The Volokh Conspiracy
[Eugene Volokh, November 28, 2005 at 6:34pm] Trackbacks
Retribution:

Mark Kleiman and Cathy Young defend it, in my view quite rightly.

Master Shake:
Uh oh, here we go again.
11.28.2005 6:50pm
AnandaG:
What's the difference between "rightly" and "quite rightly"?
11.28.2005 6:54pm
Jay:
Mark Kleiman says that one can justify punishing Pinochet only based on retribution, not deterence or incapacitation. I don't see why: surely the possibility of punishment after a fall from power/grace will deter (at least marginally) future dictators from stealing from their people -- or perhaps persuade them to be nicer guys so no one thinks about trying to prosecute them. I see deterence as a complete justification.
11.28.2005 7:02pm
Goober (mail):
Is that really a controversial question? I recall reading George Fletcher's defense (written quite some time ago) of retribution when I was in law school; I am certain he wasn't the first to identify the value. Other than the few clinging Wechslerites and a handful of legal-studies undergraduates of rationalistic persuasion, who really believes punishment doesn't involve retribution?
11.28.2005 7:06pm
Fishbane:
Jay: I don't see why: surely the possibility of punishment after a fall from power/grace will deter (at least marginally) future dictators from stealing from their people

I rather doubt it. The type of personality that becomes a Pinochet is used to rather high stakes, and any marginal increase of the likelyhood of punishment after a fall would only increase repressiveness, in order to stave off consequences.
11.28.2005 7:21pm
Mschette:
To cause harm to another simply for the sake of causing that harm is not an activity a civilized society should or needs to condone. Deterrence, norm-setting, and a handful of other theories of punishment should guide us; retaliation for the sake of retaliation only sets us back.
11.28.2005 7:27pm
Wintermute (www):
"Quite rightly" was in a Donovan song, Mellow Yellow, I think, and evokes the pantheon of Saffron and the E-lec-TRIC-al Banana, among other things.

Anyone still need the link to the DA's statement on Tookie Williams? Here it is.
11.28.2005 7:36pm
Charles Chapman (mail) (www):
As I recall, even where state (or internationally) imposed retribution might not serve the purpose of either deterence or incapacitation, it serves the purpuse of preventing self-help.

In other words, there will be retribution. The only question is who will have the power to impose it, and under what rules of evidence, procedure, etc., it will (or will not) be imposed.
11.29.2005 12:00am
Dan Markel (mail) (www):
People interested in something more than a casual flirtation with retributive theory (and how it's different from revenge) might find something useful in the following articles:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=567561
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=410922

Both have extended discussions on the differences between revenge and retribution, which are commonly conflated but are different moral and political phenomena.
11.29.2005 12:43am
RetributionRabbit (mail) (www):
Retribution sounds fine, especially when applied to false rape and sexual abuse claimants and their families. Also for medical abuse offenders. Also for those violating torture laws, including the international torture treaties. Also those committing fraud and extrinsic fraud, especially when it resulted in an innocent person receiving some kind of criminal penalty. This should deter a lot of the rot in our legal system.
11.29.2005 5:06am
jimbino (mail):
Speaking of retribution, a lot of us Latins offer a standing invitation to visit Central and South America to war criminal Henry Kissinger, the great facilitator of Pinochet and the other military regimes responsible for the thousands of desaparecidos.
11.29.2005 8:52am
jimbino (mail):
Speaking of retribution, a lot of us Latins offer a standing invitation to visit Central and South America to war criminal Henry Kissinger, the great facilitator of Pinochet and the other military regimes responsible for the thousands of desaparecidos.
11.29.2005 8:53am
Brutus:
I have a question. Why is it that only right-wing criminals - from former dictators down to former SS corporals - are so relentlessly hunted down and prosecuted? Has a high-ranking former Communist official ever been prosecuted for anything? Has there ever been a story along the lines of "former Gulag guard indicted"? Certainly left-wing regimes killed more people last century than did right-wing regimes, but the "retribution" seems extremely unbalanced.
11.29.2005 10:34am
cfw (mail):
Where does one draw the line about "quite rightly" defending retribution? Life in prison without parole? Death? What is the limiting principle?

