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April 4, 2013

Perfect retributivism?: Saudi court orders paralysis as punishment for assault that resulted in paralysis

A colleague sent me this remarkable international sentencing story, headlined "Surgical Paralysis Ordered in Saudi Arabia as Punishment for Teenage Assault: Spine-for-a-spine punishment has mother 'frightened to death'."  Here are the basics:

Ali Al-Khawahir, 24, is awaiting court-ordered surgical paralysis in Saudi Arabia for an assault he committed when he was 14 years old, according to news reports.

Al-Khawahir has reportedly spent 10 years in prison since stabbing a friend in the spine during a fight. The wound left his friend paralyzed.  The Saudi legal system allows eye-for-an-eye punishments.

The convicted man's mother told Arabic-language newspaper Al-Hayat that the family is seeking help raising $270,000 in "blood money," which in Saudi Arabia can be requested by a crime's victim -- or victim's family in cases of murder -- in exchange for punishment. "We don't have even a tenth of this sum," she said, according to a translation by The Guardian....

Amnesty International condemned the sentence as "outrageous" in a statement released this week. "Paralysing someone as punishment for a crime would be torture," said Ann Harrison, the organization's Middle East and North Africa deputy director. "That such a punishment might be implemented is utterly shocking."  Tooth extractions, said Amnesty, have also been ordered in Saudi Arabia.

Israeli news website Ynet reports that 13 years ago a Saudi hospital gouged out an Egyptian man's eye as punishment for an acid attack that injured another man. A similar sentence for an Indian man six years later was set aside after international outrage.

If victims do not seek "blood money" or perpetrators cannot afford to pay the amount requested, the sentence is carried out.

Though I never want to be accused of defending this seemingly brutal form of retributivist punishment, I cannot help but note that a sentence of LWOP (especially if it involves extended confinement in a supermax-type prison) could and would in some cases be more limiting of a offender's freedom than being confined to a wheelchair for life.  And, of course, there are many (perhaps thousands) of folks serving LWOP sentences in US prisons for crimes less severe than aggravated assault leading to permanent paralysis. (Recall that Terrance Graham was serving an LWOP in Florida for robbery offenses committed while a teenager until the US Supreme Court decided the sentence was unconstitutional.)

As should be obvious, I am not trying to make the case for either paralysis or LWOP as justifiable punishments, but rather I am trying to suggest that some reasons we may find this court-ordered lifetime confinement to a wheelchair os horrific ought also give us reason to be deeply troubled by court-ordered lifetime confinement to a cage.  More broadly, I mean for this story and my headline to highlight that an aggressive commitment to the deontological punishment philosophy of retributivism may make it difficult to assail, at least in theory, the distinctive punishment ordered by the Saudi court in this case.

April 4, 2013 at 11:48 AM | Permalink

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Comments

There are many horrifying aspects to this case, including the young age at which the crime occurred and the mental culpability of a victim that young for what was likely an assault that had a terrible unforeseen consequence. I doubt that even the most intelligent and sophisticated 14 year could have predicted that a stab in the back was going leave someone paralyzed. That doesn't condone the assault but it seems to mitigate punishment.

More broadly, I take exception to comparing this punishment with being locked in a cage. It is one thing to put a body in a cage, quite another to turn the body into the cage. I find it outrageous Doug that you see no significant difference between the two. For one, this punishment is highly invasive to the body something of which a cage is not. Perhaps it is a cultural bias but it seems especially horrifying that a person's body can be invaded in such a way so as to impose punishment. Why not remove a lung? Or in fact remove a part of the brain? Again, more broadly why not impose paralysis on anyone who commits a crime? A rapist is going to have difficult time raping if they are confined to a wheelchair. Purely from an economic point of view it certainly would be cheaper to simply snip a cord in the spine and be done with it than spend money on a cage. Is that really the road we wish to go done as a society?

Posted by: Daniel | Apr 4, 2013 1:06:19 PM

"seemingly"?

I agree with Daniel. Being in "a wheelchair" also is not specifically the same as being "paralyzed" though I don't know how seriously (paraplegic?) is required here. Generally speaking, being able to move around, even in a cage, is significantly different. If you are paralyzed, you are likely in effect going to be confined particularly if you don't have the resources to get around.

