Many people believe that corporal punishment -the infliction of pain for the purposes of punishment through caning, beating, whipping, amputation, electrocution, branding, and so on – has no place in a modern criminal justice system. Instead imprisonment is seen as a more ‘humane’ form of punishment, and it is one that is employed in most modern criminal justice systems. But why do we think that imprisonment is humane while corporal punishment is not? Here are a few reasons you might think this, and why I don’t think they work.

 

(1) Imprisonment is more humane because it causes less suffering than corporal punishment

We might argue that imprisonment is more humane than corporal punishment because imprisoning people causes them less suffering than corporal punishment would, and that it’s wrong to cause people the level of suffering brought about by corporal punishment.

Imagine that you have been convicted of a crime and are presented with a choice: you can either spend 10 years in a US prison, or you can experience a single lash of the cane. Which would you choose? I am going to guess that you, like me, would choose the cane. (Although the choice offered here is hypothetical, some people have suggested that we should actually offer this kind of choice to convicts.) So it’s clearly not the case that any amount of imprisonment is better than any amount of corporal punishment.

What kind of corporal punishment would you need to be offered before you think it would be reasonable for you to be indifferent between that punishment and 10 years in prison? Bear in mind that 10 years in a US prison is 10 years in which you’ll have limited access to your friends and family, 10 years of your career that you’ll lose, 10 years in which you’ll lose autonomy over when you eat, sleep, and exercise, and – perhaps most disturbing to us – 10 years in which you may face the threat of violence and sexual assault.

I think that the corporal punishments we think are equivalent to 10 years in a US prison are worse than many of us would want to admit. For example, I am pretty sure I would prefer to have two of my fingers amputated than go to a US prison for 10 years. It’s not that I think I’d prefer to have two fingers amputated because I am simply failing to think rationally when I think about what I would do if I faced such a terrible choice. It seems to me that I prefer the corporal punishment of having my fingers amputated because I can be fairly certain that I would suffer less if I were to choose this in order to avoid spending 10 years in a US prison. But if amputating two of my fingers for a given crime would not be considered humane, then it is difficult to see how a 10 year prison sentence for the same crime could be when it’s plausible that this causes more suffering.

Imprisonment therefore cannot be more humane than corporal punishment because it causes less suffering. If anything, the suffering imposed by imprisonment seems comparable to the suffering imposed by fairly severe forms of corporal punishment.

 

(2) Imprisonment is more humane because it spreads out the suffering across time

It might be objected that corporal punishment is more inhumane than imprisonment because it causes a large amount of suffering in a shorter period of time. And perhaps it’s more humane to spread out someone’s suffering over a long period of time, rather than to force them to experience it all at once. (This would also mean that longer, less severe corporal punishments would be more humane.)

But it seems unlikely that a long, less severe punishment is more humane than a short, severe one. Suppose you can either suffer through a painful migraine for an hour or a dull toothache for six months, and you would much prefer to just get it over with and have the migraine. Would forcing you to endure the toothache for six months really be the more humane choice? Surely not.

(There may be a practical argument lurking here: after all, if we reduce the amount of suffering per second that a government can inflict on someone, then we lower the upper bound of suffering that the government can inflict on any one person.)

 

(3) Imprisonment is more humane because of its qualities and not its severity

It might be argued that the humaneness of a punishment is related more to its qualitative features than its severity or the amount of suffering it causes. In other words, whipping someone is less humane than imprisoning them because of the qualitative features of whipping, even if imprisonment causes more suffering. But it is difficult to see how it could be more humane to force someone to endure a punishment that causes them more suffering, regardless of what qualitative features the alternative punishment has. In other words, it is difficult to see how can be more humane than if almost everyone would prefer to experience in order to avoid experiencing x.

 

(4) Imprisonment is more humane because it’s more effective

Finally, you might be thinking that corporal punishment is simply not as effective as imprisonment. In particular, corporal punishment does not prevent people from committing crimes by removing them from society or rehabilitating them. But even if we assume that corporal punishment is less effective than imprisonment when it comes to preventing people from committing crimes, this doesn’t give us any reason to think that imprisonment is more humane than corporal punishment. It is merely an argument for employing imprisonment as a punishment, regardless of how inhumane it is. Suppose we discovered that pulling out someone’s fingernails for the rest of their life turned out to be the most effective way of preventing people from committing crimes, and that it’s many times more effective than imprisonment. Would we conclude that a lifetime of pulling out someone’s fingernails is a humane form of punishment?

This is not to say that the effectiveness of a given form of punishment isn’t important. The main goals of punishment are to achieve retribution, to restore the losses of the victims, and to prevent further crime from occurring (by incapacitating and rehabilitating the criminal, and by disincentivizing others from committing crimes). In order to achieve these things, we may need to inflict some suffering on criminals. And the most ethical punishment is presumably the punishment that can achieve these goals with as little excess suffering as possible. If imprisonment is the most ethical punishment by these standards, which seems doubtful, then this does not make it more humane: it just makes it a more effective form of caning.

3 thoughts on “Prison is no more humane than flogging

  1. “(There may be a practical argument lurking here: after all, if we reduce the amount of suffering per second that a government can inflict on someone, then we lower the upper bound of suffering that the government can inflict on any one person”

    For long prison sentences, the full sentence can only be carried out if the will to punish remains steadfast. The prisoner can be pardoned or paroled before the sentence is completed if exonerated, or if the crime is later determined to be not worth punishing, or in exchange for good behavior (in prison or parole).

    This is sort of like one of the arguments against capital punishment: after a moral panic or repressive regime the prisoners can’t be released but the dead can’t be revived.

    “Imprisonment is more humane because of its qualities”

    One such quality might be relation to taboos against everyday interpersonal violence. Private assault and battery are far more common than private imprisonment, and if people try to enforce taboos against normalizing prevalent crimes, then bans on practices that resemble the more common private crime may fit into an overall scheme of taboo-making.

    There might be further insights to gain by considering an even wider variety of punishments. For example many states practice imprisonment and capital punishment but not corporal punishment (even though capital punishment seems to outstrip corporal punishment on every dimension of inhumanity), while others practice all three.

    Qualitatively, people may also draw a rough deontological distinction between denying people goods and inflicting bads. Also, prison also serves a function in incapacitating criminals, which even people who reject deterrence and retribution can embrace.

  2. Isn’t rehabilitation the key factor? Though it might be paid lip service by politicians, the idea you can make someone a positive, productive member of society should be a massive part of imprisonment. It can’t be achieved through inflicting pain, can it?

    Fascinating piece. Had not thought of these issues in this way before.

  3. Ask a child whether they’d rather have their father injured and return home or not see him for a year.

    Practically speaking, one of the main benefits of (relatively short-term) imprisonment that I see to my clients is a forced detox from drugs. A lot of them say that with the price of heroin what it is, there’s no way to use it and not commit cringes to get the money. That said, there’s got to be a better way to detox people (and keep them clean, which usually doesn’t happen when people leave jail with no resources).

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