copyright 2011 The Washington Times, LLC.

Corpun file 23354

Maclean's, Toronto, Canada, 10 June 2011

On flogging, chain gangs, and minimum prison sentences

By Brian Bethune

Peter Moskos, a former Baltimore beat cop who is now a criminologist at John Jay College of Criminal Justice in New York, found himself telling his fellow Americans how immorally dysfunctional, ruinously expensive and profoundly stupid their country's prison system is, and even convincing some of such, but finding they didn't much care: they just want criminals punished. Hence, the suggestion in the title of Moskos's elegant and Swiftian polemic, In Defense of Flogging. In it he asks if you, dear reader, were ever convicted of a non-violent felony and were offered the chance of accepting -- instead of a jail term -- two flesh-lacerating, Singapore-style strokes of the cane for each year of your sentence, wouldn't you take the flogging option? And if you would, how can you deny it to others? Moskos spoke with Maclean's Senior Writer Brian Bethune.

Q: Your book is very Modest Proposal-ish; what was your aim in writing it?

A: I wanted people to look at things differently, to shake up thought patterns. My big fear -- which has seemed not to come true, luckily -- was that people wouldn't read past the title and would just think I'm a crazy conservative flogging freak. As I say in the book, it is more thought experiment than policy proposal, but I don't think it would be bad to offer the choice.

Q: That's what I meant by Modest Proposal-ish, because I don't think Swift really thought it was a good idea to eat Irish children, but you seemed convinced -- at least halfway -- by the end of your book?

A: More than halfway. I mean, exactly as written, I would prefer to get lashed rather than go to prison. So yeah, in that sense it's not quite like A Modest Proposal.

Q: The prison numbers in your country are staggering.

A: These 2.3 million prisoners, somehow we've convinced ourselves that's normal and rational, more prisoners than soldiers, more prisoners than China, more than one per cent of the adult population, seven times the incarceration rate of Canada or any Western European country. Normal. I say a few good things about Canada in the book, you know. Americans are weird, though. We refuse to look at other countries. Start with Canadians -- I want to think you aren't that different, so why can't we do it more like Canada? If we still had a 1970 level of incarceration [which was the same as Canada's then and now], I never would have written this.

Q: I really didn't want to be the guy to tell you that our current federal government wants to change that -- and not in a way you would advise. The Canadian government is about to go on a prison-building spree, and it doesn't think prisoners spend enough time in jail -- mandatory minimum sentences will be increased.

A: Really? That's ... Longer minimums? You know, the other thing I wrote we ought to look to Canada for is the shorter sentences. I mean, the mess we're in here, is because of the drug war and this idea of adding another five years, another 10 years, you know, like it means nothing to the people involved. It certainly does nothing for crime prevention -- what problem are we hoping to solve?

Q: It's like Prohibition never happened. Anyone can just look back at the record, the growth of organized crime and everything that went wrong then, and at how the U.S. finally gave it up, and think,"Why do this again?"

A: I think that's a damn good question. There's this urge to be retributive, and that's why... I mean, that comes out loud and clear.

Q: That's what I liked best about your book, the explanation that even when Americans recognize how dysfunctional their penal system is, they don't really care because punishing criminals takes priority.

A: Yes, and although I consider myself pretty liberal, I'm not against punishment. There's nothing wrong with punishing someone who has done something wrong. Or with public safety. Lock up a pedophile and there are fewer raped children, [but] locking up a drug dealer just creates a job opening.

Q: Hence the flogging idea?

A: Exactly. I mean, if soft on criminals means shorter sentences you could say I'm soft on criminals, but if you wrap it in a pro-flogging argument it's a little harder to get labelled as such and a little easier to be heard.

Q: The desire to see criminals punished -- and punished more physically than the law allows -- does that explain why people tolerate the horrible stuff that goes on in prison that's not official, why they can joke about prison rape?

A: Yeah. That horrible punishments are being exacted but we as a society are not formally doing it -- among some conservative Americans there's a lot of, you know, "Oh, prison is just "three hots and a cot" and cable TV and whatever. I haven't figured out whether they really believe that or not -- they'll joke about prison rape, too, so I don't know if anyone really thinks prison is that soft. But it does come down to the idea that, yeah, they're supposed to be punished.

Q: So you challenge people who reject flogging to consider whether they do so only because they think prison is more cruel and thus more fitting punishment. Do you fear some people will think flogging a great idea to add to a sentence?

