(Excerpt from Michael Davis’, The Moral Justifiability of Torture and other Cruel, Inhuman, or Degrading Treatment)
Torture therefore resembles punishment in at least four (related) ways.
First, like torture, punishment would be a crime did the law not specifically provide for
it. The death penalty resembles murder; imprisonment, kidnapping; and so on.
Second, like torture, punishments (or rather the acts that constitute punishment) are
all prima facie morally wrong.
Third (and in consequence), punishment must have a positive defense (a plausible “theory of punishment”)
to be morally permissible.
And, fourth, like torture, most punishments (amputation, imprisonment, and soon) require that the convict
be (more or less) helpless. Only reprimands, suspended sentences, and the like do not.
Punishment nonetheless differs from torture in at least four morally significant ways.
First, punishment presupposes rationality. The insane, children, and other mental incompetents
are exempt from (legal) punishment (as least while their incompetence lasts). Torture requires only sentience.
Second, punishment recognizes the condemned as retaining certain rights (especially, the right to be
treated as a human person). The concept of “mistreating the condemned” is not
empty in the way “mistreating the tortured” is.
Third, punishment has a limit the condemned knows, as well as those who execute sentence. Even someone
condemned to be drawn and quartered, for example, knows that he will not be flogged or branded.
Fourth, punishment (except for punishment that is also torture) does not seek to break the condemned
(though it may in fact do so). Unlike torture, punishment does not take full advantage of the condemned’s helplessness.