Yea Retribution, Nay Torture

Not only does Mark Kleiman convince Eugene Volokh to change his mind on the wisdom of deliberately painful executions, but he also makes a near water-tight argument for the retributive theory of punishment (a theory I previously found lacking), and even convinces this libertarian to rethink (but not yet reject) his position on hate-crime legislation. Truly a memorable post.

A taste:

[P]utting torture on the agenda changes the job descriptions of public officials in a way that is likely to change the composition of the class of public officials. Presumably, if an execution requires a death warrant signed by the governor, a torture-execution will require no less. So anyone unwilling to sign such documents will be disqualified from seeking the governorship. You can think that there are arguments for cruel punishments and still be reluctant to be ruled by those most willing to order the infliction of such punishments.


That's a particular concern with respect to the office of juror. Under current American law, jurors who have scruples about capital punishment are excluded from juries in capital cases. Unsurprisingly, those are also the jurors most likely to vote to acquit. So someone accused of murder is more likely to be convicted if the case is a capital one. If the sentence were death by torment rather than simple execution, the exclusion of the scrupulous would leave a jury even more grossly stacked against the accused.

This also doubles as a pretty good argument against capital punishment in general.

Share this

Heathen (Charles), You made

Heathen (Charles),

You made a definitive statement on the matter. I think you are wrong. As I wrote, its a rather subjective judgment as to which is worse. As to the nature of most forms of torture and what they leave a person like, well, having met torture victims who made their way eventually to the West I can say in some of their circumstances that I would have rather died than lived through some of it.

:beatnik:

Gary: I can think of

Gary:

I can think of instances where death would be perferable to torture; where torture would be much worse than merely dying. Of course which is worse is based on some rather subjective decision-making.

Brian:

I can see several instances where being killed is preferable to torture. If my options are: [extreme mutilating torture that leaves you in unbearable pain, or a relatively painless immediate death] ... and those are my 2, metaphysically certain options, I choose B. Granted some people may love existence so much that they’d choose A still, but I’d find living after A to be intolerable.

Granted: there may be cases in which one might rationally choose death over extreme ongoing pain. But most forms of torture and almost all forms of isolated mutilation, flogging, beating, etc. are not like this; as horrifying as they would be to go through, most people would nevertheless undergo them rather than being killed in even the most painless fashion. (It's also interesting that even in the strongest cases, both of you seem inclined to think that it's a matter open to debate and individual variation whether or not death is preferable to the torture.)

So let's skip over the borderline cases and talk policy. Here's one: for some particularly heinous crime X, which is currently a capital offense, everyone convicted of X is (for the sole purpose of punishing her or him) to be flogged and rubbed down the back with brine, then branded with hot irons, then forced to eat his or her own excrement, and then incarcerated in an ordinary prison for the rest of her or his life. Do you think that this policy is morally any less permissible than killing the condemned for X? Why or why not?

Actually, let's not skip over the borderline cases. Here's another policy: for some particularly heinous crime X, which is currently a capital offense, everyone convicted of X is (for the sole purpose of punishing her or him with intense bodily pain) to be sentenced to daily torture of the most bizarre and Satanic kinds. However, the condemned is allowed the option of a painless assisted suicid at any point if he or she wants it. Do you think that this policy is morally any less permissible than killing the condemned for X? Why or why not?

Brian:

Additionally, there are plenty of times when it is ’socially’ necessary, in terms of cost-benefit, signalling effects, yada yada, where it is useful and beneficial to kill a prisoner

What "signals" are sent by killing a prisoner that could not also be sent by mutilating or torturing him or her? What costs are saved by killing her or him that are not saved by mutilating or torturing her or him? What benefits accrue from killing her or him that do not accrue from mutilating or torturing her or him?

Brian:

If you look at it another way, a death is a one time suffering event; be it long and drawn out or quick and dirty, at the end, the suffering ends (absent a position that there is a soul which continues to suffer from death after removal from a physical body).

With torture, the mental and physical pain of the event stays with the victim for the rest of their life.

So from a utilitarian POV (ala our friend Joe’s position), you could say that you get more negatives from the torture than from death.

