Friday, January 28, 2011
A number of friends have inquired about published reports that I was interviewed for the position of Dean of the Law School at Pepperdine University. In response to an invitation from the University to be considered for the position, I made a trip out to Malibu to meet the faculty, staff, students, and administration. I was deeply impressed by the intellectual and moral seriousness of the people I met and by the remarkable Christian spirit of the Law School and the entire University. I had never been to Pepperdine before, but it was clear to me immediately that it is a very special place. I would have been honored to serve as Dean of the Law School. For family reasons, however, my wife and I decided that we cannot at this stage move far away from the east coast. It was therefore necessary for me to decline Pepperdine's kind invitation to return for a second visit in connection with the Dean search. I sincerely hope that the Law School will be blessed with a great Dean. I know that several outstanding candidates are under consideration.
Thursday, January 27, 2011
This story describes how accused murderer Jared Loughner seems to have conducted at least some research on the Internet (through Google) about the physical pain of lethal injection. What, if anything, can we draw from this fact? Can this be counted as an example of the death penalty not being an effective deterrent?
It depends, at least in part on what Loughner found and how it influenced him. If he found information that convinced him that the pain of lethal injection was mild by comparison with the expected benefit ("pleasure") of the killings, then Loughner as rational calculator would not have been deterred, and one could say that the death penalty was not an effective deterrent. But one could just as easily say that the death penalty might have deterred him if he had instead found information that the method of its administration was extremely painful, or at least if it outweighed the expected benefit.
This is a fairly crude argument founded on premises of deterrence, and I should make clear that I wouldn't endorse the death penalty for this reason, let alone an extremely painful death penalty for general deterrence purposes.
But it did get me wondering about the relationship of general deterrence to actual facts. If Loughner Googled "lethal injection," and if he found some source that said that lethal injection was not very painful, then perhaps one could speculate that he was not deterred by the threatened painfulness of death. But what if the source(s) that he consulted was/were wrong? After all, the Internet is chock-full to the gills of completely erroneous information. That means that his assessments might very well be flat out mistaken. In fact, the same might be true for any method of administration. And perhaps that means that what matters for general deterrence arguments is not so much rational calculations as control of the sources through which people get their information. These may very well be irrational calculations. I suppose one could say the same for any general deterrence claim, but the amount of pain experienced by people who are killed by various methods seems to me to be a particularly tricky thing to get hard data on (maybe I am wrong about this).
If we wanted to maximize the general deterrent effect of the death penalty, and we were focused on the question of pain as a deterrent (i.e., we set aside the question of the certainty of the DP's imposition [ADDENDUM: just thinking about it a little more, it seems to me that certainty of imposition would be much more susceptible of uniform factual accuracy than degree of pain experienced]), we wouldn't care so much about the quantum of pain actually experienced. What we'd want is to make the death penalty appear as painful as possible, whatever the actual truth of the painfulness of our favored method of administration. And to do that, we would need to control the channels by which ordinary people get their information -- more and more, the Internet. Otherwise, we couldn't predict very accurately what they would choose.
Again, let me emphasize that I'm not making any general claims about the moral status of the death penalty here. For these purposes, I'm only trying to think about how a deterrence theorist might think about the social utility of the pain of the death penalty.
ADDENDUM #2: As an experiment, I Googled "pain lethal injection." The first two hits lead in exactly opposite directions. The first was this story from "The New Scientist" which reports on findings that lethal injection is "far from painless." The second contains language suggesting that those who receive lethal injections feel no physical pain other than from the insertion of catheters.
On Tuesday I was lucky to participate in a gathering of criminal law theory nuts at Brooklyn law school to discuss a couple of interesting papers in punishment theory. At one point in the discussion, the issue arose as to what retributivism might require of the punisher if there was evidence that something terrible had happened to the offender after committing the crime that was somehow responsive to the crime. Doug Husak offered something like this example: suppose that X rapes Y. When Z, Y's brother, comes to find out about the rape, he is so enraged that he finds X and keeps him locked in a closet for 3 years (keeping him alive, but in a horrible state). After the three years, the police come to find out about the rape and arrest X. Suppose further that the sentence for rape in this circumstance is 3-8 years. Should the judge consider the fact that X had suffered the horrible ordeal of being closeted for 3 years in deciding how long to punish X? Would a possible sentence here be no prison time at all?
