Eugene Volokh has stirred up a hornets’ nest with a recent series of posts.

Basically, he commented about this story that he actually happened to agree that human monsters such as the one in the story did deserve brutal, painful, public executions and that the families of victims deserve to participate.

Eugene is a brilliant guy, and a good friend, and he knows that his opinion is controversial in this culture (to say the least). He was honest and brave enough to declare his genuine, considered, opinion that his instincts about what would actually constitute justice for vicious mass murderers should be official policy. He understands the many objections and is thusfar unpersuaded by them.

I can certainly understand his emotional reaction to these crimes, and the feeling that these monsters deserve to suffer greatly, and that the families of the victims should be permitted to get comfort from participating. I understand what he means when he indicates that it slights the victims and their families to not have the culprit suffer. I also feel that there’s a tragic moral imbalance in the universe if the killer isn’t getting the horror he deserves.


I have to disagree with him on this one.

While they are sometimes right, I think that our initial instincts are often wrong about what actions are proper, and they’re very often wrong about what actions to establish and institutionalize as public policy. Just as I think that the collectivist instinct that tells many that people should be forced to share their wealth is disasterous public policy, I also think that the universal instinct to make those who caused suffering to experience suffering themselves would likewise be a very bad policy.

First, let me say that I am not impressed by the argument that treating murderers cruelly brings us to their level and makes us monsters ourselves. And I also don’t think that the example of official infliction of pain will cause private citizens to be much more likely treat their non-criminal peers that way. Furthermore, I don’t think that even the worst criminals deserve respect for their human dignity; I think they forfeit their right to that from decent people.

The argument that does impress me is that no matter how carefully such a policy is drafted, it is very likely that it will be misapplied and expanded to be used in many cases other than the narrow ones it was initially intended to cover. I would much rather see criminals treated too leniently than to see innocents, or people guilty of lesser crimes (or merely taboo violations) subjected to horrible infliction of pain. The biggest problem with governments is that there are many factors that lead them to grow beyond their proper scope and increase their abuse of power. The policy change Eugene suggests will make this problem worse.

Additionally, the more I think about vengeance, the less I think it makes sense for us to want it.

I’d be the first to admit that if somebody viciously killed someone I loved, or even just empathized with, part of my initial reaction would be to want him to suffer horribly himself. I think this is a very natural and superficially reasonable reaction.

But, does it make sense?

Is it really in our interests to place a high importance on what’s going on inside the head of some warped scumbag? Why should it matter to us whether he feels pain and regret? He’s an asshole!

What if we beat him and he just laughs and declares that this helps to confirm his theory that life is all about exploiting your power over others when you have the advantage? He could go on to say that obviously that’s the official position because that’s what society is doing right now. He could declare that each blow he receives only serves to entrench his theory that the only thing he did wrong was to get caught.

If he reacts that way should we feel bad?

I don’t think it makes any sense to pin our happiness on our ability to mold the experience and theories of a psychopathic monster. Fuck him! He’s not that important. The main thing about him that we should care about is that he never gets a chance to repeat his crimes. Perhaps we can also learn something about his psychology to help prevent others from getting as screwed up as he is.

Other than that, I think we should focus on furthering our own goals and values, and not make our success dependent on the experiences and ideas of the worst among us.

UPDATE: Eugene seems to have changed his mind about whether we should adopt deliberately painful executions for practical, institutional, reasons. But, he continues to defend his view that retribution is a legitimate goal of criminal justice.

8 thoughts on “Vengeance

  1. However, you and Eugene still seem to disagree. He was persuaded that it would be a bad idea to implement it as law for practical purposes, but he doesn’t agree that retribution for its own sake is unreasonable. The reason it is impractical is simply a cultural difference between us and Iran, where it seems to be fairly popular. If most people liked the idea here, or didn’t really care one way or the other, then Eugene would maintain his original position.

    Aside from the practical arguments, including its possible misuse by government, do you believe that it is objectively wrong?


  2. NQSRLB,

    I guess I don’t think it’s objectively wrong. But I do find it distasteful.

    As I indicated, I think that some people who do extraordinarily terrible things have forfeited their rights. So I guess I don’t think that there’s anything that can be done to them that would be objectively wrong on its own (not taking into account the forseeable side-effects). If we can get use from them by working them to compensate victims and their families, or testing drugs, harvesting organs, etc. I don’t think we will have wronged them.

    But, as I say, I don’t think it’s a good idea (for our own sakes) to have intense desires to see these people harmed. And I’m really bothered by the spectacle of these things being egged on by mobs. I don’t like mobs.

    And there are probably many other side-effects that I didn’t mention that collectively would make us noticeably worse off if we adopted this as public policy.


