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109 J. Crim. L. & Criminology 423 (2019)
Torture and Respect

handle is hein.journals/jclc109 and id is 449 raw text is: 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 to the offender's wrongdoing 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 oftorture. It argues that torture is the intentional infliction of a suffusive panic and that its central wrongness is the extreme disrespect it demonstrates toward a victim's capacity to realize value. Humans realize value diachronically, stitching moments together through time to construct a good ife as a whole. Torture takes such a being, one with a past and a future, and via the infliction ofa make it stop right now panic, converts her into a shrilly squealing piglet at slaughter, in Jean Amdry's words, 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 ofour 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

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