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March 18, 2005


I read this this morning and considered posting on it, but didn't, since everything I had to say seemed so obvious

You'd think so, wouldn't you?

I wrote somewhere, yesterday, that the execution made me realise how little humanity had advanced in two thousand years, and how most of us probably had the potential to do things like that, at one time, until our friends and family and society conditioned us; and that maybe some of us were still capable.

I was, of course, massively naive.

This makes me so sorry for this poor little planet. At times it really doesn't deserve us.

Anyone who answers criticism of the penalty with criticism of the crime is missing the point. Is diverting focus from the point.

Well done, hilzoy. After your last several pieces, I think you're now officially my favorite blogger. I particularly liked the dog metaphor for blind vs. controlled anger. I've often thought myself that anger crystallized into a cold and ruthless determination instead of dissipated by random lashing out was one of the most powerful forces in society. Certainly I've often been at my most productive when angry. A diamond might seem "cold and bloodless" but wouldn't you rather have one than a lump of coal or graphite?

If his neighbor's pit bull killed his child, I guess Volokh would also want to torture the dog to death.

In his spare moments between acts of vengeance, he could keep his instincts honed with bear-baiting or cock-fighting.

Why limit victim participation in punishment to murder? -- why not be the one to lop off the thief's hand? If he never got the chance during his lifetime, he could pass on as a heirloom the family meat cleaver.

Why limit participation to just the victim -- punishment for littering should be a public spitting contest on the criminal.

Why limit the vicarious thrill to those present? -- televise these bloodfests. And ban lethal injection -- way too wimpy.

What is the source of the ideology that seems to have busted the moral compass of people who would side with Volokh's depravity?

What a splendid post, hilzoy: thank you for letting me start off my morning with a truly thought-proving subject to contemplate, rather than the usual political thermals.
You have expressed, and far more eloquently, much of what I had felt after reading Prof. Volokh's post (and the shock of reading something like this from the keyboard of a blogger widely regarded as a "sane voice" was considerable) - so I will refrain from duplicative commentary, and just add two bits of input on my own.
First, your formulation that:

"...justice, by contrast, is deliberate, always asking annoying questions ... that vengeance doesn't have patience with."

is just brilliant; and second:

The thing that most irked me about Prof. Volokh's piece was that it included the (to me) self-contradictory line: "I like civilization", and then went on to explicate that he really didn't like it all that much.

Excellent post. I admit that I am the morbid type and often wonder what I would do if someone did anything to one of my daughters, but to make that a foundational principle of one's legal system is pretty horrifying. Bizarrely enough, he writes here that:

I'm afraid of the government acquiring the power to torture even the worst of the worst, since historically such powers have often been broadened and abused. At the same time, I'm obviously afraid of the terrorists -- and more broadly I'm afraid that we might need to be tough, to the point of brutality, in order to save our lives and the lives of our compatriots. I have no answer, though I hope that some of these observations may help others to arrive at one.

However, the post that preceded that already carries a hint of this current post:

I should say that there are many powerful criticisms of torture that can be made; but too often I hear arguments that simply run more or less as follows: "If we start using torture, we lose any possible claim to the moral high ground." "Once we start using torture, are we any better than al Qaeda?" "When fighting monsters, we must never become monsters ourselves."

It seems to me that this sort of argument is ultimately deeply unpersuasive, because it relies too much on moral abstractions that sound appealing but simply do not confront the powerful realist counterarguments. Moral high grounds, for instance, are well and good, and all else being equal of course we'd like to have them. But lots of very sensible and decent people argue that sometimes we need to sacrifice the moral high ground in order to, well, save the lives of thousands of people (or more) -- and also that a moral high ground that strips us of the power to save these lives isn't so moral after all. Simple appeals to "keeping the moral high ground" just don't effectively respond to this important argument.

Likewise, the argument that "Once we start using torture, are we any better than al Qaeda?" strikes me as fundamentally misplaced. You bet we'd be better than al Qaeda; while means are important, ends are important, too. Using torture to save the lives of innocents, even if it's morally flawed, is surely better than killing thousands of innocents in order to install a supposedly purer Islam in the Middle East.

Again, maybe torture is just categorically wrong, and maybe this means is impermissible regardless of the ends -- I'm not sure about that, but one can credibly argue that. But whatever the right or wrong of the matter may be, it can't be decided simply by claiming that ends are irrelevant and that means are all that matter.

I'm wondering what EV would think if the perpetrator, because of some chemical imbalance in his brain, thought that he was torturing and killing space aliens who were threatening the planet, i.e. in the grip of a true delusion that made him incapable of making moral judgements. Presumably, he rejects the notion of non compos mentis (he also strongly disagrees with the notion of hate crimes), so I would also presume that he would advocate full punishment for children as well. Très bizzare.

Excellent post.

Thank you, Hilzoy, that made my week.

In an age and in a polity that purports to value "values," it makes one wonder whatever happened to the values embodied by such phrases as "'Vengeance is mine,' sayeth the Lord." (It being implied, unless I am very mistaken, that vengenace is His to mete out, and not mine, or yours.)

