Volokh on capital punishment and cruel and unusual punishment

Here’s part of the message I sent to Volokh:
By your reasoning, the execution of the condemned was nowhere near cruel enough–just flogging, a single stab wound, and strangling for the murder and sexual abuse of 20 children? That doesn’t begin to compare. So why not bring back drawing and quartering–slicing open the abdomen of the condemned and tearing out his entrails while he’s still alive and then ripping his body into pieces (while he may or may not still be alive). But even then the suffering of the condemned is over rather too quickly, isn’t it–so maybe it would make more sense to bring back some of the torture techniques from the Spanish Inquisition. I recently read an account of Magellan’s voyage and, as it occurred during the time of the Inquisition, some of these methods were used on mutineers. Strappado sounds suitably horrific and it would have been easy to add to the Iranian proceedings given that they already had the crane there. I’m being satirical, of course, but I don’t see how you would argue against making the punishment even more cruel given your reasoning and the extent and nature of the crimes.
I feel a deeper sense of repugnance from the cruel execution than from the murders–not because the execution was worse than the murders, but because the murders were carried out by disturbed, diseased individuals whereas the execution was socially sanctioned. I have to say that I also feel a pretty strong sense of repugnance in reading such a proposal in favor of cruel and unusual punishment from a law professor at a leading university. Your piece doesn’t even have the flavor of an intentionally provocative thought experiment (a la Peter Singer) — it is shocking and more so because it doesn’t seem that you intended to be shocking.

Jurors have had _no_ doubt and have still been wrong. With capital punishment they have the opportunity literally to be _dead_ wrong. Sorry, no sale.

“Why do liberals hate justice?”
(Still, at least we’re not arsing around with ticking timebombs, anymore. Say it loud and say it proud Murkan rightistes: torture is goooood!

They no longer need to disguise their true feelings. I’m upset, but not startled: this has so very much been coming.)

Casanova on Damiens, anyone?

As these remarks could only give pain to the young lady, who listened in silence, I changed the conversation to the enormous crowd which would be present at the execution of Damien, and finding them extremely desirous of witnessing this horrible sight I offered them a large window with an excellent view. The ladies accepted with great pleasure, and I promised to escort them in good time.
I had no such thing as a window, but I knew that in Paris, as everywhere, money will procure anything. After dinner I went out on the plea of business, and, taking the first coach I came across, in a quarter of an hour I succeeded in renting a first floor window in excellent position for three louis. I paid in advance, taking care to have a receipt.
[…]
March the 28th, the day of Damien’s martyrdom, I went to fetch the ladies in good time; and as the carriage would scarcely hold us all, no objection was made to my taking my sweetheart on my knee, and in this order we reached the Place de Greve. The three ladies packing themselves together as tightly as possible took up their positions at the window, leaning forward on their elbows, so as to prevent us seeing from behind. The window had two steps to it, and they stood on the second; and in order to see we had to stand on the same step, for if we had stood on the first we should not have been able to see over their heads. I have my reasons for giving these minutiae, as otherwise the reader would have some difficulty in guessing at the details which I am obliged to pass over in silence.
We had the courage to watch the dreadful sight for four hours. The circumstances of Damien’s execution are too well known to render it necessary for me to speak of them; indeed, the account would be too long a one, and in my opinion such horrors are an offence to our common humanity. [You big French wuss! – DvB]
Damien was a fanatic, who, with the idea of doing a good work and obtaining a heavenly reward, had tried to assassinate Louis XV.; and though the attempt was a failure, and he only gave the king a slight wound, he was torn to pieces as if his crime had been consummated.
While this victim of the Jesuits was being executed, I was several times obliged to turn away my face and to stop my ears as I heard his piercing shrieks, half of his body having been torn from him, but the Lambertini and the fat aunt did not budge an inch. Was it because their hearts were hardened? They told me, and I pretended to believe them, that their horror at the wretch’s wickedness prevented Them feeling that compassion which his unheard-of torments should have excited. The fact was that Tiretta kept the pious aunt curiously engaged during the whole time of the execution, and this, perhaps, was what prevented the virtuous lady from moving or even turning her head round.

Volokh makes an excellent pious aunt, isn’t it?

