Something the Iranian Government and I Agree on:
[UPDATE: I have in considerable measure conceded error on this subject, thanks to some very cogent arguments by Mark Kleiman; see here for my explanation.]
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, yes, I know this aligns me in this instance with the Iranian government — but even a stopped clock is right twice a day, and in this instance the Iranians are quite correct.
UPDATE: I should mention that such a punishment would probably violate the Cruel and Unusual Punishment Clause. I'm not an expert on the history of the clause, but my point is that the punishment is proper because it's cruel (i.e., because it involves the deliberate infliction of pain as part of the punishment), so it may well be unconstitutional. I would therefore endorse amending the Cruel and Unusual Punishment Clause to expressly exclude punishment for some sorts of mass murders.
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 any event, there's nothing unconstitutional about letting victims' relatives participate in the execution; it's only the use of cruel means that would require an amendment.
FURTHER UPDATE: Strange Doctrines writes:
I know what Volokh means. There's a part of me too that would desire to meet savagery with savagery.
But there's another part of me that knows my humanity would be substantially diminished did I indulge my phant'sy for revenge. . . .
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.
AND WHILE WE'RE AT IT, ANOTHER RESPONSE TO A COUNTERARGUMENT: A couple of people pointed out the risk of error; and it's always possible that we're going to convict the wrong man. That's a decent argument against the death penalty generally, though I'm not persuaded by it. And it's certainly a great argument for fixing problems that may increase the risk of wrongful conviction — locking up the wrong man for life isn't much better in my book than executing the wrong man, especially since the chances of exonerating the wrongfully convicted lifers are, I suspect, pretty low.
But I don't see it as much of an argument for a painless execution as opposed to a painful one, or an execution by anonymous bureaucrats rather than one in which the victims' relatives participate. It's something of an argument, and I do think that there should and probably would be a higher threshold of felt certainty required on the jurors' and perhaps even reviewing judges' parts, just as I suspect that in practice most jurors today require a higher level of certainty to vote for a death sentence than for other sentences. But it doesn't, in my view, carry the day against the counterargument outlined in my original post.
BACK TO THE FIRST UPDATE: Dan Glick writes:
I can only shake my head at the different ways that people view the world. Volokh doesn't even attempt to logically justify his opinion, other than by an appeal to 'justice', that disgustingly noble coating with which nature has covered our instinct for revenge. I challenge anyone to look at this picture and tell me that the Iranians are better people or a better society for punishing a man that way, no matter what his crimes.
I agree that this really does comes down to a fundamental difference in how people view the world. Mr. Glick, after all, doesn't "attempt to logically justify his opinion" either, other than by an appeal to what he finds "disgusting" and to what he sees as the pejorative term "revenge." It's a battle of moral axioms and visceral reactions.
So, look at the picture; read even the doubtless sanitized description of the facts; decide for yourself. I doubt that the Iranians are better or worse people or a better or worse society for punishing this man this way — serial killings are rare enough that I doubt the punishment of serial killers has much of an effect of the society. But I do think that the Iranians are in this one respect more just than those societies that let serial killers live, and even slightly more just than those who execute serial killers in a supposedly "humane" way.
STILL FURTHER UPDATE: Clayton Cramer and Maimon Schwarzschild disagree; I'm not persuaded, but I think their posts are thoughtful and eloquent statements of the contrary view.
[UPDATE: I have in considerable measure conceded error on this subject, thanks to some very cogent arguments by Mark Kleiman; see here for my explanation.]
I am naturally daunted, as any thoughtful person would be, by the fact that my views on this run contrary to my nation's constitutional regime, contrary to what is seen by most as a worthy long-term trend in the civilization to which I belong, and the views of many people (both on the left and on the right) whom I admire. (My views are also largely pointless, since they can't be implemented in my country without a constitutional amendment that isn't going to happen.) Perhaps I am grievously mistaken, and have fallen victim to unsound emotion or the first flush of fatherhood.
