Intuitive Barbarity

The blogosphere is gobsmacked by Eugene Volokh’s startling admission that he approves of this Iranian style justice:

Mohammad Bijeh, 24, dubbed “the Tehran desert vampire” by Iran’s press, was flogged 100 times before being hanged.

A brother of one of his young victims stabbed him as he was being punished. The mother of another victim was asked to put the noose around his neck.

The execution took place in Pakdasht south of Tehran, near where Bijeh’s year-long killing spree took place.

The killer was hoisted about 10 metres into the air by a crane and slowly throttled to death in front of the baying crowd.

Hanging by a crane – a common form of execution in Iran – does not involve a swift death as the condemned prisoner’s neck is not broken.

The killer collapsed twice during the punishment, although he remained calm and silent throughout.

Spectators, held back by barbed wire and about 100 police officers, chanted “harder, harder” as judicial officials took turns to flog Bijeh’s bare back before his hanging.

The condemned collapsed twice during the pre-execution flogging
Bijeh was stabbed by the 17-year-old brother of victim Rahim Younessi, AFP reported, as he was being readied to be hanged.

Officials then invited the mother Milad Kahani to put the blue nylon rope around his neck.

The crimes of Mohammed Bijeh and his accomplice Ali Baghi had drawn massive attention in the Iranian media.

The condemned collapsed twice during the pre-execution flogging

Volokh, a professor of constitutional law, writes:

I particularly like the involvement of the victims’ relatives in the killing of the monster; I think that if he’d killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years in prison, but perhaps there’s a good explanation.

I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.

This is awfully interesting, don’t you think? How long has it been since we were talking about torture for the alleged higher purpose of obtaining information a suspect may or may not have? A couple of months? Yesterday? And now the infliction of cruel and unusual punishment has entered the dialog as well.

I have to agree with Roy Edroso on this one:

When critics say that radical professors have “a unique hostility toward Western traditional and commonsense attitudes,” and that their “true raison d’etre is in practice nothing other than to destroy utterly whatever allegiance a young person might have to traditional conceptions in morality, religion, politics and culture,” are they talking about this guy [Volokh]?

They should be. This kind of “moral intuition” coming from a law professor is a rejection of just about everything the West and particularly the enlightenment has been progressing toward for hundreds of years. He rejects empiricism, reason and logic for a primitive bloodlust that can only be described as barbaric.

(I can hardly wait to hear the PoMo spin on this in which it will be argued that flogging, choking and stabbing are long standing Christian traditions and cannot be construed as torture or cruel and unusual punishment when the person actually dies from the activity.)

It’s not really all that surprising. We have been leaning this way for a while with our move away from the idea of dispassionate justice to revenge. Listening to the inescapable rundowns of the Peterson verdict yesterday, I was struck as I often am by the sarcastic angry tone of the victim’s family in front of the cameras just as I’ve often been struck by the spectacle of the families inside the courtroom when they get their chance to confront the perpetrator in the penalty phase. It’s not that I blame them for feeling such rage. But I find it very disconcerting that our justice system believes that this revenge and catharsis should be part of the judicial process itself. Justice is supposed to be blind. Or so I thought.

I don’t believe in the death penalty because I think that the only justification for killing is self defense and when someone is locked up forever that is protection enough from their depredations. But I’m beginning to wonder if accepting the death penalty as we have presents another problem. So much focus is placed on the feelings of the victim’s families these days that I think we may have lost sight of the fact that there can be no recompense for the loss of a loved one. Therefore, the death penalty can never really be enough to satisfy the need that we are trying to make it satisfy.

As Volokh suggests, people will want to inflict pain to try to ease their own but that will not be sufficient either, will it? If one were to ask those relatives who helped in the torture and execution of that criminal if they felt satisfied, I would bet you that they don’t believe that real justice was served. Perhaps they think they should have been allowed to inflict the exact kind of pain that was inflicted on their kids, forced sodomy. Maybe they think that they should have been allowed to relive the murders with him as the victim. But would even that be enough? Could he suffer exactly the same way a child would have suffered in similar circumstances? It’s never going to be enough. And once you go down this road the line between those who kill because of mental defect, disease and evil and those who do it for revenge becomes very hard to see.

Volokh goes on to say that he thinks the constitution should be amended to allow cruel and unusual punishment in certain cases:

Naturally, I don’t expect this to happen any time soon; my point is about what should be the rule, not about what is the rule, or even what is the constitutionally permissible rule. I think the Bill of Rights is generally a great idea, but I don’t think it’s holy writ handed down from on high. Certain amendments to it may well be proper, though again I freely acknowledge that they’d be highly unlikely.

That is exactly why I gave up on arguing for gun control. You cannot even go near the Bill of Rights until Americans have evolved much, much further than we already have. When influential conservative constitutional law professors start giving the Bill of Rights only tepid support then we have to just say no. The Bill of Rights may not be a sacred writ, but it’s the best thing this misbegotten country ever did and it’s the single thing that makes the American system worth a damn.

Of course we have a brand new democracy of our very own creation taking shape before our eyes. Perhaps this will be legally institutionalized in a way that Volokh could heartily endorse: (Via Spencer Ackerman)

When Iraqi and American soldiers detained a suspected Sunni insurgent in Haifa this week, a group of the Shiite troops crowded around him. A sergeant kicked him in the face. Another soldier grabbed him by the neck and slammed his head into a wall. A third slapped him hard in the face.

Ali Abdul Mohsen, a 22-year-old Shiite, pointed his AK-47 at the man and screamed, his eyes bulging, “You will confess or I swear to God I will shoot you here.” Most of the Iraqi soldiers nearby smiled in approval. “This is revenge for everyone who has been killed,” Mohsen said.

Check out the posts commenting on this subject for a real eye opener.

Update: Matt Yglesias makes the erudite philosophical argument.

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