Many European countries would be going the same way if public opinion (real unwashed public opinion, not chattering-class “public” opinion) were translated directly into policy. Everywhere, the veneer of civilization is still thinner than we would like to believe…

And this comes from someone who considers himself a libertarian, correct?

What the hell are you putting in the water over there?

We’re not all drinking the Kool-Aid over here, Matt–but the more I see, the more I think a diagnosis of mass psychosis isn’t entirely unjustified.

One thing that concerns me is putting a proven, aggressive killer in with guys doing a few years for drugs or petty theft. Let the aggressive killer pump iron for a few years and muscle up and then he begins to victimize weaker, less violent inmates, sexually assaulting them, beatings, theft and more murder. We never hear the statistics of violence coming from our prisons do we? How many non violent pot-heads and dealers and burglars and cold-check writers get attacked and injured a year and how many get killed? How foolish for anyone to think that confining a homicidal maniac is going to stop the violence and killing.

What Steve LaBonne said.
However, most European countries somehow still manage to have elite whose veneer of civilization is thicker than that of the unwashed masses; while in the US it’s the opposite.
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May I suggest that gentries are better than plutocrats, monarchy better than democracy.

Eugene Volokh, card carrying schmibertarian. I guess that was already clear from his posts on torture, no?

I tried to empathize with Volokh’s post (we both have baby boys), but I’d just be happy that the guy was executed, and wouldn’t care to have him tortured, much less participate in it.
Assuming (big “if”) virtual certainty as to guilt, I don’t see why such people as Ted Bundy, John Wayne Gacy, etc., shouldn’t be executed. Something somehow has gone very wrong with these people; we have no hope that they can be cured or reformed; and a bullet to the back of the head, with the same sad resignation as one would use in putting down a rabid pet, seems perfectly legit to me.
Volokh’s exultation seems a bit much. Possibly, on the spot, he’d find himself feeling differently. Then again, maybe not.

Volokh hasn’t given any argument against any of the suggested counter-arguments.
He keeps appealing to his own ‘visceral intuitions’ and makes it clear he isn’t responsive to rational argument.
I’m sure there’s a word for someone who parades their own irrational support for cruel and violent punishment and relishes the slow death of criminals at the hands of others … I’m sure it’s not a very nice word.

I do empathize with Volokh’s viewpoint to some degree – perhaps even to a strong degree. But I don’t think it’s the State’s position to be in the business of brokering revenge. You want revenge, exact it yourself and thereafter face the consequences.
I wonder why American conservatives and libertarians howl socialism and bloody murder at the thought of a percentage point tax increase, but are willing to grant the State extraordinary privileges with respect to human life – military invasions, the death penalty, torture, etc – at the drop of a hat.

Isn’t there a conservative argument against introducing such a policy? There are many possibilities for dealing with murderous criminals and still some debate over which ones are best. However many have been tried and rejected and the current settlement is at least a good approximation of the gained wisdom so that claims that an alternative approach, even if attractive on some level, may prove to be, or indeed may have been proved to be, undesirable. Therefore changes to the current system, particularly those with predictably horrible consequences, should be viewed with vigorous skepticism.
I experience less cognitive dissonance than Katherine with the idea of a libertarian advocating such a policy. In some ways involving the victim in the punishment is a diminution in the interference of the state with the natural consequences of crime. The utopia of the libertarian is one of gangs, clans and blood feuds after all. Indeed if the state were not to interfere further by protecting the victim there would be the moderating force of fear of reprisal from the family/gang/clan of the accused.

The point is not to make the culprit’s suffering balance that of his victims, but to make society’s enjoyment of his suffering balance society’s outrage at the suffering of his victims.
In any case, my point stands–I don’t see how the ‘social satisfaction’ over what was done to the killer in this case could comes close to balancing social outrage over the offenses and suffering of his victims–how could the relatively short and relatively mild (by the standards of the Inquisition) episode of torture and execution possibly balance the snuffing out of a large number of young lives in the most horrific circumstances?
Though the scales could never be balanced, what is to prevent the mob from demanding the imbalance be reduced as much as possible by making the torture and execution as horrific as ‘humanely’ imaginable?
That is where Volokh’s logic leads, and it doesn’t even really require a ‘slipperly slope’ to get there.

