The American criminal justice system provides room and board to more prisoners — 1.8 million across state and federal prisons and county jails — than any other liberal democracy in the world, even as our streets overflow with repeat offenders habituated to violent crime and mentally ill individuals left to their own sad devices. We proclaim rehabilitation while practicing warehousing. We delay executions for decades, transforming swift justice into prolonged torture. Nearly a century ago, the caustic Baltimore journalist H.L. Mencken observed that the “so-called progress of civilization” had fettered our approach to criminal sanctions. His iconoclastic critique remains relevant: we’ve reduced the art and science of giving malefactors their just deserts to a pitifully small repertoire of fines, imprisonments, or the rare death sentence, almost never fitting the penalty to the crime.
Medieval judges, Mencken wrote with provocative approval, forged obvious links between crimes and consequences. A perjurer’s tongue removed, a fraudster pilloried with a sign of his crime: the punishment not only penalized but symbolically remedied the offense. The aim was to make it “measurably more difficult” for the offender to repeat that crime. A pickpocket’s nimble fingers might literally be shortened by a joint or two, ensuring he “goes at once upon the retired list” — free to earn an honest living, but effectively prevented from plying his old trade.
Here, I want to take up Mencken’s challenge in a modern key, arguing for three controversial but cost-effective shifts in criminal law and policy, each rooted in the principle of tailoring consequences to both crime and offender, and each informed by evidence that our current expensive one-size-fits-all solutions are failing.
Corporal Punishment and Tailored Sanctions
In 2011, former Baltimore police officer and criminologist Peter Moskos made headlines by proposing that some convicts choose flogging rather than imprisonment. In his book In Defense of Flogging, Moskos argues that five lashes might be more humane than five years behind bars, both for the offender and society. He notes that American prisons, while theoretically designed for rehabilitation, often do little more than stockpile inmates at great public expense while educating them in the finer points of the criminal arts and exposing them to intense psychological trauma (research has found that more than 20% of male inmates are sexually assaulted during a 6-month period), followed by social stigma upon release. A short, sharp corporal punishment would inflict pain and retribution quickly, then allow the offender to return to normal life without the lasting scars of incarceration.
The ethical argument for offering corporal punishment rests on autonomy and proportionality. If a sound-minded offender voluntarily prefers to accept paddling, caning, or other physical penalty in lieu of much longer incarceration, why should the state deny that choice? Such an option could serve the penological goals of retribution and deterrence (pain is inflicted as a consequence of wrongdoing, and public knowledge of it can deter others) while potentially serving rehabilitation better than prison, since the individual avoids the criminogenic environment of incarceration and saves states like Massachusetts the roughly $280,000 it costs to house one inmate for a year.
From a constitutional perspective, the key question is whether corporal punishments can ever be administered consistent with the Eighth Amendment. The Amendment forbids punishments that are cruel and unusual, but these terms have been interpreted variously. Legal historians like myself might note that at the 1791 ratification, practices like public whipping, the pillory, and branding were part of American criminal justice — they were not considered “unusual” then. The clause aimed at prohibiting tortures or barbarous methods (drawing and quartering, burning alive) and disproportionate punishments (fifty lashes for stealing a rock candy), rather than outlawing all corporal punishment.
Modern courts apply an “evolving standards” test, asking whether a punishment is inconsistent with contemporary societal values. In Trop v. Dulles (1958), Chief Justice Earl Warren wrote in the plurality opinion that the Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” By those guidelines, reintroducing flogging might seem like a regression. Yet there’s a case to be made that what seems “cruel” or “degrading” in the abstract might be less so than the alternative we routinely impose. As Moskos noted, we’ve become inured to the brutality of mass incarceration, or simply cannot grasp the sheer scale of male-on-male sexual violence occurring therein, even as we proclaim ourselves more civilized.
To mitigate Eighth Amendment concerns, any corporal punishment regime would need procedural safeguards. For instance, it could be made purely voluntary: a judge could offer a convicted defendant a choice between a standard jail term and a corporal punishment alternative. If the defendant knowingly and freely opts for the latter, some of the moral opprobrium lessens — the individual prefers that option. One might analogize this to plea bargaining, where defendants often accept punishments or stipulations to avoid worse outcomes. Courts generally uphold onerous plea agreements so long as they were entered voluntarily and not based on illegal terms.
