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Torture and Respect Jacob Bronsther Journal of Criminal Law and Criminology Volume 109 Article 1 Issue 3 Summer Summer 2019 Torture and Respect Jacob Bronsther Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons Recommended Citation Jacob Bronsther, Torture and Respect, 109 J. Crim. L. & Criminology 423 (2019). https://scholarlycommons.law.northwestern.edu/jclc/vol109/iss3/1 This Criminal Law is brought to you for free and open access by Northwestern Pritzker School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern Pritzker School of Law Scholarly Commons. 0091-4169/19/10903-0423 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 109, No. 3 Copyright © 2019 by Jacob Bronsther Printed in U.S.A. CRIMINAL LAW TORTURE AND RESPECT JACOB BRONSTHER* There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate /o /"e o##ender’s Frongdoing 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 i/ de5ons/ra/es /oFard a -i$/i5’s $a3a$i/E /o realiCe 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 3ani$, $on-er/s "er in/o a >s"rillE s2.ealing 3igle/ a/ sla.g"/er,, in Jean 154rE’s Fords, restricting her awareness to a maximally terrible present. The Article then considers what this theory of torture means for our understanding of degradation more generally. It argues that punishment is impermissibly degrading, regardless of our other penal considerations, when * Climenko Fellow & Lecturer on Law, Harvard Law School. For their intellectual guidance and incisive comments on multiple drafts, I am indebted to Nicola Lacey and Peter Ramsay. I am also extremely grateful to Lindsay Farmer, John Goldberg, Martha Minow, Carmel Nemirovky, Diana Newmark, Shalev Roisman, Victor Tadros, Will Thomas, Susannah Barton Tobin, Jeremy Waldron, the JCLC editors, and participants at a presentation at Harvard Law School for valuable comments and discussion. 423 424 BRONSTHER [Vol. 109 i/ reIe$/s an o##ender’s s/a/.s as a ".5an: Punishment reaches this threshold 7E de5ons/ra/ing /"a/ /"e o##ender’s li#e-building capacity—the very basis of his humanity—is completely absent or fundamentally worthless. To so thoroughly deny so5eone’s -al.e, e-en so5eone F"o "as $o55i//ed a heinous crime, violates the liberal commitment to human inviolability. The Article closes by suggesting that long-term incarceration rejects an o##ender’s s/a/.s as a ".5an, and is /"ere#ore on a 3ar Fi/" 3enal /or/.re, given that removing someone from free society for decades makes it exceedingly difficult for him to construct a good life as a whole. TABLE OF CONTENTS INTRODUCTION.................................................................................. 425 I. DEGRADATION LIMITATIONS......................................................... 430 II. LEGAL AND PHILOSOPHICAL CONCEPTIONS OF TORTURE ........... 433 A. The Legal Conception....................................................... 434 1. Explication .................................................................. 434 2. Critique........................................................................ 438 B. Philosophical Conceptions ................................................ 440 1. Shue: Torture as an Assault on the Defenseless.......... 440 2. Sussman: Torture as Self-Betrayal.............................. 442 III. PANIC AND RESPECT ................................................................... 447 A. Suffusive Panic ................................................................. 447 1. Blinding Pain............................................................... 447 2. =r06* ;N/() ................................................................. 450 3. Interpretative Constraint.............................................. 456 4. Counter-Example ........................................................ 457 B. Disrespect .......................................................................... 459 1. Respect and Value....................................................... 