To Flog or not to Flog?

In an essay discussing his new book, In Defense of Flogging, Peter Moskos wants to begin a conversation. Prisons, we all know, don’t work as well as we would all like. Around .5% of all Americans are currently in prison, an extraordinary number when considered by any measure, and one that is up nearly four-fold since 1980. The recidivism rate is also extraordinarily high. Of all first-time prisoners, 47.3% were arrested within the three years after their release (Bureau of Justice Statistics Analysis Tool). While there is undoubtedly a need for prisons, imprisonment can also breaks lives and harden criminals, all at great, perhaps unnecessary, cost to the taxpayer. What if, Moskos asks, instead of imprisoning certain kinds of criminals, we flog them? Might we achieve the same or better results at lower human and material costs?

Flogging, of course, is currently illegal, understood as prohibited by the U.S. Constitution’s eighth amendment against “cruel and unusual punishments.” But “cruel and unusual” is a moving target. Flogging is an acceptable form of punishment in many countries today, and its use in the U.S. military was not banned until 1850. One could imagine that a day could come when flogging is seen as less cruel than a lengthy prison sentence for a minor crime.

Moskos’s essay particularly resonated with me. It was this very issue that led to a quite literally sophomoric epiphany in my own life. When I was an undergraduate in college I read a book that put the modern prison system into historical context, showing how it arose from a changing sense of human nature. Prisons only make sense if one believes that humans can be “rehabilitated,” a possibility that itself depends on certain assumptions about the nature of the self. This had never occurred to me; I had always taken for granted prisons and the prohibition against punishments like flogging. My epiphany had less to do with prisons in particular than in the implications of this realization: history can help me to see my present world differently. If I cannot take prisons for granted, can I taken anything for granted? The study of history thus opened for me the potential to re-envision my present.

Indeed, the rabbis of late antiquity took flogging for granted. It is hard to go far in rabbinic literature without running into flogging. A whole (albeit short) tractate in the Babylonian Talmud, Makkot, is (putatively) on the topic, and the literature simply assumes that the vast majority of infractions against Jewish law would meet with flogging. Flogging, the rabbis are quick to point out, should not lead to death. It can disfigure, shame, and be excruciatingly painful, but it cannot kill. The rabbis were hardly unique for their time. Flogging was a common punishment throughout antiquity.

Yet while the rabbis discussed flagellation at length, they did not appear to have had any authority under the Roman law in which they lived to actually administer this punishment, as admitted by the rabbis themselves (see Berakot 58a). This raises the larger question of the administration of judicial penalties among Jews in late antiquity. Did Jews flog other Jews in the towns and villages of the Galilee? Under what law and authority, and for what crimes? Was flogging effective in deterring both the recipient and onlookers from future crime? I don’t have answers to these questions, but it is always worth bearing in mind when we look at earlier (and some modern) societies that flagellation was an actual, common practice, not just a conversation, and that understanding its use in practice might help us to see it not as merely barbarous, but as something more complex and perhaps even effective.