Steve LaBonne sez:
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“It’s hard for non-Americans to comprehend the mass insanity that took hold of this country after 9/11. When people living in a dream world of imagined security get a rude awakening the results are predictably not pretty. I myself became unbalanced sufficiently and for a long enough time to fall hook, line and sinker for Bush’s Iraq / WMD claims, a fact of which I am now ashamed (as I hope is former Secretary Powell, among others.)”
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Mass insanity, sure, but it wasn’t spontaneous by any stretch. The mass of Americans were gaslighted into their psychosis by a cruel, manipulative cadre with a hidden, pre-existing agenda.

_In any case, my point stands—I don’t see how the ‘social satisfaction’ over what was done to the killer in this case could comes close to balancing social outrage over the offenses and suffering of his victims—how could the relatively short and relatively mild (by the standards of the Inquisition) episode of torture and execution possibly balance the snuffing out of a large number of young lives in the most horrific circumstances?_
That’s the essential distinction between retribution and expiation. Retribution fails because we can’t make the culprit suffer _enough_ (or suffer at all, if he’s a psychopath): the goal is “yes, I see now what I did,” and that may be unattainable.
Expiation can accept a token penance, and in fact will always do so in practice, because the bloodlust of ordinary decent people, even in the mob, is frail and easily slaked. You can stop when the last stone is thrown. But as I noted before, even when sickened by their own vengeance, the mob will feel unsatiated in a different way, because the culprit was unworthy of his starring role. We don’t need to tally the price, so long as a price was paid — but was it paid in good coin?

“I experience less cognitive dissonance than Katherine with the idea of a libertarian advocating such a policy. In some ways involving the victim in the punishment is a diminution in the interference of the state with the natural consequences of crime.”
It doesn’t really.
Supporting this means trusting that the state will inflict such cruelties only when they are deserved. Texas can’t manage that. They’re executing the innocent, and executing people based on how good a lawyer they could afford rather than the heinousness of their crime. And as little I trust Texas to get it right, I trust Iran a hell of a lot less.
There’s certainly a moral intuition that the murderer who inflicts needless additional pain and torment on his innocent victim is worse than a murderer who doesn’t. If you know that any state that practices the death penalty will do it to kill an innocent, and you support the infliction of pain as part of an execution–well then. You are recklessly allowing the torment of innocents of their deaths rather than intentionally causing it, and you are farming out the dirty work to the government instead of doing it yourself. But if the gratuitous inflicting of pain on the innocent is wrong, it is always wrong.

Katherine, I’m just trying to see how a libertarian could be attracted by state inflicted violence.
Most libertarians seem so far removed from their utopia that they are not forced to resolve the contradictions of their beliefs when confronted with the status quo. So if the ideal libertarian process of justice would be spontaneous cooperation to apprehend the actually guilty criminal and place them at the mercy of the victim who happens to be a paragon of libertarian self-reliance and fair mindedness, some punishment at the hands of the victim might be expected. The cruelty that the victim’s visceral reaction to the crime might militate towards would be to some extent mollified by the reaction of those loyal to the culprit to a disproportionate revenge. That being the case the murderer might have been deterred by knowledge of the personal nature of the punishment they would likely face. Gun control is anathema to a broad stream of libertarians after all.
If allowing victim participation in the punishment makes the current system more like that, even if it ignores the, IMO, critical limitations of the process of attribution of guilt and the unpleasant facto of state enforcement of consequences of the same, it might prove attractive to a libertarian. After all the libertarian is free to object to that process as well.
The fact that this nullifies the aspects of libertarianism that I find most attractive does not mean that it should be surprising to find a libertarian who feels that way. I can’t think of anyone who really thinks that the places closest to libertarian ideals, Somalia with its lack of a state for example, are good for actually living in.

My take on it all.

Just in hopes of putting a sock in the speculative psychoanalysis of libertarians here, let me point out that Volokh is
(a) very clearly *not* a libertarian by any reasonable definition of the word, no matter what he calls himself
(b) has not been so at least since that nonsense about how we can’t let captured terrorist suspects have due process of law because then millions of frivolous lawsuits would divert all our resources from the War Effort.
He’s a usually interesting and intelligent nonreligious conservative. That’s really a very different thing.