I was, of course, massively naive.

No, you weren't. The expectation that such changes would be all-pervasive and uniform is probably unreasonable, but a few centuries ago this fellow probably would have been tortured in a much more extravagant fashion.

I don't know this for a fact, but the "cruel and unusual punishment" that the Founding Fathers wanted to rule out were much, much worse than, say, holding someone on death row for years on end. Something about half-hanging followed by castration, disembowelling (while still alive, of course) and having ones entrails burned while still attached. The quartering was probably postmortem, but that doesn't take away from the brutality of it.

Noting that things are, now, worse than we'd like all by itself isn't a complete assessment of progress, is my point.

You're right, Slartibartfast, though I was specifically referring with that comment to the extent to which people would condone the method of execution.

Stunning critique, hilzoy. Really a gift to the blogosphere.

I've struggled with Volokh's premise in contemplating my stand on capital punishment and the role of revenge in justice. I wouldn't disagree with the right of the victim's families to feel bloodthirsty here, but I totally disagree with Volokh's claim that the crimes give him license to approve of their vengance. Perhaps if he were on a jury, and had listened to all the evidence, including the perpatrator's side, he would be just in finding the mob innocent, but he's not in that position and so his vicarious participation in the mob's violence is really quite scary.

I'll risk dumbing down the discussing too much here with this perhaps, but I appreciated the exploration of the larger questions here presented in "A Time to Kill." It strikes me that we can, within our justice system, in certain circumstances essentially forgive a griefing parent's act of vengance, but we cannot and must not endorse or advocate it, nor should a griefing parent think they can count on society's forgiveness, as that would invite more vengance.

All of this, of course, is easier to discuss when it's not you or your family. Most of the reasoning here would not change my opinion about what needed to be done should my loved ones be harmed (I know myself, I see red very quickly and remain hot very stubbornly), but I like to believe that my friends would talk me down from taking matters into my own hands, as I would them. I also like to think the satisfaction from seeing the person who harmed my loved ones served true justice, in the proper sense of the concept, would last much longer than any satisfaction from vigilanteism.

I wish I were as smart and eloquent as hilzoy. Failing that, I'll just savor this post.

Let me join in the voices praising this post.

I also liked Edward's response, especially the last paragraph. I too worry about the effects of acting out of rage, especially as it greatly increases the chances my rage would strike the wrong target.

"The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years in prison"

This line from volokh's post struck me as particularly disturbing. Why? Because here he's saying that the Iranian justice system is not bloody minded enough for him. I find that statement impressive.

I don't know this for a fact, but the "cruel and unusual punishment" that the Founding Fathers wanted to rule out were much, much worse than, say, holding someone on death row for years on end.

I believe that one of the events that led Voltaire to take up the phrase écrasez l’infâme (which I believe was taken on board by the Founding Fathers) was the execution of Robert Damiens, who attacked the king with the equivalent of a penknife. This incident is also the centerpiece of Foucault's _Surveiller et Punir_ which was published in English under the title _Discipline and Punish_. Very gory so only read it if you have a strong stomach.

I've got to say also that I'm not in agreement with Volokh, but I'm certainly willing to wait for an elaboration from him. Lawful violence is, I believe, an appropriate response to unlawful violence, and when defending oneself against unlawful violence, one shouldn't be timid about its application. That said, lawful violence and legal self-defense have limits, and that stepping outside those limits is stepping outside of civilized society, in effect.

"I've got to say also that I'm not in agreement with Volokh, but I'm certainly willing to wait for an elaboration from him."

He's updated his post sufficiently that I think we know where he stands at this point.

"Lawful violence is, I believe, an appropriate response to unlawful violence, and when defending oneself against unlawful violence, one shouldn't be timid about its application."

Okay, so you didn't get hilzoy's argument about "timidity" at all. But this is not a counterargument but rather just an assertion.

liberal japonicus

I like this post of yours a lot. I also find the argument "but we're doing it (where "it" can be torture, war, excecutions, etc) for the right reasons and the promotion of good" a rather weak one. I'm sure that the al Qaeda members who flew planes into the WTC believed they were doing what they were doing in the cause of right and good too. Everyone's got their excuses but the means shape the ends, no matter how much we believe the ends are just--no matter even if they were just to start with.

An excellent post that I will have to reread. In toto.

I have been bothered by the "victim's rights" movement in these United States. The Scott Peterson sentencing hearing being an example. "Justice" is to me a social construct, although many people do recognize a more abstract or religious/philosophical meaning.

To me one of the main purposes of joining to create a society of law is mutual protection. A crime against one is a crime against all. Allowing victims to be involved in punishment diminishes that contract.

On being wimpy: sometimes the impulse to give into rage and and revenge is an escape from facing the grief of the loss. It takes more courage to face the grief.

