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March 20, 2005 - An Idea Whose Time Has Come

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The discussion that consumed lots of writers on the web this last week?  No, not Social Security, nor the recent tick-off-the-world Bush appointments – Bolton and Wolfowitz and others.  Not the vote to open the Alaska wilderness for oil drilling to extract the six month supply of oil that seems to be there.  Not all those baseball players talking to the congressional committee about using or not using anabolic steroids.  Not the record price of oil.  And certainly not the war.  No.


What got people going was a prominent UCLA law professor – who has been angling for an appointment to a seat as a judge in the Ninth Circuit out here – said some really interesting things.  He noted the torture and execution of a criminal in Iran, where the wronged family got to participate in the flogging, stabbing the guy, and then in his hanging.  He liked that.  He suggested we ought to do the same, and maybe amend the constitution to make exceptions to that “cruel and unusual punishment” business so people could get some satisfaction, or closure, or emotional gratification or whatever.  And he says he’s serious.


The event that started it?


Iran's 'desert vampire' executed

BBC - Wednesday, 16 March, 2005, 11:40 GMT


Mohammad Bijeh, 24, dubbed "the Tehran desert vampire" by Iran's press, was flogged 100 times before being hanged.

A brother of one of his young victims stabbed him as he was being punished. The mother of another victim was asked to put the noose around his neck.

The execution took place in Pakdasht south of Tehran, near where Bijeh's year-long killing spree took place.

The killer was hoisted about 10 metres into the air by a crane and slowly throttled to death in front of the baying crowd.

Hanging by a crane - a common form of execution in Iran - does not involve a swift death as the condemned prisoner's neck is not broken.

The killer collapsed twice during the punishment, although he remained calm and silent throughout.

Spectators, held back by barbed wire and about 100 police officers, chanted "harder, harder" as judicial officials took turns to flog Bijeh's bare back before his hanging.

The condemned collapsed twice during the pre-execution flogging.


Bijeh was stabbed by the 17-year-old brother of victim Rahim Younessi, AFP reported, as he was being readied to be hanged.

Officials then invited the mother Milad Kahani to put the blue nylon rope around his neck.

The crimes of Mohammed Bijeh and his accomplice Ali Baghi had drawn massive attention in the Iranian media.


UCLA Constitutional Law Professor Eugene Volokh here


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.


And a bit later he adds that he thinks our constitution should be amended to allow cruel and unusual punishment in certain cases:


Naturally, I don't expect this to happen any time soon; my point is about what should be the rule, not about what is the rule, or even what is the constitutionally permissible rule. I think the Bill of Rights is generally a great idea, but I don't think it's holy writ handed down from on high. Certain amendments to it may well be proper, though again I freely acknowledge that they'd be highly unlikely.


In a trailing response he answers a critic who says one’s humanity is “substantially diminished of one indulges in, and acts our revenge fantasies.


I've often heard this argument, and I'm sure it's heartfelt. But I've just never found it persuasive. Why would my humanity be diminished by participating in the killing of a monster (he had sexually abused and then murdered at least about 20 children), or even by deliberately inflicting pain on him? It seems to me that this is the reaction to a natural, understandable, and laudable human impulse to avenge (even if in a ridiculously inadequate way) the abuse and death of so many innocents. Why shouldn't one say that our humanity is diminished if this monster is allowed to live on, or even to die a painless death, when his victims and their families endured unimaginable pain?


Naturally, people on the other side are likewise unpersuaded by my views; 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 mere appeals to my humanity just don't do much for me.


Digby over at Hullabaloo here


This is awfully interesting, don’t you think? How long has it been since we were talking about torture for the alleged higher purpose of obtaining information a suspect may or may not have? A couple of months? Yesterday? And now the infliction of cruel and unusual punishment has entered the dialog as well.


… this is not really all that surprising. We have been leaning this way for a while with our move away from the idea of dispassionate justice to revenge. Listening to the inescapable rundowns of the Peterson verdict yesterday, I was struck as I often am by the sarcastic angry tone of the victim’s family in front of the cameras just as I’ve often been struck by the spectacle of the families inside the courtroom when they get their chance to confront the perpetrator in the penalty phase. It’s not that I blame them for feeling such rage. But I find it very disconcerting that our justice system believes that this revenge and catharsis should be part of the judicial process itself. Justice is supposed to be blind. Or so I thought.

