Which is more cruel and unusual?

The U.S. Constitution explicitly forbids cruel and unusual punishment. What is cruel? One way to nail it down is to compare alternatives. Here is an instructive thought experiment.

Imagine our judicial system was required to provide nonviolent convicts a choice between two types of sentence. One would be a normal prison term. The other would be an “equivalent” amount of caning (a form of extremely painful whipping currently employed in Singapore, which in turn adopted it from the old British colonial justice system).

For example, say you are convicted of felony drug possession, and sentenced to 6 months in jail. Under this imaginary system, the judge would be required to offer you the option (but not the requirement) to receive, let’s say, 20 lashes instead of prison time.

For those who don’t know, caning is horrifically painful. Brutal. Barbaric.

And yet, which would you choose? Obviously the caning. Why? Less dangerous than jail. No beatings, rape, race riots, corruption, extortion, or threats. Millions of Americans face these things — things nearly anyone would do nearly anything to avoid — in prison every day.

Thus, while we can’t say the prison system is cruel in an absolute sense, we can say that any reasonable person considers it more cruel than a brutal whipping. To me, that sounds pretty cruel.

Now for the irony:

  1. Behavioral psychologists will tell you caning deters crime better than prison.
  2. Judges will tell you the appeals court logjam would vanish if convicts had an option to accept corporal punishment. The entire justice system would be, faster, fairer and more effective.
  3. The prison population would fall by more than half, releasing billions of dollars into the productive economy, helping to balance government budgets, etc.

In short, corporal punishment by choice (not by obligation) is cheaper, more effective, and preferable to both the justice system and to the convicted. The very idea is repugnant, and yet any of us would choose it over our existing prison system. Very strange situation.

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