I'm making a linkage in my mind, probably not valid, but here it is: Bush's use of fear to get votes and support, Abu Graib, torture, Volokh's rationale for barbarism. Terrorists make monsters out of the societies they attack.
Many people (I'm one) turn fear into anger because it restores a sense of having power, of being able to defeat whatever one fears. Bush has gone out of his way to promote fearfulness in our society, fear of gays, terrorists, Democrats, whoever. Against this background Volokh's post seems to be a justification of of otherwise unjustifiable behavior on the part of our government. I know he didn't say this in his first post ( I have read the subsequent ones yet). As I said, this is a tentative linkage in my mind. It is scarey when a man who preceives himself, and is widely perceived by others as reasonable, starts advocating behavior, which in other contexts is viewed as abhorrent.

I have been bothered by the "victim's rights" movement in these United States . . . A crime against one is a crime against all. Allowing victims to be involved in punishment diminishes that contract.

While I'd certainly agree that victims of a crime -- or their families -- should not be given the opportunity either within or outside of the context of the justice system to exact revenge or participate personally in punishing perpetrators (even though I can see and in some cases agree that doing so would actually be just), I have no problems with "victim's rights" in terms of victim impact statements being allowed at sentencing hearings, victims being informed when a perpetrator is up for parole or has been released (and being allowed to participate in parole hearings), and so forth. We can't ever forget that there are real people on the other ends of these crimes, and how the perpetrator is treated can continue to have a very real impact on their lives.

Great eloquent post. I wonder, shouldn't Volokh take his logic to it's conclusion and come out for televised public crucifixions where the relatives get free tickets?

"Bush has gone out of his way to promote fearfulness in our society"

I actually considered this a scarey subject for Obsidian Wings, in that so many post and threads in response to Volokh have moved to serious Republican and conservative bashing. I had kinda hoped the hosts would avoid it.

I do think there is fruitful analysis to be done, along the lines for instance of "conservatism as an intuitionism", but there are so many charges of irreducible barbarism and the like floating around that I hope can be avoided here.

Unless hilzoy would like to designate this a "posting rule free zone." :)


For what it's worth, I think you are right. It has been noted in several studies (I'll dig up the references if anyone's interested) that violence, including murder, tends to be higher in states and countries with the death penalty. Perhaps that is because the state is saying that it is ok to kill in certain circumstances (and surely even serial killers believe that in their particular case, the murder they are doing is right or at least that they are allowed to do it).

Hilzoy, let my add my thanks.

What is it, I wonder, about this one attack we have experienced (9/11, I mean) that has brought to the surface so much of our worst nature? Not just thirst for vengeance, but also hubris to think we can remake the world by force, callousness to pain and suffering inflicted on innocents, and accusations of treason against voices raised in protest?

I shudder to think of what might happen if my anger ruled -- it doesn't last long but it gets very hot. The weapons we possess nowadays must be treated with the utmost respect, and guided by reason informed by all the emotions, including pity, compassion, love.

hilzoy: I am less sure that fear can be redirected, as opposed to simply endured, when it appears without a proper object, but enduring it, and reminding yourself that there is nothing to be afraid of, is training and redirecting fear.

Fear can heighten sensitivity, and my actress mother tells me one really can use it to sharpen a performance. So far, though, it hasn't helped my music any.

Great post Hilzoy, and I appreciate the suggestion at the end for Volokh to go read the Republic. IIRC, Martha Nussbaum has done some good writing on the lessons of Plato for our legal system, but when I was in law school people thought it verged on ridiculous that literature could say anything useful about law (which, if you think about it, is itself an almost ridiculous POV, but that's law school for you).

I'm just checking in briefly, en route to meetings etc., but: no posting rule free zone.

Also, I should say that what I found obvious were points 1-3. 4 emerged in the course of writing, but I forgot to amend the 'obvious' part once I'd written it, since it was very late. (Rilkefan has destroyed my tenuous grasp on a reasonable sleep schedule.)

Okay, so you didn't get hilzoy's argument about "timidity" at all.

She didn't make one, as far as I can see. At least, not one about "timidity".

But this is not a counterargument

Nor was it intended or presented as one.

Around the internet (Yglesias, DeLong especially) I'm seeing two kinds of comments: challenges to EV's morality (eg "he's a sadist") and challenges to the consequences of his view (eg "he'll turn our society into Iran").

All of the comments i've read so far have focused on one side or the other; prof. hilzoy's is the first i've read to successfully blend the two. Professor, you have my great admiration for your post.

As the regular readers here know, my wife is a public defender in Los Angeles County. I can assure you that concepts of deterrence mean very little to most of her clients. Gangbangers, wife beaters, drunk drivers all pretty much hold the following beliefs: they're not thinking about the future; they're not going to get caught; they're bad m-----f-----s who will RULE in prison; prison ain't so bad.

the first point is the most critical; really poor people on the bottom of the social scale live entirely in the present. So incapacitation -- holding those whose impulse control is so poor that they join gangs, deal drugs and all the rest until such time that they grow out of it -- is probably the most important penological value worth pursuing. And that's what we do here in California. (too much so in my view.) we have really long prison sentences for repeat offenders so that by the time they're released they no longer have the adolescent rages that so characterize her clients. (This is why Julian Elson's comments in Yglesias's thread is wrong; the convict should not have the choice of flogging vs. incarceration. too many people would take the whipping and be back out on the streets way too soon, hurt and pissed off.)