A: I get some of that. When I talk to people the usual progression is, "Flogging's cruel and barbaric," moving very quickly to, "Only 10 lashes for five years?" Then I do worry, actually. On the one hand, once you start quibbling about the number of lashes, I've won. But on the other hand, people who say flogging's not cruel enough ... I mean, well, what have we become? God forbid I wake up a couple years from now and we have even longer sentences and we flog people. I mean, then I might jump out a window.

Q: I read somewhere, actually in a piece by Conrad Black, the most distinguished convicted Canadian felon I'm aware of, that 47 million Americans have a criminal record.

A: That sounds about right: 2.3 million prisoners, five to 600,000 released every year, yeah. The vast majority, they all get out eventually, and then most end up back in. So much of that is drug-war-related. I do sort of assume that the vast majority are in a way guilty as charged, if not more so -- because many, many have plea-bargained down -- but why is it 2.3 million today as opposed to 300,000 only 40 years ago? I think there is a lot of crime caused by desperation, and it doesn't mean that people commit crime because they're poor, but certainly a lot of people who are poor commit crime and they might not if they weren't poor. You understand the difference there? That's not news, but it comes up when I hear people say poverty doesn't affect crime -- that crime is still going down in America even though the economy is bad. Then I say, unemployment may be up nationwide, but unemployment in the eastern district of Baltimore where I policed has been 20-30 per cent for decades. It doesn't really matter what's going on in some union town right now.

Q: You want to reduce the prison population by 85 per cent, and think the way to do that is by removing the drug users and the Bernie Madoffs?

A: Yes, but I don't think we can now, so many of these people are damaged goods once they've spent much time in prison. It would have to be over a generation. But certainly, yeah, white collar crime. Why not flog Bernie Madoff? Well, he'd probably die, and that's not my goal either. What is a good way to punish Bernie Madoff? Let's assume he's too old to get flogged. I don't actually know, but there's gotta be some way we could do it better than paying to imprison him.

Q: What do you make of the relationship between prison and mental illness?

A: There's no straight line between closing the mental institutions and filling the prisons but there is some sort of relationship. And it's hard to tell how much mental illness among prisoners came in with them and how much is because of prison. I just imagine the real tragedy is there's probably a huge number of people who went in a little bit f--ked up and left completely insane because it's just a horrible treatment. One of the pictures that the Supreme Court released in the California decision a few weeks ago, shows those cages where mentally ill people are kept, sort of metal phone booths -- what could be possibly worse for someone who's already screwed up a bit? Could you imagine telling some rich person who needs rehab, "Oh, we'll just send you to prison for a month. I'm sure they'll take good care of you." I mean, we know that's a joke and yet somehow for other ill people we say, "Oh, that's okay."

Q: You write that "a cynic" -- I presume that's not you -- would think that the system is actually designed to work the way it does, paying poor rural whites to warehouse poor urban blacks.

A: That cynic would be me. I actually pull my punches a little bit when it comes to making a racism argument, though I buy it. I was very conscious in writing this book of trying not to alienate the conservative side. I know this in a way from my police background: the second you mention, "The system's racist," one-third of the country simply puts down the book and says, "Oh, it's one of those guys." So yeah, that's why I write, "a cynic might say." Then I am very cynical. That is absolutely what we're doing. But you don't even have to be cynical. I mean, politicians don't even pretend they're doing otherwise. The problem is the other side is not screaming bloody murder and saying, you know, "This is immoral, this is slavery, you're profiting from human bondage."

Q: You also believe that to convict somebody of a felony now is to hang him out to dry for life. The old concept of having paid your debt to society just doesn't exist any more.

A: True, and that's why it's wrong that prosecutors here, for some minor thing or some drug crime, will allow you to plead guilty to a felony for time served. That's just mean. If you're willing to give them time served and let them walk, why do you want to give them a criminal record? I mean, either they should be in jail, or be free. But it's all because of some internal bureaucratic stat about getting a felony conviction for the prosecutor. Everyone's got their own little game to play, but that prosecutorial part of it is not well known.

Q: You don't touch the death penalty at all?

A: I tried to stay away from that. I write a book called In Defense of Flogging, I don't need to muddle it with a death penalty argument. I'm not a fan. At some level I think killing is wrong, but I don't have sympathy for most of the people sentenced -- I'm not a passionate anti-death penalty person. In truth, given all the other problems of the justice system, the numbers are so small, I think there are bigger fish to fry. Ironically, in terms of mental health and care, death row is probably the best prison situation to be in. There's a little more public eye on that, to ensure at least minimal levels of official treatment are actually given to death row prisoners.

