A Culture Of Life

Eugene Volokh came out in favor of cruel and unusual punishment for the Iranian "Vampire of the desert", thereby sparking a storm amongst left-leaning bloggers.

Atrios provides links to outraged reaction here and here; the Volokh Conspiracy trackback provides more, as does Glenn.

Now, Prof. Volokh does admit that "I can't prove the soundness of my position any more than (I think) the other side can prove the soundness of its. In this area, we quickly come down to moral intuitions and visceral reactions. And, who knows, perhaps mine are wrong." 

But the other side is quite clear that their moral sense is superior, and that Prof. Volokh is uncivilized.  Matt Yglesias even offers a slippery slope coarsening-of-the-culture argument to explain his opposition.

I am deeply heartened.  Now that a consensus has emerged on the left that certain behaviors are simply beyond the pale, perhaps we can see progress on upholding the ban on the dilation and extraction abortion procedure, known also as the partial birth abortion.

Wait, what's that you say?  Those procedures, while considered gruesome by many, are really a matter of individual choice?  But didn't we just agree that "cruel and unusual" is a matter of general consensus, that some people's morality trumps others, and that the state has an interest in promoting "civilized" behavior?

Or maybe we didn't.

I have an idea then - spare me the bloviating.

For myself, I am firmly on both sides of this.  I deeply admire people who can embrace the Christian notion of forgiveness even for such a criminal.  I was struck by the remark made by, of all people, white supremacist Matthew Hale's father, when commenting on the suicide of Mr. Ross (who killed the husband and mother of Judge Lefkow):

"I'm sorry for the person's family that did do this," Mr. Hale added. "Somebody loved that person, and it is too bad that it happened."

Somebody loved that person.  Indeed.

Regrettably, I suspect that if one of my children were a victim of this particular criminal, I would, if given the chance, fall short of the standard set by my faith.

So, if Prof. Volokh feels that way, whatever.  If he puts forward a constitutional amendment, I will have to oppose it.

And if he is ever charged with vigilantism in defense of one of his own children, well... the prosecutor won't want me on the jury.

MORE:  Interesting theological perspective here.

Comments

[SteveMG]

Hmm, I don't think Justices Kennedy, Bryer et al. will be citing this court ruling and sentencing in any future opinions.

At least I hope the hell they don't.

Which, of course, is one problem with citing foreign court rulings. Which courts? Which opinions?

Cui bono?

SMG

[BumperStickerist]

You know, I worry about people who don't read a story about a serial child rapist/murderer being killed in a 'cruel and unusual' way and think to themselves 'well, good. serves the bastard right'.

It's the Michael Dukakis / Bernard Shaw "So, Kitty's been raped and murdered, how do you feel?" question with Messers. Black, Yglesias, Digby doing the answering.

The Iranians in this case are far more reality-based than any blog-author that is aghast at them.

The one thing that's missing from the story is a follow-up. That would provide some insight is the town's reaction to the 'cruel and unusual' punishment.

My hunch is that the children are not traumatized for having seen a grown man whipped and hung and the reaction of the adults would be more along the lines of "Well, good - our children are safer today than they were last week' rather than "Well, that was fun,let's go find us another guy to whip and hang."

reality-based?

piffle.

[creepy irish dude]

TM-have it both ways if you want, but Volokh's comments strike at the very heart of Christianity. They are the values of the Roman, who, of course, looked at the weak feminized Christians with contempt.

But I see a compromise. Bring back crucifixion for heinous criminals. That was the Roman way after all.

A good old fashioned scourging, strapping the patibulum to the back, the walk to the stirpes with the brilliantly sadistic sedile affixed, nailing to the cross, and then leaving the body to rot, (absent a modern day Joseph of Arimethea).

The standard crucifixion provides far worse physical suffering than anything those wimpy Iranians dished out.

And when the lily-livered libs cry "cruelty" you just tell 'em if it was good enough for our Savior the Lord Jesus Christ then by damn it's good enough for this sad sack of human scum.