460 2. Symbolic and Non-Symbolic Respect ........................ 462 3. Respect as an Epistemic Virtue................................... 464 C. Human Value..................................................................... 465 1. Diachronic Human Value ........................................... 466 2. Practical Reason.......................................................... 472 IV.TORTURE AS EXTREME DISRESPECT........................................... 473 A. The Spectrum of Disrespect.............................................. 476 B. Symbolic Degradation....................................................... 479 C. Degrees of Degradation..................................................... 481 D. Inviolability and Degradation ........................................... 481 E. Ticking Time Bomb........................................................... 483 F. Long-Term Incarceration................................................... 484 1. Associational Deprivations ......................................... 485 2019] TORTURE AND RESPECT 425 2. Slow Degradation........................................................ 486 CONCLUSION ..................................................................................... 489 INTRODUCTION There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate )/ )NT /QQT0UT+6* o+/0OU/M0O 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 "Tl/0U PUTO+rUM0Oh: /)NT+ +TJT'r0) rULTW)M'T* M0WJ(UTh r) JTr*)h PW+(TJh: PM0N(1r0h: PM0N(1r0Th:2 Pqr+qr+MWh: r0U Pq+()rJf: 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 PYou $anno/ do /"a/ /o a ".5an 7eing, captures the ideal in broad brush. Let us +TQT+ )/ )NM* Wr)TO/+l /Q *T0)T0WM0O W/0*MUT+r)M/0* r* PUTO+rUr)M/0 JM1M)r)M/0*f: 1 See G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter UDHRt j-+/NMqM)M0O )/+)(+T r0U PW+(TJh M0N(1r0h /+ UTO+rUM0O: )+Tr)1T0) /+ punishment); European Convention for the Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR] (same); International Covenant on Civil and Political Rights art. 7, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR] (same); American Convention on Human Rights art. 5(2), Nov. 22, 1969, 1144 U.N.T.S. 143 (same); S. AFR. CONST., 1996, ch. 2, § 12(1)(d)-(e) (same); Bundesverfassung [BV][Constitution] Apr. 18, 1999 SR 101, art. 10, para. 3 (Switz.) (same); U.S. CONST. amend. 4^^^ j-+/NMqM)M0O PW+(TJ r0U (0(*(rJ: -(0M*N1T0)i% N.Y. CONST. art. 1, § 5 (same); Canadian Charter of Rights and Freedoms, s 12, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c 11 (U.K.) (same);TEX. CONST. art. 1, § IF j-+/NMqM)M0O PW+(TJ or (0(*(rJ: -(0M*N1T0)i jT1-Nr*M* rUUTUi% CONSTITUI!eZO FEDERAL [C.F.] [Constitution] art. 5 (III) (Braz.) (prohibiting torture and PM0N(1r0 /+ UTO+rUM0O: treatment); New Zealand Bill of <MON)* #W) I@@ch * @ jXfvfi j-+/NMqM)M0O )/+)(+T r0U PW+(TJh UTO+rUM0Oh /+ UM*-+/-/+)M/0r)TJl *T'T+T: )+Tr)1T0t or punishment.); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 16, § 1, Dec. 10, 1984, 108 Stat. 382, 1465 U.N.T.S. AD uNT+TM0rQ)T+ !#9t jPbrWN ;)r)T =r+)l *NrJJ (0UT+)rKT )/ -+T'T0) M0 r0l )T++M)/+l (0UT+ its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined . :if 2 See Jeremy Waldron, Inhuman and Degrading Treatment: The Words Themselves, 23 CAN. J. L. & JURIS. 269, 278–79 (2010) (r+O(M0O )Nr) PM0N(1r0T: )+Tr)1T0) M* UM*)M0W) Q+/1 r0U 1MJUT+ )Nr0 PM0N(1r0: )+Tr)1T0)if 3 For attempts to parse the meanings of the various terms, see Waldron, id. and John Vorhaus, On Degradation. Part One: Article 3 of the European Convention on Human Rights, 31 COMMON L. WORLD REV. 374 (2002). But see Ribitsch v. Austria, 33 Eur. Ct. H.R. (ser. A) GC jI@@Di j1rKM0O r QM0UM0O /Q PM0N(1r0 r0U UTO+rUM0O: )+Tr)1T0) oM)N/() UM*)M0O(M*NM0O between the two terms); Tomasi v. France, 241 Eur. Ct. H.R. (ser. A) 7 (1992) (same). 426 BRONSTHER [Vol. 109 This Article examines penal degradation from the inside out. It looks to the exemplar of degrading
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