Some time back Doug Berman asked a related, but different, question about whether the suicide of Bernard Madoff's son, had it happened before Madoff's sentence, ought to have somehow mitigated or diminished the sentence imposed. The issues are different because (a) we can be quite sure that X suffered a great deal; whereas (absent some hard evidence), we cannot be sure that Madoff suffered as a result of his son's suicide; and (b) somehow there seems to be a more direct responsive tie between the rape and the closeting than there does in the Madoff situation (admittedly, I am not certain about how to describe the difference). But the question in both kinds of case is -- for the retributivist, what ought to be the significance of the defendant's suffering (Adam Kolber's work is one kind of answer).
Now comes the sentencing of Ahmed Khalfan Ghailani. Ghailani was convicted of a count of conspiracy to destroy the U.S. embassies in Kenya and Tanzania, acts which resulted in the deaths of 224 people. HIs defense lawyer argued at sentencing that Ghailani's punishment should be mitigated to something less than life in prison because he had been tortured by the CIA after his capture. The judge noted that the issue of Ghailani's treatment was not before him, but he also said this: "Whatever Mr. Ghailani suffered at the hands of the CIA and others in our government, and however unpleasant the conditions of his confinement, the impact on him pales by comparison to the suffering and the horror that he and his confederates caused[.]"
Suppose that it is, in fact, true that Ghailani was tortured by the CIA. What makes this an interesting variation on the cases above is that, unlike in those cases, here it is actually the state which has inflicted the extra-punitive suffering. By putting it this way, I'm not suggesting that the torture constitutes part of Ghailani's "punishment." But that still leaves open the question whether a retributivist could consider the fact that Ghailani was tortured by the state (assuming, again, that this is true) in imposing a punishment less severe than he otherwise would.
Here it may be helpful to divide retributivists into two camps -- pristine and polluted. The pristine retributivist -- he who likes his theoretical accounts clean, pure as the driven snow -- might say that while Ghailani would be entitled to seek some other civil remedy, the question of his punishment ought to be unaffected. It would be, for the pristine retributivist, a category mistake to permit the issue of torture to muck up the purity of the core retributivist aim -- to calibrate punishment in proportion to desert for the crime committed. Retributivism here has a limited domain -- one might even call it a political retributivism, in that it involves solely the narrow issue of what the state "owes" the D in light of his offense.
By contrast, the polluted retributivist would be open to considering the issue of state torture in the question of mitigation. Like the pristine retributivist, the polluted retributivist would not deem the torture "punishment." But that would not stop him from taking stock of the circumstances that attend the punishment of this person, in the light of what had happened to him specifically, pre- and post-offense. We could call this a moral retributivism, one which amplifies the scope of the state's inquiry when it comes to the justification of retributive punishment.
For what it's worth, and because I generally favor self-consciously, willfully impure legal theories of all kinds (and not just in criminal law), I tend to be more attracted to polluted retribution. I recognize that such an approach expands the range of considerations that a state may ask after, and that's a little disquieting. But I think polluted retributivism may be a more accurate description of what real retributivist punishment practices look like, and that is, in my view, to its credit.
Wednesday, January 26, 2011
Wilson Huhn has posted A Higher Law: Abraham Lincoln's Use of Biblical Imagery. (HT: Solum) The abstract:
This article describes Lincoln’s use of biblical imagery in seven of his works: the Peoria Address, the House Divided Speech, his Address at Chicago, his Speech at Lewistown, the Word Fitly Spoken fragment, the Gettysburg Address, and the Second Inaugural. Lincoln uses biblical imagery to express the depth of his own conviction, the stature of the founders of this country, the timeless and universal nature of the principles of the Declaration, and the magnitude of our moral obligation to defend those principles. Lincoln persuaded the American people to embrace the standard “all men are created equal” and to make it part of our fundamental law. This goal was formally accomplished as a matter of law in 1868 when the Equal Protection Clause was added to the Constitution as part of the Fourteenth Amendment, but it is approached in fact only through our constant application of this ideal to our society and in our daily lives. The principle of equality is a higher law, but it need not exceed our grasp. As Lincoln called upon us – “let it be as nearly reached as we can.”
The inaugural address of my friend, mentor, and former colleague John Garvey -- now President of the Catholic University of America -- is here. A bit, from the concluding section:
What is the particular contribution a Catholic university makes to the integration of virtue and intellect?
. . . First, although we sometimes speak (as Bonaventure does) of learning virtue from a holy man (a kind of moral Bruce Harmon, or yoga master), we learn it better as members of a group. . . .
Second, as Christians we believe that the community we live in here is not just us. It is God with us, in the sacraments we celebrate every day. His grace is more important than our mutual example in helping us see and drawing us to the life of virtue.
Third, we must not lose sight of the essential connectedness of intellect and virtue. . . .