Posted by: Joe | Apr 4, 2013 4:06:41 PM

This is the origin and the trouble with retribution as a reason for punishment. It is disgusting. It came from the Iraqi tribesmand that wrote the Bible. I do not bash Iraqi tribesmen of 3000 years ago. They had limits on their economym, knowledge and sophistication. I do cast stones at the modern lawyer hierarchy for making live as they did, like animals.

Posted by: Supremacy Claus | Apr 4, 2013 4:24:04 PM

The comparison is not so outlandish as it first appears. There are those who willingly submitted to castration in the U.S. for an earlier release or as an option in lieu of prison. It follows some might think paralysis a better option even if not in solitary. That says more about prison than it does punishment itself. How many doing LWOP would prefer paralysis? We don't know.

Posted by: George | Apr 4, 2013 6:22:15 PM

Castration was a benefit, to reduce uncontrollable sexual urges. It was not punishment. Doctors would have no ethical hesitation fulfilling the request of the patient. I do not know what doctor would intentional sever the spinal cord of a healthy person, and against their will. A person consenting to such a procedure would warrant a psychiatric exam and involuntary treatment for mental illness. The doctor would need to start doing that full time, because all other doctors would have a duty to report to the licensing authority, the to shun.

Posted by: Supremacy Claus | Apr 4, 2013 7:19:06 PM

Doug, an excellent and thought-provoking post. Anyone who supports retributivism and finds this punishment abhorrent must devise a coherent limiting principle. I think that endeavor will be difficult, to say the least.

Posted by: AnonymousOne | Apr 4, 2013 8:02:14 PM

AO --

Here's the limiting principle: It has to meet accepted Eighth Amendment standards (that would seem to be like a pretty good principle for an American lawyer).

This kind of Sharia law/gross mutilation doesn't. The death penalty (among other punishments like imprisonment) does.

I realize you reject retribution as a legitimate component of punishment, but I would respectfully ask whether you understand how outmanned that position is, see, e.g., Section 3553 (a)(2), stating that the purposes of punishment are incapacitation (although it doesn't use that exact word), deterrence and rehabilitation (if possible) -- AND, separately, "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense."

Since "just punishment" is provided for separately (and first in line, I might mention), it must mean something more than deterrence, incapacitation and rehab.

If you want to try to convince Congress that it got it wrong, that of course is your prerogative. But I think you're going to have a tough time of it, even with Leahy sitting in the Chairman's seat.

Posted by: Bill Otis | Apr 4, 2013 8:30:57 PM

Bill,

I don't think the 8th Amendment is a coherent limiting principle, though it is a limiting principle. If one believes in retribution, how does the 8th amendment make any sense? If a defendant can do something cruel, why shouldn't one be able to inflict the same cruelty on him? What is cruel about that? There is nothing about the theory of retribution itself that contains any such limit. If anything, the 8th Amendment supports my view: taking retributivism to its logical conclusion deeply disturbs us. In fact, it seems cruel, petty, and barbaric. Those are serious problems for retributivism, and one does not save the theory merely by saying that we won't take it too seriously when it yields disturbing results.

On your second point, I agree that my view is not prevalent, and I have little hope of effecting much change.

AO

Posted by: AnonymousOne | Apr 4, 2013 8:48:32 PM

Here is one reason to reject retribution. 20 Million FBI Index felonies a year.

The incapacitation purpose proved itself effective when guidelines dropped crime 40% across the board.

It is our government that is the cruelest of all, allowing such a number of criminal victimizations dreary decade after dreary decade. There is very little crime victimization in Saudi. That is through 1) maintenance of the patriarchal family and zero tolerance for bastardy and promiscuity; 2) promotion of self help against criminals by Sharia; 3) greater religiosity; 4) rarity of lawyers.

No lawyer here should feel entitled to get huffy about this sentence, since they are all responsible for the butchery of crime victims by the millions, mostly dark skinned. It is the American legal system that is the most racist and worst in the world, not the Saudi one.

Posted by: Supremacy Claus | Apr 4, 2013 9:17:57 PM

AO --

It was Oliver Wendell Holmes who wrote, "The life of the law has not been logic; it has been experience." The Western experience, at least in the modern era, is that mutilation is not acceptable as a criminal punishment. As a lawyer and a law professor, that's enough for me.

