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Tenured Radicals

Eugene Volokh -- in all apparent seriousness -- thinks it's a very bad thing that the United States does not follow the Iranian practice and brutally torture convicted criminals purely for the purpose of making them suffer before they are executed. It's important, naturally, that the victim's family be involved in the torturing and killing because at times it's important for crime "to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness." Really. He also thinks we should amend the United States Constitution in order to establish a "cruel vengeance" exception to Bill of Rights' guarantees. I'm going to stake out the view that while the desire of crime victims to exact cruel vengeance against perpetrators is perfectly understandable, one of the purposes of a criminal justice system is precisely to not handle things in this manner. Instead, we should be trying to do our best to minimize the incidence of crime rather than, say, maximizing the suffering of the offenders.

UPDATE: Professor Volokh just pleads non-cognitivism in his update, so I'm going to try and demonstrate the possibility of rational argument here.

Ex hypothesi we're not talking here about the possibility that deploying extreme cruelty against criminals might be an effective deterrent to crime. Instead what we're talking about here is the desire of crime victims to see the perpetrators forced to endure intense suffering. If anybody reflects on their own lives, I think they'll find this impulse understandable and, to a large extent, something we can sympathize with. The question is, is this impulse something we ought to give social sanction and, indeed, encouragement to? I think the correct reply is clearly "no."

There are plenty of instances of wrongdoing -- some serious, some not so serious -- that take place outside the context of criminal law. Oftentimes, these non-criminal instances of wrongdoing are likewise met with retributions that stand outside the context of criminal law. The natural result of giving official sanction and encouragement to the desire to inflict suffering beyond the amount of suffering that serves a constructive purpose within the context of criminal law will be to encourage people to act on similar impulses (and, indeed, to have the impulses themselves) in non-criminal contexts as well. The result would, simply put, be a social disaster in which individuals are encouraged to nurse grudges, indulge spite and envy, and generally speak wreak havoc upon their fellow man. Cruel vengeance has a certain grandeur about it when it comes to the sort of grevious wrongoings Volokh is concerning himself with. It exists, however, on an uncertain continuum with acts of petty vengeance and cruelty that have no such grandeur. Encouraging unconstructive acts of vengeance and cruelty will lead simply to more vengeance and cruelty throughout the social and political system.

Along with the proliferation of vengeance and cruelty down the scale, you're also talking about its upward proliferation. I doubt I'm the only person in the universe who sometime on September 12, 2001 sort of felt like it might be a good idea to just coat Afghanistan with nuclear bombs to show the world that we were not to be fucked around with. It would destabilize things, sure, and might lead to some problems, but no problems that a few more nukes couldn't solve. Crazy? Sure. But not so crazy that it isn't the sort of thing that occurs to people. But it's, you know, wrong as I and most everybody else who may have felt that way came to see. And while I wouldn't want to say that nothing but the 8th Amendment stood between the United States and nuclear war on that day, I don't think it's crazy to think that these issues are connected. A society that encourages bloodthirsty behavior is going to become a society composed of bloodthirsty individuals.

Volokh notes that even torturing and killing a man who raped and killed dozens of children is, from a certain point of view, "ridiculously inadequate." Which is quite right and entirely part of the point. Unleashing excess cruelty on serious wrongdoers doesn't, in the end, solve anything, or balance out any sort of scales. Dead kids aren't revived and they're not really avenged, either. Family members pain and loss doesn't go away. You're merely telling people that they can and should try to fill the void left in their souls with the suffering of others. These are impulses that can and will easily become misdirected, turn into casual disregard for the interests of third parties, and spill over into all manner of contexts. There are real questions posed by what one might term "purposive cruelty" that's supposed to accomplish some worthy end other than mere indulgence of a desire for cruelty. But of the sort of thing we're contemplating now, there's no real affirmative case. Indulge the desire for cruelty for cruelty's sake and all you'll get is cruelty.

