by Matt Barr

Briefly on retribution

Prof. Volokh has done a great job staking out the position that retribution is not only a permissible reason to punish but a welcome one, and I can add little. What little I could contribute, I did in the context of Ron Artest. If you haven't, take some time and read Prof. Volokh's posts and the replies he links to. (Well, maybe you could skip the one that's predictably kind of pissy and condescending.)

Prof. Cramer brought up an interesting analogy involving Hitler.

I also cringe at the thought of a government intentionally taking actions to add suffering; it is way too reminiscent of the bloodlust that has driven tyrants throughout history. (I think of Hitler's execution of German officers who participated in--or were simply thought to have been part of--the von Stauffenberg coup plot. He had them executed by being hung with piano wire--a slow and painful death. Hitler had it filmed, so that he could enjoy watching their suffering at a later time.)

Volokh mentions that the von Stauffenberg plotters were in the (moral) right, which is an important distinction. Equally important, I think, is that Hitler also had thousands of handicapped Germans killed by lethal injection, the same, more "civilized" method most states in the union use today. But that, obviously, doesn't make Hitler a civilized person, or those deaths justified. Which I think is further to Volokh's point: Desert is the key.

The range of crimes is effectively unlimited. We've all been horrified by actions we'd never dreamed were possible. Sometimes our threshold is crossed when we hear about Carlie Bruscia, sometimes not till September 11. By whose accounting is painless death the upper limit of permissible response to a prompt that can escalate in horror beyond imagination?

I'm reading minds, now, and I'm no good at that, but when Howard Dean makes an extra effort to go on the record saying Osama bin Laden ought to be tried and found guilty before he'll say what he deserves, and when others of Dean's general political persuasion bristle at the idea that there could be a valid retributive element to criminal punishment, we're seeing the effects of radical egalitarianism. "Value judgments" -- see also, perhaps, "heteronormativity"? -- are so impermissible that we mustn't assume that when we punish, we're in the right. Sure, a functioning society regrettably needs criminal laws, but we must hedge our bets, in case, heavens forbid, we're wrong to sanction certain conduct. Even if we're not wrong, it's unseemly to ostentatiously be right.

See also, perhaps, fretting over whether the U.S. should be the sole superpower in the world. See also, perhaps, that clever argument against invading Iraq that we wouldn't like it much if, say, Syria attacked Israel preemptively. No, but we're not Syria. Vapor lock.

No one who understands -- or subscribes to the theory, if you prefer -- that criminal punishment can be just can logically conclude that painless death or life imprisonment is some sort of upper limit to the permissible. Justice is not entirely redistributive.

Please note that I haven't said, nor do I believe, that anyone who opposes the death penalty or a retributive theory of criminal justice is of one political or ideological persuasion. If anything, I'm saying the opposite: One of the dominant ideologies in America today is unwilling to commit to the proposition that they're right. Or, at worst, unwilling to commit to the proposition that other of their countrymen are right.

Please note also that I recognize the question of state sanction is different from what impulse or calculation of desert is permissible or unseemly. Many arguments against Prof. Volokh stuck to the premise that painful death is incomprehensible in a just society, state sanction or not. I disagree.

UPDATE: To my radical egalitarianism point, it's no straw man. This post makes the clever point that Prof. Volokh would sure change his tune if someone wanted to torture him.

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