Q: Another Canadian angle you might consider is that the leader of the opposition in Ontario, the man who will be running to be premier this fall, wants to bring back the roadside work gang. That would certainly be an easier sell than flogging, but in your book you see positives in chain gangs: to the surprise of tough-on-crime supporters, they're popular among convicts.

A: There is some great hypocrisy involved in judicial punishment. One of my dear friends and colleagues hates my idea. She does death penalty mitigation cases, you know, she fights the good fight, but she still can't get past the idea that flogging is wrong. But I find it weird that people who claim to speak for the prisoners basically want to keep them in cages all the time -- and then they'll fight for better prison libraries or whatever. It's like they're missing the big picture. If I were in prison, of course I would prefer to be outside doing physical labour. It's not physical labour but prison life that kills a person. It's so bad inside that the outside jobs are often sought after. So, yeah, call them work crews and let them do it. At the same time the retributive side can feel the cons are being punished.

Corpun file 23385 (Boston Globe blog), Massachusetts, 13 June 2011

Brainiac: Illuminating thoughts from the world of ideas

Five Years, or Five Lashes?

By Josh Rothman

You've committed a crime, and been convicted. The judge offers you a choice: Five years, or five lashes with a rattan cane. Which would you choose? That's the question Peter Moskos asks in In Defense of Flogging. Moskos, a former Baltimore police officer, is now a professor at the John Jay School of Criminal Justice. His book is, as promised, a well-reasoned defense of flogging. It's also an attack upon the penal system. "Faced with the choice between hard time and the lash, the lash is better," he writes. "What does that say about prison?"

Moskos puts today's prisons in historical perspective, starting in the late 18th century, when corporal punishment was the norm. Though criminals were imprisoned, imprisonment was rarely a punishment in itself; instead, you'd be held in jail while awaiting trial, punishment, or execution. Jails were informal and even co-ed. Then, around the turn of the century, religious reformers changed everything, arguing that flogging was inhumane, and that the goal of punishment should be moral rejuvenation. Over the next fifty years, corporal punishment was outlawed, and imprisonment became the justice system's primary tool. Criminals were moved to small, individual cells, in which they could meditate on their crimes and ask God for penance. The new prisons were called, appropriately, "penitentiaries."

Almost immediately, Moskos explains, the penitential system ran aground. Prisoners didn't repent; in fact, the confinement and boredom made them crazy. (Charles Dickens, on tour in America, wrote that the prison cell was deeply inhumane -- it buried criminals alive in a "stone coffin.") To save money, larger prisons were built. Fast forward two hundred years, and you have a system of punishment that is, Moskos argues, vast, inhumane, ineffectual, and incoherent. "I can't think of another institution," he writes, "that has failed as mightily as the prison has."

Moskos is no punishment zealot -- in fact, he wants us to face up to just how much punishment we're already meting out. Most of the book is devoted to enumerating the horrors of prison. Prisons, he argues, are essentially state-run torture chambers, with the torturing outsourced to the inmates. Corporal punishment still goes on, just under the table. We may turn up our noses at corporal punishment, he argues, but only because we're willfully ignorant of what really goes on in American prisons. Against all the evidence, we continue to buy into the humanitarian founding myths of the prison system.

In fact, he writes, our system is more violent now than it's ever been. Effectively, we sentence child abusers "to torture followed by death." We condemn prisoners to insanity-inducing isolation, and "force straight men to have semi consensual prison-gay sex." Ultimately, Moskos argues, it would be better to rewind the clock. Flogging is simpler, cheaper, and more humane; it puts punishment out in the open, where it belongs. Moskos suggests that many criminals could be offered the choice between time and flogging, with two lashes being equivalent to each year in jail. Victims, or judges, could be given veto power.

It's hard to say how serious Moskos is being (though my money is on "pretty serious"). Even if you aren't convinced that flogging is the future, though, Moskos' deeper argument is still compelling. The act of punishment, he argues, is inherently strange, uncomfortable, and unsettling; there's a natural impulse to hide it away. Our prison system, though, shows that this is a mistake. Today, he writes, Americans are like the citizens in the science-fiction film Soylent Green. In that movie, it turns out that a popular food is made of people. "So," Moskos writes, "is our system of corrections." Instead of piling on the prison terms, we need to start asking hard questions about the value and meaning of punishment. Until then, we'll never have a sensible prison system.

Corpun file 23377


Time, New York, 27 June 2011

Should Flogging Be an Alternative to Prison?

By Adam Cohen

Flogging someone with a cane causes intense pain and permanent bodily damage. An Australian who was flogged for drug trafficking in Malaysia in the 1970s recalled that the cane "chewed hungrily through layers of" his "skin and soft tissue" and "left furrows" on him that were "bloody pulp."