March 17, 2005 | Permalink

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Comments

Just for the sake of argument, why shouldn't the criminal justice system also take into account the strong desire most people (I don't think Volokh is alone here) have for retribution? I'm curious as to what consequentialist argument could justify ignoring those preferences. "Minimizing the incidence of crime" is not inconsistent with some amount of extra punishment.

Posted by: Ryan | Mar 17, 2005 2:24:07 PM

"Why would my humanity be diminished by participating in the killing of a monster (he had sexually abused and then murdered at least about 20 children), or even by deliberately inflicting pain on him? It seems to me that this is the reaction to a natural, understandable, and laudable human impulse to avenge (even if in a ridiculously inadequate way) the abuse and death of so many innocents."

I think volokhs humanity has already been diminished. Remind me never to take anything Volokh writes seriously again. Underneath the seemingly pleasant veneer lies a truly despicable person.

Posted by: theCoach | Mar 17, 2005 2:25:57 PM

Just for the sake of argument, why shouldn't the criminal justice system also take into account the strong desire most people (I don't think Volokh is alone here) have for retribution?

Because people hot out for revenge do not make the most unbiased judgements. That's the whole damn point of the justice system: To administer some form of justice without bias.

A crime is a crime is a crime, and the punishment should not depend on how much the victim wants the perpetrator to suffer.

Volokh wants to torture people to "teach them a lesson", which -- as far as I'm concerned -- makes him an amoral sadist, unfit for polite company.

And given his status as "reasonable conservative" I can now safely say that all the fucking conservatives have gone absolutely apeshit.

Posted by: Morat | Mar 17, 2005 2:31:18 PM

Ryan,
First you need to define what the goals of the consequentialism are, but presumably they would involve the minimizing of needless suffering. Throw in the needless suffering of the torturee, then unless you can find a mitigating deterrent factor (which I highly doubt), there is your consequentialist argument.
I think the actual argument though is more troubling -- it is the argument that some people's suffering does not count -- that some souls are evil and deserve to be purged of their evilness by righteous worldly pain.
I would define evil, quite differently, and if there is such a thing the root of it is Eugene Volohk's sentiments.

Posted by: theCoach | Mar 17, 2005 2:34:19 PM

In twenty years, people will look back at the current culture of torture and death and just be astonished. It is a real madness like the daycare sex abuse scandals of the eighties.

Posted by: joe o | Mar 17, 2005 2:36:20 PM

"Minimizing the incidence of crime" is not inconsistent with some amount of extra punishment.

How about we just abstract that out to "minimizing the incidence of human suffering"? As various anti-death penatly organizations will be happy to explain, "closure" is a myth, and fostering the illusion that victims' losses can compensated for in blood doesn't help anyone. Punishment should be considered as a disincentive, and only as a disincentive.

I don't read Volokh on an at all regular basis, but I do see him quoted all the time. I used to pay attention, too. Not anymore, though -- this puts him squarely in my "Powerline" file.

Posted by: anonymous coward | Mar 17, 2005 2:36:26 PM

What I like about you, Matt, is that when someone says something utterly contemptible and revolting, you respond with mild surprise and reasoned rejoinder. If Volokh wrote that his favorite dinner dish was hooker shit, you would comment that you'd never thought of eating shit yourself, might it not be a tad unhealthy?

Posted by: JR | Mar 17, 2005 2:36:52 PM

Instead, we should be trying to do our best to minimize the incidence of crime rather than, say, maximizing the suffering of the offenders.


How are these two incompatible? At least in the case of serial child killers (which Volokh was commenting on).

Posted by: Al | Mar 17, 2005 2:37:03 PM

How are these two incompatible? At least in the case of serial child killers (which Volokh was commenting on).

Executing him prevents it quite nicely. What further utility is there to be gained by torturing him for kicks?

None. But you conservatives want your blood -- all that bitching and moaning about liberals not having 'moral values' and what do we find? Scratch even the most reasonable conservative and you'll find a howling savage underneath. Thank God most of you are rabid Christians. If it wasn't for fear of God, there's no telling what you savages might do.

Posted by: Morat | Mar 17, 2005 2:40:02 PM

...why shouldn't the criminal justice system also take into account the strong desire most people (I don't think Volokh is alone here) have for retribution?

