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Bringing back the lash
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When Peter Moskos' new book landed on my desk, I wasn't sure if it was going to be a treatise on crime and punishment or some sort of kinky sex manual.

Its title: "In Defense of Flogging."

You rascal, I thought. Moskos, a former Baltimore cop who teaches law at John Jay College of Criminal Justice, knows how to catch our attention.

It's not giving away too much to say that Moskos doesn't really want to bring flogging back. But he doesn't like our current correctional system, either. He's fed up with a system that cures criminals in spite of the system more than because of it.

And as long as we insist on fooling ourselves with well-meaning fantasies like the "war on drugs," he says, nothing is going to get better.

But there are already about 14 gazillion other books that will tell you that. So Moskos uses the horror of flogging to focus our minds on the greater horrors that have resulted from the prisons that were invented to replace it.

He builds his argument on a simple question: If you were convicted of a felony and had a choice between "five years or ten lashes" dealt as they do it in Singapore or Malaysia, which would you choose?

Yes, a flogging is brutal. It breaks skin and requires days to heal. Many call it barbaric. But what does it say about us and the brutality in our prisons, Moskos argues, that more than a few small-time offenders would prefer the lash to incarceration, if given the choice?

The Supreme Court expressed similar sentiments in a 5-to-4 decision last week that ordered California to transfer or release more than 30,000 inmates from its overcrowded prisons over the next two years.

Justice Anthony M. Kennedy, writing for the majority, described in lurid detail a prison system that housed suicidal inmates in "telephone-booth-sized cages without toilets" and produced "needless suffering and death."

Across the nation shrinking state budgets, tea party politics and bulging prison populations have forced states and the courts to take a new look at sentencing alternatives that they hope won't feed a surge in crime on the streets.

Forty states cut spending on their corrections programs in 2009 and 2010, according to the National Governors Association Center for Best Practices. Vermont, Alabama and many others are enacting new programs to reduce repeat offending and find alternative penalties for nonviolent offenses.

State spending on corrections has quadrupled during the past two decades to $52 billion a year, according to an April study by the Pew Center on the States -- a burden surpassed only by Medicaid as the fastest-growing item in state budgets.

And the concern crosses partisan lines. In April I wrote about an unusual coalition of the very liberal NAACP with cost-conscious conservatives, including former House Speaker Newt Gingrich and Grover Norquist, head of Americans for Tax Reform, to call for less expensive and more efficient alternatives to our increasingly expensive and questionably effective emphasis on incarceration.

Against that backdrop, Moskos' startling invitation to reconsider the whip, cane and cat-o-nine-tails doesn't sound so preposterous. At least it gets us to thinking.

Yet, the lock'em-up mentality remains strong. In his spirited dissent, Justice Antonin Scalia ridicules the high court's order to downsize California's prison population as "absurd," "outrageous" and "the most radical ever issued by the court."

That's appropriate rhetoric for a talk show host, perhaps, but out of touch with the changing realities faced by governors who are wrestling with overcrowded jails and prisons.

No one denies the need for some people to be locked up. But neither California Gov. Jerry Brown nor any other governor intends to release dangerous "happy-go-lucky felons fortunate enough to be selected," as Scalia described them in a talk-show-style statement from the bench.

Gov. Brown already has a plan to move tens of thousands of low-level offenders from state prisons to local county jails or to other states, if the state's famously feisty legislature approves the funds. But that's a task for the state to work out. Scalia understandably opposes micromanagement of state affairs by federal courts. But his argument undervalues the Supreme Court's fundamental role as a protector of individual rights from abuses by government.

I wonder how he feels about flogging.

(Clarence Page is a syndicated columnist for the Chicago Tribune. E-mail responses may be sent to