In Singapore, the practice of judicial caning, where offenders are struck on the buttocks with a rattan cane for such offenses as littering on the spotless city treats, causes intense pain and lasting scars. International human rights bodies have condemned the practice as torture, especially whenever the latest careless foreign national runs afoul of the law. Singapore’s government, however, defends it as highly effective in deterring crime and argues that its extremely prosocial population largely accepts it as necessary. While the U.S. need not emulate Singapore, the example shows that corporal punishment has not vanished worldwide.
Chemical Castration for Sex Offenders
If corporal punishment addresses duration and honesty of penalties, “punishments to fit the crime” address their specificity. Consider chemical castration for sex offenders driven by abnormal sexual compulsions, notably serial rapists or pedophiles irresistibly attracted to pre-pubescent children. This is perhaps the closest modern analogue to Mencken’s colorful suggestion of surgically preventing recidivism. Chemical castration involves administering medication, typically medroxyprogesterone acetate (MPA) or similar anti-androgen drugs, to suppress testosterone and libido in male offenders. The rationale is straightforward: by dampening the biological drive, you reduce the risk that the offender will commit new sexual assaults.
Several states have enacted chemical castration laws. California was the first in 1996, requiring persons convicted of certain sexual offenses against children to undergo MPA treatment as a condition of parole. Florida, Louisiana, Montana, Iowa, and Alabama have followed with their own statutes. Typically, a first offense may allow discretionary chemical treatment, and a repeat offense mandates it. Supporters cite studies suggesting that castrated offenders have much lower recidivism rates, especially when combined with therapy. Opponents raise serious constitutional issues: they argue it’s a violation of bodily integrity, potentially “cruel and unusual,” and possibly an impermissible medical experimentation on prisoners.
From a legal standpoint, chemical castration intersects with multiple constitutional rights. There’s the Eighth Amendment question: Is it cruel and unusual punishment? Detractors analogize it to forced sterilization. In the early 20th century, several states had eugenic sterilization laws targeting criminals or the “feebleminded,” which led to the infamous Buck v. Bell (1927) decision where the Supreme Court upheld forced sterilization of a woman deemed mentally disabled, with Justice Holmes sententiously declaring “three generations of imbeciles are enough” (Mencken the critic said that Holmes, whom he viewed as a lazy writer except when coining a phrase, failed to explain why “three generations” should be the standard). Although Buck v. Bell was never formally overturned, the “fundamental right to procreate” used to overturn a compulsory sterilization law in Skinner v. Oklahoma (1942) and widespread societal condemnation have stripped it of authority.
The question is whether chemical castration is meaningfully different. Advocates argue it’s medical treatment, not punishment per se, since its goal is to treat a psychiatric condition (paraphilic disorder) that leads to criminal behavior. The drugs have notable side effects: weight gain, fatigue, loss of bone density over time, and sometimes feminization effects like breast growth. However, supporters note that all these side effects are generally reversible when treatment stops (unlike surgical castration which is irreversible).
In Washington v. Harper (1990), the Supreme Court allowed a state prison to forcibly medicate a mentally ill inmate with antipsychotic drugs against his will if he was dangerous to himself or others and the treatment was in his medical interest. By analogy, one could argue that a sex offender’s compulsions are a disorder and treating him with hormones is for both his and society’s benefit.
State statutes requiring chemical castration as a condition of parole have been challenged, but few cases have reached high appellate courts. In People v. Gauntlett (1984), a Michigan court struck down a judge’s order making Depo-Provera injections a condition of probation, finding no statutory authority and expressing constitutional doubts. Since then, states enacting laws have been careful to provide procedural safeguards.
From a policy perspective, chemical castration strikes me as a pragmatic compromise between execution or life imprisonment (both extreme ways to incapacitate a sex offender, particularly the latter, which can often amount to an execution) and doing nothing to address the root cause of their recidivism. Studies show that without interventions, certain classes of sex offenders, particularly those attracted to children, have inordinately high recidivism rates. Chemical castration, ideally combined with cognitive-behavioral therapy, directly targets the biological aspect of their criminal behavior. Indeed, some offenders do volunteer for it, seeing it as a way to control urges they themselves consider wrong or destructive.
