Professor Eugene Volokh very reasonably suggests that we should amend the constitution to permit the torture (before execution) of mass murderers. He heartily endorses the punishment that Iran meted out to a serial killer of children:
[T]hough 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.
He neglects to mention that a teenaged relative of one of the victims also was given leave to stab the monster before the strangulation; I especially enjoyed that Hollywood-ready moment.
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.
Well, Matt, good. You know the saying, "An armed society is a polite society"? Well, a society of people willing to lash out with instant retributive violence is a society that polices its own behavior more rigorously, which is exactly Eugene's point.
In fact, I think Volokh is being unnecessarily restrained. Why limit torture to mass murderers? Is the desire for revenge less in the family of a single murdered child? Indeed, this principle should not be limited to murder or even crimes of violence. If I were to be raped, I am sure I would want to cut off the rapist's nose with a jagged piece of broken glass, and I should be given leave to by the state. Only blue-state wimps would disagree. And if some white-collar criminal steals the life savings of thousands of elderly pensioners, why should they be denied the chance to take it out on him corporally? I certainly would enjoy watching Bernie Ebbers flayed, as would every right-thinking person. America will not be truly civilized until torture is a part of the price of every failure or transgression in our society. Late for work? Electroshock. Missed a field goal? Caning. Each of these applications of societally-approved violence will strengthen us as a people.
There is a wider point that squishy liberals are missing, too: The principle of retributive torture applies as between societies, as well as within them. What the Saddam-lovers never understood about 9/11 was that it cried out for vengeance. When George W. Bush pulled the trigger on Operation Iraqi Freedom, he was serving as the leader of every patriot who wanted to see Them punished for what they did to Us. Only Philadelphia lawyers wanted to parse sentences and examine evidence. George Bush kicked raghead ass. Which is better?
Even people who should know better criticize Prof. Volokh. 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 Grahib 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.
I hope his honesty doesn't come back to bite him. One hopes that events over the next few years will vindicate his position (I can easily imagine that after another 9/11-style attack people will be much more on his side), but if not, it would be a shame if his desire for more torture prevented him from getting a seat on the federal bench, even a top job. U.S. Supreme Court Justice Volokh would be a refreshing antidote to all this liberal claptrap.
Update 3/19/05: Volokh changes his mind - on the grounds that the do-gooders would raise too much of a stink. What a pity.