while she has yet to represent a serial rapist yet, plenty of her fellow pd's have, and these people (a) just don't believe they're getting caught and (b) just don't care.

so what do we gain as a society by turning a victim impact statement into state-sanctioned retribution? Contrary to Jim Henley's (Unqualified Offering blog) recent post, building a society on the "my sister" rule is plain nuts; if we want to avoid collapsing into Hatfield/McCoy blood feuds, we MUST balance our bloodthirst with rationality.

will the victims heal faster? it'd be interesting to do a study comparing death penalty vs. LWOP (life without possibility of parole) cases on the family survivors of the victim.

or is it really not about the victim, but instead vicarious (and possibly sexual) satisfaction to be enjoyed by society [rather, certain members thereof] to fulfill all of the rage fantasies all of us have?

We've all dreamed of being Superman; we've all fantasized of crushing and humiliating those who have hurt us. (Mel Gibson had made a career out of playing out those fantasies.)

But structuring our penological system around satisfying those urges seems to me to be a profoundly bad idea. I fear that once we release these demons we will find that the more we feed the bloodlust the hungrier they get. I fear that state-sponsored violence will lead to more violence. But worse, I fear that state-sponsored violence will lead to a widespread change in how our social contract is viewed. I think our society exists to provide all of us, even the criminals, our best opportunity for a rich and meaningful life. I fear that state-sponsored violence will increase the growing trend to view more and more groups within our society as the "other", not worthy of our respect or attention.

I am sorry that my post was misunderstood as an attack on conservatives in general. That was not my intention (this time). The link in my mind was between societies which are the targets of terrorism and people doing or accepting behavior that they would normally condemn. Everyone seems very surprised at the position Prof. Volokh is taking. . It seems out of character. I was wondering what got into him. So I linked my surprise at him with a half-remembered quote about how terrorists make monsters of the societies they attack. I think it is generally the case that societies react to terrorism by doing things that are below the societies' normal standards,for example, the martyrdom of the Guileford people in England, in response to IRA attacks. In order for the society to lower it's standards, individuals within the society have to lower theirs. This has already happened with us: the Patriot Act's worst provisions, Abu Graib, the torture etc. Which got me to Professor Volokh. I was speculating that his defense of what we normally would consider to be primitive behavior fit in with a trend that started with 911. But of course, I'm guessing. I don't know how his mind works.

I just sent him this email:

Professor Volokh--

I'm sure this is one of hundreds or thousands of replies to what you wrote about torturing prisoners to death, but I thought it was worth a shot.

I want to address your argument that this is merely "a battle of moral axioms and visceral reactions." There is certainly a large element of that, but I also think that your argument fails on its own terms.

Why is it that justice demands to you that this particular killer, this rapist and murderer of children, be not only executed, but tortured to death by his victims' families?

It's not just that he has killed. I assume it is that:
1) he has killed the most innocent people possible.
2) he tortured and sexually violated them and eliberately caused them pain as well as killing them. He caused them to suffer for its own sake.

The moral imperative for retribution is that: torturing and murdering an innocent is so wrong that it renders you unworthy of any respect or recognition for your own humanity. You do not even deserve a painless death.

The "risk of error" in a case like this, then, cannot be regarded as simply a subset of the fact that "all human institutions have a capacity for error." It's also not only "a more serious error than wrongfully inflicting painless death, or wrongfully imprisoning someone for life". It's not only a difference a degree, it's a difference in kind: You risk committing the very crime you are seeking to condemn--torturing innocents to death.

If torturing an innocent to death is such an outrage that it justifies the torturing to death the person who commits this crime, then torturing an innocent to death is also such an outrage that the government cannot risk doing it under any circumstances. Any risk is too great.

Your argument that "Yet my tentative current sense is that for a small number of extraordinarily monstrous crimes, the need for retribution is so strong — and the risk of error can be made so low — that not just death but deliberately painful death is the proper punishment" does not suffice. You don't need to show that "the risk of error CAN be made so low" as to be practically non-existent. You need to show that it WILL be made so low. And you cannot do this. Every single government in the history of mankind that has arrogated itself the power to torture people to death, has tortured to death someone who does not deserve it. And a self-described libertarian ought to know that.

I don't think American exceptionalism gets you out of this either. Some states in our country are have almost certainly executed innocent people in the last 20-odd years, and are executing people more on the basis of how good a lawyer they can afford than how heinous their crimes were.

I realize this argument also applies to the death penalty, and indeed, it is why I oppose the death penalty. But I while I oppose the death penalty, I don't know "beyond a reasonable doubt" or "to a moral certainty" that it is always immoral, in the way that I know to a moral certainty that it is always immoral sentence someone to be raped or tortured.

I guess the distinction is this: death is the ultimate deprivation of humanity, but it is also the only final incapacitator, the only absolutely certain way to prevent a murderer from murdering again. Even if you don't buy the deterrent argument--and I don't--it is at least conceivable that you could design a death penalty system that saved more innocent lives than it took; that saved more prison guards or fellow inmates from being murdered, than it executed innocents. In my eyes, the Texas death penalty system is pretty clearly failing this test right now, but the New York death penalty system and the federal system might pass it.

