19 August 2009

Caning For Drinking?

In Malaysia, in many areas of the law, Muslims are subject to Islamic law, even though different laws apply to the one-third of the population that is non-Muslim. One thing banned in Islam is drinking alcohol (at least for non-medicinal purposes). Malaysia isn't exactly a prohibition situation; non-Muslims can drink and non-Muslims aren't a tiny minority either. Liquor stores aren't the focus of terrorist attacks as they are in some places in the Middle East where Islam is the overwhelmingly dominant religion. Clubs don't check to see if you are a Muslim prohibited from buying alcohol, but there are raids from time to time.

But, the no drinking laws are real. A recent one swept up two Muslim women and a Muslim man at a club in a beach town. All three were sentenced to caning, but the other two have appealed.

A Muslim part-time model will be caned next week, becoming the first woman in Malaysia to be given the punishment under Islamic law, after she pleaded guilty to drinking beer, a prosecutor said Wednesday.

An Islamic court in July ordered that Kartika Sari Dewi Shukarno, 32, be lashed six times with a rattan cane after she was caught drinking alcohol in a raid on a hotel night club in eastern Pahang state last year.

Prosecutor Saiful Idham Sahimi said Kartika will be the first woman to be caned under Islamic law after she chose not to appeal the sentence.

"This is the first case in Malaysia. ... It is a good punishment because under Islamic law a person who drinks commits a serious offense," he said.

On Tuesday, the court set a one-week period starting next Monday for the sentence to be carried out in a woman's prison, Saiful said. It is up to prison authorities to decide when to cane her during that period.

He said Kartika will remain in prison during that time and will be released "as soon as possible" after the caning is carried out.

Saiful said the rattan cane to be used on Kartika would be lighter than the one used on men, and its purpose was to "educate" rather than punish.

Muslims, who make up about two-thirds of Malaysia's 28 million people, are governed by Islamic courts in all civilian and Islamic matters. Most alcohol offenders are fined, but the law also provides for a three-year prison term and caning. . .

Kartika said earlier that she wanted authorities to cane her soon so that she can resume her life with her husband and children. Some politicians and women's rights activists have criticized the penalty as too harsh. . . .

Caning, administered on the buttocks, breaks the skin and leaves permanent scars.

Caning is used as a punishment for non-Muslims as well:

Non-Muslims are governed by civil courts, which also impose caning for offenses such as rape and corruption. Women, children and men above 50 are exempt under civil law.

Other than the death penalty, the U.S. has virtually eliminated corporal punishment, and the death penalty has become the rare exception, implemented at all only after a decade plus long appeal process that reversed many death penalty sentences.

Hitting women (or anyone) with state sanction is an uncomfortable idea for Americans, and we are sufficiently unfamiliar with caning, that we have only a weak idea what kind of severity of assault is involved in six lashings with a rattan cane directed at a basically health adult woman. The likelihood that the punishment will leave permanet scars on her buttocks makes the punishment potentially serious for a model, although at her age, that kind of punishment may be less of a big deal.

Still, this has virtues over the American system of justice as well. Increasingly, U.S. courts are favoring probation sentences of months or years, community correctins sentences or deferred prosecutions that are functionally equivalent but produce no criminal record if completed successfully. Failure often results in incarceration.

Unlike a fine or short jail sentences that are swiftly over and done with once completed, these intermediate sanctions linger on for months, leaving those involved at risk of sanctions for technical violations of probation or deferred prosecution or community corrections sentences that wouldn't be crimes otherwise. A large percentage of people receiving these non-incarceration sentences screw up and end up in jail or prison many months after sentencing.

Jail terms of any length are not cheap. A week in jail awaiting caning which is over in a matter of minutes once commenced, that puts the incident behind you with your duty to society served takes much less in terms of society resources to operate. As the woman accepting this punishment acknowledged, caning gets the process behind her as well, minimizing the disruption to her life. These economics, a weak colonial adminisration's grasp on the people it governed, and racial superiority all motivated institution of these punishments in the colonial era.

Both fines and this kind of corporal punishment are undeniably and purely punishment, in a way that probation, deferred prosecutions and community corrections sometimes appear not to be. In the public perception, these more expensive to administer programs have the added downside that they look like a slap on the risk. From a governing perpsective, the state appears to have a higher responsibility to monitor and prevent future misconduct by these offenders than by those who are simply punished and released after a fine and/or jail term.

In the case of probation and community corrections sentences, there is also no pretending that the defendant wasn't convicted of a crime. Almost all of the collateral consequences of the conviction remain (a minor issue for misdemeanors, which have few collateral consequences, but a big issue for felonies where a majority of cases are resolved with a sentence that does not involve time in prison if there are no violations of terms and conditions of probation or community corrections in the months of supervised release with limited freedoms).

The benefits of probation and community correction to the defendant, instead, are immediate. Family and work aren't disrupted as much in the immediate term if the convicted defendant can manage to comply. And, one isn't placed at nearly the same risk of prison assaults or rapes or medical treatment neglect from guards or fellow inmates.

While I'm not advocating that the U.S. go back to corporal punishment (once widespread), I do think that the system need to rethink the rehabilitive close supervision model that sets standards of behavior higher for people with a proven probably meeting even normal standards of behavior, setting up a predictable share of those people for failure. It is expensive and leaves a larger share of our population crimialized.

Many of the majority of cases involving minor felonies that now produce probation or community corrections sentences might be better resolved with fines and short jail terms that get the matter done and over with quickly, indisputably punish the misconduct in question, and leaves the disharged felons to manage on terms and conditions of behavior no more demanding than those that apply to the population at large once the quick process is over.

Aurora, Colorado has experimented with this model, trying car thieves under city ordinances and routinely giving the defendants 90 days jail terms, rather than trying the cases as felonies likely to produce long probation terms or very short (year and a day, less good time) prison terms in low or medium security facilities. Mostly, that effort has been viewed as a success, producing swift and certain justice, with a minimum of fuss for a serious, but not that serious crime.


Anonymous said...

A great example of this is the "probation, supervised release" madness that a first offense DUI offender goes through in the State of Colorado.

A first offense DUI offender who didn't get into an accident or hurt anyone and was barely over the legal limit can expect 12-18 months of "supervised probation" where they are expected to take alcohol classes (and if they don't go to them the go to jail), "monitored sobriety" (and if you fail them you end up in jail) and required community service (and if you don't do it you could end up in jail) all for a first offense DUI often with a person who has never been in trouble with the law before. It's a ridiculous amount of work for what is technically a first offense "traffic violation". It's ridiculously expensive for both the state and the offender, and people who go through this process come out of it with really no respect for our legal system.

Anonymous said...

Again, with the DUI experience, I would take two weekends in jail (with the taxpayers footing my bill!!) than 12 months of "supervised probation" and it would probably have had the same "don't drink and drive again" deterrence.

Andrew Oh-Willeke said...

Or not?