I don’t believe in the death penalty because I think that the only justification for killing is self defense and when someone is locked up forever that is protection enough from their depredations. But I’m beginning to wonder if accepting the death penalty as we have presents another problem. So much focus is placed on the feelings of the victim’s families these days that I think we may have lost sight of the fact that there can be no recompense for the loss of a loved one. Therefore, the death penalty can never really be enough to satisfy the need that we are trying to make it satisfy.

As Volokh suggests, people will want to inflict pain to try to ease their own but that will not be sufficient either, will it? If one were to ask those relatives who helped in the torture and execution of that criminal if they felt satisfied, I would bet you that they don’t believe that real justice was served. Perhaps they think they should have been allowed to inflict the exact kind of pain that was inflicted on their kids, forced sodomy. Maybe they think that they should have been allowed to relive the murders with him as the victim. But would even that be enough? Could he suffer exactly the same way a child would have suffered in similar circumstances? It’s never going to be enough. And once you go down this road the line between those who kill because of mental defect, disease and evil and those who do it for revenge becomes very hard to see.


As for amending the constitution?


That is exactly why I gave up on arguing for gun control. You cannot even go near the Bill of Rights until Americans have evolved much, much further than we already have. When influential conservative constitutional law professors start giving the Bill of Rights only tepid support then we have to just say no. The Bill of Rights may not be a sacred writ, but it’s the best thing this misbegotten country ever did and it’s the single thing that makes the American system worth a damn.


From Moon Over Pittsburgh (really) this -


I would want to eviscerate a person who sexually assaulted my child, indeed anyone in my family or extended circle of friends and intimates. I just don't think society benefits from gratifying that instinctual response. Bad things happen to good people every day. What marks a civilization is that the government itself doesn't do those bad things.


Hey, what government is he talking about?  Ours?


See this at Confederate Yankee -


… an amendment to the Cruel and Unusual Punishment Clause would be difficult to add, but it may not be as difficult as you think, and may not even be necessary.

While some states feel it is cruel and unusual, firing squads are still legal in Utah, Idaho, and Oklahoma, and hanging is still legal in Washington, Delaware, and New Hampshire, according to this 2002 CNN article.

I don't think it unreasonable, considering that these forms of execution are still practiced, to allow members of victim's families to participate in either one.

Granted, it may not be a punishment to fit the crime, but it might be a step closer to both justice and closure for the surviving families. The tough part would be expanding this to a national scale, but if a few states could be pursuaded to allow victim's families to participate, victim's rights groups would probably push for a nationwide law, wouldn't they?


Of course, of course…


Matthew Yglesias here


Eugene Volokh -- in all apparent seriousness -- thinks it's a very bad thing that the United States does not follow the Iranian practice and brutally torture convicted criminals purely for the purpose of making them suffer before they are executed. It's important, naturally, that the victim's family be involved in the torturing and killing because at times it's important for crime "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." Really. He also thinks we should amend the United States Constitution in order to establish a "cruel vengeance" exception to Bill of Rights' guarantees. I'm going to stake out the view that while the desire of crime victims to exact cruel vengeance against perpetrators is perfectly understandable, one of the purposes of a criminal justice system is precisely to not handle things in this manner. Instead, we should be trying to do our best to minimize the incidence of crime rather than, say, maximizing the suffering of the offenders.


Ex hypothesi we're not talking here about the possibility that deploying extreme cruelty against criminals might be an effective deterrent to crime. Instead what we're talking about here is the desire of crime victims to see the perpetrators forced to endure intense suffering. If anybody reflects on their own lives, I think they'll find this impulse understandable and, to a large extent, something we can sympathize with. The question is, is this impulse something we ought to give social sanction and, indeed, encouragement to? I think the correct reply is clearly "no."


