My apologies for being so torturously late in weighing in on this one. (I should be particularly ashamed considering the poll on the right -- "What ancient form of execution would you LEAST prefer?")

Hope my squeamishness isn't showing! We'll have to put an end to that.

Anyway, as the Romans knew (and as Glenn Reynolds observed when he linked to Eugene Volokh's post) civilization is not for the squeamish.

Here's Professor Volokh:

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.

I can understand those who argue that making execution excruciatingly painful might act as a deterrent also. This assumes that those to be deterred are rational enough to be influenced by this threat; at least for most murderers, this is simply not the case. They are usually such damaged, short-term people that they are not going to be deterred by a remote and unlikely event. I also cringe at the thought of a government intentionally taking actions to add suffering; it is way too reminiscent of the bloodlust that has driven tyrants throughout history. (I think of Hitler's execution of German officers who participated in--or were simply thought to have been part of--the von Stauffenberg coup plot. He had them executed by being hung with piano wire--a slow and painful death. Hitler had it filmed, so that he could enjoy watching their suffering at a later time.)

What I find especially disturbing is the notion, expressed by Professor Volokh, that this torturous revenge constitutes justice. Does it bring back the dead children? Does it go back in time and prevent their suffering? Does it make the living less traumatized by what happened to their children? No.

But I'd rather leave the state out of it. And might I be so bold as to offer a modest proposal from Classical Values as a sort of compromise?

While it is true that the Eighth Amendment prohibits cruel and unusual punishment, and it would have to be amended to allow such things as flogging (discussed infra) or slow hangings by crane, I have a question.

If the state is not the actor, does Eighth Amendment apply?

The ancient Romans had a peculiar punishment called proscription (popularized by Sulla) which allowed private citizens to kill anyone whose name appeared on certain official lists. The state paid bounties (but took the bulk of the estates of the proscribed) and the system operated through a corrupt bureaucratic network of informants. Eventually, things went too far, and the proscription system degenerated into a murder machine directed against Sulla's political opponents. One of them, Julius Caesar, survived:

The new dictator introduced a judicial process called the proscription. Essentially this new concept was the open publication listing names of people he deemed to be undesirable. A reign of terror ensued with rewards offered for the death or capture of any name on the list. At first the proscriptions, including confiscation of property were mainly focused on Sulla’s direct enemies and supporters, but eventually the death toll would reach epidemic proportions. In the first series alone, as many as 40 senators and 1,600 members of the equestrian class were butchered. Before long, in order to exact extreme control the list grew exponentially. There was simply no place to hide or run. People taking refuge in the temples were murdered; others were lynched by the Roman mob. An intricate network of spies kept Sulla informed and tracked down anyone who might be considered an enemy of the state, at Sulla’s whim.

One member of the proscription lists who managed to survive was Gaius Julius Caesar. The husband of Cinna’s (Sulla’ rival) daughter and the nephew of Gaius Marius, he was most assuredly a top candidate for death. He managed to escape Rome prior to capture, but a delegation of Caesar’s supporters made an influence on Sulla. He allowed Caesar to live in exchange for divorcing his wife, but Caesar defiantly refused. Lucky to find himself alive at all, Sulla only confiscated his wife’s dowry. Sulla apparently was reluctant to let the ambitious young man live, commenting that he saw “many Mariuses” in his nature. For reasons not completely clear, Sulla did let Caesar live though and his prediction was later proven quite true.

Obviously, I'd never advocate an official system of proscription. For starters, it would be unconstitutional.

But suppose the state simply didn't prosecute people who committed murder under certain special circumstances? Anti-abortion activists see abortion as murder, and if the fetus is a person, they may be right. (Especially, as I've argued before, if the fetus has a brain.) But even if the fetus is a person, most people would not call abortion cruel and unusual punishment, because the state has not acted. The state, by its laws, is merely barring the criminal prosecution of either the woman who goes to a doctor for the procedure, or the doctor who performs it. So, it doesn't matter whether the fetus's arms and legs are slowly ripped off, or if the procedure takes hours. There's simply no way to claim that the state has administered cruel or unusual punishment.

How about affording convicted perpetrators of particularly heinous crimes the same legal protection afforded fetuses? Is that politically incorrect enough for the squeamish?

I realize that this compromise will not please everyone, and there's a lot of squeamishness around a lot of these issues.

But we have to start somewhere.

And I'm for a limited government role in all things.

Especially when it hurts.

UPDATE: Eugene Volokh carefully considers the views of many of his critics -- and this post by Mark Kleiman convinced him that he was wrong:

Whatever one's abstract judgments about the proper severity of punishments, this is a punishment that will not fit with our legal and political culture.

In any event, I much appreciate Mark's instruction on this. Part of me wishes that I could keep disagreeing, out of sheer bullheadedness. But the fact is that he's right, and I was wrong.

(Via Glenn Reynolds)

Maimon asks "if you 'execute' the serial killer of twenty children in this way, what do you do to criminals who are worse still? . . . What would Eugene wish the State of Israel to have done with Adolf Eichmann?" Yet this seems to me to support my original point rather than to undermine it. It seems to me an occasion for regret that Eichmann was executed by hanging. Such a decision was likely politically necessary; but I think it slighted the enormity of what he had done. He deserved a far worse death, and it would have been good had he received it.

Anyway, I had hoped not to get serious about any of this, but now I'm reminded of of my childhood reaction to the Eichmann trial. I was in something like the second grade, and this very sour, very ordinary looking older man was on TV sitting in the locked glass booth, answering questions which were being translated into God knows how many languages. I asked my dad why he was locked in the glass booth, and he said that there were thousands of people who'd love to kill him. Why? Because he had killed their fathers, mothers, sons, daughters, grandparents. This made little sense to me, and I asked my father why they were protecting him even though he was there because they were (apparently) going to execute him.

He said this was because the Israelis, the Jews, were going to show the world that they were more civilized than the Nazis. And all they could do was hang him.

All they could do was hang him? That didn't seem enough, considering the enormity of what he'd done. As I learned later in life, justice often isn't "enough." It isn't supposed to be.

MORE: Ricardo Eichmann was around my age when his father became the only person ever to be executed by the state of Israel:

Ricardo Eichmann, the youngest of four brothers, was seven years old at the time of his father's execution.

The family returned to Germany shortly after the trial began, and Eichmann said his mother, Veronika, never told him what his father did or how his father died.

For years, he thought his father had merely disappeared. It was not until he reached his early teens and began reading about the war that he learned what his father had done.

The junior Eichmann led a quiet life in Berlin until he accepted an appointment in April as professor of Middle Eastern archaeology at Tubingen University in southern Germany.

The local media ran a story about the new professor, and that in turn led to further stories in the German and Israeli press.

Had it not been for the appointment, Eichmann said he would probably have kept his silence. Until recently, he had never spoken in public about his father.

But he had dismissed the idea of changing his name to hide his identity.

"This would have been only an exterior change. I would have been left with the burden," he said.

In an interview published in the Israeli daily Ha'aretz, Eichmann said he was glad that he would never have to confront his father.

"I am glad that the trial and sentence took place then, and that as a grown up, thinking man I don't have any contact with him," Eichmann said.

Asked how he felt about talking to an Israeli, Eichmann said he comes from a different school of thought from that of his father and that he did not judge people by their nationality or religion.

He admitted that as a child he may have felt anger at the Israelis for abducting his father, but in subsequent years he harbored no such feelings.