Yet after reading the counterarguments, I confess that I continue to find them quite unpersuasive. I've gotten many more than I can possibly respond to, but I think I have an obligation to respond to some, so let me focus on those coming from Mark Kleiman, Matthew Yglesias, Maimon Schwarzschild, and Clayton Cramer. These are interesting and generally very thoughtful arguments (and I also thank their authors for framing the arguments not just civilly but quite generously, despite their disagreement with my views).
1. Clearing the underbrush. Let me first deal with a few general criticisms that I think are unhelpful here. Clayton quotes Gandhi's "An eye for an eye will blind the world," but while that might be relevant in some situations — for instance, as a warning against ethnic vendettas — it is about as relevant here as "Imprisoning kidnappers will leave the whole world locked up." It tells us nothing about the propriety of various punishments (whether prison, death, or deliberately painful death) for people who rape and kill 20 children.
Likewise, it seems to me that Maimon's analogy to lynch law is misplaced. Lynch law is bad for many reasons: Among other things, it doesn't provide adequate factfinding procedures, it leaves us at the mercy of our neighbors with no legal structure to channel and restrain the neighbors' actions, and it has often been used in racist ways. None of this tells us what punishments may properly be imposed by the legal system, or whether the legal system, in administering the punishment, can allow the victims' relatives to participate — not in deciding who's guilty, but in applying the legal penalty.
2. What about the Nazis? Maimon asks "if you 'execute' the serial killer of twenty children in this way, what do you do to criminals who are worse still? . . . What would Eugene wish the State of Israel to have done with Adolf Eichmann?" Yet this seems to me to support my original point rather than to undermine it. It seems to me an occasion for regret that Eichmann was executed by hanging. Such a decision was likely politically necessary; but I think it slighted the enormity of what he had done. He deserved a far worse death, and it would have been good had he received it.
Likewise, Clayton points to Hitler's having executed the von Stauffenberg coup plotters by hanging with piano wire, and to his having filmed the execution so he could enjoy watching it later. But what makes this bad is that the von Stauffenberg plotters were trying to do something very good. Had things been reversed, my regret would have been that hanging with piano wire didn't inflict enough pain on Hitler (though I would have been glad that he hadn't been turned over to a too-"civilized" government that would have dispatched him with less pain). Seriously, would most of us disagree? Maimon points to George Orwell's criticism of what he saw as the unduly painful hangings of some Nazis after World War II. I find much to admire in Orwell, but I don't share his generosity here (I speak here of the Nazi leaders generally, though recognizing the possibility that some lower-level military officials deserved to live, or even deserved to die painlessly).
Of course, as Matt and Clayton point out, these penalties are obviously inadequate. Like punishment generally, these punishments don't bring back the dead, or even inflict a fraction of the pain that the monsters have inflicted. But one should do what one can, and surely Eichmann et al. offer as strong examples as possible. (In fact, I didn't bring up Eichmann and Hitler in my original post because people could have plausibly argued that one can't really generalize from the abberational cases such as that of the Nazis; but if people bring up Eichmann, I have to acknowledge that my argument applies in spades to him.)
3. Practical effects: Matt argues that deliberately inflicting pain, even on the monsters, would cause bad effects on society: "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." Maimon agrees.
If I agreed with this empirical speculation, I would come to a different result. But I just don't find it to be terribly plausible. People, it seems to me, have a natural desire to inflict pain on moral monsters. I doubt that the legal system's actions will much exacerbate this desire. If someone raped and killed your child, would your desire for revenge be much altered by what you know of the legal system's rules? I may be wrong, but I doubt it. (I agree that it might be altered by the legal system's threat of punishing you for the revenge, but that's a different matter.)
One can make an equally plausible claim, I think, that people will be less likely to seek private revenge if they think the legal system will impose accurate punishment: They'll both find private revenge less necessary, and will more generally trust and respect the legal system. This is utter speculation, I realize — but so is Matt's empirical argument. My sense is that one's empirical guesses on such things more often follow one's moral judgments rather than vice versa.
