Some Comments on the Portillo Video


A few responses to the comments to the last post:

I found the documentary a bit flawed: some of the experiments had little to do with the actual methods of execution being used. But they were pretty interesting to watch. The major problem with the method Portillo advocates at the end is that it also requires the cooperation of the inmate, who presumably would have to be restrained to make sure he didn't rip the mask off. Seems like you could create a chamber in which the same thing would occur without the need for cooperation from the inmate.

The principal point the documentary makes is how path-dependent execution methods are. People still use outmoded methods years after their defects become obvious, just because they were considered progressive and 'scientific' when introduced. As for Blecker, I think Ney's diagnosis is pretty much on-point. He hasn't created a niche by advocating capital punishment from a retributivist perspective — that's a respectable minority position in U.S. legal academia — but rather being a law professor talking about capital punishment like a dockworker after a few beers.

Most US law professors are anti-capital punishment, so he can raise a few eyebrows being pro. Nevertheless, he's not as unusual as you might think. In legal academic circles in the US, you can be a straight death-penalty-advocating retributivist. Consider this recent New York Times op-ed from a law professor named Thane Rosenbaum (h/t Ed Philp):

Many believe that in such cases [referring to the Norway shootings], capital punishment is appropriate because it comes closest to avenging victims. Norwegians may be contemplating this very idea. Polls suggest that most people around the world support the death penalty, especially for wrongdoers deemed the “worst of the worst.” Certainly Mr. Breivik qualifies for that distinction.

Legal systems should punish the guilty commensurate with their crimes and recognize a moral duty to satisfy the needs of victims to feel avenged. Plea bargains invariably shortchange this settling of scores — which is why, practical difficulties aside, they should be used only sparingly (and always with the victim’s participation). And allowing the guilty to walk free because of procedural errors — or because of the ambiguities of “reasonable doubt,” as in the case of Casey Anthony — invites vigilante justice. Neither justice nor revenge is negotiable.

Getting even is not complicated arithmetic. A just outcome in Norway, however, given the number of young lives taken, will doubtless be unsatisfying.

It's hard to imagine a German law professor writing something like this, not least because capital punishment is outlawed by Article 102 of the German Constitution. (Whether this narrowing of the field of debate is a good thing or a bad thing I leave to you to decide).

The key difference between German and American legal academia on questions like these is that in the U.S., law professors may well advocate retributivist positions that are also favored by ordinary people, while seeking to clothe them in somewhat more scholarly rhetoric than a dock worker would use. German law professors, on the other hand, are either (1) off among themselves debating abstruse conceptual questions (g, pdf); or (2) worrying about the fact that 25% of Germans still favor the 'unconstitutional' practice of capital punishment, and trying to figure out ways to 'enlighten' the masses and bring their thinking in line with 'correct' principles of rehabilitation and re-integration.

One thought on “Some Comments on the Portillo Video

  1. Maybe a naive question, but why is the retribution idea not carried to the end, but tempered with humanity arguments?
    If it is a moral obligation to let the offender suffer in a way as similarly as possible to the way he made his victims suffer, why not torture him?
    Breivik killed N people, we could execute him only once, so why not make him suffer horribly for N days (or hours) before he is mercifully relieved from his torture by the final execution? Because this would de-humanize the torturers? We could invent a machine for inflicting all kinds of non-lethal pain.

    And if another point of the retribution argument is that many people agree with the idea, I guess most of them would also agree to making a mass murderer, rapist etc. suffer more than “only” a clean quick death.


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