Volokh and the Death Penalty

This is the kind of post that makes Eugene Volokh one of my favorite people in the blogosphere.

The death penalty is one issue about which I am most conflicted and somehow least able to know my own mind. My gut feelings and my intellect are on Professor Volokh's side here, but on the other side lies a vague notion (one I've never bothered to scrutinize very closely) that my religious beliefs require me to reject the death penalty. I've always thought of it as one of those instances ("Turn the other cheek;" "Love your enemies") where we are exhorted to transcend our human nature by reaching toward a divine apprehension of the sinfulness, the fallen state, of all humanity . . . but then sometimes I think that's just pretty sounding hogwash.

My "opposition" to the death penalty is cold and abstract; my hatred of murderers like the one Volokh refers to is intense and visceral, and my sense of justice is entirely on the side of meting out punishment and death. I didn't bat an eyelash when I read about Scott Peterson's death sentence, and I almost always vote for candidates who support the death penalty. I can't recall ever feeling a twinge of pity when I have read about this or that monster being executed for a heinous crime. I've been struggling with these contradictions -- or, more precisely, ignoring them -- most of my adult life, and I'm not likely to resolve them in this post.

I wanted, instead, to address the argument -- posited by Strange Doctrines -- that our humanity is diminished by countenancing the kind of punishment that was inflicted on the mass murderer in Iran. I contend that our humanity is more fully engaged in that kind of painful public execution than in the offstage, sterile, "painless" executions we have in the U.S. -- partly because such executions are more likely to elicit the human emotions, including pity, that arise from our more direct participation in the punishment the state inflicts in our name. Reluctant as I am to invoke Michel Foucault (a thinker I don't admire), I am nevertheless fascinated by his account, at the beginning of Discipline and Punish, of the public execution of the patricide. Though Foucault is, of course, interested in "power relations" and possibilites or "sites" of subversion, I think he is onto something when he notes that public executions always risk engaging the sympathy of the crowd for the criminal (and apparently, they sometimes did engage the crowd in precisely that way). Unlike Foucault, I'm not interested in disrupting the established order (in the U.S., anyway), but I do think the state more fully accounts for our humanity when it administers justice in a way that allows for the possibility of pity, a virtue which is complementary to justice.

(Like Eugene Volokh, I am assuming that the painful execution of a serial child murderer is just, though I realize that others might reasonably make a different argument.)

Update: Hugh Hewitt makes a connection between the execution in Iran and the Terri Schiavo case that dovetails with my apology for the public execution. As Hugh points out, Terri Schiavo's death will be longer and more brutal than the Iranian convict's, but it will happen safely offstage, so as not to bruise the tender sensibilities of those who merely want "the feeding tube removed."

Update: Wonderdog's post on Terri Schiavo is here.