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.