The Corner

Re: Legal Eagles

J.J.:

With obvious reservations — you can easily fill them in — I must say, I’m

not sure the ABA is wrong. There surely are far too many people in jail.

And conservatives don’t think about this anything like as much as we should.

Historically speaking, the idea that you punish someone by locking him away

for a long but prescribed spell is pretty recent. There were, for example,

no jails in Republican Rome. For miscreants, it was either exile, or a

two-and-a-half-with-tuck off the Tarpeian rock.

In fact, the range of punishments throughout human history has gone

something like this, in order of overall popularity:

—Death

—Exile/banishment/transportation

—Mutilation

—Flogging

—Humiliation (e.g. the stocks in pre-modern England)

—Incarceration

Confiscation of property was also widely practised, but was obviously no use

against propertyless people.

We have become too squeamish for some of these. I don’t see the cutting off

of noses, for example, making a comeback any time soon. And in a society

with freedom of movement, it’s tough to make exile work. You end up having

to restrain the exilee from drifting home, so it becomes a form of remote

incarceration. It seems to me that flogging and humiliation might be

revived in limited forms, though. As squeamish as we are, our squeamishness

is very selective. We balk at a ten-minute flogging, but apparently don’t

mind shutting people up for years in places that, from all the accounts I

have read, closely resemble Hell.

Prisons, a prison officer once told me, contain “the sad, the bad, and the

mad.” For the first and last, at least, it’s hard to believe we can’t do

more than we are doing to change their lives. And the second might be

discouraged from their wickedness by other means than incarceration.

Conservatives — especially Christian conservatives, who believe in

redemption — ought to be able to think and talk about this without slipping

into that Leftist “society’s fault,” “we are all guilty!” and “root causes”

blather that we so often, and correctly, mock.

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