Volokh on Pain, Punishment, and Vengeance

The first thing that needs to be said with respect to Professor Volokh's post on the execution of an Iranian serial killer is that -- in Maimon Schwartzschild's words -- "Eugene Volokh is one of the loveliest people there is, and one of the smartest and wisest."  (I would encourage all MOJ readers to look at Professor Schwartzchild's thoughtful expression of his disagreement with Volokh).  Few people -- if any -- have done as much work to build bridges, work for common ground, and facilitate discussions among diverse groups in the legal academy as Eugene has.  Everyone who knows Eugene -- who has been a friend and invaluable mentor to me and to many others -- knows that he is charitable, open-minded, and thoughtful.  Unlike Michael, I am not sure I detect "hate" in Eugene's admirably revealing post -- except, perhaps, a "hate" for evil and injustice of the kind perpetrated by serial killers -- even though, in the end, I agree with Michael that it would be unjust to indulge the urge to inflict pain-for-pain's-sake on such killers.

In any event, I would hope that when those of us, here at MOJ and throughout the blog-world, who disagree with the arguments in his post -- and I do disagree with them -- would take care to emulate Eugene's manner and decency in our responses.

I agree with Michael Perry that "[e]ven the most depraved criminal retains his (or her) inherent human dignity. . . .  One cannot forfeit that dignity no matter what one does.  We are called to love -- to treat with charity as well as with justice -- even the most depraved criminal."  And, I agree that one implication of this claim is that I could not endorse -- as Professor Volokh appears to -- the notion that state-imposed punishment (and, in my view, only the common authority can meaningfully engage in "punishment") should or morally could involve the imposition of cruelty and pain for their own sake. 

I would emphasize, though, that "love" for the person, and respect for her dignity, is not inconsistent with, and in my view requires, "punishment" for crimes (even as it constrains the imposition, severity, and nature of that punishment).  The philosopher Jeffrie Murphy has explored and developed this idea in his work.  See, for example, his recent book, "Getting Even" and also his wonderful essay, "Law Like Love."  So, our disagreement with Professor Volokh's statements should not, in my view, lead us to accept the common, but wrong-headed, notion that punishing -- in proportionate, humane, deserved ways -- criminals is immoral or un-Christian.

Rob asks, "Given these objectives, is punishment to be as painless (physically, mentally, and spiritually) as possible, or in fulfilling its duty to discourage improper behavior, especially monstrous behavior, does pain have a place?"  I suppose, as Rob's own follow-up post recognizes, that the answer will be "yes, pain does have a place, insofar as even the justified deprivation of liberty is often experienced as painful.  But, the intentional infliction of pain, for pain's sake would seem would seem to be ruled out by Catholic understandings of intent, intention, and human dignity."

That said, my impression -- having read many posts offered around the blogosphere in reponse to Professor Volokh's own post -- is that, in many cases, the authors seem to be indulging in what is, to me, an unseemly and excessively self-confidence that they are immune to the kind of passions that Volokh describes.  The desire for vengeance is common, unremarkable, understandable, reasonable, and even -- as Murphy argues -- justifiable.  Catholics will have this desire, and to have it is not (as opposed to wallowing in it, relishing it, indulging it, etc.) is not a mark of depravity nor does it mean that one has rejected the Gospel.  Christianity is counter-cultural in calling us, or so we all seem to believe, to put aside -- or, perhaps more accurately, to control the influence of -- this desire.

Rick