Crime and No Punishment

March 20, 2005

I see that Eugene Volokh has changed his mind on the notion of execution with malice, if you will – a concept I noted and in a sense endorsed in an earlier post. This takes a strange twist for me as I see Volokh’s standard seems to be the practicality of the matter.

What I found most persuasive about Mark’s argument was his points about institutions: about how hard it would be for a jury system to operate when this punishment was available, and how its availability would affect gubernatorial elections, legislative elections, and who knows what else. Even if enough people vote to authorize these punishments constitutionally and legislatively (which I’ve conceded all along is highly unlikely), there would be such broad, deep, and fervent opposition to them — much broader, deeper, and more fervent than the opposition to the death penalty — that attempts to impose the punishments would logjam the criminal justice system and the political system.

With all due respect to Professor Volokh, I originally agreed with him in spirit and was never thinking of the concept in terms of anything practical, or even close to coming to be as law. Oh, I’d support it, even now – but I find the thought that it could ever become adopted in this country not worth the pondering.

Coupling Volokh’s new position with something from Instapundit – linking to the Volokh post leads me down a different road. I find Reynolds’s comments genuinely disappointing.

I think that’s right. I feel somewhat that way about capital punishment. I’m utterly unpersuaded by the argument that there is something uniquely immoral about state-sanctioned killing. (At its core, the nation-state is all about killing; everything else is window-dressing). But I’m quite persuaded, as I’ve written before, by what Charles Black called "the inevitability of caprice and mistake" in the application of the death penalty.

If we are to begin abandoning programs and policies we might mostly agree are broken, we may as well close down the public education system, most State Department of Works, the FDA, FAA, ad infinitum, throw in the towel and move to the third world – because it’s over for us. I see no resolution in Reynolds’s comments, only defeatism and a seeming acceptance of liberal doctrine, however well thought out and argued.

Where the two comments above come together for me is in the general state of justice in America today. I’m thinking we have so federalized and over-intellectualized the concept, removing it from any real context whatsoever, that it barely exists for the average person.

Press and pundit alike go on about this and that note worthy case of false imprisonment or wrong conviction, yet, repeatedly, felons with multiple convictions still manage to commit rape, murder or the kidnapping and killing of children. And as much of the discussion and data gathering in this regard is done by academia and, in my opinion with a liberal slant, I see no one counting up the many truly evil and dangerous people left walking our streets today as a result of this broken system we call American justice.

If we look at just two recent cases, one decided, one pending – Scott Peterson and the miscreant who killed Jessica Lundsford, does anyone really think for a minute that anything like genuine justice will be meted out in those cases? I highlight "decided" above because we know it isn’t decided. It is twenty years away from being decided, for heaven’s sake! How can the friends and family of a Staci Peterson possibly find justice in that? A generation will pass before the possibility of any justice at all for that child killing double murderer.

And in the meantime, what? Okay, he is confined. Do they take away his TV remote control if he acts up? Not permit him his daily 1 hour constitutional? How many books will he read that Staci never got to? How many thoughts will he get to indulge? And the case of Jessica’s murderer is even worse.

The wonder of a child gets snuffed from existence in what we can imagine to be the most horrendous of circumstances and the ACLU will make sure that we care for and coddle the perpetrator of that despicable act for years while he laughs at our justice system and exploits every codified nook and cranny of over-thought law to continue to live – something young Jessica wasn’t able to do, unfortunately.

I’d argue that it’s a reality like the above that generates the original punishing thoughts of a Volokh, or the feelings in me that something more needs be done when we try and convict such despicable human refuse. If justice is supposedly to protect the innocent, it also is designed to do so in the sense of an over-flow valve, of sorts. Good people should be able to walk, talk and live comforted by some sense of protection that a system of justice watches over them, in some measure preventing them from being subjected to random crime or atrocity. And if and when they are so maligned they will at least have some sense of redemption in the notion that those crimes do not go unpunished.

Can we really say that there will be any relative justice in cases where a nine year old child, a soon to be born child and its Mother lose everything and the perpetrators of the evil that took their lives will continue to read, write, think and laugh for years?

Yes, the justice system is broken, indeed. But not just for the occasional victimized defendant by any means. It is broken for the innocent, too. And without a sense of justice operating as a check valve on our common emotion, it is only a matter of time before more people think and feel as I or maybe a Eugene Volokh do and start to feel a need for some real justice as pertains to crime and punishment.

If there is anything the Left should learn from the parts of it that sometimes over-indulge thought in things natural – in the real world justice may not be all that pretty, particularly when its meting out is fueled by years of frustration, a sensed victimization and, finally, a need for perhaps even an un-Godly, or in just yet somehow divine feeling of retribution.

This post also available at the Blogger News Network.

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  1. Mr. Snitch! says:

    One things about Reynolds is that he does seem to respond well to a better-presented argument. (Perhaps due to his training as a law professor.) He can be reasoned with on this issue, and perhaps should be. (Just make it good.) As for Volokh, this is something that I just commented about here at our friends Enlighten NJ, to the effect that many bloggers have learned the secret of using controversy to generate site traffic (and eventually, dollars). When one senses this to be the case, the best thing to do to change minds goes against one’s initial instinct – ignore the post. Ignored memes go away, fanned flames become conflagrations. While Reynolds I find to be genuine and sincere (and therefore worth confronting), Volokh (who I don’t necessarily dislike) is mainly becoming expert at roiling the waters.

  2. Rhod says:

    The concept (if it rises to that level) of emotional neutrality in civil punishment is both evil and stupid at the same time. It’s usually the left in their sanctimonious variations in the churches, courts or dank philosophy classes, who posit that criminal punishments must be free of vengeance or satsifaction on the part of those who have a claim to them, or those who distribute them.
    There is absolutely no credible framework for this moronic nonsense in moral philosophy OR in the code books. Punishment “fits” the crime when it expresses popular outrage. In other words, “vengeance”. Vengefulness is the legitimate companion of outrage, and it is the emotive quality which verifies and energizes people and groups to demonstrate their condemnation of an act. ANY punishment codified without the additive of vengeance is immoral, arbitrary, capricious, corrupting and unjust.
    The essential word is “unjust”. Without the animating experience of vengeance those subject to punishments are being punished unjustly, and those who were effected by the crime are denied the justice of shared outrage by the surrounding society. The Left bypasses the moral dilemma by celebrating the “removal” of criminals from society”, which is a kind of sick minimalism unworthy of consideration.
    Sanitized criminal punishment is just one more of the multiple idiocies introduced into modern life by the decaying mind and corpus of liberalism. Those who wish to spare the tormentor the torment he deserves, shares in the crime.

  3. Mr. Snitch! says:

    OK, I have to update BOTH my posts here today. Reading further, I see that Volokh ALSO can be reasoned with. Good. He doesn’t fall into the ‘manipulative for traffic’s sake’ category. I feel much better about his success, his site, and the world in general.