We Need Cruel and Unusual Punishment

Imagine yourself shipwrecked on a desert island, with thousands of other people. You’re forced to build a society from scratch, and as part of that, you need to figure out how to design a criminal justice system.

What are some goals of this system that you may have?

1. Prevention: The system should prevent criminals from committing crimes repeatedly, and hurting other innocent civilians.
2. Punishment: It should make the guilty party pay for his crime, and hold him accountable for his actions.
3. Deterrence: The above punishment should be severe enough that it deters other would-be-criminals from following their base desires.
4. Rehabilitation: It should rehabilitate the criminal and help him become a positive member of society.
5. Minimal long-term consequences: The legal system shouldn’t be too burdensome to society, and it should also allow the convict to fully live the rest of his life, after he has finishing paying his dues.

Suppose you decide on a prison system, similar to what we currently have in the States. You have a criminal who has been convicted of violently raping and murdering an innocent girl, and in accordance with the above principles, you throw him into prison. 6 months later, your prison psychologist comes to you with a prisoner report. She tells you that the prisoner genuinely regrets his actions, that he has been rehabilitated, and is of no further danger to society. What do you do next?

Do you release him from prison? After all, he has been rehabilitated, and is of no further danger to society. Prevention and rehabilitation have been accomplished, and wouldn’t be served by keeping him in prison any longer.

But what about punishment? Is it really fair that someone can rape and murder an innocent girl, and the only punishment he endures is a year in prison? Do you want to live in a world where your daughter’s murderer can be released and allowed to fully enjoy life, after just 1 year in prison?

And what about deterrence? If people know that no matter how horrid the crime, they can and will  be released after serving a small fraction of prison time, what impact would that have on the behavior of others who’re contemplating committing similar crimes?

Clearly, the idea of releasing a rapist or murderer after a mere year in prison repulses us, both instinctively and philosophically. We need to punish criminals for their acts, and the punishment should be severe enough that it deters others as well.

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But what is the alternative? Should we continue to lock up the convict for the duration of his sentence, long after he’s been rehabilitated? And what about the long term consequences of imprisonment, both to society, and to the convict himself? Even putting aside the societal costs of providing for someone for decades, consider the effects of locking someone up for 20 years, in the prime of their lives, before finally releasing them into a strange world that they are completely unprepared for, and have to face completely alone. It’s no wonder that so many convicts feel so out of place in the real world, that they repeatedly relapse to a life of crime.

What if there was an alternative to both of the above dystopian outcomes? What if we could punish someone in a way that was harsh enough, that people would agree that they’ve paid for their sins. What if we could punish someone in a manner severe enough, that other would-be-criminals are deterred from committing similar crimes as well. What if we could carry out this punishment in a manner that didn’t cripple the convict’s future, and also minimized the costs to society.

Sounds too good to be true? It shouldn’t be. Such a punishment does indeed exist, and has been put into practice by countries like Singapore for decades. It’s the practice of caning.

It’s a form of punishment that  is very painful… by design. It’s painful enough that even hardened criminals fear it. It’s painful enough that it can serve as a very effective deterrent. And yet, it doesn’t cripple the convict’s long term potential in any significant way. Someone who has been caned can make a full recovery within a few weeks, and resume his normal life.

As a one time punishment, it compresses all the unpleasantness of a longer-term-jail-sentence, into a very short burst of pain, after which both the convict and society can move on. When dealing with someone who has been rehabilitated and no longer poses a threat to society, it fulfills all the other goals that a criminal justice system is supposed to accomplish, in the most effective manner possible.

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And yet, such a punishment will never fly in America today. Given our current societal norms. People decry caning on the basis of it being a “cruel and unusual punishment.” But what does that really mean? Instead of carelessly tossing around that term, as though it’s supposed to end all debate, let’s critically analyze it for a second.

What exactly does it mean for a punishment to be “cruel“? Does it mean that the punishment is too harsh? If you think caning is too harsh, let me ask you the following: Would you rather spend 20 years in prison? Left to rot, away from the world, family and education? Being denied the prime decades of your life? Finally released into a world you can barely recognize, filled with strangers whom you barely know? Or would you rather face a few strokes of the cane, after which you’re allowed to move on with the rest of your life?

I personally would choose the latter in a heartbeat. The idea of being locked up for the entirety of my 20s and 30s horrifies me much more than short-term pain. And yet, that’s what we do routinely, every single day.

So what does it really mean for caning to be overly harsh and cruel, when clearly, convicts would choose some degree of caning over longer-term prison sentences? Do we consider caning to be cruel because of its long term consequences? Clearly this is not the case. As discussed above, long term imprisonment has crippling effects on a person psychologically and socially, whereas caning avoids both of those.

Even if the medical effects of caning were to come into question, we could always reduce the severity or frequency of the caning, to ensure that the long term effects are minimal compared to that of imprisonment. We could even replace caning with some other form of “discomfort” that is specifically designed to be painful and unpleasant, but not impair the convicts in the long term.

Which brings us to the last argument against such forms of punishment… that it’s “unusual.” Of all the arguments, this seems like the flimsiest. If you go to Singapore, the controversy against caning, would be considered highly unusual. If you go to Europe, the death penalty would be considered highly unusual. If you go to an aboriginal tribe, life imprisonment would be considered highly unusual. If you talked to the founding fathers, the idea of women and Blacks being allowed to vote, would be considered highly unusual. The idea that we should ban practices on the basis of them being “unusual,” seems like the worst reasoning imaginable.

Let’s face facts: Our current system of mass incarceration is horribly broken. It’s time we took stock of what our goals truly are, and how we can best achieve those goals. In order to prevent repeat offenses, and rehabilitate criminals, short term imprisonment can and does indeed make sense. But in order to truly punish and deter criminal behavior, and do so in a manner that imposes minimal long-term costs on both society and convicts, it’s time we started considering other forms of punishment.