More on Volokh, torture, and retribution

Why I don’t like torture but believe in retribution.

I won’t presume to guide you through the blogosphere’s reaction to the Eugene Volokh post on the Iranian torture-execution; just pick your favorite blog and start following the links. So far, on the issue of torture, Eugene seems to be pretty much on his own, defending what I think is an indefensible position with his usual cogency and submitting to what I think is an inexcusable level of personal abuse with his usual even temper.

A reader points out that my post didn’t adequately distinguish between the punitive torture inflicted in Iran and the torture for the extraction of information currently or recently practiced by the government of United States, directly and by proxy. The two issues certainly raise different questions. What unites them in my mind is that they both involve overstepping what seems to me an important limit on what any human being or institution ought to be able to do to any other human being.

I don’t agree with Eugene that this is entirely or primarily an issue of conflicting impulses or instincts, though I agree that my disgust at the spectacle he celebrates has a strong visceral component. There are reasons to prefer that human action, and especially governmental action, be kept within limits.

One reason is the tendency of power to corrupt, and for the conduct of the political game to become less rule-bound as the stakes increase. If the state has the power to torture, than the political process decides who is, and who is not, torturable. Those are high enough stakes to justify a considerable amount of cheating. (Would I help steal votes to prevent someone I cared about from being tortured? Of course I would. To keep him from being sent to prison, even unjustly? Probably not.)

A second reason is that putting torture on the agenda changes the job descriptions of public officials in a way that is likely to change the composition of the class of public officials. Presumably, if an execution requires a death warrant signed by the governor, a torture-execution will require no less. So anyone unwilling to sign such documents will be disqualified from seeking the governorship. You can think that there are arguments for cruel punishments and still be reluctant to be ruled by those most willing to order the infliction of such punishments.

That’s a particular concern with respect to the office of juror. Under current American law, jurors who have scruples about capital punishment are excluded from juries in capital cases. Unsurprisingly, those are also the jurors most likely to vote to acquit. So someone accused of murder is more likely to be convicted if the case is a capital one. If the sentence were death by torment rather than simple execution, the exclusion of the scrupulous would leave a jury even more grossly stacked against the accused.

[Note that this argument rests on the cruelty of the punishment as perceived by the person ordering it, not as perceived by the person suffering it. So a flogging may be more “cruel,” in the relevant political sense, than a prison term, even if any sane person would choose days of fear and an hour of agony over years of slow suffering.]

A third reason is human fallibility, both with respect to what sort of crimes deserve extreme punishment and with respect to whether particular persons have in fact committed those crimes. Those aren’t the same issue; believing that heresy ought to be a crime isn’t the same sort of error as convicting the wrong person of a particular rape. But they are both errors, and errors are inseparable from human decision-making. Recognition of that fact could reasonably lead one to try to limit the consequences of error, which argues, for example, for less extreme punishments. (Fallibilism doesn’t always argue for doing less; sometimes the risks of inaction are greater than the risks of action. But it seems to me that the risks in the retributive-torture situation are all on one side of the ledger.)

On the other issue Eugene raises — whether retribution is a legitimate aim of punishment, on top of the agreed-upon aim of crime prevention through deterrence, incapacitation, and reform of the offender — Eugene is also in the bloggic minority, though not entirely alone.

On reflection, I’m not sure “retribution” is really the most helpful term to use, because it conflates three related but distinct ideas.

One is that the suffering of the person punished is a good in itself, because he deserves to be punished. That’s a view with which I disagree, though I’m a little surprised that none of the bloggers denouncing it as “barbaric” or “medieval” has bothered to notice that it was the view, for example, of Kant, the beacon of the Enlightenment. (Kant goes so far as to say that the criminal is “owed” his punishment, and that withholding it is an injury to the criminal.) Let’s call that view “just deserts.”

A second idea that goes by the name of “retribution” is that the punishment of the offender is in the interest of the victim, the victim’s family and friends, and those who share characteristics with the victim. If you regard the satisfaction of someone’s preferences as being in that person’s interest, then this version of the retributive idea — call it “vindication,” as opposed to “just deserts” — is obviously true. Most, though not all, victims and their intimates want the perpetrator punished, and punished severely. How much weight the satisfaction of that preference deserves in policy-making is a different question, but that vindictive punishment benefits the victim in this limited sense it would be hard to deny.

But vindication also serves the victim’s interest in a more material sense: being the victim of a crime is a blow to self-esteem and a source of the loss of social standing, and the punishment of the perpetrator helps reverse those losses, with more severe punishment being more effective in that regard.

It’s not hard to see why that should be true. As a matter of sociological fact it is safer to aggress against lower-status people, and riskier to aggress against higher-status people; that’s part of what status means. Donald Black has documented what seems to be a universal rule that the severity of punishment tends to rise with the status of the victim. So victimizing someone signals to that person, and to others, that the victim is someone who can safely be picked on.

If the victim, or his kin, or the state, inflicts damage on the perpetrator, that demonstrates that the victim was not in fact someone who could be picked on, and the more severe punishment the more effective the demonstration. That tends to make the victim feel better about himself, and to increase the esteem in which the victim is held by his community. (The fact-value distinction, however valid philosophically, has little weight psychologically: that the perpetrator isn’t punished, or isn’t punished much, suggests that he didn’t deserve much punishment.) Severe punishment might also make that victim, and similar victims, less attractive targets for future victimization. That’s not the same as general deterrence, because it’s specific to the victim or victim class, though obviously the phenomena are related.

A third meaning of “retribution” is that punishment serves an expressive purpose as well as more immediately practical ones. Punishment announces the judgment of the community about the wrongfulness of the act, and the extent of that wrongfulness.

My view, for what it’s worth, is that “just deserts” sets an upper bound on the amount of punishment that can be justly inflicted, but isn’t (here I depart from the Kant/Volokh view) an independent reason for punishment. However, vindication of the victim and the expression of social disapproval of the act both strike me as perfectly sound reasons for punishment, independent of its function in controlling crime. (To repeat an argument from my last post: vindication and expression seem to me the most natural justifications for “hate-crime” legislation.)

Perhaps you disagree; if so, you’re in the majority, in Blogland though not in the larger world. But if you disagree, then, when you’re through explaining why you favor hate-crime laws, could you explain to me why we kept chasing Nazi war criminals well into the 1990s? Was the Third Reich likely to come back? Were we hoping to deter the next round of mass murderers?

Or if the Nazis are too special a case to deal with, what is the deterrent and incapacitative justification for pursuing Augusto Pinochet? Isn’t it obvious that Pinochet’s victims deserve to have it shown to the world that what he and his goons did to them wasn’t all right?

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: