Comments Elsewhere

Rowe:

Alan Dershowitz has admitted off the record this to be the case. Judge Harold Rothwax wrote a good book on the matter a few years back: …

O.K. Perhaps I’m not confident as you are that the anecdotal experience of a couple high-profile defense attorneys is widely representative of the criminal justice system as a whole, or even the criminal justice system as relates to hanging crimes. Maybe it does and maybe it doesn’t, but I’m not sure why you seem as sure of it as you do.

Rowe:

Aside from legitimate claims of deterrence, rehabilitation, and restraint, individuals morally deserve to be punished for the criminal wrongs that they do. Retribution is a legitimate rationale by itself for punishment.

The second sentence in this paragraph doesn’t necessarily follow from the first. Whether or not a criminal deserves to suffer or even to die for her crimes, it may still fail to be the case that we have a legitimate reason to give her what she deserves. (To take a rather different example: I think that Rosa Parks deserved a million dollars rather than decades of poverty for her role in the Montgomery Bus Boycott. But since I never had a legitimate title to a million dollars, I couldn’t legitimately give it to her.)

Rowe:

I think I could probably do a thought experiment to lead you to the same conclusion. Say someone murder someone close to you, somehow we had a crystal ball that demonstrated that the person snapped and if they could be led out, wouldn’t do it again. Or maybe they had a Clockwork Orange kind of “treatment.” And no one would find out that the person would go free; the legal norm, with punishment, against the crime would still remain; so there would be no negative effect on deterrence. Say the person murdered your parents.

Should this person go unpunished for the crime?

Yes.

That is, if “unpunished” means that nothing is done to them over and above what’s necessary for defense of self and others (which you’ve stipulated to be nothing in this case) and to force her (if necessary) to make such restitution as is possible for the murder (which you don’t mention in your hypothetical, but which I happen to think is very important). The reason is that I don’t think that violence is morally justified except in defense of self or others. Even if the victim of the violence does deserve to suffer.

Here’s a hypothetical example concerning punishment that I’d be similarly interested to know your thoughts on. Suppose that the situation you just described obtains — there’s someone who murdered your parents, and (somehow or another) you know that he won’t kill again or pose a threat toanyone else, and you know (somehow or another) that no-one will know if he is let go without further punishment. But you think that he ought, nevertheless, to be punished, as retribution.

Now, there are lots of ways that you can punish someone. For example, you can make fun of him in nasty ways; you can beat him up; you can incarcerate him against his will; you can hurt him in any number of ways; you can deprive him of any number of things he values; or you can kill him. Suppose that the court hands down the following punishment: the murderer of your parents is to be incarcerated in an otherwise humane and safe prison, but they’ll hack off his arms and legs, and every so often (say, twice a month) they’ll torture him in some way (say branding with hot irons, or raking his back with the cat’s paw and then washing it with brine), for the sole purpose of making him suffer.

Do you think that this could be a suitable punishment for the murder?