It's tough stuff and generally considered a barbaric punishment that the 21st century Western world would and should never consider. That makes it a bit startling to find a new book by a serious U.S. academic arguing that the U.S. should start flogging criminals. Peter Moskos' In Defense of Flogging might seem like a satire -- akin to Jonathan Swift's "A Modest Proposal," an essay advocating the eating of children -- but it is as serious as a wooden stick lashing into a blood-splattered back.

Despite what you may think, Moskos is not pushing flogging as part of a "get tougher on criminals" campaign. In fact Moskos, who teaches at John Jay College of Criminal Justice, begins not by arguing that the justice system is too soft on criminals, but the opposite. So before you accuse him of advocating a cruel and unusual form of punishment, he offers this reminder: in the U.S., there are 2.3 million inmates incarcerated in barbaric conditions. American prisons are bleak and violent, and sexual assault is rampant.

And, Moskos points out, imprisonment is not just cruel -- it is ineffective. The original idea for the penitentiary was that criminals would become penitent and turn away from their lives of crime. Today, prisons are criminogenic -- they help train inmates in how to commit crimes on release.

Flogging, Moskos argues, is an appealing alternative. Why not give convicts a choice, he says: let them substitute flogging for imprisonment under a formula of two lashes for every year of their sentence.

There would, he says, be advantages all around. Convicts would be able to replace soul-crushing years behind bars with intense but short-lived physical pain. When the flogging was over, they could get on with their lives. For those who say flogging is too cruel, Moskos has a simple retort: it would only be imposed if the convicts themselves chose it.

At the same time, Moskos says, society would benefit. Under his proposal, the most dangerous criminals would not be eligible for flogging; the worst offenders, including serial killers and child molesters, would still be locked up and kept off the streets. But even so, he guesses the prison population could decline from 2.3 million to 300,000. That would free up much of the $60 billion or more the U.S. spends on prisons for more socially useful purposes.

We associate flogging with authoritarian nations like Singapore and Malaysia. The practice, however, has deep roots in America. The "lash" was used brutally against slaves, of course, but common criminals were also flogged throughout the 1800s. And it took a long time to die out: as recently as 1952, Delaware administered 20 lashes to a convicted burglar.

Flogging could have more of a chance for a comeback than some might think. In fact, there could be a surprising amount of grass-roots support. In 1994, an American teenager named Michael Fay was famously convicted of spray-painting cars in Singapore and was flogged as part of his punishment. Fay's ordeal received intense media attention -- the number of lashes was reduced from six to four after President Clinton appealed -- much of it critical of Singapore. But as Moskos notes, a newspaper poll in Dayton, Ohio, where Fay's father lived, found that respondents supported the punishment by a 2-1 margin, and at a time of rising juvenile crime, many Americans seemed to echo that sentiment.

There would be legal issues, of course, but Moskos believes flogging would pass constitutional muster. He notes that the Supreme Court upheld corporal punishment in schools in 1977, rejecting a claim that it violated the Eighth Amendment bar on "cruel and unusual" punishment. Moskos also argues that the fact that convicts would be choosing it for themselves should remove the constitutional question.

Moskos insists there would be no "slippery slope," that flogging would not lead to amputations or stonings of criminals. But once we make inflicting pain on people an option, it seems likely or at least possible that states and localities would come up with their own ghoulish variations. Not long ago, another academic wrote a book arguing that we should use electric shocks to punish criminals.

As for the remedy that most legal observers are pushing for rather than flogging -- i.e., making our current prisons less barbaric -- Moskos is dismissive of that happening anytime soon. Certainly the federal and state governments could focus on reducing overcrowding and violence in prisons, putting in place effective drug treatment and educational programs, and getting serious about alternatives to incarceration and helping prisoners re-enter society when they are released. But, in the eyes of Moskos: "Prison reformers -- and I wish them well -- tinker at the edges of a massive failed system."

Reading In Defense of Flogging is a lot like reading Woody Allen's classic "My Speech to the Graduates," in which he declares, "More than at any other time in history, mankind faces a crossroads. One path leads to despair and utter hopelessness. The other, to total extinction. Let us pray we have the wisdom to choose correctly."

Moskos would have us believe that there are only two alternatives for dealing with crime: the prolonged cruelty of incarceration or the briefer but more intense cruelty of flogging. But there has to be another way, doesn't there?

Cohen, a former TIME writer and a former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School.

Copyright 2011 Time Inc. All rights reserved.

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