Friday, March 18, 2005

Eugene Volokh poses an interesting question

Essentially, Professor Volokh seems to be coming out in favor of one or both of the following propositions:

1). Families of victims or the victims themselves should be allowed to participate in the punishment of those who commit crimes against their relatives; and

2). Punishments should be more cruel than we currently allow (I presume it depends on the case), which in this case (linked within the Volokh post) seems to include torture.

With respect to the first issue, my belief is that removing the victim from the direct process of judging and punishing criminals is a good idea. Remember back in the 1988 presidential campaign when Michael Dukakis was asked, with respect to the death penalty, whether he would support capital punishment for someone who raped his wife (hypothetically, of course). My recollection of his answer was that he, in support of his political position, said that he did not support capital punishment in any case. I always thought that was a really bad answer. By that, I don't mean to impugn those who oppose the death penalty, I myself am unable to formulate a tenable position on this issue, and I fall somewhere in between advocates and adversaries of the death penalty. I always thought a better answer would have been - If someone were to rape my wife, of course I would want them dead. However, I do not want to participate in a system where "justice" is administered by those people most affected and emotionally involved in the issue. In effect, I would be frightened by a system that would place me on a jury given the nature of your hypothetical question. So, in answer to your question, I would want that person to die, but I nonetheless do not support the death penalty- even though we can all envision circumstances where we, as individuals might desire it.

Now, of course, that circumstance is a little bit different than what I believe Professor Volokh is advocating. He is not suggesting that we put family members on the jury so much as he is advocating allowing family members to participate in the development and implementation of the punishment - ie. after the determination of guilt has been made. My view is that this is not a very good idea, and I will relate it to my hypothetical Dukakis answer above. Sure, I might like to come up with some terrible and creative punishment for someone who harmed my family, but in the end, I don't think my participation would really make me feel any better or diminish my loss in any way. In fact, I think on some level I would probably regret that I had participated. Heck, I'll even say that some of that regret might come in the form of believing that I did not do enough or that I didn't inflict enough pain, though that is in addition to the regret I would likely feel at being a killer or sadistic torturer. I guess my personal view is that family members should not be directly involved with deciding the fate of convicts.

The second issue is easier for me. I am not an advocate of torture as a form of justice, and I think there is a difference between vengeance and justice. I think the point of our justice system or of capital punishment is not to show that we can sink down to the level of sick criminals. To me, dead is dead. I read the article linked by Professor Volokh and my view is that the punishment still didn't fit the crime. In fact, in a weird way, this guy, this animal, was provided with the opportunity to die with dignity - right there in front of everyone, this guy died without crying out, without complaining, without asking for mercy. In an odd way, I feel worse knowing that in his mind, somewhere, he probably believed that he showed his punishers that he knew how to die - that he might have felt that he won this small battle, which was probably the only thing he had. Look dead is dead, but I believe that society would have been better off to just put a bullet in his head in a small room somewhere - you know, it seems unbecoming to me that people are advocating sick, sadistic torture even if it's only when - like - it's appropriate and all. Am I wrong to forsee a future where mass murdering lunatics engage in some sick competition to see who can end up with the most horrific death of all time.

I think Professor Volokh is right on one point though. It's when he says:

Naturally, people on the other side are likewise unpersuaded by my views; I can't prove the soundness of my position any more than (I think) the other side can prove the soundness of its. In this area, we quickly come down to moral intuitions and visceral reactions. And, who knows, perhaps mine are wrong. But mere appeals to my humanity just don't do much for me.

I could certainly be wrong too.

Kid Handsome

Update: Just a little aside, but I noted this line from this post on Reason' s Hit & Run:

I also think "turning off her feeding tube" is a euphemism (and not a very inventive one) for "starving her to death." (For my money, the scandal isn't that the system would allow Schiavo to die, but that it requires her to starve rather than just getting a thump on the head or a dose of cyanide.)

I don't know that it's directly on point, but it does seem to be a strange irony that our system prohibits cruel and unusual punishment, but seems to advocate a system where so much suffering is involved.



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