The opposition is unable to conclusively prove that the growth in the prison population and the reduced effectiveness of rehabilitation is a direct result of over-criminalisation.  It may be true that the list of non-traditional crimes is expanding, but the harm that the resolution is seeking to address arises in the prison system, not in politician’s manifestos.  The majority of offenders imprisoned in the USA and the UK have committed genuine crimes, albeit of a petty or non violent nature. Once exposed to the prison system the criminal tendencies of these individuals are entrenched, rather than eliminated. The prison system does not transform unwitting and harmless offenders into criminals – it makes criminals out of desperate, poorly socialised or ignorant offenders. The prison system harms those placed in its care because it is no longer able to carry out its rehabilitative objectives.  The failure to rehabilitate those convicted of “ordinary” criminality impacts on the prison system itself, when recidivism and social exclusion lead to offenders being repeatedly convicted.  The root cause of the problems in the status quo is not the creation of too many crimes, but a failure to accept the contemporary reality of crime and criminal behaviour. Flogging would allow policy makers to engage with this reality, while satisfying the fundamental need to see wrongdoing punished.  The danger posed by over-inclusive corporal sentences is neatly eliminated by the balancing of judicial and legislative power in liberal democracies. Judges are given discretion in order to allow them to mitigate the effects of atavistic, unreasonable, disproportionate or populist manipulations of the law. If a judge believes that flogging would be excessive or unnecessary, given the nature of an offence, he will usually be free to hand down a different sentence