the Greater Nomadic Council

On Retribution

One of the more interesting discussions to come across the blogosphere in a while is one sparked by Eugene Volokh's support for torture as a punishment for truly despicable crimes (the linked post is his defense, follow the links backwards for the whole discussion; it'll be well-worth your time). This also prompted Volokh to post some potential libertarian objections to the death penalty I had never heard before. I'm not a libertarian, so I don't find many of them very compelling except the 3rd and 4th points. What I do find compelling is the idea that appears to be at the heart of Volokh's and, I suspect, most other people's opinions when it comes to torture and the death penalty: retribution. He discusses this in some length, but still somehow seems to give the issue less importance than I think it has.

To what degree is punishment retribution? To what degree should it be? On some level, this comes down to the balance between justice and mercy. I prefer the latter, but perhaps that just means I'm not hard-minded enough. Naturally I don't discount the necessity of justice; I feel the need for it quite keenly, particularly for the worst of crimes. I often find myself feeling that this or that individual deserves to die, particularly when the crime is one against a child. That feeling, however, does not cause me to doubt the reasons I have for being against the death penalty or torture (the latter appears to be little more than an extreme form of the former). I am against torture for many of the same reasons I'm against the death penalty only more so. In particular, the issues of compassion and human dignity (one's own, not the criminal's) become far more persuasive when considering whether torture is an acceptable punishment. Volokh seems to consider this point one based on "visceral moral intuitions," but I disagree. It is quite possible and even necessary to judge which emotions are acceptable.

The desire for retribution or, more accurately, revenge seems clearly unacceptable for one attempting to lead a civilized, humane, and compassionate life. Why do I equate the desire for retribution with revenge? I realize that retribution is a neutral term whereas revenge is not. The argument in this case, however, is one of the emotional satisfaction achieved from using torture as punishment (Volokh states at one point, "People, it seems to me, have a natural desire to inflict pain on moral monsters"), the very definition of revenge. The question thus becomes not whether torture is just retribution, but if revenge is justified. I find Volokh's proposed punishment almost as abhorrent as the crimes for which it would be prescribed. Majikthise sums it up well:

It's an exciting development for the armchair torture contingent. We've segued from "Could torture ever be an acceptable means to an end?" to "Torture is a morally obligatory punishment that the state should inflict on its own citizens, even if we have to rewrite the Constitution to do it."

I think this is a case where Volokh's hatred of evil has segued into a desire for revenge. It's cloaked in reasonable and polite language, but revenge is still the desire animating his argument. It's one we all fall prey to occasionally, but that does not mean it's an acceptable impulse to indulge. We should treat even the worst of criminals with more than the respect and dignity with which they treated their victims—not for their sake, but our own.

Update: Volokh recants because of this post, a particularly interesting one largely about retribution, by Mark Kleiman. With his thoughts on the topic in my head, I feel I should clarify my retribution/revenge equation. It's not that I don't think retribution is never justified, only that Volokh's specific argument for its justification seemed to be more about revenge than retribution. Clearly justice demands appropriate punishment even for criminals who are no longer a threat. Torturing someone to death, however, goes beyond mere retribution.