Nor have I seen evidence that harsh punishment generally makes society more brutal. The sharp increase in U.S. homicide rates in the 1960s and 1970s, for instance, followed a broad decline in the use of the death penalty. I'm not claiming that the decline in the death penalty caused more brutality; and I agree that death penalty calculated to inflict more pain (even if applied to a very few monsters) is different from the death penalty as such. But evidence such as this leads me to doubt that legal harshness in dealing with the guilty will translate into private harshness.
4. Assuming the Conclusion: There is, however, a deeper objection to Matt's point. Matt argues that it's proper to punish criminals but only to the extent that it "serves a constructive purpose." Presumably he'd think that incapacitation, deterrence, and rehabilitation are three such constructive purposes; a deliberately painful death penalty will add nothing to incapacitation or rehabilitation, and I'll also assume that it adds little to deterrence.
But in my view retribution is also a constructive purpose. This is most easily seen if we for a moment set aside deliberate infliction of physical pain, and even the death penalty. Consider a scenario where punishment will do little to prevent future crime: For instance, the imprisonment of Nazis who committed their crimes decades ago and are now in their 60s or 70s. There's little need to incapacitate them as a means of preventing future crimes and little likelihood of rehabilitating them. Nor will it do much to deter future atrocities, I think. If people are deciding whether to participate in a future Nazi regime, they'll probably be much more worried that they'll just get killed in the war, or killed shortly after the war by people seeking revenge. I doubt that many would-be Nazi war criminals in 1941 would have been deterred by the risk that some decades later, when they're old men, they'll be tracked down. No, the real reason it was right to punish them was retribution (as Mark points out).
In my view, painful death for certain monstrous acts is the proper level of retribution — anything less is inadequate, just as a slap on the wrist would be inadequate for an armed robber, or a short jail term would be inadequate for a rapist. Therefore, such a punishment does serve a constructive purpose — the purpose of retribution. Matt may disagree that retribution is a constructive purpose, or he may disagree that painful death is the proper level of retribution (he may think it's too much). But his argument doesn't demonstrate any of these points. Rather, it rests on the assumption that a painful death penalty for monsters doesn't serve the constructive purpose of retribution or that retribution isn't a constructive purpose, which are the very things he was trying to prove.
5. Humanity: Likewise, I think, with Mark's argument that deliberate infliction of pain, even on monsters, "makes the person who engages in it a little bit more of a beast, and a little bit less of a human being, than he would otherwise be." First, we should recognize that this is a metaphor; I may be mistaken, but my sense is that most literal beasts (i.e., animals) don't actually try to inflict pain as punishment for wrongs. Literally speaking, this desire is quite characteristic of human beings (though perhaps some other higher primates might be included; I'm not sure). This doesn't make Mark's argument wrong, but only shows that we need to look behind the metaphor.
So what's behind the metaphor? It could be a judgment that it's beastly, less-than-human, and thus morally improper to succumb to our visceral emotional impulses. But I don't think that's what Mark literally means. Love, empathy, the desire to pick a mate, the desire to have children, and other worthy emotions are also visceral emotional impulses; while we should certainly indulge in them with rational caution and care, there's nothing wrong in following emotions, and it's sometimes bad to resist them.
I take it, then, Mark's point is that it's beastly, less-than-human, and improper to indulge this particular emotion. But that too, I think, assumes the conclusion. When someone rapes and murders twenty children, why is it a "beastly" impulse as opposed to a worthy one to try to exact a harsh retribution? Mark acknowledges that retribution in general is a proper goal of punishment — but his argument doesn't, I think, explain why this particular sort of retribution is not. (To be fair, he does say "in my eyes, at least" — here we may be returning to a point I mentioned in my original post, which is that a lot in this debate rests on people's visceral moral intuitions.)
6. Risk of Error: Mark also points to the risk that we might be wrong, a risk I briefly discussed in my earlier post. His Torquemada analogy doesn't work for me — I think that we'd have contempt for Torquemada even if he had simply painlessly executed insincere coverts, rather than burning them at the stake, or even if he had locked them up for life. Conversely, had he burned at the stake people who had raped and murdered 20 children, we probably would barely remember him. Our condemnation of him is based on disagreement with his substantive moral judgment about the crime; and I think we'd say that the risk of such moral error about what's guilty conduct is indeed different from the risk of factual error about who's guilty of it.
Nonetheless, I admit that all human institutions have a capacity for error, and wrongfully inflicting deliberately painful death is indeed a more serious error than wrongfully inflicting painless death, or wrongfully imprisoning someone for life. The question is how this risk of error balances against the moral imperative for retribution. This is a question that defenders of the death penalty must ask themselves. (I doubt that the death penalty as currently administered has much of a deterrent effect; I think it's justified because some people deserve to die, and it's unfair to their victims and the victims' families not to execute those people.) It's likewise the question with regard to deliberately painful death penalty.
One can certainly reach a different judgment than I do: Even if one thinks there's some moral benefit to executing the Eichmanns or even the serial rapist-killers, one might say that the benefit is small enough that it's exceeded by the risk of error, and the very serious moral cost of that error. As I mentioned at the outset, I am keenly aware that I may be wrong on this general question, and the matter that causes me the most trouble is precisely this one. Yet my tentative current sense is that for a small number of extraordinarily monstrous crimes, the need for retribution is so strong — and the risk of error can be made so low — that not just death but deliberately painful death is the proper punishment.
* * *
In any event, I have gone on at ridiculous length. Yet, as I mentioned above, I think respect for those particular people who disagree with me on this, and broader respect for the weight of moral authority against which I'm pushing, required me to provide some response. I hope even those who disagree with me have found these arguments to be candid, clear, and fair to those whose arguments I'm trying to rebut. And perhaps the arguments may be helpful even to much more pragmatic debates, such as those about the death penalty generally, and about retribution still more generally.
And Then There Are These Arguments
(as opposed to the thoughtful arguments I tried to respond to below):
So you think the Bill of Rights is not "Holy Writ?" Nice to see a law professor that doesn't believe in the law.
I would have thought it unnecessary to respond to this argument, but my rule of thumb is that if one person has this view, others do, too. The answer, of course, is that while the law should be followed, it may sometimes be amended. That's the difference between law that is good and important but potentially flawed, and "Holy Writ."
The Constitution has been amended 18 times (once for the first 10, and then for the remaining 17, though one can of course do the count in different ways). Some of the amendments were specifically intended to repeal portions of the Constitution. What's more, the Framers deliberately created a mechanism through which the Constitution can be amended. They themselves realized that the Constitution was not Holy Writ. And the same of course goes for the first 10 amendments of the Constitution. (See here for a post on how parts of the Bill of Rights -- or at least the Bill of Rights as the Supreme Court had interpreted it -- have already been amended or probably amended.)
Naturally, none of this speaks to the wisdom of any particular amendment, or to the possible dangers that one amendment will open the door to other, worse amendments (dangers that I think tend to be overstated, though may in some situations be quite plausible). But it does respond, I think, to the glib or pious sanctification of the Constitution or the Bill of Rights as unamendable Sacred Law that we sometimes hear.
Arguments Against the Death Penalty:
The recent exchanges about the deliberate-infliction-of-pain punishments remind me that I've long wanted to write a few thoughts about the death penalty — and especially about why even people who are generally conservativish-libertarianish like me may want to oppose it. I should note at the outset that many people have thought much more than I have about the subject, so I'm not sure how much I can add. Nonetheless, at least some of these points aren't, I think, disucssed as often as they should be.
First, let me mention again that I do support the death penalty, because I think it's the just punishment for sufficiently heinous murders. I'm not sure how much of a deterrent effect it has, and I don't think the financial arguments alone (even if the cost of the death penalty appeals and delays is reduced) suffice to justify it. So the ultimate and in my view adequate justification for it, I think, is retribution.
