Volokh on capital punishment and cruel and unusual punishment

by Chris Bertram on March 17, 2005

Eugene Volokh writes :

Something the Iranian government and I agree on : 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. 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, but perhaps there’s a good explanation.

And there’s more …..

I should mention that such a punishment would probably violate the Cruel and Unusual Punishment Clause. I’m not an expert on the history of the clause, but my point is that the punishment is proper because it’s cruel (i.e., because it involves the deliberate infliction of pain as part of the punishment), so it may well be unconstitutional. I would therefore endorse amending the Cruel and Unusual Punishment Clause to expressly exclude punishment for some sorts of mass murders.

Those, like me, who are startled and upset to read Volokh writing like this, might want to visit the website of the National Coalition to Abolish the Death Penalty or visit David Elliot’s Abolish the Death Penalty blog .

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{ 40 comments }

1

Steve LaBonne 03.17.05 at 8:14 am

I don’t know how anyone involved in any way in the criminal justice system (as I am, as a forensic scientist) can possibly support the death penalty, because we know better than anybody that the occurrence of wrongful convictions is inevitable. How people (including many of my colleagues) who are fully aware of this, yet support capital punishment, can sleep at night is beyond me.

2

mw 03.17.05 at 8:15 am

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.

3

Dave 03.17.05 at 8:40 am

I’m torn on this issue. Inflicting pain may have a cathartic effect for some victims, and I think there’s a legitimate argument for that, but the Cruel and Unusual Punishment clause is there for a very good reason. The state may have to kill on occasion, but it should never engage in or sponsor torture.
I have no problem with the death penalty for heinous crimes where there is ample proof of guilt. In my mind, that means some sort of personally-identifying and unambiguous evidence (e.g. genetic material, the murder weapon) tying the criminal to the act. One implication of this is that, while viscerally I think Scott Peterson is guilty and should die, intellectually I don’t think there’s enough evidence to actually put the man to death.
I’m not alone on this one, either. Illinois has just enacted a law that sets a higher standard of proof for the death penalty. Jurors must have no doubt in the convicted’s guilt, or they cannot sentence him/her to death.

4

Steve LaBonne 03.17.05 at 8:45 am

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.

5

Rob 03.17.05 at 8:47 am

I can’t believe this. I have, in the past – not any more – thought that there were cases where the death penalty was justified – at the nuremberg trials, for example – but I’ve never thought that torture was justified as punishment. I mean, compared to this Dershowitz’s needles down your fingernails seems reasonable: at least someone could try and justify that by reference to a humane goal, the prevention of terrorism.

6

des von bladet 03.17.05 at 8:52 am

“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.)

7

rea 03.17.05 at 9:04 am

The primary objection to torture and capital punishment is not what it does to the criminal, but what it does to us to inflict such things.

8

des von bladet 03.17.05 at 9:06 am

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?

9

Matt McGrattan 03.17.05 at 9:16 am

What the hell are you putting in the water over there?1

I know you’ve been trying to roll back the Enlightenment for a while but hey, why not go the whole hog and take us back to the Middle Ages?

The endorsement of torture, viciously slow deaths, mutilation? Volokh and all like him are just signalling that they are no longer members of civilised society and the sooner we recognize these bastards for what they are the better.
1that’s the abstract 2nd person ‘you’, by the way…

10

Steve LaBonne 03.17.05 at 9:28 am

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…

11

Donald Johnson 03.17.05 at 9:28 am

Atrocities provide a useful excuse for pandering to one’s own cruelty.

12

Uncle Kvetch 03.17.05 at 9:32 am

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.

13

Brad DeLong 03.17.05 at 9:35 am

Just don’t let the dude hold the carving knife at UCLA faculty dinners. That’s all I’m saying…

14

goesh 03.17.05 at 9:36 am

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.

15

Matt McGrattan 03.17.05 at 9:40 am

Uncle Kvetch wrote: “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.”

Yeah, not everyone’s on the Kool-Aid and, as Steve Labonne points out, there’s no doubt a segment of public opinion everywhere, including here in Europe, that feels the same way.

However, what’s really changed is that it’s become socially acceptable for ostensibly intelligent and well-informed people to express this kind of barbarism on the US side of the pond and a public debate is taking place on the merits of torture.

That is what’s shocking.

16

abb1 03.17.05 at 9:43 am

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.
.
May I suggest that gentries are better than plutocrats, monarchy better than democracy.

17

Steve LaBonne 03.17.05 at 9:46 am

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.)

18

Katherine 03.17.05 at 9:53 am

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

19

catfish 03.17.05 at 10:00 am

Perhaps this is a case of the off the cuff nature of blogs getting the best of Volokh. In the past, he has been open to persuasion, so what kind of arguements should be made?
This is what we have in this thread so far:
Torturing people with motives only of revenge:
1. Goes against every decent idea of civilization?
2. Brutalizes the torturers
3. Is a slippery slope on the way to condoning other forms of torture.
4. Might happen to an innocent person.
Volokh has so far rejected these claims in his updates. For him, this issue is a question of first principles that are immune to argument. Is that right? Can their be no argument that would be acceptable to a wide swath of ideological opinion against torture as vengence? Does anyone have cites or links to philosophical arguments?

20

Anderson 03.17.05 at 10:42 am

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.

