Torture in criminal justice
Lance on Aug 25 2007 at 7:15 pm | Filed under: Lance's Page, Law, Society
Are we irrationally biased against torture?
In many situations it would be better to impose a punishment of torture than imprisonment. The fact that the U.S. justice system rejects torture as a punishment is the result of an anti-torture bias.
Torture has two benefits over imprisonment. It’s cheaper for the state to impose and it doesn’t prevent the criminal from engaging in useful labors (such as parenting and working at a job) for long periods of time. To determine who should be tortured as opposed to imprisoned we need to consider the benefits to society of imprisonment.
Read the whole thing (it isn’t long) and please discuss. I certainly have a bias against torture. I am not sure I should be. Let us avoid for now the issue of torturing for intelligence gathering, but purely on the basis of its use for deterrence, retribution or incapacitation (as in keeping criminals from having the capacity to commit crimes again.)
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While this might be fun, we do have that whole 8th Amendment thing, which has been universally interpreted as forbidding the use of torture (which, aside from its moral dimension, and despite your request to refrain from bringing it up here, does factor into many of our objections to its use in intelligence gathering… FYI).
For the record, I am proud to be biased against torture. Though perhaps less effective, prison is immeasurably less cruel than torture. And in order to perform torture, you have to find or create people who enjoy or at least tolerate it… and that is a situation I see as simply too inviting for abuse to consider further.
Ya know?
That was actually my first thought as to why we maybe should be more leery of torture, or more broadly corporal punishment, than a pure assessment of the benefits to society, or even the criminal themselves, might suggest.
So what are the counter arguments to that? I have some, but I am really interested in people stepping out of their opinion and arguing the other side a bit. I think this discussion could clarify what is in essence a subject we approach unthinkingly. You can say we shouldn’t consider it, but if we don’t doesn’t it mean we may make it more likely (assuming that is bad?) If the arguments against it are of the unthinking variety then those who do think (and think it may have merit) about it will likely be very appealing to those unprepared for their arguments. There is also the possibility that you and I are wrong, and it should be considered (or at least some forms of corporal punishment.)
The 8th amendment by the way is not a firm guide without this discussion, as arguments about what is and is not excessively abusive, cruel or torture are contended on a regular basis.
Well, as a counterargument you could probably argue that it is less cruel to impose some temporary pain instead of longer term or permanent imprisonment. The most common argument I hear from women (who have, let it be said, been sexually assaulted) is mandatory castration for men accused of a certain class sex crime or above. The problem with that (or any other kind of maiming) is, what if you get the wrong guy? There are countless cases of people rotting in prison for years only to be exonerated by evidence. Prison allows only time to be stolen—which matters a lot, but it’s not the same as having your balls chopped off, or a hand taken for theft.
But mutilation would fit under most people’s ideas of “cruel and unusual”… at least, in this country. What of electric shocks, waterboarding, sleep deprivation, or fingernail pulling? I mean, we can get down to nitty gritties about what’s involved, and there is certainly room for hyperventilation on both sides of the debate (my favorite being Andrew Sullivan claiming wrapping Islamists in an Israel flag constituted “torture,” as if the mere presence of a blue Star of David was sheer agony to the pigs).
But seriously, the point this guy was making was that we have a societal bias against torture. I mean, that’s a good thing—it’s one of those things I like to think makes “us” better than “them,” ya know?
I was thinking more along the lines of what are the counterarguments to the argument you presented, but I think that is a valid one nonetheless.
True, which would certainly argue against things which would cause maiming. That of course leads to the psychological maiming question on similar grounds. Of course your term “rotting in prison” implies both unrecoverable physical, and certainly psychological damage there as well.
I think that is one of those things I think I know, but is it true? Why is it a good thing, and what are with the problems with believing so even if we decide it is true. If it is a bias, and in fact it would be better for both the criminal and the larger society to allow some form of purposeful pain rather than the unexamined pain (which is often quite physical in nature) of imprisonment, then by definition we are not better.
If it is just because we imagine we are treating criminals better (when we are in fact not) the argument applies to prison just as much. If we radically reduced prison sentences, it would certainly be a far less cruel path than longer sentences. So by that logic are countries which imprison for shorter terms automatically better than we?
So, in order to be comfortable with the idea that we are better, I have to know why we are better.
Personally I don’t think we are better than Cuba because we do not torture our prisoners. I think we are better because we treat them in general better. Castro doesn’t just torture prisoners, he keeps them imprisoned for long periods of time in conditions which are torture in and of themselves. More to the point, it is not the treatment of ordinary criminals that is most disturbing, but the treatment of people who are in prison merely for their political or other beliefs. Because the legal system is a sham, etc. I am not sure that if petty criminals were caned and released while ours spent years in prison, if both were tried fairly, that I should feel better. Maybe I would if that kind of contrast were available to me to compare, but the real question is, should I?
Gah, quit making me think!
