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March 18, 2005
How Much Torture Before Execution is Too Much Torture?
Posted by Ernest Miller
Prof. Eugene Volokh and I disagree on occasion, but I generally admire his thinking and many of his views. However, I must really question a recent post of his on the Volokh Conspiracy endorsing torture before execution for serial killers (Something the Iranian Government and I Agree on).
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.
At first I thought he was merely being provocative, but now I'm not so sure. In any case, let's assume he is correct and that this is a good idea for serial killers. A number of questions arise:
- How much torture is too much torture? Is it only okay to be beaten with a lash, or can we return to having people drawn and quartered, keelhauled, or any of the numerous and ingenious methods of painful death our species has developed over the millenia? Can a perpetrator be tortured into shock, revived and healed, only to be tortured again (once for each of the victim's families)? If not, why not?
- Is the decision entirely up to the victim's family? If not, how will the state determine methods of torture? If so, what if there is a dispute among families? If a family can call for additional torture, why couldn't they also call for additional mercy, turning a death sentence into imprisonment? Or perhaps, life imprisoned in the mind - perhaps one of the cruelest forms of torture (no sight, hearing, taste, touch, smell)? If the family, for whatever reason, is unable to inflict the given torture, will the government provide official torturers?
- Should such torture-executions be public? After all, isn't part of the point of cruel vengeance that it be public? Should the victim's family get to decide (this is what happens to you if you mess with our family)?
- Why not torture in lieu of imprisonment for lesser crimes? Would you rather have the person who defrauded you severely beaten or go to prison for a few months or a year? What of the person who raped you and made you feel violated and unsafe? Is a few years in prison enough? Isn't there "burning injustice" and pain here that is not salved by mere imprisonment?
Volokh argues that the diminished humanity argument isn't persuasive. If not, then perhaps we should start looking closer at how such a policy of torture-executions should be implemented.
Comments (1)
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Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
1. PrivacyHound on March 18, 2005 09:10 PM writes...
This is a and inexcusable and frightening call to take us back to the Dark Ages.
The idea of endorsing torture takes us back from hundreds of years of progress in humanity and criminal justice.
We need to take the vengeance out of the justice system, not put it back in. Adding the vengeance is what perpetuates cycles of violence and hatred.
I also strongly object to even milder examples of this that we have here in the US: Victim Impact Statements used to determine the sentence. These abominations help insure that only people who hurt popular people with sympathetic family members and friends get long sentences, while the friendless get less representation in court. This is fundamentally unfair. The crime is the crime regardless of how pretty or popular the victim is. (Laci Petterson anyone?)
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