Torture and Cruelty

Speaking of cruelty on the one hand, and marginalized views on the other, Mark Kleiman starts out discussing l'affaire Volokh, but eventually makes the point that "It's a deeply sick fact about American politics that opposing the cruelty of our prisons and favoring measures to identify the innocent imprisoned are regarded as fringe-liberal positions." Quite so. Though, to be fair, quite a number of conservative intellectuals and, eventually, politicians rallied around a recent measure designed to do something -- not much, frankly, but something -- about prison rape. Something about the unlikely conjuncture of humanitarian impulses and homophobia seems to have done the trick.

On the substantive matter under discussion, Mark comes down against torturing people, but at least kinda-sorta in favor of punishment-as-retribution. I'm inclined to, if anything, take the reverse view. In America, we punish things either with fines or with prison spells. I'm open to the possibility that for certain kinds of offenses, at least, it might make more sense to give somebody a few lashes rather than send them to prison. It would be cheaper than incareration, and the cruelty of the punishment would be under the direct control of the judge. Ten lashes is ten lashes, while the badness of a person's experience in prison depends, in part, on a lot factors other than the mere severity of the sentence. This might be the best way to deal with people who aren't menaces to society who we feel it's desperately important to "keep off the streets" but who are doing things we want to discourage with the threat (and reality) of sanctions. Or maybe that's crazy and wrong. But I don't have an a priori objection to the idea that it might be right. I think it's basically an empirical issue. But that's a crime control issue, not a question of revenge or retribution.