Posted by Eugene Volokh:
Punishing Monsters:
I am naturally daunted, as any thoughtful person would be, by the fact
that my views on this run contrary to my nation's constitutional
regime, contrary to what is seen by most as a worthy long-term trend
in the civilization to which I belong, and the views of many people
(both on the left and on the right) whom I admire. (My views are also
largely pointless, since they can't be implemented in my country
without a constitutional amendment that isn't going to happen.)
Perhaps I am grievously mistaken, and have fallen victim to unsound
emotion or the first flush of fatherhood.
Yet after reading the counterarguments, I confess that I continue to
find them quite unpersuasive. I've gotten many more than I can
possibly respond to, but I think I have an obligation to respond to
some, so let me focus on those coming from [1]Mark Kleiman, [2]Matthew
Yglesias, [3]Maimon Schwarzschild, and [4]Clayton Cramer. These are
interesting and generally very thoughtful arguments (and I also thank
their authors for framing the arguments not just civilly but quite
generously, despite their disagreement with my views).
1. Clearing the underbrush. Let me first deal with a few general
criticisms that I think are unhelpful here. Clayton quotes Gandhi's
"An eye for an eye will blind the world," but while that might be
relevant in some situations -- for instance, as a warning against
ethnic vendettas -- it is about as relevant here as "Imprisoning
kidnappers will leave the whole world locked up." It tells us nothing
about the propriety of various punishments (whether prison, death, or
deliberately painful death) for people who rape and kill 20 children.
Likewise, it seems to me that Maimon's analogy to lynch law is
misplaced. Lynch law is bad for many reasons: Among other things, it
doesn't provide adequate factfinding procedures, it leaves us at the
mercy of our neighbors with no legal structure to channel and restrain
the neighbors' actions, and it has often been used in racist ways.
None of this tells us what punishments may properly be imposed by the
legal system, or whether the legal system, in administering the
punishment, can allow the victims' relatives to participate -- not in
deciding who's guilty, but in applying the legal penalty.
2. What about the Nazis? Maimon asks "if you 'execute' the serial
killer of twenty children in this way, what do you do to criminals who
are worse still? . . . What would Eugene wish the State of Israel to
have done with Adolf Eichmann?" Yet this seems to me to support my
original point rather than to undermine it. It seems to me an occasion
for regret that Eichmann was executed by hanging. Such a decision was
likely politically necessary; but I think it slighted the enormity of
what he had done. He deserved a far worse death, and it would have
been good had he received it.
Likewise, Clayton points to Hitler's having executed the von
Stauffenberg coup plotters by hanging with piano wire, and to his
having filmed the execution so he could enjoy watching it later. But
what makes this bad is that the von Stauffenberg plotters were trying
to do something very good. Had things been reversed, my regret would
have been that hanging with piano wire didn't inflict enough pain on
Hitler (though I would have been glad that he hadn't been turned over
to a too-"civilized" government that would have dispatched him with
less pain). Seriously, would most of us disagree? Maimon points to
George Orwell's criticism of what he saw as the unduly painful
hangings of some Nazis after World War II. I find much to admire in
Orwell, but I don't share his generosity here (I speak here of the
Nazi leaders generally, though recognizing the possibility that some
lower-level military officials deserved to live, or even deserved to
die painlessly).
Of course, as Matt and Clayton point out, these penalties are
obviously inadequate. Like punishment generally, these punishments
don't bring back the dead, or even inflict a fraction of the pain that
the monsters have inflicted. But one should do what one can, and
surely Eichmann et al. offer as strong examples as possible. (In fact,
I didn't bring up Eichmann and Hitler in my original post because
people could have plausibly argued that one can't really generalize
from the abberational cases such as that of the Nazis; but if people
bring up Eichmann, I have to acknowledge that my argument applies in
spades to him.)
3. Practical effects: Matt argues that deliberately inflicting pain,
even on the monsters, would cause bad effects on society: "The natural
result of giving official sanction and encouragement to the desire to
inflict suffering beyond the amount of suffering that serves a
constructive purpose within the context of criminal law will be to
encourage people to act on similar impulses (and, indeed, to have the
impulses themselves) in non-criminal contexts as well. The result
would, simply put, be a social disaster in which individuals are
encouraged to nurse grudges, indulge spite and envy, and generally
speak wreak havoc upon their fellow man." Maimon agrees.
If I agreed with this empirical speculation, I would come to a
different result. But I just don't find it to be terribly plausible.
People, it seems to me, have a natural desire to inflict pain on moral
monsters. I doubt that the legal system's actions will much exacerbate
this desire. If someone raped and killed your child, would your desire
for revenge be much altered by what you know of the legal system's
rules? I may be wrong, but I doubt it. (I agree that it might be
altered by the legal system's threat of punishing you for the revenge,
but that's a different matter.)
One can make an equally plausible claim, I think, that people will be
less likely to seek private revenge if they think the legal system
will impose accurate punishment: They'll both find private revenge
less necessary, and will more generally trust and respect the legal
system. This is utter speculation, I realize -- but so is Matt's
empirical argument. My sense is that one's empirical guesses on such
things more often follow one's moral judgments rather than vice versa.
Nor have I seen evidence that harsh punishment generally makes society
more brutal. The sharp increase in U.S. homicide rates in the 1960s
and 1970s, for instance, followed a broad decline in the use of the
death penalty. I'm not claiming that the decline in the death penalty
caused more brutality; and I agree that death penalty calculated to
inflict more pain (even if applied to a very few monsters) is
different from the death penalty as such. But evidence such as this
leads me to doubt that legal harshness in dealing with the guilty will
translate into private harshness.