Nonetheless, I think there are some very important arguments against it. The risk of error, and the irreversibility of error, are two obvious ones. In practice, I think errors in death cases are on the aggregate more likely to be corrected than in life imprisonment cases, because death cases draw much more attention from lawyers, judges, and others. But the availability of new technologies (such as DNA evidence) might change the balance here; likewise, greater acceptance of the death penalty might change the balance, too. In any event, I will set this point aside just because it's so obvious. Let me mention instead three arguments that are less commonly heard, but that conservatives and libertarians should take seriously:
1. The Utility of the Death Penalty as a Means of Silencing Dissenters: The death penalty is an especially powerful tool for repressive governments, because it can let them easily — and with seeming legitimacy — dispose of dissenters. This is so even if the death penalty is limited to murder; they can trump up a charge of murder, and quickly put the dissident to death. Had he been allowed to live, he might have eventually been freed when the government changed, by revolution or just by softening; he might also have become a focal point for public agitation, both in the country and outside it. (That happens to martyrs, too, but under many plausible conditions a live imprisoned dissident attracts more attention than an executed one.)
Now this is likely to matter only to governments in the middle. We don't worry much about decent governments doing this; and the really heinous ones will kill whomever they want no matter what the legal rules surrounding the death penalty have been. Moreover, even if the death penalty is illegal, and an oppressive government cares about legality, it can always change the law. And some oppressive governments may find themselves politically constrained not to use the death penalty for dissidents even if the penalty is actively used for murderers (consider the Soviet Union in the 1960s and later).
Still, one can certainly imagine many governments (1) that are oppressive but not completely unresponsive to popular opinion, within the country or outside it (2) that find it too politically costly to reverse a firm, well-entrenched, and broadly agreed-on no-death-penalty rule, and (3) that would be willing to trump up capital charges to dispose of dissidents even if they aren't willing to just kill the dissidents extrajudicially. When those governments are in power, and they may one day be in power even here, a firm traditional rule that the most they can do is lock up convicted criminals may provide a check on them.
2. The Utility of an Anti-Death-Penalty Rule in Free Countries: Moreover, even if we don't worry too much about possibly oppressive future regimes here — or if we have confidence (whether or not misplaced) that the error rate for the death penalty in our country won't be too great — we may want to discourage the death penalty in other countries, such as emerging but fragile democracies or mildly oppressive autocracies. Even if we trust our system, we may not trust theirs.
Naturally, we could try to persuade them that the general rule should be "No death penalty unless your legal system is really good; yours isn't as good as ours, so you shouldn't have the death penalty, even though we do." We might even believe that this argument is both morally and factually accurate. But it may well be quite unpersuasive nonetheless. The most effective way to deter the death penalty in such countries — a death penalty that, as I argue above, could be a tool for political oppression as well as posing a risk of normal error — might be to have a flat "No death penalty, either in our country or in yours" rule.
Those who are hostile to molding U.S. law to European norms (and who don't think that there's much of a risk of internally oppressive government in the U.S.) might look at it this way: Don't think of abolition of the death penalty as surrendering to European views. Rather, think of it as a tool for us to help protect Europeans the next time some European countries turn internally oppressive.
3. A Precedent for Limiting Government Power: Recall that in the modern state the government has very broad constitutional authority. It can take our property, either because of our crimes or for a variety of other reasons. It can lock us up. It can put is jail for saying certain things (relatively few things in the U.S., but more in other democratic and otherwise liberal countries). It can broadly interfere with our professions and businesses. Maybe it shouldn't be able to, but in fact it can.
The governments or free countries often refrain from exercising these powers, and are often legally constrained in exercising them. But they're always available, either within the existing law or with a few changes to the existing law. People may grow up hearing that they have an inalienable right to liberty, but when they see the world as it is, they recognize that their own countries — whose legal systems and institutions they are generally taught to respect or even love — restrict liberty in all sorts of different ways.
