Let's be clear about on what grounds Volokh changed his mind: seeking the sort of punishments he wants would "logjam the criminal justice system and the political system," and "impose huge costs on the legal system." He's not even clearly saying that the sort of people who are comfortable imposing the punishment he wants are not the sort we want running a government (Kleiman's strong argument on this point). He's saying, "I still think we should do it, but it's probably too much of a pain in the ass." He'd already admitted that we don't have the political will to impose these kinds of punishments right now. This doesn't seem like much of a change; more of a restatement (by implication) of his argument with a "please stop pointing at me with revulsion" tacked on at the end.
Not precisely the sort of principled decision you'd hope for, but whatever.
I saw your comment over at Yglesias, but I'm not sure this is a very significant point. Volokh's changed mind seems to think something like, "Yes, we want to, but there are good reasons not to," which has been a pretty common response, even from the vociferous opponents. Maybe you're saying that he should have changed his mind based on moral reasons, or the sheer barbarity of the practice, but that's a tough case to make without appeal to more instrumental reasons.
1. Yeah, I suspect it's a violation of etiquette to respond to the same thing twice in the same blog ecosystem. This one just irritates the hell out of me. Sorry about that.
2. Yes, we want to, but there are good reasons not to. I think it's more of a "let's table this argument until we get a little bit of gold and a pager." His "good reasons" are not a very high bar to doing it - if the economy starts dumping cash into the govt., it seems like many of his objections go away. More strongly, I think arguments of the sort that "it would cost too much," at least when applied to the limited number of cases (I hope) where his rule would be applicable, are not really "good reasons."
I also don't think he rightly characterizes Kleiman's objection, so I suspect that this is PR (all law professors dream of federal appointments) rather than a change of mind. I would have thought that if the last four years have taught us anything, it is that if we accept Republican PR at face value, we deserve what we get (or at least what we get is entirely predictable).
(Digression: this doesn't seem that different from the argument btwn people who dislike Bush b/c they were against the invasion (me) and those who dislike Bush b/c they think he could have handled it better (IIRC, you). For the first set, the problem is something about the decision making process or the misevaluation of the risks involved. For the second set, the problem is the basic competence of the Bush Admin. Accordingly, I think the first set is substantially less likely to get involved with a future war of this sort, while the second sort only awaits a more competent Bush Administration (which doesn't seem like much of a bar). It's basically a disagreement about how and where we calculate risks, not a super-satisfying one about ideals and the like).
3. I don't really understand your use of the word "instrumental". I have always understood it to be sort of coextensive with "pragmatic." My primary disagreement with Volokh is pragmatic - I worry less about the effect of such "barbarity" on the criminal, and more about it's effect on either the punisher or the watching audience. Please explain so that I sound less stupid in front of the philosophy professors.
"let's table this argument until we get a little bit of gold and a pager."
Nice.
First of all, I second Mitch. That's brilliant.
Second, re: instrumental, I think Ogged was using to mean something along the lines of "realpolitik" or "objective." In other words, the argument can't be won purely on the basis of the subjective moral case against inhumane behavior, precisely because that case is so subjective; the argument has to include empirical elements such as those enumerated by Kleiman (judicial costs, etc). From a certain point of view, it definitely doesn't reflect very well on Volokh's personal morality; from another - the pragmatic reality that spending more on punishing criminals necessarily takes away from other social spending (like, say, education or poverty relief).
Tim calls this one right.
Volokh still doesn't believe that torture is morally wrong. Torture isn't inherently expensive or pose any great logistical difficulties. The costs of torture are a function of the moral opposition of others to torture.
It is important to respond to Volokh with anger and ridicule. Anger and ridicule make it clear that torture is taboo in our culture. It indicates to people in power what lines can't be crossed.
I hate that motherfucker.
All this moral condemnation is fine, but the low bar for being taken seriously is distinguishing between "torture" as we normally understand it: cruelty for the sake of extracting information from, or breaking, a suspect, and what Volokh was advocating, which is punishment pursuant to due process.
I'd be happy to hear arguments that there's no difference between them, though I mentioned a few that seemed obvious.
