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.

Thursday, March 17, 2005

Volokh: Avatar of Public Executions? Of Torture?

Regarding the public ritual torture and ultimate execution of an Iranian serial killer, as detailed here, Volokh identifies with the Iranian government. But it's not just that he agrees, it's how:

I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. . . .

I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve 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. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.

Credit where it is due, Volokh doesn't shy away from the issues this position raisese, from his alliance with an Iranian government action (he alludes to broken clocks being right twice a day) to the all but certain violation of the Cruel and Unusual Punishment clause such treatment presents (although of this he says: "I would therefore endorse amending the Cruel and Unusual Punishment Clause to expressly exclude punishment for some sorts of mass murders.").

Furthermore, Volokh in several updates readily engages the myriad criticisms he must have known he would incur. In response to the moral argument, that such behavior "diminishes the humanity" of the members of a society that consciens or even encourages such official viciousness, Volokh replies:
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? * * * * Why shouldn't one say that our humanity is diminished if this monster is allowed to live on, or even to die a painless death, when his victims and their families endured unimaginable pain?

He concludes: "In this area, we quickly come down to moral intuitions and visceral reactions. And, who knows, perhaps mine are wrong. But mere appeals to my humanity just don't do much for me." And about that, at least, he and I can agree -- moral intuitions and visceral reactions are substantially in play here -- the question is to which do we grant primacy, and with what consequences in the aggregate, over time.

Next, Volokh considers the argument that errors are made, and that we therefore should not permit such an irrevocable punishment in the face of the errors that will inevitably occur in any human (and thus intrinsically flawed) system. He grants that it is preferable that the wrongly convicted spend life in prison rather than be executed, but then writes:

But I don't see it as much of an argument for a painless execution as opposed to a painful one, or an execution by anonymous bureaucrats rather than one in which the victims' relatives participate. It's something of an argument, and I do think that there should and probably would be a higher threshold of felt certainty required on the jurors' and perhaps even reviewing judges' parts, just as I suspect that in practice most jurors today require a higher level of certainty to vote for a death sentence than for other sentences.

Huh? The degreeof certainty required, and the radically high threshold of proof that, in effect, is required (something like 60 percent of death sentences nationwide ultimately are either reduced to life or are invalidated on the issue of guilt itself) is about as high as it can get as a practical matter. And we still see, time and again, innocent men walk free after spending ten or fifteen years on death row. It's not about the system, the appellate hoops, the procedure or the law -- it's about politicians, district attorneys, judges, some of whom have axes to grind, some of whom cut corners, all of which is inevitably in any human system.

Returning to moral axioms versus visceral reactions, Volokh concludes:

I doubt that the Iranians are better or worse people or a better or worse society for punishing this man this way -- serial killings are rare enough that I doubt the punishment of serial killers has much of an effect of the society. But I do think that the Iranians are in this one respect more just than those societies that let serial killers live, and even slightly more just than those who execute serial killers in a supposedly "humane" way."

If we grant his framing of the argument -- moral axioms vs. visceral reactions -- then we must either find in those terms something repugnant to the Iranian torture-fest or find ourselves in agreement. But here's the thing: a civilization where justice, so called, is predicated on visceral reactions is a passing dangerous one, and while I'm no fan of slippery slope arguments here is the rare case where that holds some rhetorical power over me. How close is this stuff to an eye for an eye, to cutting the hands off of thieves. Even if an argument might be made for the symmetry of such punishments, or rather for their visceral satisfaction, what can we say about the executioners -- whether victims and families or bureaucrats?

Is there no place for the moral highroad? Would we sink to the level of our meanest exponents in the name of justice? And if so, how would this not precipitate a race to the bottom? How can we hope to purge our society of violence when we answer brutality in kind? What example does this set for our children, this government effectuation of vigilantism?

I'm reminded of the material from Body and Soul I quoted and discussed here yesterday:

Evil isn't something that exists over there in the other guy, but not in me. Whatever penchant for cruelty exists in each of us will come to the surface. And at some point you end up with a country in which people can look at pictures of abuse, read about men beaten while hanging from the ceiling, or children raped and set upon by guard dogs, and move on, perhaps even find some sick enjoyment in the spirit of vengeance. They won't react to the evil done by their leaders. They won't care. Or worse, they will approve.

Is this a moral argument? So be it. It strikes me as imminently practical at the same time; to pretend there isn't empirical truth in the above proposition is to deny the teachings of millennia of human history.

I don't doubt that, in the same way Volokh suggests, I would want to eviscerate a person who sexually assaulted my child, indeed anyone in my family or extended circle of friends and intimates. I just don't think society benefits from gratifying that instinctual response. Bad things happen to good people every day. What marks a civilization is that the government itself doesn't do those bad things.

Iran's isn't the only government that falls far short of this aspiration.

Hat tip: Chris Bertram at Crooked Timber.

UPDATE: Matthew Yglesias also posts some interesting comments more or less consonant with mine (if considerably more articulate):

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.

The whole post is worth reading. Hat tip, Bloodless. Armand also opines that Mark Kleiman's response is his favorite. Again, I find myself largely in agreement with Kleiman, but find one whopping problem:

On the general question of retribution, I tend to side with Eugene. The purpose of punishment is not merely to restrain future crime, but to undo part of the damage of past crime: the damage done to the victims and their intimates by the criminal's assertion-in-action that the victims are fit and safe people to be treated as the criminal treated them. There's some empirical evidence that being the victim of a crime whose perpetrator went unpunished reduces both self-esteem and the esteem in which one is held by other people, a phenomenon easy to understand in the light of cognitive dissonance theory.

Kleiman ties this to arguments in support of hate crimes legislation, toward which I am modestly in favor.

But I have to reject the blithely asserted premise that the purpose of punishment is "to undo part of the damage of past crime . . . ." First, remediation to the victims of wrongdoing is properly the province of the civil system; accepting this premise as a basis for criminal punishment again leads down the eye-for-an-eye road. It may be the case, I'll grant arguendo, that especially brutal punishment is a just means of effecting the deterrent purpose that is surely the province of criminal punishment. But, as Yglesias argues, I hold that nothing inflicted upon the criminal can undo any part of the damage of past crime, and that this is a futile and consequently improper basis for determining what sort of punitive measures are appropriate to particular crimes. And to be clear, my openness to hate crimes legislation is not to remedy past wrongs -- nothing can bring Matthew Shepard back -- but to speak in particularly bold tones that individuals who act out of malice derived from bias will be punished harshly -- a deterrent purpose at root.


Blogger Scott said...

Well put. I simply don't see how a government can condone torture and not become the sort of place ... well, a place I don't want to be - one that encourages hideous and cruel behavior. And of course Volokh's faith in the guilt of everyone that he apparently wants to see tortured is terribly naive.

11:33 AM  
Blogger Mark Kleiman said...

I didn't make myself clear. There's one part of the damage of a past crime that a punishment can, in part, undue: the affront to the victim. The punishment says to the victim, to those who care about him, to those like him, and to all onlookers, "No, it's not all right to treat that person that way." The alternative is, in effect, to assent to what was done. Why else are we still chasing Nazi war criminals? Do you think the proseuction of Pinochet will deter future dictators?

8:51 PM  

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