This argument has been bothering me since I first saw it here and in some other places. It wasn't until I came across it again as put by Jeff Jacoby that I sorted out in my own mind what's wrong with it. The argument I mean is this one:
Rather than continuing to lock up millions of offenders, many of them nonviolent, in crowded and brutal prisons... it would be more humane to punish at least some of them with a straightforward whipping and let them get on with their lives. Americans have been taught to think of flogging as hopelessly barbaric. But is corporal punishment really less civilized than a criminal-justice system that relies almost exclusively on caging human beings?
And the key move made to support the argument is as follows:
[Consider] what you would want for yourself. "Given the choice between five years in prison and 10 brutal lashes, which would you choose?" A flogging would be intensely painful and bloody, but it would be over in a few minutes. Prison would mean losing years of your life, being locked away from everything and everyone you care about.
I won't say that this isn't persuasive; for many people it may be. And that's what's been troubling me; because the reintroduction of flogging would indeed be barbaric. So, where to go?
What has struck me now - taking longer to do so, perhaps, than it should have - is that the argument from what the convicted would prefer can't by itself be decisive. To see why, just 'stretch' the example: instead of five years in prison and 10 brutal lashes, let's say 20 years in prison and the surgical removal of one of the would-be prisoner's eyes. I don't know whether, offered this choice, there wouldn't be people who might choose the loss of an eye over the 20-year sentence. But eye-removal should not be introduced in a civilized society as an alternative to long prison sentences.
It falls into the category of cruel and unusual punishment. In rights-respecting societies people are held to have rights that are inalienable and that they don't forfeit even as convicted criminals. Rights to bodily integrity are amongst the most important of these. Just as no one can choose capital punishment for themselves in a society that has outlawed it, so no one should be able to choose to be flogged or to have an eye put out as an alternative to a prison sentence.
OK, but now the come-back on this is that incarceration (especially the scale of it in the US) is itself barbaric - and that is what the presumed preference of many to suffer 10 brutal lashes is designed to highlight. I don't have a ready answer to this; other than to say that unless one thinks - as I do not - that punishment is dispensable in upholding the rule of law and maintaining justice, there has to be some punitive consequence for law-breaking and especially for serious violations of the rights of others. Perhaps there is more scope for punishments of a restitutive kind than is currently used: imposing on convicted wrongdoers penalties that involve making good the wrong they have done through forms of service or financial recompense. I don't know. But flogging and worse are not any way to go.