I think the Editors say something that I was trying to get at earlier much better than I ever could:
(As Volokh now admits the practical problems (although not the practical moral problems) with the abstract idea torturing duly tried and convicted child murderers to death, perhaps he will turn his attention to the problems, of various sorts, involved with torturing, to death and otherwise, people who have not been convicted by even the most perfunctory process, which has been a routine policy of this government for some time. A somewhat less thorny issue, and somewhat more pressing.)
And in case you haven't seen it yet, hilzoy's essay is also very very worth reading. Some great comments in the thread too.
One of Katherine's comments in that thread is also printed here. It's the text of one of at least two e-mails she's sent to Volokh on the issue. Don't miss it. Using very clear and calm language and reasoning, she absolutely nails Volokh's ass to the wall on the topics of "squeamishness" and an earlier posting of his about the reasons for his silence on Abu Ghraib. She's going to make one hell of a lawyer. Or one hell of a whatever she sets her mind to.
(And yes, I do have a blogcrush on Katherine, thanks for asking, but I assure you it's completely justified by her writing.)
That last link of Mitch's is excellent.
Thanks for the links, Mitch. I agree that Volokh's earlier reluctance to discuss torture seems hard to explain in light of his downright Pauline feelings about just punishment. And it's not to his credit that he still hasn't said anything about the distinction between torture and retributive punishment, and why the former is unacceptable.
Hilzoy's post didn't impress me so much. I think there are pretty easy responses to all her (her, right?) points, except for (2), which are the grounds on which I think Volokh (and I, to a certain extent) recanted.
That last link of Mitch's is excellent.
Why thank you! I take pride in my hrefs.
Okay I re-read hilzoy the female's post and you're probably right.
But it did lead me to Katherine's writings on the subject.
And I like dogs too.
I wonder if colored fonts work.
Ogged, you should knowthat that whole "colored fonts are so lazy, always shucking and jiving and rolling their eyes" thing is just a destructive stereotype.
I guess that particular colored font in 14 just had better things to do with its time, then.
He's probably just not into working for the Man.
Ogged -
Are you purposely trying to make my eye throb till it starts bleeding? You are blithely dismissing things that I thought you ultimately agreed with. Is it that the easy answer to Hilzoy's #3 is ... we don't have sufficient information to claim that vengeful punishment would lead to a more cruel general population (or set of rulers)? But isn't her claim a species of your belief that, as presently constituted, our society isn't properly set up to understand vengeful punishments and then respond (that is, understand them as steam let off, not general approbation of violence) appropriately? Or was there a different, specific way in which we were set up wrongly?
Are you purposely trying to make my eye throb till it starts bleeding?
I can *do* that?
Her 3 (where she just quotes Yglesias, right?) makes specific claims about what would happen. As I've said before, I don't think we really know what would happen; what I agreed with is that trying to have the state, at this point in our history, try to micro-manage (and change) our attitudes toward violence and retributive punishment would be a bad thing. Those seem like different points to me.
I wonder if colored fonts work.
Ogged, you should knowthat that whole "colored fonts are so lazy, always shucking and jiving and rolling their eyes" thing is just a destructive stereotype.
I believe the correct terminology today is: fonts of color.
Underrepresented fonts is also acceptable.
Ogged:
As I understand it, Hilzoy says it could lead to horrible people and you think that, while there is no evidence that such is true, there is a sufficient risk that it could happen that on balance it's not worth the attempt. I take Volokh's point (when trying to read it as close to yours as possible) to be that, "try[ing] to micro-manage (and change) our attitudes toward violence and retributive punishment would be a bad thing," because it would cost a lot of money. But, unless I misread you, the money end (or, more accurately, those things that could surely be addressed by more money) of it is not the main risk you see.
I think the resource risks are real, and I hadn't considered them, but that's not what I meant when I originally made the point. Yes, her 3 might come to pass, but more than that, I think having the government trying to manage might lead to all kinds of unanticipated consequences, not just that we'd become more barbaric. What happens if we become more barbaric and the government now feels compelled to correct, or what if people decide that the government should also make us more loving...etc.
Fair point and thanks for clarifying, but it remains clear that you Hate America(TM).
Are you purposely trying to make my eye throb till it starts bleeding?
SCMT, the slight oddity of you only mentioning one eye has somehow led me to the realization of the perfect name for ogged's emo schlong: Bright Eye