Clear, simple, and consistently adhered-to rules that limit the government's power can help fight this sense that the government is all-powerful. We can't have a clear rule that the government can never lock people up, or can never take their property, or can never restrict their speech, or even can never kill people. But as to killing, we can at least have something close — at least during peace-time, government officials may not deliberately kill people except in actual self-defense (or defense of others) against imminent crime. Both the exceptions (war and self-defense) are intuitively and historically understood. Both involve the most urgent of necessity. The rule isn't perfectly simple (few rules for behavior can be); but it's probably as simple as possible, and if it's broadly accepted and internalized it reminds both the governors and the governed that there are strong limits to legitimate government power.
4. Radical Distrust of Government: Finally, for really hard-core libertarians (and I'm not one), the "risk of error" argument isn't simply "all legal systems have risks of error" or even "we have particular problems in our legal system that magnify the risk of error." Rather, hard-core libertarians believe that government is naturally extremely prone to error, both moral and factual. They believe (and this is an oversimplification, but I think not a gross one) that government posts tend to attract not very good people; that they tend to make good people worse, by a combination of bad incentives and the corrupting effect of power; and that the institutions tend to limit good officials' power to do good, and magnify bad officials' power to do bad.
If this is so, then one might oppose the government-imposed death penalty because government is simply inherently corrupt, and not to be trusted to do anything but the absolute bare minimum to prevent murderers from roaming the streets. (The true anarchists wouldn't even have the government do that, but I'm sticking with hard-core libertarians here.) In fact, one might wonder why many hard-core libertarians do support the death penalty, as in my limited personal experience they tend to do. My guess is that many libertarians believe there's a basic human right to retribution for crimes done to yourself or your close relatives, and that if the government is to take it away from us, it has an obligation to provide us with some government-conducted substitute.
* * *
These, it seems to me, are powerful arguments that conservatives and libertarians need to seriously consider. (I stress again that they are only a subset of the arguments in the debate, chosen by me precisely because in my likely idiosyncratic view they're especially likely to be appealing to conservatives and libertarians.)
In the face of these arguments, it seems to me, the strongest reason to support the death penalty is a belief that it is morally wrong to allow some people to live — the view that every day that (say) a mass murderer can live and enjoy life is a continuing wrong to his victims and to the victims' loved ones. That is my strongly held view, and I suspect that it is the reason why most supporters of the death penalty ultimately support it. Yet I must recognize that there are substantial potential practical and moral costs, including costs that especially resonate with me because of my conservative and libertarian views, to accepting this moral imperative.
For Some Catholic Responses to My Posts,
see the Mirror of Justice; start with the "Volokh on Pain, Punishment, and Vengeance" post and scroll down. I can't really speak to the theological issues much, but I thought I'd pass the posts along.
Deliberately Painful Executions and Slippery Slopes:
Several people have argued that we should oppose deliberately painful executions because of the risk of slippery slope — even if it's OK to do this to Nazis or people who rape and kill dozens of children, the argument goes, if it's accepted for them it will likely also broaden to other people, both including simple murderers and others who have committed still lesser crimes.
As I've argued in my Mechanisms of the Slippery Slope article, slippery slope effects do often happen — but it's not enough just to say "what about the slippery slope?"; one has to explain the mechanisms that would make the slippage plausible. I point to one such mechanism in my post about arguments against the death penalty, so I think this is something to worry about sometimes. But on balance, I think that this isn't a serious risk here: At least in the U.S., the last two centuries have generally seen a steady movement towards less painful punishments (or at least punishments billed as less painful) and more broadly towards a narrower and narrower set of crimes that can be punished by death.
I'm sure there've been a few moves the other way, but the broad trend is very much in the direction I describe; and it seems to me politically implausible that a decision to allow painful executions for the most heinous of criminals would reverse this trend (though I think such the decision itself would be politically implausible). If I did think there was a serious slippery slope risk here, that would definitely influence my judgment.
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.