Humane Institutionalization for the Mentally Ill Homeless
A walk through downtown in almost any major American city reveals thousands of throwaway people are leading horror-show existences on the streets or, worse still, in large lawless encampments like the one in Philadelphia’s Kensington neighborhood. Many exhibit clear signs of serious mental illness and drug addiction. They cycle between sidewalks, emergency rooms, and jails — rarely receiving sustained treatment, often victimized or posing inadvertent risks to themselves or others. Beginning in the 1960s, U.S. federal and state governments sharply curtailed the practice of committing the mentally ill to long-term psychiatric hospitals. State mental hospital populations plummeted from hundreds of thousands to a fraction of that by the 1980s. But the promised community-based treatment infrastructure never fully materialized, with many group homes — including one that I worked at in my early twenties inhabited by four Lenny-like, borderline intellectual functioning (BIF) males who couldn’t be allowed anywhere near female staff — amounting to miniature prisons in residential settings.
Studies estimate that nearly one-third of the nation’s homeless individuals suffer from serious mental disorders like schizophrenia or bipolar disorder, and about two-thirds have either a mental health or substance use disorder. The presence of these untreated illnesses contributes to urban disorder and to the individuals’ own suffering and early death. Alas, the current legal framework, largely shaped by cases likeO’Connor v. Donaldson (1975), strongly favors individual liberty over involuntary treatment. O’Connor held that a state cannot civilly confine a non-dangerous person who is capable of surviving safely in freedom with help from others. Mental illness alone is not grounds for lock-up; they must be a proven danger to themselves or others, or in some jurisdictions “gravely disabled” (unable to provide for basic needs of food, clothing, shelter). This is an absurdly high bar that often translates to waiting until someone deteriorates to the point of acute crisis before intervening.
To give these people the help they need, we must return to a more assertive use of civil commitment — but one that is humane, treatment-oriented, and constitutionally sound. Such an approach would directly address many instances of street homelessness and repeat minor offending by the mentally ill, by getting people into treatment instead of jail. As one policy paper bluntly stated, “When there are no beds for them, people who can’t be treated elsewhere instead cycle through other institutions or live on the streets. Some become violent or, more often, the victims of violence. They grow sicker and die.” President Trump’s recent executive order echoed this sentiment, directing federal agencies to make it easier to use civil commitment for mentally ill homeless individuals, calling it a “humane” way to restore public order. Trump also promised “the reversal of Federal or State judicial precedents and the termination of consent decrees that impede the United States’ policy of encouraging civil commitment of individuals with mental illness,” though major work on these fronts remains to be done.
Any system of involuntary civil commitment must reckon with the Fourteenth Amendment’s Due Process Clause, which protects individuals’ liberty from unjustified deprivation. The Supreme Court’s decisions establish two core requirements for civil commitment: procedural due process and substantive due process. In Addington v. Texas (1979), the Court set the standard of proof for commitment at “clear and convincing” evidence, higher than a mere preponderance because of the weight of the liberty interest.
The reforms needed here involve expanding the criteria slightly and, importantly, the application of criteria. For instance, “grave disability” could be defined more broadly to include not just immediate inability to feed or clothe oneself, but the incapacity to make informed decisions about one’s need for treatment such that one’s condition will predictably deteriorate to dangerousness. California recently did something along these lines: Senate Bill 43 (2023) expanded the definition of grave disability to include inability to attend to one’s personal health or medical condition.
Another avenue is the use of “Assisted Outpatient Treatment” (AOT), known as “Kendra’s Law” in New York. AOT allows courts to mandate a mentally ill person to comply with treatment while living in the community, under threat that if they don’t comply, they can be brought in for evaluation and possible inpatient commitment. When utilized, New York’s program has shown promising results: one report found AOT led to a 66% reduction in hospitalization, a 73% reduction in incarcerations, and a 64% reduction in homelessness among participants. Granted,it requires buy-in from community members and local administration and how the incoming Mamdani administration will deal with this ongoing urban blight is less than certain .
Legal authority is one side of the coin; the other is practical capacity. One reason deinstitutionalization occurred was the often-abysmal conditions in old state hospitals, which were the subject of innumerable tell-all journalistic investigations. To do humane institutionalization now, we must invest in building and staffing facilities that are therapeutic and respectful of patients’ dignity. American jails and prisons have become the default psychiatric wards: around 20% of inmates in state prisons have a diagnosed mental illness, and nearly 45% of inmates in local jails do. They often don’t get proper treatment inside, unless one counts tutoring in the delivery or receipt of sexual assault as treatment, and they certainly aren’t there for therapeutic reasons.
