March 18, 2005

Vengeance as Justice

from - smijer

It's noteworthy that the two conservative big-wigs who have recently come out in favor of cruel vengeance as just punishment (Eugene Volokh and Glenn Reynolds) are not known for being a part of the religious right. I say this because the conservative Christian view of original sin (that is, that all people "deserve" eternal hell, and are only saved by "grace"), as well as the conservative soteriology (the view that Christ's suffering and death replace the suffering due to the sinner) are entirely based in the view that cruel vengeance is integral to justice. Without that view, the conservative doctrine of original sin and redemptive sacrifice are meaningless.

So, while Volokh and Reynolds are not overtly and vocally religious, they seem to share at least part of their value system with the religious right. Maybe that explains the comfortable alliance between the religious right and other conservatives. After all, it is a theocratic state's notions of justice for which Volokh expresses such enthusiasm in the first place.

That's not to say that all conservatives share this value system. John Cole weighs in on the side of a civilized view of justice. (And, while Cole was silent on the nomination of Gonzales for Attorture General, it turns out there are more conservatives against torture than we previously believed... I think it is still clear that the conservative culture is more violence-friendly than the liberal culture, but it's worth noting that it is not homogeneous in this regard!)

For those of us who do not have a conservative religious view of punishment, there remains room for discussion about the role of pain or suffering in a system of human justice. I think it is safe to say that anyone with even remotely humanist values can agree that the mob justice of the Iranians is a barbarism best left behind us, as a race. I think it is also safe to say that any thinking person can easily conclude that it is improper to inflict pain merely for its own sake. But what is proper, and how do we decide?

A good starting point is to remind ourselves that justice is nothing more than the way we take a wrong and try to put it right.

I have yet to see how hurting someone just to vent our outrage can take a wrong and make it right. But, hurting someone in an effort to teach or rehabilitate them could, arguably, help to remove a danger to others. Hurting someone to deter others from following a bad example could, arguably, prevent danger to society. Placing a dangerous person in quarantine from society, for a time or for life, could, arguably, prevent them from doing further arm, and could, arguably, cause them suffering. And, of course, all of these potential benefits must be balanced against a standard of fairness and caution. For, if justice is to make things "right", it must not create further wrong. If I cause more suffering to the criminal than his actions merit*, even if mine is the just goal of preventing future harm, or undoing the harm he has done, then I run the risk of creating a new wrong in place of the one that I am seeking to rectify. Then, by definition, I have not been careful enough to ensure the cause of justice was served. Furthermore, if I cause suffering to an innocent party by mistake, then I have not taken enough care to ensure the cause of justice was served: the more severe the punishment, the greater injustice I am inevitably going to create in those cases where an innocent is punished by mistake. Because we are trying to right a wrong, it is important that we take as much caution as possible to avoid creating a wrong in the process, and it is for this reason that we should seek to fulfill our just goals of rehabilitation, prevention, deterrence (and one other possible just goal) without causing more suffering than necessary. Therefore, the separate issue of what is fair should rarely even come up.

* This is an entirely separate question. I think our instinct for fairness would tell us that the maximum penalty must create no more suffering for the injurer than he or she intended to cause or did cause to the victim(s). Furthermore, my own values tell me that penalties should be softened when the the perpetrator was innocent of malice, and softened further if the perpetrator was guilty only of unthinking negligence. How we decide what is "fair" is a completely separate question from what just goals our punishment is designed to accomplish.

I have purposely left to last discussion of just compensation. One of the best ways a justice system can right a wrong is by causing the wrong-doer to compensate the victim's loss to the best of his ability, and without causing him or her "unfair" (see above) suffering. In all of the blogospheric buzz that Volokh has created, I have seen little from the anti-torture side of the debate discussing how the infliction of pain could possibly compsenate a victim of a loss. As much as many of us would like to pretend otherwise, it is human nature to derive satisfaction from seeing a rulebreaker "suffer the consequences" of his actions. Where a thief may be required to return stolen property, a killer can never return the life of a victim. Can the suffering of the killer provide closure to the victim's families, and would closure for those families be a valid form of partial recompense for their loss? I don't think we can rule that out, but if reason is our guide, I think we can easily see that the "compensation" that comes to a victim's family this way is very slight, indeed, and that it is not made much greater by causing greater suffering to the perpetrator. So, while we cannot rule out the argument of "closure" as compensation, we cannot be excused by that argument for reverting to barbarian practices of punishment.

Volokh's mistake - what makes his viewpoint "uncivilized" - is the same as the religious conservative's: it is to fail to start with the aim of justice. Instead, he indulges himself in imprecise thinking informed only by unchecked emotion. This is what defines the "mob rule" mentality that Cole complains of. He does not take into account the properly defined role of justice: to right a wrong, He does not take into account the possibility of applying a punishment that fits a heinous crime to the innocent by mistake. Volokh and his sympathizers imagine themselves in place of the families, and imagine the suffering that was caused to the alleged mass murderer in Iran was no more than the suffering of his victims. Instead of starting with the intention of making a right, they start by asking themselves how a visceral desire can be fulfilled, and only then think of what would be "fair" as an afterthought. That's what makes this viewpoint so dreadfully wrong.