This, as you rightly said, depends entirely upon the terms of torture and the terms of imprisonment. I would rather be caned than go to prison in Caracas, for example. But despite all the jokes about them, our prisons are far more humane than pretty much anywhere else… and as long as they are, I’m okay with prison taking precedence over physical pain.
Also, I think it’s worth noting that there is a keen difference between torture and corporal punishment. Torture is usually about pushing one to extremes to extract information (or for kicks, which, see above, is a major pitfall). Corporal punishment – caning and the like – I wouldn’t classify as torture.
Quite true, which is why I don’t think the lack of torture is my issue with Cuba (as just one example.)
Fair enough, but of course that is part of my point. Many people do consider such things torture. Many people wouldn’t consider water boarding torture, and in many ways it bis far less dangerous or likely to physically harm someone than caning. It is also comparatively brief. Yet many would, and I would include myself, though it does not compare in real damage or discomfort me as much as many things which are generally not considered torture.
Therefore, I am going to define for purposes of this discussion torture as the purposeful infliction of physical or psychological pain. Some tortures can be minor, some major. Thus lashing and caning (which have been used as torture, and called as such by human rights advocates) are torture, even if in some contexts we generally do not call them that.
I am specifically not addressing it for those purposes. Only the criminal justice aspects. I think that is a very different, discussion, though by discussing this type of thing maybe we can later come back to those questions with some useful insights.
Don’t worry, I have ear plugs to help me work while your gears grind;^)
Well if you’re defining all forms of corporal punishment as torture, then we have a major torture problem in this country with parents.
The bigger question is related to the context we’re trying to ignore: is torture effective? First off, is it less cruel than a longer prison sentence? That would depend on the crime and the comparative punishments. Three weeks in jail is relatively minor compared to 100 canings (for the record I find water boarding, the purpose of which is to make the victim think he will drown, absolutely abhorrent). But ten lashes for marijuana possession, compared to 10 years in prison? I think the context here is a bit over broad.
But then we get down to a bigger problem: if “torture” (which here includes corporal punishment) is a better way of punishing crime, why have we drifted away from its use? I would argue that it is the propensity for abuse, in particular among those who practice it, that has led to a societal bias against torture. Recall if you will a few years ago when a kid was sentenced to caning in Singapore for spitting on the sidewalk or something. We reacted with abject horror at the idea, and would not have batted an eye if he was thrown in jail for a few days to a few weeks.
So we as a society tend to assume spending time in jail is better than being beaten unconscious (or forced to simulate drowning). And I maintain that is a good thing.
Heh, well I think we all agree that corporal punishment should be somewhat more painful than a typical spanking to qualify. I would suggest that we do have such a problem, and we readily do speak of the emotional and physical abuse some children receive as torture. Nevertheless I do think that is a meaningful distinction and one which shows how ill defined torture really is.
I find it abhorrent as well, and it seems of limited utility in a criminal justice setting. Of course, is it more abhorrent than prison for ten years? I don’t think so, though while it was happening I am sure I would trade it for ten years pretty quickly.
As for overbroad, yes it is, which is why I think we have to step away from our prejudices and start really thinking this through.
True, though I think our abuse of imprisonment for many offenses is far worse than most torture scandals, and occurs on a massive scale. If we in fact caned for marijuana, rather than sent people away to prison for years where we can think so little about the consequence, might we not be less inclined to criminalize so many things? It is not that one punishment is worse than another, but the caning is public and sharply immediate. I think an argument might be made that abusive conditions are more likely to exist without torture or corporal punishment of various types.
I understand that, but should we? Or let us say should we if the alternative is several years or twenty strokes with a cane? Which does more damage to the subject and society versus its benefits. I find it hard to see how a compelling case can be made on humane grounds that what we do now is more humane, if that is the grounds we should be judging it upon. Once again, I share the bias, but by definition it seems to me that it is a bias and thus not grounded in well thought out ways. We seem to be reacting to it based upon its sharpness and concreteness rather than effects.
“cruel and unusual punishments”. What about cruel and usual?
Your life is the time you have; kill someone and you are taking away all the time he had left. Granted, prison doesn’t actually take the time away, it simply forces you to spend it in an awful place. But the point is that time is a thing of significant importance.
It is worth noting that prison can equate to torture. I recall a court scene where a woman rape victim told her convicted rapist that he was going to face rape in prison.
There’d be no way for you to know this, but I’ve been a vocal opponent to prison rape… which, granted isn’t that big a deal (”what a brave anti-rape stance!”), but I do get deeply frustrated at how we treat prison rape as a joke. Like the scene in Office Space where the guys are all, “I don’t want to go to federal pound-me-in-the-ass prison!”
That being said, rape is not a given in prison. And it is at least frowned upon in official circles, even if it isn’t prevented or prosecuted on the inside. In other words, we all react with horror over rape, and most people would say in a real life situation it is not acceptable (I’m thinking of the horrendous rape scene in American History X).
So I don’t think we’re comparing apples to apples here.