Whereas rape does nothing to stop the rapist from raping again, and torture does nothing to stop a torturer from torturing again. Without that, it's the gratuitous infliction of exactly the sort of pain and suffering that you are supposedly seeking to condemn.

Impressive, hilzoy. Kudos and thanks.

Eugene Volokh has greatly disappointed me with this.

Excellent post in many respects, but the one that catches my eye is the beautifully insightful reading of the Republic's account of the part of the soul with which we get angry, and its relation to reason. It's a theory that still has a lot to teach us, not only about anger, but about loyalty-oaths and tribalism.

What we are seeing around us is an assault on the Enlightenment, and an assault on reason (the disparaging of reality-based thinking, for instance, the dismantling of scientific panels and over-ruling of scientific evidence, the attack on the universities).

And the corollary of that is an elevation of unreason, whether in the idolatrous worship of Bush's 'gut' decisions, or in the institution of loyalty-oaths before entry to "town meetings", or in this new elevation of revenge-lust to the status of an ethical principle.

Anger is a precious emotion and a force for good in human existence, when it is reliably obedient to reason. Not otherwise. For discussion read the Republic, and now hilzoy.

Also, hilzoy: I sincerely wish I could take one of your philosophy classes.

Volokh's disappointed several on the right, as well. Myself included. I'm just a great deal less thoughtful and less eloquent than hilzoy. Have I mentioned I have a great deal of admiration for those inhabiting the other side of the blogbalance, here?

And I'm not just sucking up. I don't always agree, but in this particular instance I do, completely.

And now Volokh's responded, again, but I don't think he's going to get agreement from this quarter (meaning: me).

Amen, Slarti..... a long and complex post articulating his measured defenses of objections to his first post.... all of which retreats not an inch (AFAICT) from his original position, which basically boils down to being that "Torture the bastards bloody and kill them slowly and painfully" is an appropriate punishment for certain classes of crime (as he sees them).

You know, I'm not nearly as concerned with the pain and suffering of the guilty (not that I'm unconcerned, mind you, but not so much) as I am about what indulging in this sort of behavior is going to do to those of us indulging in it, not to mention what knowledge of it is going to do to the rest of us.

In short, I disagree with this just about as thoroughly as it's possible to. Doubtless for different reasons than some of you, but I can't disagree with his reasoning more. Consequences can be dished out calmly, coldly, and with dignity. Punishment of the guilty is not supposed to be about vengeance, it's supposed to be about deterrence, prevention, and enforcement of moral law. There's nothing moral about tormenting criminals before you kill them. Nothing. It serves neither the victims family and friends nor any higher morality.

Slart, re the blogbalance - the site needs more posts from you. Stream-of-consciousnes, cat blogging, whatever (for now). Put up the intro to your thesis if need be.

Thesis? What thesis? I am a man without a thesis.

That's why I said "the intro", not "the conclusion"...

Actually, figurued you had some degree in aerospace something-or-other.

BSEE, which doesn't require a thesis, which in turn is probably why I even have one.

A good chunk of an MS in Applied Math, but those can be done sans thesis, too.

A good chunk of an MS in Applied Math, but those can be done sans thesis, too.

sans pants too!

Ummm....yes, I think I've got empirical evidence in support of that notion.

"I am sorry that my post was misunderstood as an attack on conservatives in general." ...lily

I pasted your quote not intending a criticism or meaning it to be a bad example. It was just a thoughtless way to start the comment, indicating a recommendation to avoid all generalities. So many of the threads I visited last night got out of control. I may have gotten out of control, I don't remember, but I think not, for there was sufficient shrieking without me.

Anyway, by that time I was busy watching Y Tu Mama Tambien.

I probably haven't visited Volokh for a year.

Thanks, everyone. Slarti: it occurred to me sometime today, when I was far from my computer, that it was interesting that almost nothing I wrote had to do with the person who's being tormented and killed. I have very little sympathy for serial killers, and what sympathy I have is not what animates my view that there are certain things we should not do to them. (Likewise, I think that people who use 'an eye for an eye' to justify capital punishment should reflect on the question: should part of the punishment for rapists be to be raped, by some poor government employee? If the answer is 'no', it's not because they would have a right to complain, but because there are some things we should not be in the business of doing, even leaving aside the question of error. -- This isn't meant to settle the question of the morality of capital punishment; only to illustrate what sort of argument the argument against it is, and to show that "well, they did it first" proves nothing.)

votermom: I think you're absolutely right about this: "sometimes the impulse to give into rage and and revenge is an escape from facing the grief of the loss. It takes more courage to face the grief."

Katherine: well, you could always drop out of law school and do another BA here at Johns Hopkins ;)


In response to which I would ask the obligatory WYMM?

But I have a bit too much respect to ask it, even in jest. How about if we settle on, we're in uncannily fine agreement?