There are plenty of instances of wrongdoing -- some serious, some not so serious -- that take place outside the context of criminal law. Oftentimes, these non-criminal instances of wrongdoing are likewise met with retributions that stand outside the context of criminal law. The natural result of giving official sanction and encouragement to the desire to inflict suffering beyond the amount of suffering that serves a constructive purpose within the context of criminal law will be to encourage people to act on similar impulses (and, indeed, to have the impulses themselves) in non-criminal contexts as well. The result would, simply put, be a social disaster in which individuals are encouraged to nurse grudges, indulge spite and envy, and generally speak wreak havoc upon their fellow man. Cruel vengeance has a certain grandeur about it when it comes to the sort of grievous wrongoings Volokh is concerning himself with. It exists, however, on an uncertain continuum with acts of petty vengeance and cruelty that have no such grandeur. Encouraging unconstructive acts of vengeance and cruelty will lead simply to more vengeance and cruelty throughout the social and political system.


Along with the proliferation of vengeance and cruelty down the scale, you're also talking about its upward proliferation. I doubt I'm the only person in the universe who sometime on September 12, 2001 sort of felt like it might be a good idea to just coat Afghanistan with nuclear bombs to show the world that we were not to be fucked around with. It would destabilize things, sure, and might lead to some problems, but no problems that a few more nukes couldn't solve. Crazy? Sure. But not so crazy that it isn't the sort of thing that occurs to people. But it's, you know, wrong as I and most everybody else who may have felt that way came to see. And while I wouldn't want to say that nothing but the 8th Amendment stood between the United States and nuclear war on that day, I don't think it's crazy to think that these issues are connected. A society that encourages bloodthirsty behavior is going to become a society composed of bloodthirsty individuals.


Volokh notes that even torturing and killing a man who raped and killed dozens of children is, from a certain point of view, "ridiculously inadequate." Which is quite right and entirely part of the point. Unleashing excess cruelty on serious wrongdoers doesn't, in the end, solve anything, or balance out any sort of scales. Dead kids aren't revived and they're not really avenged, either. Family members pain and loss doesn't go away. You're merely telling people that they can and should try to fill the void left in their souls with the suffering of others. These are impulses that can and will easily become misdirected, turn into casual disregard for the interests of third parties, and spill over into all manner of contexts. There are real questions posed by what one might term "purposive cruelty" that's supposed to accomplish some worthy end other than mere indulgence of a desire for cruelty. But of the sort of thing we're contemplating now, there's no real affirmative case. Indulge the desire for cruelty for cruelty's sake and all you'll get is cruelty.


Ah yes, in these pages fifteen months ago (December 21, 2003 - The Culture of Death: Who We Should Kill and Why) it was suggested one could read that long, book-length poem by that Jewish writer from the UK – “In a Cold Season” by Michael Hamburger, about the trial and execution of Adolph Eichmann.  Apart from the poet's odd and amusing last name, as I recall the idea was to ask the question of whether it was good for us that instead of six million dead we now had six million and one dead.  What does that make us?  Yadda, yadda.  You get the  idea.


So, Harvard University law professor Alan Dershowitz argues we should allow our government to torture people, under an approved “torture warrant” of course (see this and this) - and now this UCLA law professor suggests extensively torturing certain folks before we execute them, with the victims actively participating.  And we could amend the constitution to allow that.  Are these two great universities or what?


Yes, we are talking about the desire of crime victims to see the perpetrators forced to endure intense suffering.  And as Yglesias says above, that impulse is understandable and, to some extent or other, something we can sympathize with.  Is this impulse something we ought to give social sanction and, indeed, encouragement to?  Should we amend the constitution?  He says no.  Many agree.


But the momentum is building the other way.


But why?  This glee in revenge seems to be part of the personality of George Bush – this need to be the stern punisher of evil, this swagger.  But why do we approve it, and want him to act it out on the world and national stage for all of us?  He won the election.  He had more votes.  That what we want.


George Packer in The New Yorker (Issue of 2004-01-05, Posted 2003-12-29 and no longer online) said this –

"Revenge Is Sour" is the title that George Orwell gave to a short essay on war-crimes trials, written just after the Second World War.  "The whole idea of revenge and punishment is a childish day-dream," he argued.  "Properly speaking, there is no such thing as revenge.  Revenge is an act which you want to commit when you are powerless and because you are powerless: as soon as the sense of impotence is removed, the desire evaporates also."  He cited the story of an old woman reported to have fired five shots into the body of Benito Mussolini, one for each of her dead sons.  "I wonder how much satisfaction she got out of those five shots, which, doubtless, she had dreamed years earlier of firing," Orwell wrote.  "The condition of her being able to get near enough to Mussolini to shoot at him was that he should be a corpse."

revenge is psychologically impossible, justice is politically necessary - not the fantasy of righting monumental wrongs but the reality of holding wrongdoers to account. …


Hey, sometimes you can’t get revenge – and you just have to settle for justice, even if you want to inflict a whole lot of pain.  Eugene Volokh, the constitutional law professor at UCLA who wants to be a judge may be disappointed, but justice is sometimes enough.