4. Assuming the Conclusion: There is, however, a deeper objection to
Matt's point. Matt argues that it's proper to punish criminals but
only to the extent that it "serves a constructive purpose." Presumably
he'd think that incapacitation, deterrence, and rehabilitation are two
such constructive purposes; a deliberately painful death penalty will
add nothing to incapacitation or rehabilitation, and I'll also assume
that it adds little to deterrence.
But in my view retribution is also a constructive purpose. This is
most easily seen if we for a moment set aside deliberate infliction of
physical pain, and even the death penalty. Consider a scenario where
punishment will do little to prevent future crime: For instance, the
imprisonment of Nazis who committed their crimes decades ago and are
now in their 60s or 70s. There's little need to incapacitate them as a
means of preventing future crimes and little likelihood of
rehabilitating them. Nor will it do much to deter future atrocities, I
think. If people are deciding whether to participate in a future Nazi
regime, they'll probably be much more worried that they'll just get
killed in the war, or killed shortly after the war by people seeking
revenge. I doubt that many would-be Nazi war criminals in 1941 would
have been deterred by the risk that some decades later, when they're
old men, they'll be tracked down. No, the real reason it was right to
punish them was retribution (as Mark points out).
In my view, painful death for certain monstrous acts is the proper
level of retribution -- anything less is inadequate, just as a slap on
the wrist would be inadequate for an armed robber, or a short jail
term would be inadequate for a rapist. Therefore, such a punishment
does serve a constructive purpose -- the purpose of retribution. Matt
may disagree that retribution is a constructive purpose, or he may
disagree that painful death is the proper level of retribution (he may
think it's too much). But his argument doesn't demonstrate any of
these points. Rather, it rests on the assumption that a painful death
penalty for monsters doesn't serve the constructive purpose of
retribution or that retribution isn't a constructive purpose, which
are the very things he was trying to prove.
5. Humanity: Likewise, I think, with Mark's argument that deliberate
infliction of pain, even on monsters, "makes the person who engages in
it a little bit more of a beast, and a little bit less of a human
being, than he would otherwise be." First, we should recognize that
this is a metaphor; I may be mistaken, but my sense is that most
literal beasts (i.e., animals) don't actually try to inflict pain as
punishment for wrongs. Literally speaking, this desire is quite
characteristic of human beings (though perhaps some other higher
primates might be included; I'm not sure). This doesn't make Mark's
argument, but only shows that we need to look behind the metaphor.
So what's behind the metaphor? It could be a judgment that it's
beastly, less-than-human, and thus morally improper to succumb to our
visceral emotional impulses. But I don't think that's what Mark
literally means. Love, empathy, the desire to pick a mate, the desire
to have children, and other worthy emotions are also visceral
emotional impulses; while we should certainly indulge in them with
rational caution and care, there's nothing wrong in following
emotions, and it's sometimes bad to resist them.
I take it, then, Mark's point is that it's beastly, less-than-human,
and improper to indulge this particular emotion. But that too, I
think, assumes the conclusion. When someone rapes and murders twenty
children, why is it a "beastly" impulse as opposed to a worthy one to
try to exact a harsh retribution? Mark acknowledges that retribution
in general is a proper goal of punishment -- but his argument doesn't,
I think, explain why this particular sort of retribution is not. (To
be fair, he does say "in my eyes, at least" -- here we may be
returning to a point I mentioned in my original post, which is that a
lot in this debate rests on people's visceral moral intuitions.)
6. Risk of Error: Mark also points to the risk that we might be wrong,
a risk I briefly discussed in my earlier post. His Torquemada analogy
doesn't work for me -- I think that we'd have contempt for Torquemada
even if he had simply painlessly executed insincere coverts, rather
than burning them at the stake, or even if he had locked them up for
life. Conversely, had he burned at the stake people who had raped and
murdered 20 children, we probably would barely remember him. Our
condemnation of him is based on disagreement with his substantive
moral judgment about the crime; and I think we'd say that the risk of
such moral error about what's guilty conduct is indeed different from
the risk of factual error about who's guilty of it.
Nonetheless, I admit that all human institutions have a capacity for
error, and wrongfully inflicting deliberately painful death is indeed
a more serious error than wrongfully inflicting painless death, or
wrongfully imprisoning someone for life. The question is how this risk
of error balances against the moral imperative for retribution. This
is a question that defenders of the death penalty must ask themselves.
(I doubt that the death penalty as currently administered has much of
a deterrent effect; I think it's justified because some people deserve
to die, and it's unfair to their victims and the victims' families not
to execute those people.) It's likewise the question with regard to
deliberately painful death penalty.
One can certainly reach a different judgment than I do: Even if one
thinks there's some moral benefit to executing the Eichmanns or even
the serial rapist-killers, one might say that the benefit is small
enough that it's exceeded by the risk of error, and the very serious
moral cost of that error. As I mentioned at the outset, I am keenly
aware that I may be wrong on this general question, and the matter
that causes me the most trouble is precisely this one. 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.
* * *
In any event, I have gone on at ridicilous length. Yet, as I mentioned
above, I think respect for those particular people who disagree with
me on this, and broader respect for the weight of moral authority
against which I'm pushing, required me to provide some response. I
hope even those who disagree with me have found these arguments to be
candid, clear, and fair to those who arguments I'm trying to rebut.
And perhaps the arguments may be helpful even to much more pragmatic
debates, such as those about the death penalty generally, and about
retribution still more generally.
References
1.
http://www.markarkleiman.com/archives/crime_control_/2005/03/against_torment_as_punishment.php
2. http://yglesias.typepad.com/matthew/
3.
http://therightcoast.blogspot.com/2005_03_01_therightcoast_archive.html#111104848012461035
4.
http://www.claytoncramer.com/weblog/2005_03_13_archive.html#111107478375929357
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