The responses don't help. This:

In the face of these arguments, it seems to me, the strongest reason to support the death penalty is a belief that it is morally wrong to allow some people to live — the view that every day that (say) a mass murderer can live and enjoy life is a continuing wrong to his victims and to the victims' loved ones.

This might be more disturbing to me than the original post. I can't see why it wouldn't apply to every murderer as much as a serial killer. Presumably every day a rapist goes un-raped is a continuing wrong to his victim, and every day a torturer goes un-tortured is a continuing wrong to his victim? And isn't it morally wrong to allow a guilty criminal to escape punishment just because the evidence was obtained in an illegal search, or a coerced confession? It's not enough to say that such things are politically infeasible--if we get to a point where we might amend the eighth amendment to allow for fatal torture in some cases, they might not be so infeasible.

He treats "an eye for an eye leaves the whole word blind" as if it's a purely consequentialist argument. It's an excellent consequentialist argument, but it's not only that. It's also that you don't condemn torture by torturing. You don't condemn rape by raping. You don't condemn killing the innocent by killing the innocent.

Maybe that's the difference between justice and vengeance: justice seeks to punish and condemn the crime; vengeance seeks to make the criminal suffer even if we have to commit the same crime as him to do it. Wishing pain and suffering on someone who has caused it to us is a completely understandable desire, but inflicting pain and suffering and torture and death because it is emotionally satisfying to someone, no matter how deeply wronged that person has been, is not a legitimate goal of any government, or any criminal justice system. I cannot believe this point needs arguing to a libertarian professor of Constitutional law.

But he doesn't even say that it's legitimate to inflict pain and death because it might be emotionally satisfying--he says that refusing to do it is immoral.

Ummm....yes, I think I've got empirical evidence in support of that notion.

I'm empirically evidencing it right now! :D

You know, I'm not nearly as concerned with the pain and suffering of the guilty (not that I'm unconcerned, mind you, but not so much) as I am about what indulging in this sort of behavior is going to do to those of us indulging in it, not to mention what knowledge of it is going to do to the rest of us.

And really, isn't that the crux? Some punishments are proscribed simply because, well, we don't do that sort of thing. [To quote Arthur Silber, "Because we're fucking human beings!"] It has nothing to do with the barbarity of the crime; it has to do with our civility as a nation.

I don't really like this particular phrase, but it occurs to me that were we to adopt Volokh's suggestions in the wake of 9/11 (or even as part of a larger global war) the "terrorists really would have won" in the sense that we would have irreversibly compromised ourselves and our ideals. [One could even argue, our souls.] I'm not saying that we have done this or are likely to go to the extremes suggested by Volokh -- and yes, my fellow sinisters, I know what you're likely to say and I don't agree, so please don't regard this as an invitation to threadjack -- but it is a powerfully disturbing specter that we need to acknowledge before creating policies for the modern era.

Thanks for the kind words, Dianne, though I'm not sure if they are deserved as I am more trying to figure out where this attitude of Volokh's comes from rather than doing something like hilzoy does, which is to craft a compelling counter argument.

Thinking about Foucault and his argument that the penal system exists to reinforce the social hierarchy, I have to wonder if someone like Volokh feels that the hierarchy is so affronted by the acts of criminals like this that torture to death is appropriate punishment. I don't want to conflate his views with others, but the constant drumbeat against the imposition of Sharia law really seems to be cognitive dissonance. To me, what is more disgusting is people taking advantage of their position to commit crimes.

I've written a few times about the death penalty here in Japan, and it has a number of interesting features. The first is that while there is a specific idea of retribution, the whole process is completely secret

I've always thought that it was precisely because of the idea that passions are inflamed that executions should be carried out in as passion less a manner as possible. One wonders how much of a jump it is to decide that the parents of the murderer deserve some justice since they brought him up. Really ironic that someone who has spent so much time and energy on slippery slopes doesn't see this one.

Maybe that's the difference between justice and vengeance: justice seeks to punish and condemn the crime; vengeance seeks to make the criminal suffer even if we have to commit the same crime as him to do it.

I agree with the first part but I'd say the latter half of your disjunct is falsely limited: vengeance is about making the criminal suffer, period. It's not just "if we have to commit the same crime", it's not even saying that the criminal must suffer to the degree required to expiate the sin, it's that the criminal must suffer at a level that satiates the desires of the victim. There's no requirement of an external sense of proportionality nor a limit on the scope of retribution; ultimately, vengeance boils down to -- in one of Saberhagen's greatest phrases -- "For thy heart, who hast wronged me".

right, but if we're committing the very act we say we're condemning, it's a clear sign that we've gone past justice into vengeance.

if his chest had been a cannon he would have shot his heart upon it

And make Ahabs of us all.

I've tried to focus on reading all of the foregoing comments, but my anger and anxiety about this issue keeps distracting me.

Has anyone mentioned:

What happens if the convicted person is innocent?

What happens if the families of the original victim participate in wreaking vengeance on an innocent person?

Who does the state appoint to inflict the punishment? What happens to them if it turns out they've punished an innocent person? Do we look for sadists -- people who enjoy inflicting pain -- to carry out the sentence?

