Personal Vengeance, Community Need

Chris and Henry at Crooked Timber have rightly expressed a fair amount of disgust at this surprising comment from Eugene Volokh:

"Something the Iranian Government and I Agree on: 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....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."

The man whose bloody and public execution Volokh is celebrating is a convicted serial killer, who dealt out immeasurable pain and suffering to not just his victims but their families and indeed society as a whole. What's wrong with seeing him receive his just rewards? Nothing, assuming one believes that capital punishment can be just. (A big if.) But that's not what leaps out of Volokh's comment; what leaps out is his causal embrace of the rightness of personally extracting death and vengeance upon a criminal. That is, he is applauding the idea that if someone commits a terrible crime against you or the one's you love, you ought to be able to take a hand in bringing that person's crimes back home.

What's the problem with this? As is discussed on both the above threads, Volokh is blurring an important line, a line which keeps the retributive aspect of punishment vicarious, and properly so. This is not to say that there is no place for retribution itself in meting out justice, even retribution of a very confrontational kind. Volokh is correct that eschewing the "deliberate infliction of pain"on the one to receive punishment can undermine and thus corrupt a deeply felt hurt, and to the degree that our or any criminal justice system tends to medicalize or psychologize crime in such a way as to make the desire for retribution itself seem misplaced or wrong, popular support for that system will not last long. Punishment isn't, and shouldn't be, simply about delivering some sort of neutral, merited penalty; there's a legitimate place for the social expression of horror or anger, and that means some penalties ought to be made to serve a larger purpose than merely reforming the offender or, at the very least, keeping them off the street. Discussions of "victim-impact" evidence and testimony goes to show that this point is hardly absent from our own debates over criminal justice, and for all I know Islamic legal and political thought provides some important arguments on behalf of such arrangements as well. But there is a huge gap between making the argument that it is legitimate for a criminal justice system to incorporate the expression of pain by victims and others into the establishment of penalties, and claiming it's good for said victims and others to directly cause pain to the criminal in revenge. That's a line that has more to do with basic law and order than any particular political theory.

You'd like to think that this line would obvious, but I fear it's not, especially given that it appears a kind of vigilante-mindset, which insists that direct action is superior to careful procedure, seems to be winning the day in America (such as in regard to the acceptability of torture). The problem is with making personal feelings of hate and despair not simply a part of a larger retributive argument (that much is probably appropriate and to a degree necessary) but as component of retribution itself. That short-cuts civilization, the very idea that there need to be rules which sublimate our most anguished self-interests to larger goods. It reminds me of that terrible debate back in 1988, when Bernard Shaw asked Michael Dukakis if he'd change his opposition to the death penalty if his wife Kitty were raped and murdered. Dukakis answered like a cold-blooded machine, which cost him dearly. An expression of rage has it's place. But the rage itself is not a justification. To justify actions in a civilized society means a willingness to submit those feelings to civic scrutiny--and, just to be safe, to probably relocate at least some of the actions taken by the civic body away from those who are most interested in seeing them executed.

This isn't an argument against the death penalty--as a friend of mine commented, there is strong reason to doubt the legitimacy of a system "that allows Jeffrey Dahmer to live out the rest of his life in state custody supported by tax payers' dollars (including those of many of the victims' families." I'm for the most part an opponent of the death penalty, but I don't think that it is necessary to turn society into a passionless entity, incapable of saying to some horrible act "we reject you utterly." (It'd be nice if exile were still an option in this world, but it isn't.) Dahmer--and the "desert vampire" too--very well may have deserved that ultimate community sanction. But when it is the community expressing that retributive need, it no longer is simple, potentially law-threatening vengeance. "Vicarious," communally expressed and administered vengeance, isn't exactly vengeance anymore; it's no longer a victim taking what is theirs" from an evil-doer because he and she hurt the victim, etc. Rather, it's society saying, "We cannot tolerate this," which properly sublimates the retributive aspect to a concern for, as I said, basic law and order. To talk casually, as Volokh did, about how he'd personally like to twist the guy's neck, isn't to embrace order; it's to embrace ego-driven retribution, pure and simple, and hence weakens the obstacles in the way of just going all the way to simple vigilantism. Honesty requires that I admit I probably won't lose a minute of sleep over the killing of this murderer. But I would lose a minute of sleep over the possibility that the hurt my next door neighbor feels, however great, is, in itself, sufficient justification for him to commit a killing himself.