No Torture For You
Ah, Mark Kleiman drills into
Volokh's arguments for cruel and unusual punishment and finds them... untenable in practice. It's not the case against barbarism that I'd prefer to make
, but apparently we all need to discuss these things "sensibly," lest we be thought shrill or abusive. Anyway, Kleiman's argument boils down thusly: going cruel and unusual would bias juror selection for "torture cases," since any juror willing to sign off on an extra-grisly punishment would be much more likely to bring a guilty verdict. Second, the torture option would change the way we think about public officials, since, after all, anyone unwilling to sign a "flog 'em and hang 'em with piano wire" death warrant would be excluded from running for governor.
So it's a no go. And lo, Volokh says
he sees the light and has now changed his mind. Though it's more of an "Egad, I'd still really like to torture some bad guys, but it doesn't look like it would work" sort of change of mind. Kind of depressing, but there you have it...