21

Russell Arben Fox 03.17.05 at 10:50 am

“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.”
Good grief. Do we have to go all the way back to Michael Dukakis and Bernard Shaw on this one?
I’m no authority on Islamic theocracy or the sharia, but I’m open to the possibility that from within the Islamic worldview one can make a strong argument in favor of a certain level of “confrontation” between the victim and the victimizer in the establishment of justice. Hell, you can do that within our own legal system as well, within limits (i.e., the debate over victim-impact statements in the courtroom). But Volokh is making no such argument. Instead, he’s engaging in simple bloody proxy vigilantism, the reddest of all red meat one can throw in front of a crowd. Of course if the we had the killer of one of our loved one’s at our mercy we’d be tempted to make him or her pay; Dukakis’s inability to articulate that kind of legitimate rage cost him dearly. But as everyone damn well knew, that rage, in itself, does not constitute an argument for the death penalty, and surely can’t be taken as a guide to actual practice of the death penalty. The fact that I might someday want to see a bad guy dead is not tantamount to an argument that it’d be a good to let me help kill bad guys. Shaw’s challenge was a cheap and stupid one then, and Volokh’s casual embrace of it is cheap and stupid now.

22

Matt McGrattan 03.17.05 at 10:51 am

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.

23

Joshua W. Burton 03.17.05 at 11:00 am

“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.”
Volokh is obviously working from the expiatory theory of criminal justice, not the correctional (reform them), deterrent (scare the others), or retributive (serves them right). 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. Or, in a more refined variant where the actual bloodthirsty mob becomes optional (to which moral height Volokh does not seem to aspire), we make God’s enjoyment of the sacrificial offering balance God’s outrage at the original transgression.

The chief problem with the expiatory model is that the sacrifice is unworthy. We are offering damaged goods, as it were: a cruelty done to a guilty man cannot balance cruelties done to the innocent. Societies that frankly embrace expiation will therefore prefer to torture an _innocent_ person to expunge a violent crime from the soil. In the extreme case, one might imagine finding just one TOTALLY innocent person, and punishing him or her for _all_ the sins of the world.

24

Elliott Oti 03.17.05 at 11:02 am

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.

25

Dave 03.17.05 at 11:04 am

May I suggest that gentries are better than plutocrats, monarchy better than democracy. –abb1
You are welcome to suggest it, but I don’t know if you’ll get anyone here to buy it.

26

Jack 03.17.05 at 11:09 am

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.

27

John 03.17.05 at 11:16 am

I’m just amazed that anyone claiming to be a social scientist can even discuss the issue in these terms. The death penalty isn’t about justice and never has been. Don’t you guys read Foucault or Thompson or Linebaugh or…

28

mw 03.17.05 at 11:22 am

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.

29

Strange Doctrines 03.17.05 at 11:25 am

I just read a remark by Ken Taylor (the context is the philosophy of art) that somehow seems apposite:

I wouldn’t go so far as to say [evil] lurks in us all, but I do think we overestimate our own distance from it.

30

jlw 03.17.05 at 11:28 am

Steve LaBonne sez:
.
“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.)”
.
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.

31

Anderson 03.17.05 at 11:31 am

On the “visceral,” Volokh-has-no-argument aspect, I’m not sure we can fault him there. What argument do we have against torture? Volokh’s moral intuitions may simply differ from ours, different in degree but perhaps not in kind from the difference between ours and Gacy’s. (Assuming Gacy *had* any such.)
I don’t think morality can be separated from this kind of pre-rational feeling; civilization, I guess, is to educate our sentiments so that we don’t feel like Volokh does (or says he does).

32

Joshua W. Burton 03.17.05 at 11:43 am

_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?

33

Elliott Oti 03.17.05 at 11:47 am

“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 […] “
A metaphor is not even an analogy, but when you start calling metaphors “logic” my insides hurt really bad ….

34

Katherine 03.17.05 at 11:53 am

“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.

35

Matt McGrattan 03.17.05 at 12:21 pm

You know on one level I am shocked and stunned that this debate, and the one on torture, is even taking place.
Something is seriously wrong.

36

Jack 03.17.05 at 12:29 pm

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.

37

abb1 03.17.05 at 12:42 pm

You are welcome to suggest it, but I don’t know if you’ll get anyone here to buy it. — Dave

But why, Dave? I look around and see enlightened constitutional monarchies and barbaric backward democracies. In Switzerland women were not enfranchised on the federal level until the 1970s; in one especially democratic canton, where they still vote by raising their swords on the central square, they were eventually forced by the federal government to allow women to vote in the 1990s, IIRC.

Why aren’t you buying it?

38

Russell Arben Fox 03.17.05 at 2:12 pm

My take on it all.

39

Bruce Wilder 03.17.05 at 2:34 pm

Volokh, who justified his silence on Bush torture policy on the grounds that the very idea depressed and sickened him, appears to have some taste for cruelty, after all. Am I surprised? No.
Volokh is arguing not just for cruelty, but for overthrowing the rule of law. The rule of law makes certain conduct, per se, illegal. What the Iranian authorities did to the convicted serial murderer should be illegal for the same reason that what the serial murderer did to his child-victims was wrong and illegal. The view that what you did (to me and mine) was so heinous, that I am, morally and legally, released from any constraint against doing the same to you, is the foundation for the Bush Administration policy on torture and imprisonment without trial. It is necessarily authoritarian, because the notion that what I do to you is justice, and what you do to me is crime, can only be maintained by force alone, and not by abstract reasoning and rules.
It is not just the atavistic blood-thirstiness exhibited by Volokh and the vicious Right, but their authoritarian committments, which frightens me. But, maybe the bloody stuff will attract attention to the more abstract, authoritarianism.

40

Nicholas Weininger 03.17.05 at 2:47 pm

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.

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