More on Volokh, Retribution, and the Death Penalty

Continuing the discussion of Eugene Volokh's initial defense of the execution of an Iranian serial-child-killer:  Volokh has just recently added a post in which he says he has changed his mind, convinced by the arguments set out here by Mark Kleiman. 

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.

This change of mind prompted Kleiman to observe: 

I suppose that Eugene Volokh might eventually have been forgiven in Blogland for his lapse of judgment in endorsing extreme penalties in extreme cases. At least, I would have hoped so.

But he has now gone beyond bad judgment, or even bad taste, and committed an unforgivable breach of blogging ethics. Not merely has he seriously weighed the arguments against a position he prefers -- this, though it sits on the ethical borderline, is admittedly a valid rhetorical device -- Volokh has actually changed his mind in the face of argument, admitting that the institutional point made by Brad DeLong and elaborated in this space counts decisively against his proposal.

Volokh has also put up a long discussion of why "conservatives and libertarians" might want to oppose the death penalty (which Volokh supports).  The arguments he considers tend to emphasize the utility of an anti-death-penalty rule in limiting government generally and also (what he views as) the pro-libertarian pedagogical effects of such a rule.  Actually, I remember conservative pundit George Will making similar arguments against capital punishment, which he characterized as (something like) "just another failed big government program." 

I think there is a lot to be said for these arguments, which seem stronger, to my mind, than many liberal and progressive abolitionist arguments, some of which seem to go too far in minimizing the gravity of capital defendants' offenses and moral responsibility.  Still, although I probably have more "conservative and libertarian" leanings than many of my friends here at MOJ, I would still think that, in addition to these arguments, we ultimately need to rely on (religious?) foundational arguments about love and human dignity to get the job done.

Finally, the back-and-forth about his original post has prompted Volokh to provide a discussion of punishment theory generally:  "It seems to me that retribution is a fundamental and entirely morally proper goal of punishment; and deriding it as some atavistic desire for vengeance is a mistake."  I agree with this observation.  In my view, Catholic discussions about this matter -- including the American Bishops' relatively recent statement, "Responsibility, Rehabilitation, and Restoration" -- sometimes conflate too quickly "retribution" (properly understood) and "vengeance," or assume that retributive theories of punishment are inconsistent with the respect -- and, indeed, the love -- that is appropriately directed to the person.  A just criminal-justice system should, it seems to me, be structured so as to bring about "rehabilitation" and "restoration"; still, punishment is justified because and only to the extent that the criminal deserves it and it will redress the disorder introduced by his offense.

Finally, here's a post about all this by Kaimi Wenger, over at the LDS group blog, "Times and Seasons."

Rick