Tuesday, March 22, 2005

Ain't No Half Steppin'

Is there anything more revolting than a limp wristed handshake? Is it me, or does it creep you out when someone shakes your hand with flaccid fingers that don't even bother to close around your outstretched hand? So much is conveyed in that gesture of condescension and contempt - as if you aren't even worth the effort of the muscle contractions required for a modest grip. But underneath this, it is also an inauthentic and dishonest act. Instead of just refusing to shake your hand, the offender instead opts to maintain the thinnest veneer of the facade of civility - so as to avoid the confrontational nature of an outright show of disrespect (although the message is usually not lost on the recipient of such treatment).

That is the reaction I had when reading Eugene Volokh's attempt to back himself out of the firestorm kicked up around his recent
ode to brutality. For the sake of this discussion, let's revisit Volokh's comments, made in reaction to a story about the imposition of capital punishment Iranian style which included a pre-execution flogging with electrical cables and a hanging designed to prolong the pain and suffering.

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.

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.
Volokh went on to proclaim his desire that the American people vote to amend the Bill of Rights to allow for more cruelty and "savagery" by gutting certain portions of the Eighth Amendment's prohibitions on "cruel and unusual punishment." After making these statements, he received an avalanche of criticism, and only a trickle of defenders.

How has he reacted in the face of such critiques? He has offered us all a half-hearted handshake of a mea culpa. Volokh claims that one critique in particular,
Mark Kleiman's, led to his change of heart, sort of. In that post, Kleiman lays out several arguments covering a wide range of objections to Volokh's proposed reactionary move. Some of these arguments concerned the practical difficulties such a system would create such as finding jurors willing to impose such extreme sanctions, as well as the deterrent impact on decisions by people to pursue related legal and political careers if such a process were in place. Volokh seized on these arguments to say he had reconsidered his stance and took, what is to me, the easy way out. A cloak of reason which preserves a facade of respectability despite his underlying beliefs.

What I found most persuasive about Mark's argument was his points about institutions: about how hard it would be for a jury system to operate when this punishment was available, and how its availability would affect gubernatorial elections, legislative elections, and who knows what else. 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.
My problem with Volokh's half-step is that it doesn't address any of the moral concerns or the discussion regarding the importance of humane treatment and laws. It's as if he endorsed the mandatory interment of all Muslim men in America, and then changed his mind citing the logistical problems of implementing such a program, as well as the spirited political challenges that would likely ensue. But, you know, nothing is wrong with such a move in theory. In that sense, he is saying that it is only wrong because society wouldn't react well to it, but that the general concept is still sound from a normative perspective. What kind of moral clarity is that? Isn't the Right supposed to be the political persuasion of values? Color me unimpressed. I'd rather him not shake my hand than offer that wilted response.

<< Home

This page is powered by Blogger. Isn't yours?