Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Friday, March 18, 2005

Volokh Revisiting and Revisited

Having already gone on at some length, as have many others, about Eugene Volokh's vindication of torture, I feel it incumbent on me to note that he has returned to the topic to engage his many critics in the blogosphere, among them Matthew Yglesias, whose critique I discussed in an update to my initial post.

I lack time and resources to confront everything Volokh says; I trust that those who wish to defend their views against his responses will do so. I would like, however, to take up one rhetorical strategy Volokh employs in this passage:

4. Assuming the Conclusion: There is, however, a deeper objection to Matt's point. Matt argues that it's proper to punish criminals but only to the extent that it "serves a constructive purpose." Presumably he'd think that incapacitation, deterrence, and rehabilitation are three such constructive purposes; a deliberately painful death penalty will add nothing to incapacitation or rehabilitation, and I'll also assume that it adds little to deterrence.

But in my view retribution is also a constructive purpose. This is most easily seen if we for a moment set aside deliberate infliction of physical pain, and even the death penalty. Consider a scenario where punishment will do little to prevent future crime: For instance, the imprisonment of Nazis who committed their crimes decades ago and are now in their 60s or 70s. There's little need to incapacitate them as a means of preventing future crimes and little likelihood of rehabilitating them. Nor will it do much to deter future atrocities, I think. If people are deciding whether to participate in a future Nazi regime, they'll probably be much more worried that they'll just get killed in the war, or killed shortly after the war by people seeking revenge. I doubt that many would-be Nazi war criminals in 1941 would have been deterred by the risk that some decades later, when they're old men, they'll be tracked down. No, the real reason it was right to punish them was retribution (as Mark points out).

In my view, painful death for certain monstrous acts is the proper level of retribution — anything less is inadequate, just as a slap on the wrist would be inadequate for an armed robber, or a short jail term would be inadequate for a rapist. Therefore, such a punishment does serve a constructive purpose — the purpose of retribution. Matt may disagree that retribution is a constructive purpose, or he may disagree that painful death is the proper level of retribution (he may think it's too much). But his argument doesn't demonstrate any of these points. Rather, it rests on the assumption that a painful death penalty for monsters doesn't serve the constructive purpose of retribution or that retribution isn't a constructive purpose, which are the very things he was trying to prove.

With Volokh relying heavily on amorphously employed references to visceral reactions and moral axioms I have to assume certain things to engage this. Let's assume that in indicting Yglesias for failing to prove certain things, Volokh feels that his alternative account, qua palliative to Yglesias's flawed version, proves and does not assume that "a painful death penalty for monsters" does serve the "constructive purpose of retribution" or that retribution is a constructive purpose.

Best I can tell, the latter proposition is defensible on Volokh's account only by reference to the abovementioned visceral reactions: viz., retribution is a constructive purpose precisely because people, especially victims and their loved ones, believe it to be so. It slakes the peoples's thirst for "justice," howsoever popular fiat defines it. This seems every bit as circular as Yglesias's account.

The former proposition, assuming I am wrong about its antecedent proposition that retribution is a constructive purpose, is fine on its terms. I suppose if you'd like a man about to die to suffer horribly for a few minutes before his life is extinguished, there's some sense of retribution there, but ultimately I don't think this holds up. It's an intuition only, I should be clear, but retribution as here understood seems to be almost exclusively about vengeance. Vengeance is really about the vengeful, not its targets. If I'm right about that, then vengeance has little to do with the criminals and accordingly serves little or no "retributive" purpose that has anything to do with its target: rather, it's a bone thrown to the masses.

If I'm right about this, then the fact that codified controls and review can be refined to minimize the frequency of errors doesn't serve to distinguish this sort of regime from lynch mob justice as Volokh claims. Instead, it just co-opts it. To offer a suggestive counterexample, legalizing prostitution doesn't speak to its morality; it merely speaks to its legality.


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