Watch Out For Those Mild Mannered Law Profs!

[Annie]

http://volokh.com/archives/archive_2005_03_13-2005_03_19.shtml#1111021309

Wednesday, March 16, 2005
[Eugene Volokh, March 16, 2005 at 8:01pm] 0 Trackbacks / Possibly More Trackbacks
Something the Iranian Government and I Agree on: 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.

And, yes, I know this aligns me in this instance with the Iranian government — but even a stopped clock is right twice a day, and in this instance the Iranians are quite correct.

UPDATE: I should mention that such a punishment would probably violate the Cruel and Unusual Punishment Clause. I'm not an expert on the history of the clause, but my point is that the punishment is proper because it's cruel (i.e., because it involves the deliberate infliction of pain as part of the punishment), so it may well be unconstitutional. I would therefore endorse amending the Cruel and Unusual Punishment Clause to expressly exclude punishment for some sorts of mass murders.

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.

In any event, there's nothing unconstitutional about letting victims' relatives participate in the execution; it's only the use of cruel means that would require an amendment.

[Eugene Volokh

Here is what he is in an uproar about: http://news.bbc.co.uk/1/hi/world/middle_east/4353449.stm

Iran's 'desert vampire' executed
An Iranian serial killer who murdered at least 20 children has been executed in front a large crowd of spectators.
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.

Calm and silent

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.

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.

They reportedly tricked children to go with them into the desert south of Tehran by saying they were going to hunt animals. They then poisoned or knocked their victims out, sexually abused them and buried them in shallow graves.

They were found guilty of the murders of between 19 and 22 people, but local people believe the toll to be higher.

Baghi has been given a 15 year prison term.

 

[Yurt]

I have spent some time considering this topic as it has come up in my line of work from time to time.

Here is my take:

In the old testament the punishment for certain crimes was harsh. I would dare say that this proved a deterrent to others.

In America's early history, some crimes were also treated harshly. I don't have the statistics, nor am I sure they would compare with today given the great increase in population and other factors, however, I believe that certain crimes were committed less than they are today. In fact, I will do some more research on it.

Also, putting someone in jail for life, to me, is pretty cruel, if you want to get technical. I know some people who would rather be put to death. Not to be caustic, but it would also save taxpayers a lot of money.

An example of a law that some think is harsh, is Oregon's measure 11. Basically it states that if you do X crime, you get Y time. No judge discretion, no first time allowance. I did the research, it even passed the constitutional mustard for violent acts committed by 16 years. The law was only recently passed, so I do not believe there is an adequate study to determine if the deterrent has worked, however, were I one of those people and knew that I no longer would get a slap on the wrist, I would think thrice about what I was doing.

Now I do not believe in savagery for punishments, rather, we could be a little more strict.

Interesting post.
IMHO