Well, appeals to oblivion either don't cut much ice or else prove far too much. If the only thing you're willing to count as disutility is present or future sensate pain, then the fact that the prisoner is oblivious would make death come out higher in the calculation than being tortured for the same amount of time. But it would also make death come out higher in the calculation than being bored and mildly uncomfortable for the same amount of time, or any other situation with a net negative utility at all. But that doesn't show anything about death; all it shows is that you shouldn't be so radical a hedonist about utility and disutility.

If, on the other hand, you're willing to count more than just present or future sensate pain as a form of disutility then it's not clear what a bare appeal to the fact that the dead are (may be?) oblivious doesn't prove anything in particular. You've shown that death doesn't involve one kind of disutility--present or future sensate pain--but you haven't shown that it doesn't involve any kind of evil for the dead. You'll either have to demonstrate that, or else demonstrate that whatever evils are involved are not cumulatively as bad as the evils involved in being in a particular kind of pain for the same amount of time.

(Note also that if this is the way you're going to set about doing the calculation, it makes the policy decision of whether or not prisoners should be executed dependent on holding a particular, currently unpopular, eschatological theory. I think the theory you'd have to hold is probably the right one; but that does seem like an awkward position to be stuck in when trying to justify a particular criminal justice policy.)

RadGeek, I can see several

RadGeek,

I can see several instances where being killed is preferable to torture.
If my options are:

(a) My hands and feet are cut off, my nose and ears are cut off, my eyes are gouged out and my torso pierced (in non-life threatening ways) with red hot pokers, and then I am left to heal and continue my 'life.'
(b) I am killed by lethal injection whereby I feel sleepy and then cease perceiving existence permanently, minus pain.

...and those are my 2, metaphysically certain options, I choose B. Granted some people may love existence so much that they'd choose A still, but I'd find living after A to be intolerable. In which case torture would be far, far worse than

Additionally, there are plenty of times when it is 'socially' necessary, in terms of cost-benefit, signalling effects, yada yada, where it is useful and beneficial to kill a prisoner (and no elision to "POW" or arbitrary prisoner; I mean in the conventional sense of killing the condemned, or condemning a prisoner after due legal process).

Whereas Mark Kleiman laid out a pretty good argument why societies & governments ought not condone torture and the intentional infliction of pain and suffering on prisoners.

If you look at it another way, a death is a one time suffering event; be it long and drawn out or quick and dirty, at the end, the suffering ends (absent a position that there is a soul which continues to suffer from death after removal from a physical body).

With torture, the mental and physical pain of the event stays with the victim for the rest of their life.

So from a utilitarian POV (ala our friend Joe's position), you could say that you get more negatives from the torture than from death. Though I suppose you could say that the dead man has a utility loss equivalent to all the years he does not get to exist; so there would be, if it were indeed possible (N.B. it isn't), some sort of comparison of the net present value of a given prisoner's future utility forgone between death and torture (which would necessarily have a lower utility than an untortured, unkilled version of the prisoner) to some ideal, and figure out some threshhold of average expected future utility below which death is preferable.

Phew. That's a muddle. Such is the way of utilitarian calculation, though I'm obviously not a skilled practicioner (I imagine it may be like Kabbalah; at best with a scholar's knowledge it's useless, for tyros, dabblers, and poseurs (*cough*Madonna*cough*) its confusing and likely a net negative to understanding, utility, etc).

At any rate, the muddle itself should show that its not immediately clear why we should think execution is worse than torturing someone.

Heathen, I can think of

Heathen,

I can think of instances where death would be perferable to torture; where torture would be much worse than merely dying. Of course which is worse is based on some rather subjective decision-making.

:beatnik:

Brian Doss: Its an argument

Brian Doss:

Its an argument against capital punishment iff you assume capital punishment is on the same moral plane as torture & inflicting intentional suffering on prisoners.

Well, but why wouldn't you say that execution of prisoners is on the same moral pain as torture or other gratuitous hurting of prisoners?

Being killed is worse than being tortured, and it's far worse than an isolated caning or painful restraint. So what sort of reasons could you give for the permissibility of slaughtering prisoners that wouldn't provide just as good reasons for the permissibility of mutilating, torturing, or gratuitously hurting them?

This also doubles as a

This also doubles as a pretty good argument against capital punishment in general.

Perhaps. But it may at the same time double as an argument against the way that jurors are selected in a capital crime case.

Or, what I choose to read it as, an argument for the private provision of justice.

