My intention here isn't to enter into debate on this matter, since I am personally aghast that anyone thinks that there's anything to debate here at all. Since 9-11-01, the American people have been told repeatedly, ad nauseum, that we are at war with the Islam world, and that this conflict represents no less than a clash of our "enlightened" Western values against a more, shall we say, "medieval" enemy. That we are now told that, the war aside, there are things we could learn from these medieval enemies of ours in the realm of criminal justice strikes me as a particularly ghoulish irony. Believe me, folks: I may be an admitted, and proudly admitted, liberal, but I am not a postmodernist, Western-civilization hating, "destructive multiculturalist" leftist. I do not personally subscribe to the "Good West against the Heathen Islamics" view of what's going on in the world today, but that doesn't mean that I'm an admirer of a lot of what goes on in the Islamic Middle East these days. As far as I am concerned, the less my country has in common with present-day Iran, the better. And, quite frankly, I object strongly to Michael's characterization of this view as a general Western approach to such matters as (his words) "Let's be pansies." I'm not interested in "being a pansy". I want to be better than the other guy.
I'd like to respond to a couple of Michael's other specific points. First, he says this:
That's where I think flogging and burning at the stake and so forth can be useful: as an expression by society that this criminal has forfeited the security of society, that the criminal has so violated our agreed upon behaviors, that we are withdrawing even the most fundamental protections. By torturing such a criminal to death, we are reinforcing the idea that mercy, and even such a thing as a "clean death" are punishments reserved for those who walk among us, not those who declare war on us.
That's almost persuasive -- except for one thing. Michael's claim is that a torturous, brutal death would serve as a statement by society. But a statement to whom? The criminal who has already demonstrated, by way of action, his complete apathy for any statement society might make? or is it a statement to society, a kind of reinforcement of an idea? Well, if the former, then it's useless, and if the latter, it's precisely as useless, because members of society already believe these things. I don't see where any purpose is fundamentally served by the course of action Michael and Prof. Volokh support.
Michael then proceeds to what I think is the most compelling argument against Volokhian torture: that it diminishes our humanity. It makes us lesser people. Our willingness to say to a criminal that we are prepared to do to them exactly what we abhor them having done to us reduces us, in a very real way. Prof. Volokh disputed this claim (resoundingly unconvincingly), but Michael's reponse to this idea is more troubling: he basically says, "So what?" If we grant that we become a lesser society when we do such things, well, so be it, because at least we're not as bad as the serial killer or rapist or whatever. Well, as a moral argument, the "At least we're still better than that guy" argument has never impressed me. That Saddam Hussein did horrible things to his people doesn't mean that Abu Ghraib was the right thing to do. Since I'm concerned with the betterment of society, this argument is, so far as I can see, a complete non-starter.
Underlying Michael's post is a machismo that I find more than a little odd. His general position seems to be that if we don't allow "society" to act upon criminals with brutal force, it's because we're soft, we're "effete wusses" -- again his words -- who are more concerned with our individual humanity than "protecting the institution" of society. But since society is comprised of individuals, I fail to see just how a wholesale degrading of one area of individual morality, across the board, can strengthen the society of which those individuals are its atoms.
In the end, Michael wraps up with this:
I think that the world would be a better place if we had a little more savagery in the way we deal with certain types of criminals. I think it's ludicrous that every TV reporter and panel expert I've seen agrees that it is just as likely Scott Petersen will die of old age as it is that his sentence will be carried out. But if I want to see a better world come about, I'm going to have to do some convincing. I can't just say "we'll agree to disagree" and call it a day.
Consider that: the world would be a better place if we did as the Iranians do. Again, this very thought throws me into cognitive dissonance: we can see a world right now where people do as the Iranians do. It's called Iran. Is that really the model we want for our "better world"?
I'm reminded of all the brutal forms of punishment that once existed, but are no longer used. People are no longer put in iron maidens. Neither are they burned at the stake. Sailors who commit crimes are no longer keelhauled. We in the West tend to look down on the rigid adherence to Islamic law that proscribes that women found guilty of adultery be buried to their necks and then stoned to death. (Click that link, and note the country where that's apparently still part of the criminal justice system's bag of tricks. Again: is this our model?) I would also point out that we are on the threshold of one of Christendom's holiest days -- the holiest day, in fact -- which commemorates the brutal punishment meted out upon the Son of God, and the failure of that punishment to stymie His message. I'm not sure that last is relevant, but I note the irony of timing.
And beyond just the matters of brutal punishments we don't use anymore, the world keeps making progress, doesn't it? Consider just the last 150 years or so: slavery in the West has ended, although it's got a way to go before it's eliminated worldwide. Women in the West not only can vote just about everywhere, but several Western countries have even gone so far as to entrust their highest political offices to women. No one would claim that racial relations in America, while still disturbingly troublesome, aren't better than they were just a few decades ago. Five years ago we closed out a century that saw the rise of both Communism and Fascism, and the defeat of each (well, Communism's still kicking, but not with nearly as much vitality). We've made progress in science, in the environment, we've flown and gone to space.
Would the world be a better place if we in the West went back to doing the things to criminals that Michael and Prof. Volokh suggest? I prefer to think that the world is a better place, at least in part because we don't do these things anymore.