Comment on previous entry (re punishment)
Mar. 20th, 2005 09:27 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumI am not sure what to make of Eugene Volokh's "retraction." because he hasn't retracted the position, merely said he finds it impractical.
I do know that I disagree with Digby and Mark Kleiman, because they are treating Eugene's change of position on the usefulness of torture as punishment as a reversal of his core statement, which is support of torture, as public punishment ( Something he agrees with Which is about the public, and participatory, execution of a very unpleasant person).
He has not repudiated such punishments as meritorious, merely said they would so tie up the courts that nothing could be done, "Even if enough people vote to authorize these punishments constitutionally and legislatively (which I've conceded all along is highly unlikely), there would be such broad, deep, and fervent opposition to them -- much broader, deeper, and more fervent than the opposition to the death penalty -- that attempts to impose the punishments would logjam the criminal justice system and the political system.
And this would be true even when the punishments are sought only for the most heinous of murderers. It's not just that you couldn't find 12 people to convict; it's that the process of trying to find these people, and then execute the judgment they render, will impose huge costs on the legal system (for a few examples, see Mark's post). Whatever one's abstract judgments about the proper severity of punishments, this is a punishment that will not fit with our legal and political culture."
None of that, changes this, "I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years in prison, but perhaps there's a good explanation.
I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way."
The only saving grace there is he supposes the larger culture will be opposed to it, on such a scale that, even were it to pass it would break the system. He doesn't seem to address Kleiman's point that the excusal of those who won't pass a capital sentence from capital cases, means the pool of jurors tilts toward conviction in capital cases (though, to be fair, I haven't seen any studies on this, and so it is only a gut-level agreement that makes me nod my head when I read it) and that such a limitation would make the sentence of public torture more likely, in those cases where it was sought. That, should it come to pass, could make a positive feedback loop, where more people were put to trials with torture as the possible sentence, because those would be, not only more likely to lead to conviction, but of a public nature, which makes it easier for a DA to be, "tough on crime." But I am digressing.
But his holding the core belief still bothers me. Not just because I like him, as a person, but because I fully expect him to be granted a seat on the federal bench, if he should ever really want one. Which means wondering how he will define cruel and unusual. Do I think him capable of taking his personal beliefs out of the equation when rendering a decision, yeah; mostly. None of us is so perfect as to be able to do that completely, but the best of us can come fairly close, most of the time.
And he knows how things are done. He clerked for Justice O'Connor. One might try to read things into how he would handle looking for precedent to defend a position from the one's she has written (and the more so if one looks at her decisions from the period of time (ca. '93-94, if I recall correctly) he was one of her clerks.
I am mindful of Micah 7-8, "Will the LORD be pleased with thousands of rams, or with ten thousands of rivers of oil? shall I give my firstborn for my transgression, the fruit of my body for the sin of my soul?
He hath shewed thee, O man, what is good; and what doth the LORD require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?" and I wonder how one can reconcile that with the idea of torture.
I do know that I disagree with Digby and Mark Kleiman, because they are treating Eugene's change of position on the usefulness of torture as punishment as a reversal of his core statement, which is support of torture, as public punishment ( Something he agrees with Which is about the public, and participatory, execution of a very unpleasant person).
He has not repudiated such punishments as meritorious, merely said they would so tie up the courts that nothing could be done, "Even if enough people vote to authorize these punishments constitutionally and legislatively (which I've conceded all along is highly unlikely), there would be such broad, deep, and fervent opposition to them -- much broader, deeper, and more fervent than the opposition to the death penalty -- that attempts to impose the punishments would logjam the criminal justice system and the political system.
And this would be true even when the punishments are sought only for the most heinous of murderers. It's not just that you couldn't find 12 people to convict; it's that the process of trying to find these people, and then execute the judgment they render, will impose huge costs on the legal system (for a few examples, see Mark's post). Whatever one's abstract judgments about the proper severity of punishments, this is a punishment that will not fit with our legal and political culture."
None of that, changes this, "I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years in prison, but perhaps there's a good explanation.
I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way."
The only saving grace there is he supposes the larger culture will be opposed to it, on such a scale that, even were it to pass it would break the system. He doesn't seem to address Kleiman's point that the excusal of those who won't pass a capital sentence from capital cases, means the pool of jurors tilts toward conviction in capital cases (though, to be fair, I haven't seen any studies on this, and so it is only a gut-level agreement that makes me nod my head when I read it) and that such a limitation would make the sentence of public torture more likely, in those cases where it was sought. That, should it come to pass, could make a positive feedback loop, where more people were put to trials with torture as the possible sentence, because those would be, not only more likely to lead to conviction, but of a public nature, which makes it easier for a DA to be, "tough on crime." But I am digressing.
But his holding the core belief still bothers me. Not just because I like him, as a person, but because I fully expect him to be granted a seat on the federal bench, if he should ever really want one. Which means wondering how he will define cruel and unusual. Do I think him capable of taking his personal beliefs out of the equation when rendering a decision, yeah; mostly. None of us is so perfect as to be able to do that completely, but the best of us can come fairly close, most of the time.
And he knows how things are done. He clerked for Justice O'Connor. One might try to read things into how he would handle looking for precedent to defend a position from the one's she has written (and the more so if one looks at her decisions from the period of time (ca. '93-94, if I recall correctly) he was one of her clerks.
I am mindful of Micah 7-8, "Will the LORD be pleased with thousands of rams, or with ten thousands of rivers of oil? shall I give my firstborn for my transgression, the fruit of my body for the sin of my soul?
He hath shewed thee, O man, what is good; and what doth the LORD require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?" and I wonder how one can reconcile that with the idea of torture.
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no subject
Date: 2005-03-20 11:28 pm (UTC)no subject
Date: 2005-03-21 12:13 am (UTC)The question is, do they? Eugene hasn't published his standards (much as the president hasn't presented one for SS). Eugene is an interesting person, and I can't see how the perpetrators of My Lai would meet his requirements.
As an intellectual excercise I can conceive of drawing up requirements for judicial execution by public torture, and unless I make all crimes capital, and all executions torturous, I can't see putting them into that category.
TK
no subject
Date: 2005-03-21 12:22 am (UTC)For a law professor, he seems to have a problem thinking out the ultimate consequences of his ideas. I find that troubling because he might, in fact, be named to the bench.
no subject
Date: 2005-03-21 12:43 am (UTC)Eichman's guilt wasn't that he killed anyone, because he didn't. No, his guilt was that he made it possible for millions (as many as 13 millions) to be killed with ease, as a matter of, "rational" policy. In that he is far worse than any Calley.
The more doable comparison would be to say Macnamara (because he seems to have been aware, well before he left office of what the war in Viet-nam was doing, both to the Viet-namese, and to the people we sent there) is the Eichman in that comparison.
The troops at My Lai, well they aren't so much equivalent to death camp guards, they aren't even at the same level of evil as a member of members of einsatzgruppen. They fell victim to one of the insanities of war. On a different day they might have done a very different thing.
The people whom Eugene (if I read him correctly) would consign to this most gruesome of retributions are those who, by consistent action, as well as by long term awareness of the heinous nature of what they are doing, have left aside most claims to humanity (by civilised measure) and as such, civilisation no longer owes them humane treatment.
I find this argument abhorrent, but it can be quite consistent, and still not apply to Calley, et al..
TK