As it happens, though, anti-mutilation seems perfectly logical as a limiting principle. It's a decently clear line (as clear as many the law recognizes) and captures the intuition of the majority. In matters of public policy (the title of this blog being "Sentencing Law and Policy"), that's sufficient.

I also disagree with your implicit notion that retributivism equates to "an eye-for-an-eye." That is a form of retributivism, sure, but it's a primitive form, one developed before prisons were possible. Prison is now the punishment for virtually all serious crime, and retributivism is free to keep up with the times (just as utilitarianism is).

Posted by: Bill Otis | Apr 4, 2013 11:22:39 PM

1. Holmes was a realist. His statement, I think, is factual, not aspirational. I’d certainly like more logic in life, and law.

2. The problem with appealing to moral experience is that is justifies anything. It is like appealing to faith or tradition (which can justify every religion, every belief of any sort, and every practice ever known to man for some period of time). Experience has, at varying times and in different places, countenanced every single practice. It can justify anything. It is the Eastern, Saudi experience that this punishment is fitting and proper. It was the Western experience for many years that blacks were subhuman. It was the experience of much of the world for over a millennium that Jews were anathema. Experience certainly justifies many good things, but also many bad things. Experience justifies indiscriminately. Given how often it changes, and how radically so, I don’t know why I should simply accept the experience you represent. Instead, as a student of the vagaries of history, culture, and geography, I ask for more than experience. It is not enough for me. It is a starting point, perhaps, but cannot be the end.

I’m deeply skeptical of experience, and more inclined to trust in reason (informed, perhaps, but not guided by, experience). Some might think it arrogant or elitist, but I think it the opposite. I think it arrogant to assume—given how often experience changes and how it has justified everything—that we somehow have the wonderful luck of having it correct this time. (I don’t mean this as an ad hominem. Just trying to address the charge that my argument might seem elitist).

3. Anti-mutilation is a clear line. It is also an arbitrary one--which is in no way dictated or even justified by any retributive theory of which I’m aware. We could also draw the line at anti-death, or anti-flogging, or anti-shaming, or anti-solitary-confinement. All of these are plausible, none dictated by retributive theory. My quarrel is not with the clarity of this line. It is, instead, with it’s disconnect from retributivism.

4. There may be softer forms of retributivism that do not require that suffering be inflicted in equal measure. So yes, not all retributive theories call for “ocular parity.” But that too is arbitrary. If the point is to inflict suffering on the perpetrator or placate the feelings of the victim, there seems no principled reason, on a retributive theory, to create artificial limitations. And if the results seem abhorrent, I think we should be questioning the theory, rather than ignoring the issue by imposing exogenous limitations. If, taken to its logical conclusion, retributivism yields such results, maybe it does not serve aims proper for a theory of punishment.

AO

Posted by: AnonymousOne | Apr 5, 2013 12:47:36 AM

"Holmes was a realist. His statement, I think, is factual, not aspirational. I’d certainly like more logic in life, and law"

Holmes certainly saw experience as more than factual. Aspirational is a tricky word in this context, perhaps it is best to say that Holmes saw a law based upon experience as inevitable. Moreover, Bill is correct at another level when he talks about the Western experience. That is the way Holmes meant the term; collective experience, what we today would now call culture. In his later years Holmes became a big fan of John Dewey and Dewey used experience and culture synonymously.

"I’m deeply skeptical of experience". You might be surprised to know that the poet T.S. Eliot was as well. He claimed that experience imposes a pattern and patterns are always false. Of course, he was also deeply skeptical of reason too, on a similar foundation.

Posted by: Daniel | Apr 5, 2013 3:17:55 AM

AO --

Just very briefly:

1. "The problem with appealing to moral experience is that is justifies anything."

That is also the problem with appealing to reason. All depending on what a person finds persuasive, reason can dictate anything. That is the thought that lay behind my saying the other day that, at the very end of the road of thinking, lies feeling. That seems to be the way human beings are constructed. Thus I think there is more power in Holmes's legal realism perspective than you give it credit for. It gets us as least as far as reason, and has more at least arguably objective evidence to go on.