I agree with Scott- its not

I agree with Scott- its not an argument against capital punishment per se but rather juror selection.

Its an argument against capital punishment iff you assume capital punishment is on the same moral plane as torture & inflicting intentional suffering on prisoners.

A shameless plug, but here's

A shameless plug, but here's an amusing take on the Volokh retribution situation - Volokh as Jules from Pulp Fiction...

I don't think Kleiman's

I don't think Kleiman's pro-retribution argument is so watertight. The "vindicate the victim's status by punishing the victimizer" bit is fine, and does give some support to hate-crime legislation, but

(a) I'd file that under deterrence instead of retribution (though perhaps this is just a semantic quibble)

(b) I doubt that, after a certain easily reached point, increases in the severity of punishment do much to increase the victim's status-recouping ability; certainly, for example, execution does not do significantly more in this direction than life imprisonment.

And the "social expressiveness" bit I think is just collective-emotive nonsense. (I'll happily bite his bullet, BTW; I don't think there's any good reason to pursue nonagenarian Nazis or to prosecute a senile Pinochet).

Gary: You made a definitive

Gary:

You made a definitive statement on the matter. I think you are wrong.

That's fine. I made a statement which was over-broad or underqualified. Point taken. But I think that you do the same if you mean what you seem to mean when you say:

As I wrote, its a rather subjective judgment as to which is worse.

If you just mean that there are some cases of torture for which it is a matter of subjective judgment whether or not death would be preferable to them, I agree; but if you mean to apply "it's a rather subjective judgment" to the statement "Being killed is worse than being torture," that seems to suggest something stronger. If, for example, you mean that it's a subjective judgment as to death is worse than any given instance of torture, I think that's got to be false. There are clear cases where death is worse than torture. That's not to say that torture is OK or even bearable; it is to say that there are at least some cases--indeed, a lot of them--in the face of which people would--indeed, did--do what they could to survive, and they would be quite right to do so.

If you mean something like: it's a rather subjective judgment whether killing is a worse sort of thing to do to a person than torturing--well, maybe, but what reasons would you give for saying that? If it's something like, "it's subjective because there are cases in extremis where it's not clear that death is worse", then I'd just say that cases in extremis often don't prove any point about the comparison of sorts. (I don't think the badness of killing as a sort of thing to do to a person is determined by the worst conceivable sorts of deaths, either.) I think there are pretty good reasons to hold fast to the intuition that killing is the worst kind of thing you can do to a person--as a claim about the character of sorts, not a universal claim about their instances--even if there are individual instances in which killing Jones may not be as bad as something else you could do to her.

There's an underlying point to all of this quibbling that applies to the article and the forgoing argument. It's this: there is a class of punishments--even if it's debatable just how deep into Hell that class extends--that most people recognize as plainly barbaric, but which they do not consider worse than having your throat cut. These include flogging, rubbing wounds with brine, severe beating, branding with hot irons, chopping off fingers or hands, raping, stabbing with the intent to maim or just to make you hurt like hell, at least some forms of systematic torture, and so on. You might say that there are other forms of systematic torture that are worse than death. Fine; but as long as there's a number of instances greater than zero that are not as bad as death, that means that doing anything in that class to a prisoner, in the name of achieving a particular purpose, is fair game as long as killing the prisoner in the name of that purpose is also permissible.

Most people aren't willing to say that those kind of punishments are fair game. So they shouldn't be willing to say that killing the prisoner for punishment is fair game, either.

Brian:

Whereas Mark Kleiman laid out a pretty good argument why societies & governments ought not condone torture and the intentional infliction of pain and suffering on prisoners.

Are there any reasons Kleiman gives against condoning torture or corporal punishment that are specific to torture or corporal punishment? Any that cut against only those and not also against condoning slaughter?

I think I would choose a)

I think I would choose a) Death over b) Torture and death. That is if I knew I was going to be killed after they got done torturing me then I might consider killing myself. However, I wouldn't be certain of anything under those circumstances.

There is empirical evidence that for some people torture is preferable to death, since they don't kill themselves when tortured. The opposite is also true. Probably even for the same treatment.

Wouldn't a man with a family be less likely to kill himself under those circumstances?

Heck we've got people committing suicide and murder/suicide over the "torture" of not having any friends in high school and being picked on.