And last of all, how has it come to be that we are even discussing these things? I feel like Alice, falling into a hole that suddenly lets her out into purgatory.

So many of the posts above are so logical and reasoned. I admire you all and wish I could present a clearer argument instead of just questions.

Scared to link because he seems to use "php" scripts...just don't ask...but Mark Kleiman has had two excellent posts in response to Volokh

Thank you for the direction to Mark Kleiman's posts, which are excellent and informative. I was glad to see someone express more clearly some of the concerns I had.

This was especially interesting to me:

"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. And it is noticeable how few advocates of capital punishment are also advocates of aggressive measures to free the innocent."

Slart, think that's "mortar"...

It's safe to link to Kleiman and it's a good idea.

"as if his chest had been a mortar, he burst his hot heart's shell upon it."

Slarti is quoting Jean-Luc Picard. Not that there's anything wrong with that.

Volokh has changed his mind. I respect him for saying so.

Volokh has changed his mind. I respect him for saying so.


Though I'm pleased Volokh has backed away from the strongest statement, I'm still disturbed. He argues that

It seems to me that retribution is a fundamental and entirely morally proper goal of punishment; and deriding it as some atavistic desire for vengeance is a mistake.

and goes on to quote Kleiman, who says

[V]indication of the victim and the expression of social disapproval of the act both strike me as perfectly sound reasons for punishment, independent of its function in controlling crime

But the fact is that they are no independent reasons. Social disapproval is tied to enforcement, because if the crime were held up as a worthwhile act, punishing people for it becomes a badge of honor. Vindicating the victims is necessary to show that innocence is something that the society values.

More problematic, I find the argument about chasing Nazis to be deeply disingenuous. The suggestion is that if you disagreed with Volokh, you wanted Nazis to go on their merry way is a remarkably cheap shot. I know that he took a lot of personal abuse, but this parting shot suggests that he still doesn't understand what the problem is.

Did he really, hilzoy?
The most evidence of this that I could find, after reading through ALL of Prof. Volokh's posts subsequent to his original comment was in the leadoff graf to his latest one:

"Mark Kleiman's posts have persuaded me... that as much as some monsters...deserve a deliberately painful death, our society's legal system (no matter what constitutional amendments there may be) can't provide it."

Although his cogent and well-written follow-up posts go all over the map - pursuing old Nazis, "slippery-slope" precedents, legal/moral points re the death penalty in general - with great lucidity, nowhere did I find word one saying that his original statement regarding the desirability of inflicting deliberately painful deaths on certain criminals was either wrong, misguided, or immoral.

Now IANAL, and some of Prof. Volokh's subtleties may have escaped me (in which case I will graciously accept correction). It still seems to me that a blogger - however nicely he acknowledges and accepts criticisms over a position - whose response, in this case reads as:

"I still think criminals should be tortured to death, but the system won't allow it, so there we are"

can't really be said to have "changed his mind"

I agree with Jay C. I don't think Volokh changed his mind. He's doing the dance of "I've been out-argued and I know I'm wrong, but I'm still not going to truly concede the point."

This was a brilliant post, hilzoy.

Slarti is quoting Jean-Luc Picard

Caught. I didn't have my copy of Moby-Dick close at hand. Let me say too that I only just read it for the first time in the last year or two. And it was a quite unexpectedly interesting and entertaining read.

So, mortar. Shows you what sort of crap Google brings up, no?

I agree with Jay C.

Volokh still doesn't seem to realize the difference between just retribution and naked vengeance. I'd actually sent him one last email before I read that he'd changed his mind...it's somewhat repetitive but why not:

"One more thing.

I was trying to figure out why you used the word "squeamishness" to describe revulsion to torture, and why this bothered me so much.

To me, "squeamishness" doesn't mean refusal to inflict pain or to kill, or to have someone else do it on your behalf--it means refusal to look because it's disgusting. I eat meat, but I would never want to hunt, and still less would I want to work in a factory farm or slaughterhouse. I don't even like taking the giblets out of a chicken. I eat fish, but I don't want to gut it, let alone work on a boat or processing plant in Alaska. I set out mouse traps but I would never step on a mouse to kill it. That's just squeamishness on my part--it does nothing to reduce the suffering or harm to the animal and in some cases, probably leaves it suffering more than if I killed it myself. Whereas if I became a vegetarian or only ate organic meat, that would be a moral decision--maybe a moral choice that reflects misplaced priorities given the amount of human suffering in the world, but a moral choice nonetheless.

Here are some more examples of squeamishness as I understand the term:

--Favoring executions, but banning public executions. Albert Camus discusses this in "Reflections on the Guillotine."

--Injecting a prisoner with a powerful muscle relaxant before lethal injection, so you do not have to see the physical effects or manifestations of pain from the fatal injection itself.

--CIA agents not torturing suspects themselves during interrogation, but sending them to face almost certain torture in Syria, Uzbekistan, and Egypt; providing lists of questions and getting reports on their answers from their torturers.

