CRIMINAL LAW TORTURE AND RESPECT.

• Author: Bronsther, Jacob

INTRODUCTION

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. (1) Beyond "degrading," other relevant adjectives include, at least, "cruel," "inhuman," "inhumane," (2) "barbaric," and "brutal." There is considerable overlap between these terms, however, and we ought to conceive of the reasons that oppose such punishments as a unified or general category. (3) "You cannot do that to a human being" captures the ideal in broad brush. Let us refer to this category of sentencing considerations as "degradation limitations."

This Article examines penal degradation from the inside out. It looks to the exemplar of degrading treatment and punishment--torture--and considers what it might teach us about degradation more generally. 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.

Justice Brennan endorses this method in Furman v. Georgia. (4) He writes that the "primary principle" by which the Supreme Court assesses whether a punishment is "cruel and unusual" is whether it is "degrading to human dignity"; (5) and he deems "torturous punishment" to be the "paradigm violation of this principle." (6) Further, prohibitions on degrading punishment are often grouped together with prohibitions on torture in resolutions, treaties, and constitutions. (7) For instance, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights both provide: "No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment." (8) Drafters and signatories seem to have understood that both prohibitions--(a) no torture and (b) no cruel, inhuman or degrading punishment--implicate the same set of considerations. With such jurisprudence in mind, Jeremy Waldron writes:

[T]he prohibition on torture is a point of reference to which we return over and over again in articulating legally what is wrong with cruel punishment or distinguishing a punishment that is cruel from one that is not: We do not equate cruelty with torture, but we use torture to illuminate our rejection of cruelty. (9) This Article proceeds as follows. Part I discusses the relationship between "internal" punishment limitations and degradation limitations.

Internal limitations demand that we pursue our positive penal aims, like retribution or deterrence, with "proportionality" or "parsimony." Part I demonstrates that internal and degradation limitations are relatively distinct. A punishment may be a proportional and parsimonious means of securing retribution or deterrence, while nonetheless being impermissibly degrading.

Part II examines both the legal and the most prominent philosophical conceptions of torture. It argues that the legal conception of torture--the intentional infliction of "severe pain or suffering"--is far too broad. (10) Physical assault often constitutes the intentional infliction of severe pain or suffering, for instance, but only rarely does it amount to torture. Part II then considers the work of philosophers Henry Shue and David Sussman, arguing that they, too, fail to capture what is normatively special about torture. Shue conceives of torture as "an assault upon the defenseless." (11) As such, he cannot explain the qualitative difference between shouting at or slapping someone in custody and running electricity through his body or waterboarding him. All are assaults on the defenseless, but only the latter are torture. Sussman, meanwhile, argues that torture is unique in that the victim's own body, affects, and emotions are used against him, such that he is "actively complicit in his own violation." (12) By forcing the victim to face his own pain, the torturer forces the victim to face himself, Sussman argues. However, if someone is complicit in this way when he responds to tortuous pain, he is also complicit when he responds to (a) non-tortuous pain, like that associated with very moderate arm-twisting and (b) certain non-painful instances of coercion, as in a blackmail case where the victim faces his own desire to keep his homosexuality private. Given that very moderate arm-twisting and blackmail are not torture, Sussman has not identified what is distinctive about torture.

With the ground thus cleared, Parts III and IV present an original theory of torture and degradation. I argue that disrespect is the metric of degradation, and that the central wrongness of torture is the egregious disrespect it demonstrates toward a victim. Joseph Raz explains that "respect" constitutes the appropriate response to the presence of value. (13) To respect something involves aiding or at least not interfering with the possibility of its exhibition of value, as well as potentially expressing or honoring its value in a symbolic manner. (14) Following Raz's logic, we can appreciate how pouring water on a beautiful sandcastle disrespects the sandcastle's value, while pouring water on a plant, generally, respects the plant's value--with the understanding that such things have value insofar as people might engage with them meaningfully. The demands of respect thus depend on what the object of respect actually does to exhibit value, on the "mechanism" of its value exhibition, and the ways in which our actions help or hinder the working of that mechanism. To apply this logic to human beings directly--and thus to understand what respecting or disrespecting a person means--we need an understanding of what humans do, exactly, to exhibit value.

I argue that human beings exhibit value through their meta-capacity for practical reason--the combination of their capacities for autonomy, value-recognition, memory, and imagination--which enables them to stitch moments together through time to construct a good life as a whole. Humans are diachronic creatures with pasts and futures of their own construction to a significant degree. They live through (dia) time (chronos). They are capable not only of enjoying "momentary goods," like ice cream cones, but also of achieving "temporal goods," which require cultivation through time to be realized, things like maintaining families, careers, and friendships. While suffering, in the bare sense of an aversive or unpleasant experience, may play a role in the production of temporal goods, as with the suffering involved with certain forms of professional training, I argue that humans retain the capacity to generate disvalue, which constitutes merely wanton suffering.

With this conception of human value in mind, I conclude that torture is the archetype of disrespect for a person and her special capacities for generating value and disvalue. After examining a number of first-hand accounts of torture victims, I define torture as the intentional infliction of a suffusive panic. I then argue that torture, by inflicting a make it stop right now panic, (a) completely halts the victim's value-generating capacities, as she loses the thread of her diachronic identity and (b) maximizes her capacity for disvalue, with her consciousness saturated with suffering. Torture is thus perverse from the perspective of respecting human value. It takes a being capable of living broadly and purposefully through time and, via the infliction of a suffusive panic, converts her into a "shrilly squealing piglet at slaughter," in Jean Amery's words, restricting her awareness to a maximally terrible present. (15)

Certain forms of torture, however, are yet more disrespectful than others, depending on the degree to which they risk long-term psychological or physical damage. In this way, disrespect is on a spectrum, with torture for an eternity--suffusive panic forever--at the very top. Treatment can be less disrespectful than this, however, and still be impermissibly degrading. But where exactly on the spectrum of disrespect shall the dispositive line be drawn, beyond which we would say that such treatment is impermissible as a form of state punishment in the United States, regardless of the severity of the offense or of how useful it might be treat the offender in such a manner?

Given that respect involves the process of responding to something's value, disrespect for a person always embodies a rejection of her value. But there are many types of value that people purport to exhibit and there are different modes of disrespect. One might just disrespect another's value as a playwright; consider the symbolic disrespect of saying "your play is not very good." When delivered in a certain manner and degree, however, disrespect can embody a rejection of someone's value as a human, which is grounded on her capacity to build a good life through time. Such treatment expresses the conviction that this creature does not matter, at least not like a person does, such that we can do whatever we want with it, as if it were a mere thing or animal. We can say, more particularly, that punishment above the dispositive line rejects an offender's standing as a human; and 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.

Severe degradation like this will usually take the form of a non-symbolic, physical interference with someone's value-generating capacities. What better way for a punishment to affirmatively deny an offender's humanity than for it to literally ruin his capacity to realize diachronic, human value as a matter of physics? But certain symbolic...