From a constitutional values standpoint, one can argue that compassionate care is as much a value as liberty. The Supreme Court recognized in Youngberg v. Romeo (1982) that involuntarily committed individuals have a right to reasonably safe conditions of confinement and freedom from undue restraint. A revived commitment system must be oriented toward actual improvement of the person’s condition.
Death Row Inmates Shouldn’t Have to Die of Old Age
Of all criminal punishments, the death penalty is the most irreversible and the most heavily scrutinized. In 1972, the Supreme Court temporarily struck it down in Furman v. Georgia due to arbitrary application, only to allow its reinstatement in 1976 (Gregg v. Georgia) under new guided-discretion statutes. Yet even when “properly” implemented, the death penalty in the U.S. has become exceptionally slow and rare. California has the largest death row in the Western Hemisphere (over 700 inmates) but has not executed anyone since 2006 — imagine these 680 men (and 20 women) just sitting and rotting in cells, exhausting costly appeals while marking time while they await a natural death.
The average time from sentence to execution has steadily climbed. It was around 6 years in the mid-1980s, but as of 2019 it reached 20 years. This is due to the lengthy appellate and post-conviction review process, including state direct appeals, state habeas corpus, federal habeas corpus, and often multiple rounds of each. Only about 16% of those sentenced to death since the 1970s have actually been executed.
Mencken pointed out this very issue in 1926: he wrote that the true objection to capital punishment is “our brutal American habit of putting it off so long.” By the time the execution comes, it has arguably turned into a cruel and pointless ritual. “It is one thing to die, and quite another to lie for long months and years under the shadow of death,” Mencken observed, calling such delays horribly cruel. He likened the wait to torture, a psychological torment not even “cannibals” would inflict.
To that end, I want to propose a two-pronged reform: drastically limit the death penalty’s application (making it apply to fewer criminals and classes of crimes), and streamline the post-sentence process to execute those sentences faster. By limiting death sentences to only the most unequivocally deserving and provably guilty offenders, we reduce the risk of wrongful execution and strengthen the moral justification in those cases, which in turn should allow swifter resolution with less controversy.
The first step is largely already happening via judicial and legislative trends: the death penalty should be reserved for the “worst of the worst” murders. To make death truly rare, states could tighten statutes to mass casualty crimes, acts of terrorism, murder-torture of children, killing of law enforcement with or without premeditation, and other extreme scenarios. Cases where guilt is absolutely clear (such as those with DNA evidence, multiple eyewitnesses, or a confession corroborated by video or audio evidence) should be the prime candidates.
On the “swifter” side, we confront the labyrinth of appeals. Currently, a typical capital case will have a direct appeal to the state’s highest court, possibly a petition to the U.S. Supreme Court, then state post-conviction proceedings to raise issues like ineffective assistance of counsel or newly discovered evidence, then a federal habeas corpus petition in U.S. District Court, an appeal of that to the Circuit Court, and maybe to the Supreme Court again. Each of these steps can take years.
One idea: require that any federal habeas petition be filed within one year of the conclusion of state post-conviction. The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 tried to curtail habeas by setting deadlines and limiting successive petitions, but it didn’t fully solve delay because capital litigants still often manage to extend time through stays and multiple claims.
Some states have achieved swifter resolution. Virginia, before it abolished the death penalty in 2021, was known for swift post-appeal action. The average time from sentence to execution was about 7-8 years, roughly half the national average. They achieved this by procedural rules that expedite the state habeas process and by state courts and governor typically disposing of claims more promptly.
If the death penalty is only used for egregious cases with overwhelming evidence, many of the common appellate issues might not arise. Timothy McVeigh, the Oklahoma City bomber, was executed about 4 years after his crime (he dropped further appeals after direct appeal). That’s extraordinarily fast by U.S. standards, but it shows that if the case is clear — at least to the non-conspiratorially minded — even our current system can do it in that timeframe.