And that is what is so scary about two outspoken and popular legal professors espousing this view. We would hope our students of law would be trained to look for justice first, instead of being taught to satisfy visceral desires for revenge first. The respective universities should transfer these profs to the Divinities department, right away.

Update: In an attempt to fend off criticism on this issue, Volokh again shows how his viewpoint is informed by emotion without reason. In his second point, he regrets that Nazi war criminals were not made to suffer more than they did without offering a reason, grounded in justice, why he should want that. In point 4, he even goes so far as to assert that retribution is, itself, a "constructive" purpose, without even touching on the single justification that might exist for that viewpoint: as a form of compensation to victim's families. This is the most damning point of all. If justice was his goal, then he could not have demanded his critic to present evidence that of a negative: that retribution served no constructive goal. He would have himself supported his view that retribution could serve a constructive goal by showing how it might act as a partial restorative to a victims family. Instead he makes no mention of any conceivable way that retribution can take a wrong and make it right - showing that justice is not the heart of his reasoning. This is very damning. He should not be teaching law, starting from this viewpoint. In point 6, he states: "The question is how this risk of error balances against the moral imperative for retribution," again without showing where a moral imperative for retribution comes from. Perhaps he mistakes his desire for vengeance for a moral imperative. He says, "Yet my tentative current sense is that for a small number of extraordinarily monstrous crimes, the need for retribution is so strong — and the risk of error can be made so low — that not just death but deliberately painful death is the proper punishment," without ever showing how retribution can be needed, or why that need is so strong that it overrides the other considerations he brings up.

Second Update:Volokh Backflails.


Posted by smijer at March 18, 2005 01:27 PM

Just to be fair, let's also make note that it is Christianity that teaches forgiveness. Remember, "Father, forgive them...." and "Forgive seventy times seven." Also, Christianity teaches love, "Love thy neighbor as thyself." It is from the Christian community that we have stories of parents forgiving those who killed their children and in some instances testifying for DUI offenders in court and asking for mercy on their behalf. Not all of course, but many. Just to be fair..

univar.jpg Posted by the Messenger on March 20, 2005 07:35 PM
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For those of us who do not have a conservative religious view of punishment, there remains room for discussion about the role of pain or suffering in a system of human justice. I think it is safe to say that anyone with even remotely humanist values can agree that the mob justice of the Iranians is a barbarism best left behind us, as a race. I think it is also safe to say that any thinking person can easily conclude that it is improper to inflict pain merely for its own sake.

Two points, related:

1.) This isn't a simple case of barbaric "mob justice". If they'd handed the guy over to the mob and had let them have their way with him, tearing him limb from limb, that certainly would've been vigilantism. But take another look at how it actually went down. Police officers everywhere to keep the crowd from rushing the stage; family of the victims being given _some_ hand in executing the sentence, but not complete free reign to do whatever they wanted; 100 lashes. This was a state-sanctioned, highly structured ritual. Further, it might be argued (by those with a better memory of Discipline and Punish than I have) that the purpose of this ritual would be to give legal structure to the punishment so that the community is vindicated for its pain, suffering and terror inflicted by the criminal, but doesn't boil over from its rage (in contrast to a lynching, which has no controls and does present the danger of the mob's rage boiling into a riot).

2.) According to this perspective, the infliction of great suffering on the criminal isn't just for its own sake, it's a necessary element from the perspective of the victims' families and the community at large (much in the way Drawing and Quartering was considered necessary to balance the heinousness of the crime of regicide, though the crime in the abstract is just a murder).

I'm not in any way saying that I agree with Professor Volokh, I think his sentiments really are rooted in a visceral reaction to the crimes committed by the "monster" in question, and it's not at all difficult for me to relate to where the impulse comes from (I noticed he made mention of "first flush of fatherhood").

But I draw the line well before "and I think we should amend the Constitution to allow punishments that match my darkest vindictive impulses". In fact, I think that those perfectly human impulses are the best reason not to allow victims or their families any say in sentencing.

Anyway, I've seen a lot of posts that equate the punishment and execution with a totally batshit response by the community, and I think perhaps that's a mischaracterization. It's absolutely accurate to say that the form the execution took was medieval in character, but I think that failing to understand the ritually-structured aspects of it, and to say that it's just "mob justice", does a disservice to the Iranian legal system (though perhaps only by degree).

univar.jpg Posted by chiggins on March 22, 2005 03:57 PM
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Point taken and well said. "Mob justice" was a bad choice of words on my part. I hope that won't detract from the central points I was trying to make.

univar.jpg Posted by smijer on March 22, 2005 04:52 PM
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Not at all! I think that this proposition...

"I think that ditching our legal tradition of tempering justice with mercy, and upholding the 8th Amendment, in favor of implementing a system of _____________ is nucking futs and not the sort of sentiment one would expect to hear from a leading American law professor."

...doesn't lose much steam whether one fills in the blank with "an orderly form of medieval punishment, in which the measure of the crime is weighed against the suffering of the condemned" or "sanctioned anarchic lynch riots where anything goes".

I think it's telling that Mark Kleiman's posts on the subject do a far, far better job of making the discussion worth having than Professor Volokh's own defense of his position (which is not at all interested in whether or not some form, any form, of justice is being served, but rather that the perpetrator suffered instensely and at length).

univar.jpg Posted by chiggins on March 22, 2005 05:14 PM
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