Tuesday, July 12, 2011

Malkot (flogging) or Prison?

As every student of Jewish Law knows, flogging is one of the central tools that were meant to be used as a form of punishment by a Jewish Beit Din. Luckily for us, the lack of Jewish autonomy have made this form of punishment more or less historical.

Similarly, flogging is no longer used as a form of punishment in the western world. It is seen as "cruel and unusual" punishment. However a recent article in the Boston Globe  - reviewing a book "In defense of flogging" makes an argument for its return:

Peter Moskos, a criminologist at the City University of New York and a former Baltimore police officer, has just published “In Defense of Flogging,’’ a serious if startling proposal to drastically shrink America’s “massive and horrible system of incarceration’’ by letting most convicted criminals choose between going to prison and a semi-public flogging with a rattan cane. An absurd thesis? Don’t reject it out of hand, Moskos says, before considering what you would want for yourself. “Given the choice between five years in prison and 10 brutal lashes, which would you choose?’’ A flogging would be intensely painful and bloody, but it would be over in a few minutes. Prison would mean losing years of your life, being locked away from everything and everyone you care about.
Offered those alternatives - hard time or the lash - most people would choose the lash. Better the short, sharp humiliation of a flogging than the prolonged emotional torture of being shut in a cage. Better to be punished and be done with it. 
The argument is not without some merit. There is little doubt in my mind that prisons are an extremely cruel form of punishment - and somewhat ineffective. Normblog (highly recommended) has tries to refute the argument:

What has struck me now - taking longer to do so, perhaps, than it should have - is that the argument from what the convicted would prefer can't by itself be decisive. To see why, just 'stretch' the example: instead of five years in prison and 10 brutal lashes, let's say 20 years in prison and the surgical removal of one of the would-be prisoner's eyes. I don't know whether, offered this choice, there wouldn't be people who might choose the loss of an eye over the 20-year sentence. But eye-removal should not be introduced in a civilized society as an alternative to long prison sentences.
 I don't find his argument convincing, though it does have a certain instinctive weight. Norm is arguing Ad-Absurdum. However is it really an all or nothing question? may we not accept that certain limited pain is morally defensible, while other more extreme cases are not? Admittedly drawing the line is sure to be difficult. However difficult is not impossible.

And so I ask: will Flogging make a comeback? Does it have a better chance in a Halachically influenced one?

No comments: