Eugene Volokh and Mark A.R. Kleiman have been debating a somewhat grisly topic: whether it would be just and moral to torture a heinous criminal (say, a serial killer of children) to death, as retribution for his crimes. They appear to have come to agreement, in the end, that purely retributive punishment of this sort is morally just, but nevertheless operationally impracticable, for various reasons.

Needless to say, I disagree. I support severe measures--such as capital punishment, and even torture--when necessary for legitimate purposes, such as deterrence or prevention of even worse misdeeds. But I strongly oppose mistreating criminals merely out of vengeful cruelty.

I've already articulated my views on these issues at length, and there's not much point in any event in arguing over such fundamental moral disagreements. But I feel compelled to respond to what Kleiman and Volokh apparently consider the clinching argument in favor of retributive justice. As Kleiman puts it:

[C]ould you explain to me why we kept chasing Nazi war criminals well into the 1990s? Was the Third Reich likely to come back? Were we hoping to deter the next round of mass murderers?

Perhaps it's the perpetually warm, sunny weather in Los Angeles that's convinced UCLA professors Kleiman and Volokh that monsters comparable to the Nazi war criminals are purely relics of the past. But those of us with a darker--and, I believe, far more realistic--view of the world see the Nuremberg trials, and subsequent Nazi-hunting, as a serious exercise in deterrence. That's presumably why grand, public trials were held, rather than standard military court martials. That's why the accusers, judges and executioners were from the victorious allies who defeated the Nazis, not from the nations and peoples that the Nazis overran and decimated. That's why the slogan of the Nazi-hunters is "never again"--rather than, say, "torture the bastards". That's why the governments that sheltered Nazi war criminals from prosecution were not those given to expressing horror at the idea of retribution, but rather those, like Syria's and Argentina's, given to voicing sympathy with Nazi ideas. And that's why the iconic monstrosity of the Nazis is used regularly today, along with the stories of similar monsters who got off scot-free, such as Stalin and Pol Pot, to call us to action against contemporary horrors--whereas the fates of those whose cruelties were brutally avenged, such as, say, Italy's Mussolini, Rumania's Ceausescu, or Nicaragua's Somoza, are rarely, if ever, used as moral exemplars of any kind.

Perhaps it's naive to think that power-hungry, megalomaniacal sadists would be deterred by the threat of being brought to justice. Then again, perhaps it's naive to think that everyday criminals are so deterred, either. Obviously, criminals of all types do what they do because deterrence has failed to intimidate them--and perhaps some are, indeed undeterrable.

What we do know, however, is that Hitler is said to have remarked, just prior to his invasion of Poland, "who today remembers the extermination of the Armenians?" And the Nazis certainly went to considerable effort and expense to keep the scale and many of the details of the Holocaust as secret as possible--even when the Nazi empire was at the height of its power, openly committed to many frankly brutal ends, and in a state of total war with virtually all the countries that could possibly threaten it. Perhaps the fear of being called to account for their crimes did weigh on the minds of the Nazi killers, after all. And if even they felt at least some shred of culpability-inspired inhibition, then who else might?