I have no qualms about proportional retribution short of death. Once we get to death, a "reasonable self defense" rationale seems necessary. Death is, as always, different, eh?
11.29.2005 10:48am
markm (mail):
One problem with this is that it will give all the other murderous, thieving dictators another reason to hang onto their power as long as possible. It's better to allow them a chance to negotiate immunity from criminal charges in return for stepping down. (And to make hanging onto power a little more dangerous; Saddam should have been tried and executed already, and the others ought to start worrying...)

OTOH, I don't see that anyone has the power to grant immunity from civil lawsuits. I'd like to imagine Pinochet dying in a charity ward after his Swiss bank accounts were emptied to pay damages to his victims and their families.

As for retribution seeming unbalanced left/right, I'll take it where we can get it. I can't really place Saddam on the left-right spectrum, but the former dictator of Romania was certainly on the left, and he received about as much retribution as it is practical to administer. I for one would love to see cruise missiles targeted at Castro in Cuba and Kim II in Korea, and Kofi Anan in prison for the UN corruption.
11.29.2005 11:11am
JJV (mail):
Pinochet no more deserves to be put in jail in his remaining years than Lincoln or Woodrow Wilson did in taking strong measures against violent domestic enemies of the country. He left his country, while he still lived, a democracy with one of the strongest economies in Latin America. Fighting communists is not easy work. The Left lost the Cold War, in part because of the hard measures taken by Pinochet. By either Communist or Latin American standards of due process or theft the guy is a paragon. But he stopped the Revolution (whose butcheries and crimes are always excused when they are not forgotten)and for that the makers (and forgivers) of Gulags must punish him. I don't wish Latin American political history on anyone but the freedom side of the Cold War owes him a debt. He left without war or revolution, peaceably on agreement he would spend his remaining years unmolested. That deal should hold. But we know what agreements with the Left are worth.
11.29.2005 11:22am
cmp:

Has a high-ranking former Communist official ever been prosecuted for anything?


Yes, many. Pol Pot and Nicolae and Elena Ceausescu to name a few.
11.29.2005 12:11pm
Brutus:
Pol Pot was never tried. Or at least the so-called trial he did get was a farce.

http://news.bbc.co.uk/1/hi/world/asia-pacific/78988.stm

"For many survivors of that era, the joy of his demise will only be tempered with the regret that he was not called to account for his crimes against humanity."

The Ceausescu trial was also a farce - perfunctory two day closed trial by military court, followed by execution. I'm OK with that outcome, but let's not pretend that's a trial for crimes against humanity in any real sense.

Who else ya got?
11.29.2005 12:21pm
cmp:
Sorry Brutus,

I thought that your question was whether "a high-ranking Communist official [has] ever been prosecuted for anything" and that your concern was that such officials have been treated too easily. I now see that you were actually asking whether a former high-ranking Communist official has ever been convicted of crimes against humanity, and that your concern is that those officials may have been treated too harshly. I guess, therefore, that Egon Krenz and his various henchmen (convicted of murder, but not crimes against humanity), Eric Honecker (prosecuted for various crimes but never tried because of poor health), and Slobodan Milosevic (prosecuted for war crimes including genocide, but not yet convicted) don't count either.
11.29.2005 12:44pm
Seamus (mail):

Mark Kleiman says that one can justify punishing Pinochet only based on retribution, not deterence or incapacitation. I don't see why: surely the possibility of punishment after a fall from power/grace will deter (at least marginally) future dictators from stealing from their people -- or perhaps persuade them to be nicer guys so no one thinks about trying to prosecute them.



Or, more likely, it will deter dictators like Pinochet from ever giving up power.
11.29.2005 1:11pm
Brutus:
CMP, what I was looking for were cases where more than just "simple retribution" was done. Crimes against humanity type trials are not, in my view, directed at the practical purpose of retribution against the (obviously) guilty or deterrence of future crime. They mainly serve idealistic and pedagogic purposes. These purposes include discrediting the former regime, serving the interests of history, giving the victims a sense that justice has been done, documenting horrific crimes and holding them up to public odium, establishing (or re-establishing) the rule of law in a former dictatorship, and so forth. I just wonder why, in the main, many more such pedagogic trials have been conducted against right-wing regimes than against left-wing regimes.
11.29.2005 5:21pm

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