  3. Well, you answered my next question, which was going to be about medical experimentation and harvesting organs. I’ve always thought that this was the way to go and can’t think of any reasonable arguments against it. Just imagine, for the first time ever you’d have hard-line conservatives and PETA on the same side of an issue.


  4. I said I didn’t think it would be objectively wrong, but that other foreseeable side-effects of such policies might make them bad ideas. I do think they are bad ideas.

    I said that hard-line conservatives agreeing with PETA was a clue that it’s the wrong side; not proof.


  5. I’m not against the death penalty in theory.

    But I’m just not confident enough in the government limiting it to the guilty to support it now, or in juries to be able to separate the need for organs from the facts of the cases.

    I’ve been on a jury before. They were mostly a bunch of idiots. It was just a traffic accident/injury case, but they weren’t willing/able to separate their decision about percentage fault from the decisions about the amount of damages.

    I realize that we already trust them to make important decisions, but I don’t see a strong need to raise the stakes.


  6. I was on a jury once too. But they were smart enough to bar me for being too good a player.


  7. ah, torture as a proportional legitimate state punishment. First, let me say that by using the word “torture”, we’ve already muddied the waters. Linguistically, when the average person uses the term “torture”, they mean something to the effect of “intentionally inflicted pain for the purpose of cruelty” or “intentionally inflicted pain so extreme there is no justification”. (i.e. “the serial killer tortured his victims” or “cutting off one’s hand for the crime of theft amounts to torture”).

    So to when using the term torture, I am going to assume what is meant is something to the effect of “extreme pain inflicted for the purpose of vengeance”.

    I question the separation between vigilante justice and torture-executions. If we adopted as policy that the government would do all the horrible things to a guilty party that the bereaved would like to do, then why not just allow the bereaved to do it? Some may respond that the government must control crime and punishment to maintain order, and I agree, but I see no reason why the court could not hand the prisoner over to the bereaved instead of to death row… either way, the result is state sanctioned. And isn’t that really the motivation behind torture? The government gets no benefit from increasing the pain of the execution. The criminal certainly gets no benefit. I haven’t read any convincing argument that society would benefit (and certainly societies that use torture are not more successful than us), so for whom is this benefit intended?? It is intended for the bereaved. Additional psychic benefits may exist for those of us who are eased (or, perhaps, pleased) to know that a crime against us or our loved ones will be avenged. Retribution in general is a valid state interest in punishment, but torture specifically does not satisfy an interest in retribution in any greater amount than current punishments. Only on an individual level (the bereaved) does torture satisfy any additional interests in vengeance.

    Therefore, the question I see before me is whether individual vengeance is an appropriate state interest. I believe that it is not.

    Number one: If the only significant benefit to increasing pain in punishment is the peace of mind afforded to the bereaved, then criminals must receive different punishments depending upon the bereaved. If, for example, a criminal kills a homeless man without family or friends, there would be no reason for torture. If the state did torture this criminal, there would be no additional benefit than if he was merely executed. Without an additional benefit, it would be hard to justify the policy. However, it seems silly that some criminals would face significantly different punishments for the same crime depending upon the mindset of the victims’ loved ones.

    Number Two: Our criminal justice system, if it works at all, works because of objectivity. Vigilante justice is dangerous because what a victim’s mother believes to be “justice” often isn’t. Vengeance is fueled by pain and hatred and can cloud one’s judgment. If anyone has thumbed thru victim impact statements, you have seen that victims often want their perpetrators punished severely (for instance, I can’t help recalling the market owner who wanted his robber executed). If we require attorneys, judges, jurors, etc, to feel the extreme emotions needed to truly want to torture someone, their objectivity will go out the window. If a juror is so incensed at a crime that he truly believes the criminal should be torn limb from limb, can you really trust that he will make a proper guilt/ innocent decision? Can you imagine asking a juror who believes the crime was so horrible to warrant torture to acquit because of a procedural evidentiary issue? He wouldn’t be able to. The emotional requirement for truly desiring torture is so extreme as to make objectivity in decision-making questionable at best.

    Of course, such an argument excludes psychopaths who enjoy torture, but I think we can all agree that these are not the people we want making any kind of criminal law policy.


  8. JSB,

    I think that many people other than the bereaved would claim that they benefit from painful punishments. In the original article, about the incident in Iran, it spoke of the execution being public and the crowd chanting “harder, harder”. Many people empathize with the bereaved and the victim and feel a personal desire that the perpetrator suffer.

    Many would probably also claim that making serious criminals suffer would add to the deterrent effect on other potential criminals and would benefit everyone in that way. I’m skeptical about this, though.

    Your second point is the one that convinced Eugene that it’s not practical. Selecting for jurors, politicians, etc. who were willing to impose torture would make it difficult to have an objective process.



Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s