The guy who stole my wallet with $78 and a bunch of credit cards in 1999 - I want his right hand to be cut off.

Oh, yeah, and the despicable person who didn't pick up after his/her dog on Rue de Pre two weeks ago, causing me so much suffering - damn you, you should be punched in the face, repeatedly.

Posted by: abb1 | Mar 17, 2005 2:40:06 PM

Just for the sake of argument, why shouldn't the criminal justice system also take into account the strong desire most people (I don't think Volokh is alone here) have for retribution?

Much as I believe that society does need to protected from such desires, I don't think establishing thoughtcrimes is the appropriate venue; although in some cases civil commitment on the basis of mental defect that makes the holder dangerous to others is probably appropriate.

That's not, I gather, the direction in which Volokh (along with others) wants the criminal justice system to take it into account.

There are, a few good reasons not do what Volokh and others want to do here. First, is that allowing that kind of personal retribution to be included in the criminal punishment moves it out of the realm of societal condemnation and back into the realm of personal vendetta; this encourages further and cyclical personal retribution outside of the criminal justice system -- and avoidance of cycles of personal retribution is one of the principal reasons for having a criminal justice system.

Further, it undermines the states monopoly on the use of violence for it to license private violence in the pursuit of private retributory ends in the execution of public sentence. This has the effect of legitimizing retributive violence, and encouraging it outside of the public system. This is distinct, but closely related to, the previous point about providing additional motive for private retributory violence.

And finally, the use of any extreme punishment ultimately leads to its expansion until it becomes so grossly offensive that it must be cut back; we -- and the English before us -- have a prohibition against extreme punishments because of past experience with that.

Its unnecessary. It provides no effective additional special or generally deterrent. It presents grave risks of social harm. Its a bad idea, and would move this country in the opposite direction of the entire civilized world. I am not all surprised that Volokh endorses it, but it is shear and complete barbarism of the type that is diametrically opposed to the rational, the morally good, the civilized, and everything good and decent in humanity. OTOH, its fairly typical of the Right to endorse cruelty and retribution as goods to be sought in their own right.

Posted by: cmdicely | Mar 17, 2005 2:41:11 PM

There's nothing wrong with the criminal justice system incorporating a sense of "retribution" in how it operates--in fact, I'd say that any system which entirely rejects retribution, and instead contents itself with thinking about crime solely in terms of deterrence and treatment, is one that will not long be a part of any well-ordered society. The problem comes in how that retribution is internalized into the system, and whether it contributes to (and is restrained by) basic principles of law and order along the way. Without an arrangement which makes use of, and thereby limits, our desire for revenge, all we've got left is personal bloodlust, which might as well just be vigilantism. Which is, I'm afriad, where Volokh is in this post.

More here.

Posted by: Russell Arben Fox | Mar 17, 2005 2:41:21 PM

Executing him prevents it quite nicely. What further utility is there to be gained by torturing him for kicks?

Obviously, to make the victims' relatives feel better. Is this not a legitimate goal?

Posted by: Al | Mar 17, 2005 2:41:55 PM

Volokh wasn't "commenting on" anything, he was luxuriating in a sadistic fantasy of torture and death. What a disgusting little pervert.

Posted by: JR | Mar 17, 2005 2:42:07 PM

Obviously, to make the victims' relatives feel better. Is this not a legitimate goal?

Why not just give them E instead? It's cheaper.

Posted by: Morat | Mar 17, 2005 2:45:48 PM

PS: you might want to compare Volokh's filthy little dreamworld with the actual behavior of the McCarney sisters, who reacted with horror at the IRA's offer to murder the killers of their brother. Some people are civilized; others are beneath contempt. Take your pick.

Posted by: JR | Mar 17, 2005 2:48:09 PM

Why not just give them E instead? It's cheaper.

How is it "cheaper" than letting them be involved in the punishment? Moreover, is it likely to be as effective?

Posted by: Al | Mar 17, 2005 2:49:05 PM

McCartney, of course.

