Against torment as punishment

A modest plea for limited punishments.

When Eugene Volokh and Matt Yglesias go toe-to-toe, a sensible person would sit back and say “Pass the popcorn” rather than trying to get in the middle. But even my worst enemies have never accused me of being sensible.

Eugene approves of torture as a punishment for especially horrible crimes, and of allowing the families of the victims to participate in the torture, on the grounds that (1) it’s no more than the bastards deserve; and (2) it’s appropriate to publicly enact our extreme disapproval of such crimes. Matt disapproves, on the grounds that acting cruelly in one regard will lead to acting cruelly in other regards, and that acting cruelly, even under provocation, is generally a bad idea.

On the general question of retribution, I tend to side with Eugene. The purpose of punishment is not merely to restrain future crime, but to undo part of the damage of past crime: the damage done to the victims and their intimates by the criminal’s assertion-in-action that the victims are fit and safe people to be treated as the criminal treated them. There’s some empirical evidence that being the victim of a crime whose perpetrator went unpunished reduces both self-esteem and the esteem in which one is held by other people, a phenomenon easy to understand in the light of cognitive dissonance theory.

[That’s one way to understand the hate-crimes laws Eugene hates so much: someone who victimizes, e.g., Jews qua Jews is making a public assertion about the ways Jews deserve to be treated, and the more severely that person is punished the more forcefully the larger community denies that assertion.]

The other part of the case for extreme punishments is proportionality: to punish stealing someone’s wallet or possessing a forbidden drug with some time behind bars, and raping and killing someone with more time behind bars, seems to reflect a sort of category mistake. Qualitative differences in culpability can’t well be matched by purely quantitative distinctions in punishment.

On the other hand, it seems to me that much of the point of having a public law-enforcement system is to replace private vengeance and feuding. Much as the families of the victims of raped and murdered children would love to get their thumbs on the eyeballs of the perpetrators, allowing them to do so validates private vengeance in a way that might easily lead to its being pursued without the forms of the law (as no doubt it often is, in Iran and elsewhere). On the other hand, the opposite effect is also possible: denying the families participation in the state’s vengeance might lead them to prefer to settle matters privately (think of the opening scene of the first Godfather movie).

(In principle, the relation between the severity and form of public vengeance and the frequency of private vengeance is an empirical question, but I doubt it’s one on which it’s possible to gather evidence, so we’re left mostly with our instincts on the matter.)

But whether to let the victims and their families help torture criminals as punishment is really secondary to the question about whether criminals should be tortured as punishment.

On that question, I come down firmly on Matt’s side. There are some things no human being should do, or have the power to do, to any other human being, whatever the provocation. Torture is like human sacrifice; in my eyes, at least, it 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. And the sometimes wonderful but often terrible thing about being the citizen of a republic is that what is done publicly is done, in morally significant part, by you.

(Yes, those who voted to re-elect Mr. Bush in the face of his established record of permitting torture, thus allowing one of the architects of that program to claim democratic vindication, are more responsible for the torture now being committed or facilitated by agents of the United States government than those who voted against him. Still, it’s still every American’s government that is still sending people off to Syrian torture chambers.)

So I’m very glad that the Eighth Amendment forbids what Eugene wishes it did not forbid, even imagining for the moment that the torments he endorses would be inflicted only on those who he and I would agree deserved it.

But I would also claim that torture is one of those instances where bright-line rules are easier to maintain than balancing-test rules. Right now, the European Union is telling Turkey that it won’t be allowed to join unless it takes steps to eliminate the practice of inflicting torture on Kurdish insurgents as political intimidation and on petty criminals to get them to confess. That would be a much harder stance to maintain if Europe allowed the infliction of torture by law.

Eugene would, no doubt, agree that the old European practice of burning Jews who had converted to Christianity at the stake if their conversion was later deemed to have been insincere was a bad practice, since they shouldn’t have been compelled to convert in the first place. But to the people who ordered and inflicted that torture, heresy was a much more horrible offense than merely raping and and killing a child, since the consequences of heresy &#8212 potentially, eternities spent in torment by uncounted numbers of innocent persons led astray &#8212 were so much worse.

Is the difference between Tomás de Torquemada and my friend Eugene Volokh really no more than a theological difference? If Eugene had as much reason to hate heretics as Torquemada thought he had, would Eugene have been willing to burn them at the stake?

Knowing Eugene, I rather doubt it. And yet I don’t see a deep distinction between a mistake about what ought to be a crime and a mistake &#8212 which Eugene admits is always possible &#8212 about whether a given person about to be tormented to death has actually committed the crime of which he has been convicted.

Speaking of those who have molested children, think about all those people sent to jail in the 1980s on what turned out to be hopelessly unreliable “recovered memory” testimony regarding “Satanic ritual abuse.” No doubt the parents of the “victims” in the Fell’s Acre Day Care case would have happily participated in tearing the Amiraults limb from limb for crimes that it is now virtually certain were never committed, by them or anyone else.

All that said, Eugene makes one excellent point that should not be forgotten. Prisons, too, are places of organized cruelty &#8212 much of it, it might be added, irrelevant to the task of crime control &#8212 and we currently send people to prison on considerably less cogent evidence than is required for a death sentence or would be required for a sentence of death-by-torment. My horseback guess is that something like 2% of those currently doing time &#8212 or about 30,000 people &#8212 are factually innocent of the charges against them.

Therefore, anyone who objects to death-by-torment on grounds of cruelty ought also to favor reducing the extent of pointless cruelty in our existing prisons. And anyone who objects to death-by-torment on grounds of the risk of mistake ought also to favor the establishment of official bodies with full investigative powers, including the power to compel testimony, dedicated to identifying and freeing the innocent imprisoned.

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. That suggests to me that Matt may have a good case for his assertion that the practice of cruelty tends not to be morally elevating, though here again cognitive dissonance theory may provide a more parsimonious explanation.

[Footnote: I agree with John Stuart Mill that life imprisonment is in fact more cruel than execution, viewed from the perspective of the person punished. But from the perspective of the person inflicting or imposing punishment, killing reflects and expresses more cruelty than imprisonment, and death by torment than death without torment.]

Update Brad DeLong makes an important point: “if you let your rulers torture, you will soon find that you have rulers who like to torture.” His commenters, however, demonstrate a lamentable inability to disagree without being disagreeable.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com