Punishments That Fit the Crime
Taken together, these reforms seek to recalibrate American criminal justice by aligning punishments more closely with crimes and perpetrators. Our current system, hamstrung by a narrow palette of sanctions (prison, fines, probation) and by institutions ill-suited to handle the problems thrown at them, often yields perverse outcomes. Nonviolent offenders can leave prison more dangerous than when they entered. Sex offenders with uncontrollable urges eventually return to communities without any change in their capacity to harm. Severely mentally ill people cycle between the street and jail — it’s all one thing to many of them, unfortunately — never getting the structured care that could stabilize them. Victims of horrific crimes wait for decades through convoluted appeals, undermining their sense that justice was done.
In 1922, Mencken sardonically wrote that “the judge of today needs no ingenuity” because the law had reduced him to a functionary with only a few blunt tools. A century later, this remains largely true. But we have at our disposal far more knowledge — psychological, medical, criminological — than early 20th-century jurists did. It is time to inject ingenuity back into the system.
Corporal punishment and similar penalties should not be dismissed as barbaric without weighing them against the barbarism of what we currently do. Properly constrained, offering the choice of a flogging or a targeted physical sanction would reduce prison overcrowding, save money, and allow minor offenders to continue with their lives relatively unscathed. Chemical castration directly incapacitates a sex offender in a way prison time cannot, and if consented to, can be a win-win for safety (their own and that of the public at large). These measures will offend modern sensibilities largely because they are visibly punitive — but perhaps it is time our punishments be a bit more visible and truthful rather than allowed to fester in open-air drug markets that would, to borrow another mellifluous phrase of Mencken’s, “disgrace a race of alley cats” and male prisons that are, at their worst, merely large enclosed spaces for taxpayer-subsidized sexual assault.
Mental health involuntary treatment is another area where appearances deceive: we “freed” the mentally ill in the name of rights, only to subject them to the much worse cruelty of neglect and homelessness. Correcting this will require legal boldness, but as long as liberty deprivations are coupled with genuine treatment and periodic review, the Constitution’s demands can be met.
Capital punishment encapsulates the theme of this article: it should be used more judiciously and executed more resolutely. A smaller, surer death penalty would answer both the moral critics (by eliminating borderline cases and most risks of wrongful execution) and the policy critics (by restoring some deterrent and retributive force through swift enforcement). Mencken’s observation that “the real objection to the death penalty lies in putting it off so long” rings as true as ever.
These reforms would face serious challenges from the smart set, with law professors, sociologists, and philosophers hurrying to outdo themselves in terms of righteous indignation. Yet indignation does nothing to help these troubled people or the taxpayers footing the clean-up bills and incremental steps can easily be taken. A state could authorize pilot sentencing programs where offenders are offered corporal punishment in exchange for shorter jail time, studying outcomes in recidivism and public opinion. Another state might expand its civil commitment criteria modestly and fund a new treatment center, tracking whether homeless numbers and jail admissions drop as a result. On the death penalty, prosecutors themselves could exercise discretion to only pursue death in the most clear-cut cases, and governors could push for quicker post-conviction review by prioritizing resources to those cases.
The reforms proposed are not about being “tough” or “soft,” though some of the more bombastic advocates would surely frame them as such, but about being effective and just. A criminal law that embraces corporal punishment in lieu of pointless confinement, that treats illness as illness, and that executes punishment with swiftness and certainty where appropriate, is one that takes both responsibility and liberty seriously. It holds individuals accountable in ways that actually relate to their actions. It also holds society accountable for addressing root causes and not shirking its duty to protect the vulnerable.
It is fitting to end with Mencken’s own challenge to reformers. In “The Penalty of Death,” he chastised the “uplifters” for having sentiment without sense. The proposals here aim to satisfy the sense of justice — proportionality, effectiveness, public safety — while respecting the sentiments of humanity — dignity, mercy, and reason. Criminal law must evolve with society’s needs and knowledge, not devolve into a state of benign neglect that carries not only the vast condescension of the beau monde but the far vaster harms that accompany life in a demimonde not too dissimilar to Hobbes’ “nasty, brutish, and short” state of nature. The measures discussed represent bold evolutions that hearken to old truths about human nature, which is precisely the sort of conservatism that must be embraced if we are to preserve what’s left of our small-l liberal civil society. Adopting them would serve as a tentative first step toward a system that is at once more formidable at bearing up against the truly culpable and more forgiving to the least among us.
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