Contra Matt

I said I would return to the Volokh-inspired "cruel vengeance" amendation of criminal jurisprudence, so here goes. The response to Volokh that (as far as I can tell) generated the most blogospheric noise and attention is Matt Yglesias's. Now, obviously, I think Volokh is (was) as wrong as wrong can be, but Matt's criticism strikes me as fairly misguided. His argument is essentially about the social ramifications of implementing a "cruel vengeance policy." The meat of the argument is this:

There are plenty of instances of wrongdoing -- some serious, some not so serious -- that take place outside the context of criminal law. Oftentimes, these non-criminal instances of wrongdoing are likewise met with retributions that stand outside the context of criminal law. The natural result of giving official sanction and encouragement to the desire to inflict suffering beyond the amount of suffering that serves a constructive purpose within the context of criminal law will be to encourage people to act on similar impulses (and, indeed, to have the impulses themselves) in non-criminal contexts as well. The result would, simply put, be a social disaster in which individuals are encouraged to nurse grudges, indulge spite and envy, and generally speak wreak havoc upon their fellow man. Cruel vengeance has a certain grandeur about it when it comes to the sort of grevious wrongoings Volokh is concerning himself with. It exists, however, on an uncertain continuum with acts of petty vengeance and cruelty that have no such grandeur. Encouraging unconstructive acts of vengeance and cruelty will lead simply to more vengeance and cruelty throughout the social and political system.

Part of what I think is wrong with this is that it's an entirely consequentialist argument, and indeed, it almost provides an argument for the practice of cruel and unnecessary vengeance just in case the societal consequences could be blunted or somehow ameliorated, or, no less plausibly, it turns out that the widespread encouragement of grudge-nursing and vengeance actually provides a net positive to society, say, by inflating the GDP or something. (Don't mess with me about these hypotheticals; I'm not an economist, my point is only that these are coherent descriptions of possible worlds, and who knows (nobody), maybe the actual world.)

I don't mean to go stringently deontologist. This is just a particular case in which the slippery-slopey argument Matt is putting forward looks especially uncompelling. In fact, I'm not quite convinced that we're not already, through a variety of factors having nothing to do with criminal justice, in the state of semi-official encouragement of bloodthirstiness and vengeance that Matt fears. Moreover, and perhaps more importantly, I'd be very hesitant to embrace any variety of "government sanction of X = official encouragement of Y" argument. That is, to put it concretely, precisely the sort of logic that keeps the Drug War going.

Matt is on much firmer ground when he says:

Volokh notes that even torturing and killing a man who raped and killed dozens of children is, from a certain point of view, "ridiculously inadequate." Which is quite right and entirely part of the point. Unleashing excess cruelty on serious wrongdoers doesn't, in the end, solve anything, or balance out any sort of scales. Dead kids aren't revived and they're not really avenged, either. Family members pain and loss doesn't go away.

Let's take this point to the destination it was meant to arrive at. Volokh wasn't suggesting that victims of say, petty theft, get to torture their trespassers. He was suggesting that the family of the victims of true atrocities have that right. But it is in the case of a smaller, less egregious crime like theft, where retribution and justice appear to be the same thing. Jones steals $500 from Johnson. Jones is apprehended, tried, and convicted; he is forced to remunerate the same $500 to Johnson. Perhaps he is forced to pay and addition $500 to the state or to his victim, whatever. Likewise in cases like arson, vandalism, even potentially assault. What defines the Jones/Johnson variety of crime is that the offense is quantifiable. Reciprocation and justice overlap in such cases because remedy for the transgression was immediately and rationally assessable.

Not so with tortures, rapes, or murders, the Volokh-crimes. These are quite clearly non-quantifiable. No criminal sentence, no matter how light or severe could be adequate compensation for the victims. These crimes are irreparable by their intrinsic natures. If you'll permit me a digression that I think is edifying, recall God's words in the epilogue to the Book of Job [to Eliphaz the Temanite, one of Job's tormentors]:

My wrath is kindled against you and against your two friends, for you have not spoken what is right of me, as my servant Job has.

In other words, Job's condemnations of divine justice were right, and the pious insistences of his interlocutors were wrong. Job in the end is given seven new sons and three new daughters; but is that justice? His original family is still dead. If I shoot your dog, can I compensate you by buying you a new one, no matter how much he looks like the old dog?

Problem: The unquantifiable cases, in which the desire for vengeance is most strongly felt, are the ones in which a "cruel vengeance" policy achieves the least---not because of its broader implications for society, but because reciprocation and justice come apart entirely in such cases. Conversely, in the quantifiable cases, reciprocation might be justice, but "cruel vengeance" is an absurd overstatement of what reciprocation would entail.

Now a word about Volokh's supposed renunciation of his proposal. I'll be brief. Volokh says Mark Kleiman convinced him to change his mind, on the essential grounds that imposing a "cruel vengeance" provision would make the operation of the judicial system pragmatically impossible. This is not impressive. To be against the praxis, no matter how strongly, but for the principle (even wistful about it) is evidence of a fairly sick imagination.