[Appalled Moderate]

BumperStickerist:

You assume that our serial killer is right in the head; that he made a conscious, knowing moral choice to be a child rapist, because it was fun or something; that he never suffered something like this in his youth and that's why he's this way; that he's not wrestling with this problem in his soul every day of his life and damning himself to hell for his impulses, but unable to stop himself.

You also assume that the torture will help the family of the murdered to closure. What's your evidence? What does the infliction of pain bring them; really? Maybe it helps with feelings of impotence. I do not know (not ever having suffered something like this.) Personally, I think it gives them something else they will have to make their peace with, rather than reducing the burden.

And, I suspect, you figure all this serves as an object warning to the next person who becomes a sicko rapist serial-killer. Why? Why do you think anyone who has embraced the worldview of a child molester/rapist thinks ANYTHING of the consequences?

Let me give you a reality based viewpoint. You know nothing of anything that was in any of these people's hearts and souls? You don't know what pain the wacko was in. You don't know what would cure the pain of the victims family? You have an opinion.

Because you don't know -- you do not have the right to torture this man. You do not have the right to render God's judgment for him. The Law has to function -- a person like this should spend the rest of his life in jail -- not because that would be a deterrent, but because the streets need to be free of him. But, do not pretend to know when cruelty is appropriate. God's got that one covered (see, Hell, and, if you are so inclined, Purgatory)

[Paul Zrimsek]

My own moral intuition tells me that slippery slope coarsening-of-the-culture arguments deserve serious consideration here. But Ygelsias' need to convince himself that he's avoiding reliance on intuition on favor of the light of Pure Reason leads him to make a complete hash of this one. Yes, it would be a bad thing if the state's deliberate infliction of pain were to encourage private citizens to imitate it. But of what criminal punishment could that not be said? Are they going to have to empty the jails for fear that the rest of us will start chaining our personal enemies in the basement?

Biggest lesson learned from reading the comments, here and elsewhere: it's easier to turn liberals into theocrats than you'd think.

[B.R.]

Tom-
I don't think the shrillness of the lefty blogosphere was caused by Volokh saying he could *sympathize* with the families who tortured their children's murderer. What made us so incensed was his belief that we should amend the Constitution to accomodate such actions.

I'm not a moral relativist, and try not to spout the holier-than-thou "Volokh's poo doth stink whilst mine radiateth flower scents" rhetoric you so disdain. When people like Timothy McVeigh or an al-Qaeda operative get the death penalty, part of me cheers, loudly. But it's not a healthy part of me, and it's not something that I like having brought out of me.

I'll sum up my position with a quote from the Simpsons:

"HOMER: See, Marge, I told you they could deep-fry my shirt!

MARGE: I didn't say they couldn't, I said YOU SHOULDN'T."

That's pretty much right- as much fun as it would be to deep-fry my shirt and/or torture someone who killed a loved one, as a reasonable person I understand it's not in my best interest.

[byrd]

I'd tend to side with TM. If someone I love is murdered, I'd like to think I'd do what I could to see that the killer died an ugly death. That's vengence and it's completely understandable on the part of the victim's family.

But here we're talking about the state and the state has to think beyond the individual case. The state must act by a different standard.

One of my favorite lines comes from The Lion of the Desert about the Ethiopian resistance during WWII. Some soldier was pleading with the spiritual leader (a moslem cleric by the way) to let the troops torture and kill Italian POWs because the Italians tortured and killed Ethiopians. The Imam's response?

"They are not our teachers."

I don't condone cruel punishment no matter how much the criminal deserves it because I'm better than he is.

[Paul Zrimsek]

I'd agree with you, byrd, if you'd stopped after "The state must act by a different standard". But you seem to have gone on to argue, in contradiction, that we should judge what the state does in meting out justice exactly as we'd judge a private person doing the same thing for his own gratification or profit. The resemblance between the two actions can't be the whole story, unless you want to do away with punishment altogether. What the state is doing may still be wrong (as I think it was in Iran), but it can't be wrong for THAT reason.

[BumperStickerist]

Appalled Moderate -

To cut to the chase, it's not that I don't know the pain or the mental state that the serial child rapist/murderer was in, it's that I, despite 40 years of good Lutheran (thanks, BTK) belief, don't care.

