Thursday, March 17, 2005

Torture And Capital Punishment

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.

8 comments:

Anonymous said...

Rob,

You write, "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."

This is incorrect. A crime is defined by more than just the physical act (or actus reus, as the lawyers would say). The law also requires a culpable mental state (or mens rea). Sticking a knife in someone's throat, therefore, is not enough to constitute a crime. If it were, a doctor performing a tracheotomy would be guilty. If it were, a woman defending herself with a knife from an assailant with murderous intent would be guilty.

Law--and moral intuition--*contextualizes* acts based on the mental state of the actor (intentional, reckless, negligent, etc.) and a variety of other relevant factors (which either undercut elements of the offense or are framed as affirmative defenses). There are key contextual differences that affect the moral calculus.

Think about it. *All* criminal punishments--whether the death penalty, imprisonment, confiscation of property, imposition of fines, etc.--are acts which, if performed by individuals in other contexts, would be considered criminal or morally wrong. Does the state act immorally when it imprisons criminals, simply because we have the crime of "unlawful restraint" on the books? Does the state act immorally when it confiscates assets from criminal enterprises, simply because we have the crime of theft on the books?

So the claim (and it is a claim, not really an argument) that executing murders or torturing torturers results in a moral equivalence seems false.

Scott

Russell Arben Fox said...

Rob, I appreciate your response on my blog. (And your comments about my founding piece from a while back, which I never responded to; my apologies.) I can see what you're saying, and you're right that my argument doesn't do all that you'd rather it do (though I think Scott's comment is correct that these things can be more easily distinguished than one might think). It is the case that in tolerating retributive emotions in punishing people, I'm arguably requiring a separate, perhaps more difficult argument, against torture per se. But on the other hand, I don't think my argument, practically speaking, allows that much to slip through. Anyway, more here.

Russell Arben Fox said...

(I hope this doesn't double post; for some reason, I'm not sure my previous comment went through.)

Rob, I appreciate your response on my blog. (And your comments about my founding piece from a while back, which I never responded to; my apologies.) I can see what you're saying, and you're right that my argument doesn't do all that you'd rather it do (though I think Scott's comment is correct that these things can be more easily distinguished than one might think). It is the case that in tolerating retributive emotions in punishing people, I'm arguably requiring a separate, perhaps more difficult argument, against torture per se. But on the other hand, I don't think my argument, practically speaking, allows that much to slip through. Anyway, more here.

Dick said...

Revenge is a post hoc approach and,I would have thought, rather difficult to justify if it is only about making people feel better. The great Marquis could row in with that one. But I haven't seen much about the fine old deterrence argument. It would be possible to argue that deterrence don't work - but on the other hand it may be just that we are just too namby-pamby about it. In Saudi Arabia where you get your hand cut off for theft the level of burglary is atonishingly low. Maybe because it's hard to pick a lock if you have no hands. On the other .... er ... hand clearly some crime (much crime?)is a function of aberrant personality. Not sure that torture is much of help there either. Isn't changing behavior the aim in all this? But whose?

Rob Jubb said...

Scott,

I'm quite aware that the law requires, in most cases, an intent to do the act in question (or at least negligence about failure to prevent it). I'm quite skeptical about the idea of separating acts, properly described, from the intentions characteristic of them, but even without this skepticism, it seems to me there is an obvious sense in which the intent of deliberately causing pain and humiliation is intrinsic to torture. The very point of the case Volokh describes is that a bloody, humiliating revenge is exacted: that looks to me like exactly the kind of treatment, and intended treatment, that, if the death penalty is ever justified, would justify it. In terms of the quote you use, it would fail to respect the humanity of the person tortured significantly because of the intent to torture. So I think the analogy holds, and that because of that it would be hypocritical (amongst other things).

As for the broader problem of committing apparent wrongs in the process of punishing criminal acts, the analogy with the torturing case would only exist were the intent in the more general punishment cases were the same as the intent in the torturing case. Part of my case, I realise, has to be that there are some things one can never legitimately intend to do to another human being, specifically, torture them. However, that does not mean that there cannot be conditions under which one may legitimately intend to do things which, under other circumstances, would be illegitimate: torture, unlike imprisonment, is something which can never be justified, because while imprisonment does not necessarily - although it may under some conditions - intentionally strip the person imprisoned of their humanity, torture does. It is, I think, part of the intention of torture to strip the tortured person of their humanity, in a way that fining them or imprisoning them would not (necessarily) do.

Also, the analogy of what is intended by the person who committed the crime and those administering the punishment does not seem to hold in the same way as it does in the torture case. Whilst the intention in the torture case both on the part of the criminal in the act that allegedly justifies the torture, and on the part of those administering the torture is to torture, and presumably to gain pleasure - or at least satisfaction - from doing so, in the case of more general punishment, the intentions involved seem to come apart: thieves steal for the money, I assume, whilst those who punish them do whatever they do to punish them. I realise that to be consistent, I have to hold that to punish merely to gain satisfaction from having done so is probably always at least to some extent wrong: I'm happy with that, because I don't think it rules out believing that punishment is justified, since we can act to fulfill a moral duty to give people their proper deserts without taking enjoyment merely from the act of revenge. This also requires that torture is never someone's proper moral desert, but that seems plausible to me, precisely on the grounds that it intends to do exactly what would justify it, when we know that is absolutely unjustified.

Anyway, I'm rambling somewhat now, so I'm stopping.

Rob Jubb said...

Dick,

about deterence. Firstly, if torture were ever to be justified by its deterence effects, we'd need to be sure that it was the torture that was providing the deterent effects. This would presumably mean doing relatively detailed comparisons between otherwise similar situations where one had torture and the other didn't. It seems to me that there are probably other plausible reasons - corruption, poor reporting of crime, a relatively feudal social system - which might explain Saudi Arabia's low crime rates (I did have a look on the web for some firm figures, but couldn't find anything), so unless we can exclude those, it can't be shown that torture is in fact a deterent, even in this case. Whether it would be a deterent in other cases would still be an opne question.

The other thing is whether lower crime rates would in fact justify torture, even if they were the only thing that could deliver them. I don't think so, but then I would say that. Faced with a concrete example, I might think be a bit troubled by that claim, if the costs of not having a torture regime were high enough, but I tend to think that such a case is likely to be empirically irrelevant.

Anonymous said...

what about someone who rapes a child whether the child is 22months or 17 years old. what should happen to them?

Anonymous said...

So, remove capital punishment and replace it with "Torture" on a on going basis? Daily. weekly until they die in prison? What kind of torture? Someone rapes a little girl and then slowly torture her and then final, brutally murders her. What would be the "Torture" during their life sentence?