2. "Experience justifies indiscriminately."

I don't think so. The experience of Greece and Rome justifies ranking those civilizations higher than hunter-gatherer cultures that simultaneously existed in other parts of the world, still living much as Neanderthals. Art, science, medicine, architecture, quasi-democratic government, even organized warfare are reasonably objective achievements.

Similarly, the 20th Century USA contrasts, in objective ways, with the 20th Century Soviet Union. Freedom, opportunity, social mobility, and prosperity are better, any normal person would say, than gulags, pogroms and the secret police.

In other words, experience CAN be a perfectly good standard. The proof is in the pudding. You see what experience has brought, then evaluate it.

Finally, if inescapable subjectivity be the objection, I must note that it's an equally powerful objection to reason. Because the end product of reason is persuasion, and persuasion is a feeling, not an objective fact (indeed, it's far less objective than, say, architecture or civil engineering), it can no more attain the status of an objective criterion of success than experience.

3. And while it's true that arbitrary lines will be drawn, and that I'm drawing them, that will also be true in any legal system that, to my knowledge, civilization has ever produced. Law is, after all, just a bunch of rules for behavior. But behavior is so incredibly varied that arbitrary lines are, far from being undesirable (except in a 19th Century utopian sense (which never seemed to work out)), inevitable. And bright line rules have a key advantage that a minute-to-minute appeal to reason lacks: They establish clear guides for behavior. Such clarity is one of the most important things law can provide.

Posted by: Bill Otis | Apr 5, 2013 9:16:13 AM

"If a defendant can do something cruel, why shouldn't one be able to inflict the same cruelty on him? What is cruel about that?"

I don't really understand what this means. Some sort of two wrongs makes a right deal?

"appealing to moral experience is that is justifies anything"

It isn't the only limit though it is one -- "unusual" in particular is a means to guard against unauthorized, selectively applied or not broadly accepted by democratic processes (an imperfect check, but you know, what Churchill said).

Reason is fine, but experience is a means we used to find out it we are reasoning correctly. No one thing is being relied upon here. Retribution is being used as a factor used in punishment, not the only thing, and there within certain constitutional limits.

"to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense"

Retribution at the end of the day looks like a small aspect of punishment with even this section adding "just punishment" along with other things. Just what that means is debatable, but it does suggest that we don't just put people in cages for safety reasons. There has to be some level of "guilt" involved there. Retribution does on some level seem to be an aspect there. If not, why does one have to be "guilty" at all? Why are they "punished" at all?

----

Anyway, perhaps A. can spell out what the "limiting principle" should be.

Posted by: Joe | Apr 5, 2013 12:01:14 PM

Bill,

I think your post, in subtle ways, confirms what I’m saying. You rank experiences, but that ranking relies on reason. Reason is how you can sort these things. Without reason, it is a competition of traditions with no relevant metric. And much of the great things that you identify about Western culture, including science, medicine, philosophy, and architecture, are infected with reason.

Reason is not, as you suggest, as subjective as experience. For some people, different reasons can justify anything, but reason has far more objectivity. Experience told most Western civilizations for a thousand years that Jews were malefactors. However, the reasons proffered to support that entrenched experience were specious. It’s not hard to tell that. People offered bad reasons—mein kampf is filled with them—but at least one could parse through and point out inconsistencies, flaws, non-sequiturs, and the absence of evidence for particular points. Experience doesn’t permit that, unless you apply reason to experience. True, some people will reason poorly. But at least one can identify the problem. That’s not possible with experience divorced from reason. Then, it is simply this: “I hear your reasons, but they run contrary to Western experience; thus, whatever there merit, I cannot accept them.” Appeals to experience divorced from reason simply end the conversation.

Experience may be based on reason. If so, it is fine. If society has collectively come to view something as wrong in large measure because there are reasons for it to have done so, I have no quarrel. Much Western experience is so based, which is why I adhere to much of it. But experience on its own—i.e., the collective views of the majority or the historical traditions of the culture—is not enough when it runs counter to reason or is underjustified. I have the right to demand more. And if our experiences with racism and anti-semitism and countless other failures of experience are to guide us, we should always demand that, where possible, experience be consistent with reason and stand up to critical scrutiny.