Ah yes, there are the cynical voices, as in this from Fables of the Reconstruction


I think part of the problem is that people who would be perfectly fine blowing someone away for cutting them off in traffic - if they could get away with it - feel queasy when similar punishments are inflicted en masse. As a people, Americans are sadists with delicate sensibilities. The American way is to hire others do the torture and hide it, so we don't sully our beautiful minds with such images. Prison walls don't just keep the guilty in; they also block them from our sight. If that's not good enough, there's always extraordinary rendition. The crime of Abu Ghraib was not the humiliations or the dogs or the beatings - it was the pictures. Damned sloppy of them. Similarly, Eugene's sin is being too honest, rather than couching his language in the balancing tests and learned utilitarianism of the libertarian lawyer.


That makes sense.  We are all a miserable lot - sadists with delicate sensibilities - who would slit the other guy’s throat for looking at us funny, but we cannot get away with THAT.  So the law is there to do it for us.  Volokh gets it.






UCLA Constitutional Law Professor Eugene Volokh recants (if that’s the word) –



March 19, 2005 at 2:23 am 


Mark Kleiman's Extremely Sensible Post has persuaded me that much as some monsters - recall that we began with a man who raped and murdered 20 children, and progressed to include Eichmann and various other Nazis - deserve a deliberately painful death, our society's legal system (no matter what constitutional amendments there may be) can't provide it.


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.


In any event, I much appreciate Mark's instruction on this. Part of me wishes that I could keep disagreeing, out of sheer bullheadedness. But the fact is that he's right, and I was wrong.




Kleiman’s post?  Some of it -


… There are reasons to prefer that human action, and especially governmental action, be kept within limits.


One reason is the tendency of power to corrupt, and for the conduct of the political game to become less rule-bound as the stakes increase. If the state has the power to torture, than the political process decides who is, and who is not, torturable. Those are high enough stakes to justify a considerable amount of cheating. (Would I help steal votes to prevent someone I cared about from being tortured? Of course I would. To keep him from being sent to prison, even unjustly? Probably not.)


A second reason is that putting 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.


… A third reason is human fallibility, both with respect to what sort of crimes deserve extreme punishment and with respect to whether particular persons have in fact committed those crimes. Those aren't the same issue; believing that heresy ought to be a crime isn't the same sort of error as convicting the wrong person of a particular rape. But they are both errors, and errors are inseparable from human decision-making. Recognition of that fact could reasonably lead one to try to limit the consequences of error, which argues, for example, for less extreme punishments. …


And so on…


So.  Back to normal.


Except for this


Anyway, so now he's changed his mind. Sort of. On the grounds that the opposition would make it very difficult to run a legal system. Not, mind you, on the grounds that it's fucking disgusting (I know, just like a girl to get all emotional. That's not a substantive political argument! Next you'll be saying that it "makes you feel sick," and we'll be able to accuse you of being Victorian. Which of course is a substantive political argument, because we say so).

And apparently a number of people seem to think that this is real big of him. This is how low the bar is set? It's reasonable to debate whether or not torture is ok while tut-tutting the inexcusable level of personal abuse that someone advocating torture gets, praising him for his usual even temper?

Yes. Let's all toss bouquets about when people advocate torture in measured tones, and distance ourselves from those who are horrified. Let's nod our heads sagely and have a discussion: is torture a good idea? Let's denigrate those who express incredulity and anger at said discussion by calling them "abusive" without tasting the bitter irony. And, having whetted our appetites over a rousing gentleman's debate, let's buy torture advocates dinner when they allow that, well, torture may be desirable but, alas, it's not practical.

You look a little nauseous. Here, have a mint.


Okay, I will.


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
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