Monday, July 22, 2019
There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate to the offender’s wrongdoing and an inefficient use of state resources. This Article considers a third response, one which penal reformers and theorists have radically neglected, even though it is recognized in the law: the punishment is degrading. In considering penal degradation, this Article examines what judges and scholars have deemed the exemplar of degrading treatment — torture. What is torture, and why is it wrong to torture people? If we can answer this question, this Article maintains, then we can understand when and why certain punishments — like perhaps long-term incarceration — are impermissibly degrading, regardless of their proportionality or social utility otherwise.
This Article develops an original theory of torture. It argues that torture is the intentional infliction of a suffusive panic and that its central wrongness is the extreme disrespect it demonstrates toward a victim’s capacity to realize value. Humans realize value diachronically, stitching moments together through time to construct a good life as a whole. Torture takes such a being, one with a past and a future, and via the infliction of a make it stop right now panic, converts her into a “shrilly squealing piglet at slaughter,” in Jean Améry’s words, restricting her awareness to a maximally terrible present.
The Article then considers what this theory of torture means for our understanding of degradation more generally. It argues that punishment is impermissibly degrading, regardless of our other penal considerations, when it rejects an offender’s status as a human. Punishment reaches this threshold by demonstrating that the offender’s life-building capacity — the very basis of his humanity — is completely absent or fundamentally worthless. To so thoroughly deny someone’s value, even someone who has committed a heinous crime, violates the liberal commitment to human inviolability. The Article closes by suggesting that long-term incarceration rejects an offender’s status as a human, and is therefore on a par with penal torture, given that removing someone from free society for decades makes it exceedingly difficult for him to construct a good life as a whole.