There are, to my mind, certain actions that individuals take that, to paraphrase Volockh, go beyond the pale, such that Society can punch the offender's ticket and feel okay about itself. Serially raping and murdering children manages to my Punch-o-meter.

I don't buy the slippery slope argument regarding the brutality, cruel and unusualness of this situation or these types of situations. The notion that "First they came for the serial raping child murderers and nobody spoke up, then they came for the serial rapist and murders of pregnant women, and nobody spoke up, then they came for the killers of police officers ...., then they came for the jaywalkers" doesn't hold up.

If there's social utility in studying people who commit these crimes, fine - study. If the society in question chooses to flog and kill publicly child murderers, then - perhaps - any child murderers in that particular location will know the consequences and relocate.

Most likely to an area where serial raping child murderers are simply considered to be misunderstood victims themselves.

[byrd]

I think I see what you're getting at Paul, and you're right that I should have said "we're better than he is" at the end instead of "I'm better", but I think the rest survives your objection.

[TM]

Volokh throws in the towel here, for state-sponsored cruel punishments.

As to Irish's point that "Volokh's comments strike at the very heart of Christianity", my vague recollection is that Volokh is Jewish, which may make a difference.

As to What made us so incensed was his belief that we should amend the Constitution to accomodate such actions from B.R., the amendment idea appeared in an UPDATE; I have not checked every link, but I bet I could find some examples who focused on the concept, rather than the idea of supporting a longshot amendment.

Of course, more broadly, it may well be that it was the notion of state sponsorhip of cruelty that irked people so deeply. Fair enough. But my point is that most of these same people are noticeably un-irked by a medical procedure considered barbaric by many (probably a majority), which is currently tolerated under current state (i.e., gov't) guidelines.

[Mark Marshall]

Of course Atrios, Matty et al are outraged. Appalled Moderate - of course the poor tortured soul was afflicted. The only humane thing to do to the perpetrator would be to deny him food and water until he died. Thats what an enlightened society does to the afflicted. Apparently.

[TM]

Good point, Mark - in fact, as the Times explains, that is a relatively painless and diginifeid way to die. And yes, that is the Times, not The Onion:

Experts Say Ending Feeding Can Lead to a Gentle Death

To many people, death by removing a feeding tube brings to mind the agony of starvation. But medical experts say that the process of dying that begins when food and fluids cease is relatively straightforward, and can cause little discomfort.

"From the data that is available, it is not a horrific thing at all," said Dr. Linda Emanuel, the founder of the Education for Physicians in End-of-Life Care Project at Northwestern University.

In fact, declining food and water is a common way that terminally ill patients end their lives, because it is less painful than violent suicide and requires no help from doctors.

... Once food and water stop, death usually comes in about two weeks, and is caused by effects of dehydration, not the loss of nutrition, said Dr. Sean Morrison, a professor of geriatrics and palliative care at Mount Sinai School of Medicine in New York. "They generally slip into a peaceful coma," he said. "It's very quiet, it's very dignified - it's very gentle."

The process of dying begins in the kidneys, which filter toxins from the body's fluids. Without new fluids entering the body, the kidneys produce less and less urine, and the urine becomes darker and more concentrated until production stops entirely.

Toxins build up in the body, and the delicate balance of chemicals like potassium, sodium and calcium is disrupted, said Deborah Volker, an assistant professor of nursing at the University of Texas who has written extensively on end-of-life issues.

This electrolyte imbalance disrupts the electrical system that triggers the action of muscles, including the heart, and eventually the heart stops beating.

[Appalled Moderate]

Mike:

I have been reading some comments of conservatives, lately, that complain of having every viewpoint of their general political persuasion attributed to them. (You were for the war in Iraq, so you must be in favor of taking Social Security away from hard working seniors!!) You just did the same thing to me, though to my knowledge, I've never posted on abortion/ right to die issues. As a matter of fact, the husband has suspiciously unclean hands in the Terry Schaivo case; therefore I doubt listening to him on the issue is that great an idea. I do wonder whether the bill Congres just passed and the President just signed is constitutional, but better minds than mine can worry about that one.