--Referring to what you are advocating as “deliberately painful executions” and “deliberate-infliction-of-pain punishments” and “deliberate infliction of physical pain”; never to “torture” or “torturing to death.”

--This previous post of yours:

“But, third, I just don't like this topic. I find it not just difficult but also sickening. Torture is disgusting. Failing to stop the next terrorist attack that kills thousands is awful. Does the need to save people's lives justify torturing suspects? How many lives? Would it take hundreds of thousands (as in the hidden nuclear bomb scenario)? Thousands? Dozens? A couple? I don't know the answers, and while I have no doubt about the importance of the questions, I don't enjoy thinking about them. The whole topic is sad and horrible, whatever the right answer is.

It's not a rational reaction; it's a visceral one. I'm not proud of my squeamishness, but there it is. I know that just because something is sickening doesn't mean we shouldn't do it. Sometimes people need to do disgusting things to avoid greater harms. (And sometimes the disgusting thing is so disgusting that it is the greater harm, or at least doing it enough times will cause greater harms.) But if I had a choice in how to invest my scarce time, I'd rather not invest it here.

And fortunately I do have a choice. If I had tothink about torture, I would. If I were paid for it, or if I were given a position of official responsibility which requited me to think about it, or if I was teaching a class or writing an article that would be incomplete without it, then I'd buckle down and do it. But none of these applies here.”

Look. I more than understand the distinction between making the innocent suffer and making the guilty suffer. I understand it very well, on both a rational and an intuitive level. I oppose the death penalty, but to a large degree that is because I think we are killing innocent people and killing people based on their poverty. I am much more horrified by the imprisonment of innocent people than the execution of serial killers; if I could choose between fixing the shameful state of indigent defense in this country and abolishing the death penalty, it would be a very easy choice for me to make.

I am writing my 3L paper on “extraordinary rendition”, which you may have read about and which I referred to above--sending terrorism suspects to be interrogated in foreign countries that practice torture. Believe me, I have a vastly different reaction to us sending a (very, very probably) innocent Canadian named Maher Arar to a Syrian prison to be held in a cell the size of a grave and tortured, than I have to us sending a German citizen named Muhammad Haydar Zammar, who apparently recruited Muhammad Atta into Al Qaeda, to the same Syrian prison to be held in a cell the size of a grave and tortured. Torturing the innocent is much, much worse than torturing the guilty.

But you go much, much further than I do. You seem to regard the torture of some people as a moral outrage, and the torture of other people as merely an aesthetic outrage. You seem to think if a person is convicted (or, I’m guessing from your other post, in some cases merely suspected) of a severe enough crime, then it is acceptable for the state to “treat members of the human race as nonhumans, as objects to be toyed with and discarded”.

I cannot agree to this. Torture is disgusting, but it is not only disgusting. It is also deeply immoral. It is a violation that no human being should ever commit upon an animal with pain receptors, let alone on another human being. I don’t care what crimes they have committed; they have a nervous system that feels pain as acutely as mine does. No good has ever come of rape, or torture. No good has ever come of people or governments denying that other people are human.

If someone rapes my little sister or murders my husband or tortures my child, I may feel differently—“may” only because I can’t even imagine what I would feel—but I wouldn’t want my family to allow me act on those feelings and I don’t want my government to either. And if I were raped and murdered, the very last thing I would want is for my husband to kill or torture the man who had done this to me--I would rather see my murderer punished too lightly than to see him make a torturer or killer of my husband. And for the state to encourage my husband to become a torturer or a killer, in a way that no doubt serves the state's selfish interests at least as much as my husband's emotions, seems almost worse.

all right. You're probably drowning in emails on this but I had to get that off my chest."

Excellent post. I agree with Eric that this is the best overall piece yet on this controversy. Volokh's argument is a truly weird combination of abstraction (theory) and viscerality - blood-lust in the abstract. In the real world, innocent people are ALWAYS either tortured or killed. It's the very nature of torture and the death penalty. It's deliberate terror. That's enough to proscribe either practice - aside from their utter immorallity and lack of utility. The fact that he's not even talking about 'utility', but pure vengence is just bizzare. You have to hand it to him, though, for being honest enough to ventilate what a lot of people believe. He has done a service, in a way.

I like Civilization. WHAT?!

I like Civilization. WHAT?!

I do to, especially with the Play The World expansion pack. Can't wait for Civ4!

What is it, I wonder, about this one attack we have experienced (9/11, I mean) that has brought to the surface so much of our worst nature? Not just thirst for vengeance, but also hubris to think we can remake the world by force, callousness to pain and suffering inflicted on innocents, and accusations of treason against voices raised in protest?

I am trying to read more about the 'terror management theory'. Fear of death and confrontation with one's own mortality makes people harsher, more agressive, and more likely to identify with ONE group and rejecting all other groups more agressively.

As far as justice is concerned: I find this paper by Helena Cobban very interesting. It indicates about how communities confronted with violence and atrocities (South-Africa, Ruanda) have to forgive and settle for justice instead of revenge (i.e. truthcommission in South Africa) to function again after the ordeal.

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