To put it in concrete terms, Student Life, Campus Ministry, Residential Life, Athletics, and Student Organizations are not offices concerned with different parts of the day and places on campus than academic affairs. They are integrally related. . . .
Finally, I have been talking about the role of virtue in the life of the intellect. But I want to conclude by observing that the intellectual life of a Catholic university is something that is unique among institutions of higher education. . . .
The Catholic University of America is a university – a community of scholars united in a common effort to find goodness, truth, and beauty. It is a place where we learn things St. Monica could not teach her son. Holy as she was, she could not have written the Confessions or The City of God. Smart as he was, neither could Augustine have written them without the intellectual companionship he found first at Carthage and later among the Platonists in Milan. The intellectual life, like the acquisition of virtue, is a communal (not a solitary) undertaking. We learn from each other. The intellectual culture we create is the product of our collective effort. A Catholic intellectual culture will be something both distinctive and wonderful if we bring the right people into the conversation and if we work really hard at it. . . .
Tuesday, January 25, 2011
Is here. The news reports (that I've read, anyway) do not capture the horror. (HT: Mollie Wilson O'Reilly, at Commonweal, who also links to this worth-reading piece by Melinda Henneberger.) Here are the opening paragraphs of the Report:
This case is about a doctor who killed babies and endangered women. What we mean is that he regularly and illegally delivered live, viable, babies in the third trimester of pregnancy – and then murdered these newborns by severing their spinal cords with scissors. The medical practice by which he carried out this business was a filthy fraud in which he overdosed his patients with dangerous drugs, spread venereal disease among them with infected instruments, perforated their wombs and bowels – and, on at least two occasions, caused their deaths. Over the years, many people came to know that something was going on here. But no one put a stop to it. Let us say right up front that we realize this case will be used by those on both sides of the abortion debate. We ourselves cover a spectrum of personal beliefs about the morality of abortion. For us as a criminal grand jury, however, the case is not about that controversy; it is about disregard of the law and disdain for the lives and health of mothers and infants. We find common ground in exposing what happened here, and in recommending measures to prevent anything like this from ever happening again.
This case is about a doctor who killed babies and endangered women. What we
mean is that he regularly and illegally delivered live, viable, babies in the third trimester
of pregnancy – and then murdered these newborns by severing their spinal cords with
scissors. The medical practice by which he carried out this business was a filthy fraud in
which he overdosed his patients with dangerous drugs, spread venereal disease among
them with infected instruments, perforated their wombs and bowels – and, on at least two
occasions, caused their deaths. Over the years, many people came to know that
something was going on here. But no one put a stop to it.
Let us say right up front that we realize this case will be used by those on both
sides of the abortion debate. We ourselves cover a spectrum of personal beliefs about the
morality of abortion. For us as a criminal grand jury, however, the case is not about that
controversy; it is about disregard of the law and disdain for the lives and health of
mothers and infants. We find common ground in exposing what happened here, and in
recommending measures to prevent anything like this from ever happening again.
Kenji Yoshino has an article in the new Harvard Law Review that looks to be worth reading titled "The New Equal Protection," in part because of his claims about how dignity can be reflected in constitutional rights beyond the traditional categories of equality and liberty. He writes that:
The introduction of a third overarching term like “dignity” that acknowledges the links between liberty and equality is overdue. Too much emphasis has been placed on the formal distinction between the equality claims made under the equal protection guarantees and the liberty claims made under the due process or other guarantees. In practice, the Court does not abide by this distinction. The Court has long used the Due Process Clauses to further equality concerns, such as those relating to indigent individuals, national origin minorities, racial minorities, religious minorities, sexual minorities, and women. Conversely, the Court has used the equal protection guarantees to protect certain liberties, such as the right to travel, the right to vote, and the right to access the courts. We need to look past doctrinal categories to see that the rights secured within those categories are often hybrid rights. This Article focuses particularly on the liberty-based dignity claim, because I believe it offers a way for the Court to “do” equality in an era of increasing pluralism anxiety.
I didn't know about this new book until Mark Noll wrote it up in Books & Culture, but it looks promising -- City of Man by Michael Gerson and Peter Wehner. According to Noll:
[T]he authors write realistically about what politics can and cannot accomplish and about why they think so many passionate evangelicals have made so many political mistakes in recent years. They end by suggesting that "politics is the realm of necessity" and "the realm of hope and possibility," but also potentially "the realm of nobility." The arguments leading to these conclusions are by no means the last word, but unlike so much of current punditry, the authors' gentle realism has opened the door to fruitful reflection and faithful action instead of slamming it shut.