Posted by: JR | Mar 17, 2005 2:49:33 PM

Obviously, to make the victims' relatives feel better. Is this not a legitimate goal?

No, making the victim's family "feel better" is not a legitimate goal of criminal justice, nor a legitimate excuse for licensing cruelty by the state.

Now, if the crime has caused the victim or some third party some kind of substantial psychological injury, having treatment for that performed at the expense of the perpetrator or his estate, or by the state in the absence of resources that can be secured from the perpetrator, is a legitimate function akin to restitution that should be available either through the criminal process, civil process, or some other avenue. But some extra "enjoyment" for people affected by the crime is not a justification for the state to practice cruelty.

And history suggests that once a state establishes an excuse to practice cruelty it becomes just that -- an excuse for a practice which rapidly becomes detached from the justification.

Posted by: cmdicely | Mar 17, 2005 2:49:46 PM

who reacted with horror at the IRA's offer to murder the killers of their brother

But of course what we are talking about here is completely different. That involved an extra-legal punishment. We are talking about punishment within the confines of the law. There is simply no reason for a comparison.

Posted by: Al | Mar 17, 2005 2:51:29 PM

This coming from one of the few supposedly "reasonable" voices in the right half of the blogosphere.

Posted by: Bragan | Mar 17, 2005 2:53:25 PM

Volokh adds: "I should mention that such a punishment would probably violate the Cruel and Unusual Punishment Clause." Not merely a pervert- a comedian, too!

Posted by: JR | Mar 17, 2005 2:54:02 PM

Anyone here ever heard of a guy called Hammurabbi? He used to be a king of Mesopotamia, one of the earliest civilizations. In those days, the ideas of justice were exactly what Volokh prescribes. Let's make sure the perpetrator suffers, and suffers a lot. If you hit my sister, I cut of your arm. If you cut off my father's arm, I kill you. If you killed my grandson, I wipe out every member of your clan. On and on it went, and where it stopped was when civilization just fell apart. This was one of the earliest experiments in large groups of people living in very close proximity to each other, and it wasn't working.

Now, Hammurabbi was king at the time, and he saw that thigns weren't working, and he thought about what he could do about it. What is now thought of as the protopypical expression of savagery (which they added to the bible) was, in fact, an attempt to limit the violence that occurred at the time to keep society from falling apart. "An eye for an eye and a tooth for a tooth" was originally stated as "NO MORE then an eye for an eye and NO MORE then a tooth for a tooth". The laws were written down and applied to all, well, not equally, as the laws contained exceptions for high muckity-mucks in them, but they were applied to all.

The system worked. Not well, but it worked. Eventually people accepted it and there was...less violence in society.

So this is what Volokh is agitating we return to. A society so savage that it fell apart from internecine strife caused by continual escalation. A society so savage that it's successor, designed to limit the savagery, is currently considered the prototypical expression of a dog-eat-dog society itself. That's what Volokh wants back.

Of course, like most of his ilk, he likes the nice, simple, viscerally satisfying solutions. However, we nee to recognize that civillization and it's comcomitant encumbrances came abotu for a reason. We (all of humanity) agreed to it because we saw it as the only alternative if we wanted to live in larger groups then baboon packs. Going back to that horror is not an option.

Study history. It helps.

Posted by: Cthulhu | Mar 17, 2005 2:54:10 PM

Thank God most of you are rabid Christians. If it wasn't for fear of God, there's no telling what you savages might do.

The "rabid Christians" justify most of the excesses they seek to indulge in on the basis of their love of, fear of, and obedience to "God".

Of course, their so-called God bears very little resemblance to the God portrayed in most of the NT, being drawn largely from a combination of the extreme parts of the OT mixed with a few dashes of Revelation, after filtering out as much context as possible.

Posted by: cmdicely | Mar 17, 2005 2:54:16 PM

How is it "cheaper" than letting them be involved in the punishment? Moreover, is it likely to be as effective?

You don't even see the problem, do you? Please tell me you're Christian -- hopefully fear of God will make up for your utter lack of morality.

Posted by: Morat | Mar 17, 2005 2:54:22 PM

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