I heard a great lecture this evening from a professor suggesting that we start employing a “shock and awe” approach to public law. Rather than hide our criminals away for ever-expanding imprisonment, we should revert to the old system: Hurt them, embarrass them, scare the crap out of them. Use a cheaper, more public method of deterring crime, rather than just locking criminals up in places where they get stronger, angrier, and more connected.
Hard to argue, no? The talk came from an eager, young-ish professor establishing the scope of his argument. He spent a long time mired in racial ramifications — it is more racist to keep black criminals shackled, hidden from society, or whipped, in full view, to discourage their brethren from repeating their crimes? — and hardly touched the “capital” element necessarily a part of any incremental capital system. In fact, probably the most illuminating part of the talk was when he defended reimplementing chain-gangs by telling us that the only reason we did away w/ chain gangs in the first place was because Union leaders demanded it.
What’s interesting about the super-corporal system is that it’s been done. Pirates — not desperate Somalians shanking cruise ships, but the Pirates of yore, of marque and reprisal — treated wayward sailors brutally, and made sure to leave one alive to tell the tale. In 2003 we dropped a series of bombs over Baghdad so severe as to instill the fear of becoming China’s parking lot into the hearts of every Jihadist. Both instances required something more than flyover attacks. Pirates struck deals with Great Britain. Guantanamo speaks for itself. Obviously brutality does not deter enough on its own.
I’m less interested with implementation and feasibility. What captured my attention was the professor’s constant, didactic emphasis on retribution. Victims want to punish. Society wants to punish. Imprisonment doesn’t scratch that retributist itch because no one goes to visit her attacker.
Would caning really offer a better alternative? Prof. Bibas focused on the hurt aspect of things — we want to see perpetrators suffer. But isn’t notoriety more critical? Brutality is much less effective than certainty. While an economist may weigh a 2 percent chance of incurring devastating pain equal to a 90% chance of very little pain, recidivist criminals are beyond an economist’s calculation. It won’t happen to me, goes the thinking; and besides, what’s the worst that can happen? My cousin was in the hoosegow and he came out w/ a tattoo, huge new muscles, and new friends.
We are past due for public law reform. If a five-year sentence doesn’t work, and a ten-year sentence doesn’t work, it’s not fair to experiment with a fifteen-year sentence on the taxpayers’ dime. Our occasional capital system limps along absent corporal support, but an incredmental corporal system would require functioning capital punishment. If we’re going to look to the world, let’s not look to nations on decline or to the eminently-popular Philippine caning to guide us. And, for god’s sakes, let’s have a conversation about social order without resorting to paternalist racial archetypes!