I wasn’t going to write about capital punishment for a while, but the latest going around the blogosphere is A-List blogger Eugene Volokh’s comment Something the Iranian government and I agree on. The something in question is public torture and execution, at least in the case of the most horrible crimes (as Prof. Volokh considers them, but I don’t think he’s outside the mainstream, there). He writes “though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing [...] was a slow throttling, and was preceded by a flogging.” He admits, of course, that such a punishment is cruel, and therefore unconstitutional, but then adds, “I would therefore endorse amending the Cruel and Unusual Punishment Clause to expressly exclude punishment for some sorts of mass murders.”
The response to this comment was immediate and visceral, but, as Prof. Volokh states, rise from such radically different premises that the responses were not likely to make him rethink his position. My immediate response, as some of my Gentle Readers will expect, is a retreat to Judith Shklar, and the instinct to put cruelty first. If y’all remember (or independently know), Prof. Shklar discusses the vices, and what it means to put cruelty first on that list. A good deal follows from that instinct, and a good deal follows from other instincts. In other words, I have no logic for Prof. Volokh; if he does not put cruelty before injustice, my only arguments are passionate, rather than reasoned. I see nothing that appeals to me in a moral scheme that puts injustice first.
Not, you understand that I know that Prof. Volokh does put injustice first. Perhaps it is oppression that he puts first, or pride, or lust, or perhaps its something specific to the abuse of children. I don’t read the man regularly; I tried for a while a year or two ago, but there wasn’t much to hold my interest. Anyway, I point this out really to remind myself to write more seriously about the ways in which Liberalism puts cruelty first, and the ways in which that differs from Conservatism, neo-conservatism, and whatever Our Only President and his cronies subscribe to.
chazak, chazak, v’nitchazek,
-Vardibidian.
in a later update to that interesting post, volokh added:
I doubt that the Iranians are better or worse people or a better or worse society for punishing this man this way – serial killings are rare enough that I doubt the punishment of serial killers has much of an effect of the society.
the idea that the iranian government might be choosing this punishment as a way to publicly threaten the population while appearing nominally justified-civilized doesn’t enter his head.
i don’t think it’s a good social idea to harp on the pain of survivors. financial restitution is one thing, becoming an agent of their personal vengeance is another – it seems like this seriously crosses the line from government as neutral agent to government as enabler.
a dicey position for a conservative…
The biggest questions that Professor Volokh does not recognize, let alone answer, are where he believes the bright line is that differentiates the crimes which deserve painful and participatory revenge killing and the crimes which don’t, and why (or even whether) he believes that painful and participatory revenge should only be part of executions and not part of other punishments.
I was punched in the face by a drunk stranger in Las Vegas. Why not have the cops hold him down while I punch him in the face? Wouldn’t that be more fitting, more satisfying, more “justice”? What should we do with the rapists and torturers?
Taking an unexpected position on an extreme, distant, and rare situation is often a cry for attention. Professor Volokh acknowledges that his position will never be adopted in the United States, he knows that he would never be called on to participate, and he ignores all obvious extensions of his argument to situations which could ever conceivably affect him. So he can purport to favor the basest sort of behavior an organized group of people could possibly engage in at no cost to himself, fail to exercise the modicum of imagination necessary to even partially comprehend what he is supporting, and thereby gain the concomitant attention at no real cost to himself.
A less charitable interpretation would be that Professor Volokh is more mature than the typical college sophomore, and is engaging in extensive revenge fantasies as the obvious result of the past 12 years of victimization and persecution fantasies that conservatives have been reveling in.
What should we do with the rapists
sheesh – obviously, sodomize them and sell the tapes on the internet to help pay for prevention and counseling programs.
last night as i was thinking about this in my sleep i came up with something good. after we flay and kill our extreme mental cases for the edutainment of all, we can further further the cause of justice by pitting violent criminals against each other in bloodsports – followed by throwing dissidents into pits of lions – these are really excellent ways to celebrate the end times.
Mmm, grapes.
While more or less agreeing with Michael’s cry-for-attention analysis (er, by which I mean his analysis that the post was a cry for attention, rather than the analysis itself being a cry for attention), I’ll point out that the Volokh Consipiracy is currently #8 in the Blogosphere Ecosystem, a goofy and transparently bad method of ascertaining how influential within the blogosphere a particular blog is, which indicates that Prof. Volokh is not actually in any objective sense in need of any more attention than he already gets. Further, where lgf and Powerline are considered (I think) fairly extreme on the right side, Prof. Volokh and his colleagues are often described as more moderate (or thoughtful, or mainstream, or other words connoting non-fringe status). In other words, it’s moderately reasonable to ask non-blogging people on the right of center if they agree (whereas from what I understand, no-one should be asked to reasonably discuss a position simply because the denizens of lgf endorse it).
Thanks,
-V.
Seriously. Just because Kenneth Lay had more money than I doesn’t mean that he was less likely to behave irrationally to get more of it.