The point is not that experience always yields the wrong result. It is, however, that it only makes any sense in the context of reason. How else does experience change? It is not that one arbitrarily decides one day that blacks are humans, and things just shift. It is, instead, that some group of people use reasoning to criticize some aspect of accepted experience.

If you live in Western civilization, which is the most advanced and well-reasoned of them all, you could do decently merely to defer to experience. But you could do better to start with experience, and than reason. Hold experience to account on reason. Accept those things that reason confirms. But if reason sheds doubt on something, don’t reject reason merely for inconsistency with experience. Instead, subject both to critical analysis.

On retributivism, because I don’t understand the reasons offered in its favor, and because I see reasons to the contrary, and because of potential internal inconsistencies (such as in the way we treat revenge), I can’t just accept our experience or the fact that this practice has persisted as sufficient justification.

Posted by: AnonymousOne | Apr 5, 2013 12:17:41 PM

"I don't really understand what this means. Some sort of two wrongs makes a right deal?"

I agree. And retribution generally makes about as much sense to me. It is "inflict suffering because he did" or "inflict suffering because it will make me feel better or vindicated." Your criticism should be directed at retributive theory, which reasons like this, not at me.

---

My larger points are simple. (1) You can have a perfectly fine justice system that does not encourage people to demand that their feelings be placated by inflicting suffering on others if that added suffering doesn't serve to prevent future suffering. (2) I think few have looked into why this impractical infliction of suffering makes us feel good, or it is right that we seek it, or how this differs from revenge, which many seem to think is base and immoral. I'm not attacking limiting principles, nor arguing that deterrence and incapacitation are perfect theories, nor that they too don't need arbitrary limiting principles.

AO

Posted by: AnonymousOne | Apr 5, 2013 12:32:29 PM

No, you said that retribution would justify cruelly treating those who are cruel and that this won't be "cruel and unusual" under the 8A. The first part might be true, but just because someone tortured someone, this doesn't suddenly make it not "cruel" to torture that person. That doesn't follow.

#1 sounds okay .. pure retribution isn't on the table apparently; Bill Otis, e.g., cited a provision that lists various criteria, not just pure retribution.

#2 Also, I don't know who is supporting "impractical infliction of suffering" either.


Posted by: Joe | Apr 5, 2013 12:45:04 PM

It is something else to say such and such on the merits is "impractical."

Posted by: Joe | Apr 5, 2013 12:46:40 PM

I never said it wouldn't be cruel and unusual to torture someone. I was just saying that was not a limit imposed by retributive theory. I agree with the 8th Amendment.

Nor was my point that the fact of necessity of a limiting princple on its own is per se reason to reject a punitive theory. After all, deterrence could be served by killing those who commit petty offenses, but a limiting principle is necessary there too.

What I mean instead is to question the justification of retribution. I think part of the reason we think this punishment grotesque is because it seems so base and petty to inflict suffering because someone else did. I think that is a feature of retributivism, which, on my (minority) view, is naked revenge cloaked in a shroud of philosophical legitimacy. However, if the only objection in this case is to the extent of the suffering, than I agree that this scenario doesn't serve my purposes.

My larger point still stands, though I wouldn't use this example to prove it, because of the complicating factor of torture. The larger points are the two I referenced. It is not enough to say that pure retribution is not on the table. To the extent it adds anything, I think it wrong, because I don't think the theory is justifiable. On "impractical infliction," I mean infliction which does not serve practical aims of deterrence and incapacitation, but instead serves some ill-defined psychological desire to see someone suffer if they have suffered. I apologize if the language is confusing.

AO


My point was not that retribution cannot have excess and still be a useful theory.


No, you said that retribution would justify cruelly treating those who are cruel and that this won't be "cruel and unusual" under the 8A. The first part might be true, but just because someone tortured someone, this doesn't suddenly make it not "cruel" to torture that person. That doesn't follow.

Posted by: AnonymousOne | Apr 5, 2013 1:19:38 PM

Sorry, the stuff after my signature is a mishmash of draft and quote, and please disregard it.

Posted by: AnonymousOne | Apr 5, 2013 1:31:57 PM

This is a very strange blog.

Posted by: anon | Apr 5, 2013 2:22:00 PM

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