Eugene Volokh, a blogging American law professor, has this post up, arguing that in some cases, capital punishment should take the form of of what I would call torture. This is simply insane. I willing to concede that there is at least an argument to be had about whether capital punishment is justified, and the infamous ticking bomb case does genuinely trouble me, even if it has no bearing on whether or not we should, in fact, legalize torture, because of the bizarre nature of the hypothetical. By all means, there are proper moral arguments involved in both cases seen separately, but once they are co-joined, the results are simply morally repugnant.
If capital punishment is ever justified, surely, surely, in order to retain any of the moral high ground, to avoid committing exactly the same wrong as a punishment for which someone is being killed, it must be done as humanely and decently as possible. It is bad enough to make an awful lot of people think we shouldn't do it that the law kills someone, but compounding that badness by inflicting additional pain and suffering on someone, pain and suffering that are not necessary for the end in hand, must be wrong. The only kinds of cases in which capital punishment could be justified, it seems to me, are cases of utterly disgusting barbarity, of multiple murders where the murder is compounded by torture, where the justification for capital punishment, if it exists, rests on the fact that having done such things to another human being, done these things for pleasure, seems to indicate a basic lack of humanity, and thus to exclude the person in question from the some of the basic moral considerations we extend to other human beings. Yet to torture someone to death would precisely be to fail to respect the humanity of someone else ourselves: we would be guilty of exactly the same crime we think is wrong enough to justify torturing someone to death.
Likewise, if torture is ever justified, it could only be in cases where the deliberate infliction of pain and the subjugation of another to one's will through that pain was utterly necessary, where no more than what was absolutely needed was done. Inflicting excess pain, suffering and humiliation on someone could never be justified, pain, suffering and humiliation which was not needed to prevent whatever horrendous outcome justified the torture. Yet Eugene Volokh is advocating torture for no reason other than to slake a vengeful bloodlust, for no reason other than to satisfy exactly the same kinds of desires that the person being tortured was satisfying when they committed whatever horrible crime it is he believes justifies their torture. This is nothing like a ticking bomb case: there, the lives of innumerable innocents are being saved, but here, relatives get to assauge their grief by committing crimes of a magnitude not dissimilar to those that led to their grief. It is disgusting.
Via Crooked Timber (the thread itself may be worth looking at).
Postscript: a number of other bloggers have expressed similar amazement at Eugene Volokh's views. Body and Soul has a number of links. I'm just going to say that I think that Matt Yglesias is on dangerous ground here, founding his criticism on utilitarian grounds, because it is at least possible that the felific calculus might come out in favour of grotesque public torturing to death, because of the satisfaction gained by those who saw such events, and because of the disincentive effect it could well have, whereas to my mind, there is nothing that could justify such things, which, incidentally, I take as a refutation of utilitarianism.
Postscript II: Mark Kleinman gets this wrong as well. We do not not torture people because they might not be guilty, or because we shouldn't let individuals exact revenge for crimes they have suffered as a result of, but because it would be obviously utterly hypocritical: if what a criminal has done is wrong enough to justify torturing them, stripping them of any basic humanity, aren't we, by torturing them, committing exactly the same wrong? There is no need to make the move to the appeal to the consequences of allowing such a thing, either in the form of the punishment of the innocent, or in the form of adverse effects that would flow from public torture, because there is an obvious and irrefutable case for the obvious wrongness of the action which exists quite without these consequences, that no consideration of desert could ever justify the coercive infliction of such dehumanization, because any consideration of desert would immediately condemn us equally.
Postcript III: Mark Kleinman posts on this again. I still think that the focus on the institutional effects of state-sanctioned torture as punishment is dangerous as a sole basis, which it seems it is in his post, for opposing it. However, he does have a very good discussion of the three separate ideas at work in the idea of retribution: 'just deserts', referring to what as a result of their transgression, is owed to the offender; vindication, referring to what the victim would like done to the offender; and the expression of disapproval by the community as a whole of the act. I am skeptical about the existence of vindication reasons separate from the other two as anything more than a tie-breaker between otherwise acceptable options. The fact that someone wants something, which would otherwise be illegitimate, to happen to someone else I don't think serves to legitimate doing it, no matter what their relationship. For example, it would be odd to think that because relatives of someone murdered did not want the murderer punished, we should not do it (I'm using this as an example, rather than the case of the victims - or their surrogates - wanting excessive punishment, because that would seem to be question-begging). It seems to me that executions involving torture have to be based on these sorts of reasons, because it is hard to believe that such executions could be any one's desert or that disapproval of an act is best expressed by committing such a terrible act.
Postscript IV: Eugene Volokh has retracted, which is very unusual for a blogger, and to be applauded. Not on the grounds I would have liked, but still: admitting you were wrong is not easy, and yet it's something we all have to prepared to do sometimes if we're not just to shout past each other.