Here in the Weirdness Capital of the universe ("Keep Austin Weird"), a recent trial brought cries of "There's an empty tree over there. Get the rope!" A hit-and-run incident that resulted in the death of female pedestrian in a poorly-lit street ultimately found the driver (also female) on trial for criminally negligent homicide. The jury recommended a 10-year suspended sentence, or probation, for the convicted driver after she was found guilty of the charges. The jury also imposed a $10,000 fine and the judge added a 60-day jail sentence to the probation. Both the victim and the driver were in their early thirties and the outcry here was significant. Was justice done? The victim's family wanted vengeance and the driver's family wanted closure. If this is a (fair & balanced) consideration of crime & punishment, so be it.
[x Cronk Review]
Eye For An Eye: The Case For Revenge
By Thane Rosenbaum
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A surefire way to establish one's moral superiority—certainly in our society and in most Western nations—is to renounce any interest in revenge. No matter the damage done, the outrageousness of the conduct, or the magnitude of loss, most people will reflexively wave off any suggestion that vengeance is what they desire. Indeed, they will indignantly deny having a vengeful streak, as if nothing could be so shameful as the simple wish to settle a score. Take your pick of maxims: "Vengeance is beneath me"; "I'm not out for revenge, I just want to make sure this doesn't happen to someone else"; "All I care about is justice, not revenge."
That's what President George W. Bush told the nation shortly after 9/11. "Ours is a nation that does not seek revenge, but we do seek justice."
The president knew that line would draw applause, and it did. Why? Because we've been trained to believe that justice is a sign of refinement, while vengeance is a barbaric holdover from a primitive past. So we couch our vengefulness in the language of the law, and cast our lot with the rule of law, with all its emotional detachment and cool dispassion. Leave revenge to the louts and the hotheads; civilized people suppress their instincts and moral outrage, and recite the script that justice is the enlightened man's revenge.
But the distinction between justice and vengeance is false. A call for justice is always a cry for revenge. By placing their faith in the law, those who justifiably wish to see wrongdoers punished are not disavowing vengeance. If anything, they are seeking to be avenged by the law. No matter what they say, victims aren't choosing justice over vengeance; they are merely capitulating to a cultural taboo, knowing that the protocol in polite society is to repudiate revenge. But make no mistake: When it comes to the visceral experience of being a victim, revenge and justice are one and the same.
And everyone should feel similarly. After all, there is no justice unless victims feel avenged, when they believe that a wrong has been righted and honor restored. And revenge is never just if it is disproportionately delivered—if the retaliation exceeds what is justly deserved, measure for measure. Indeed, vengeance is not irrational (the common knock on revenge)—it's healthy and entirely human. Insisting that justice will suffice when revenge is what victims really want is both intellectually dishonest and factually untrue. Besides, in modern societies where vigilantism is disallowed, we all on some level reasonably believe that it is only by leveraging the law—and having the legal system serve as our proxy—that vengeance can be actually achieved.
Everyone applauded President Bush, but did anyone actually believe that the relentless bombing of Afghanistan was without a vengeful component, that it was free from the emotion and, yes, rage that often accompany revenge? It's not like America convened a courtroom in Kabul and confronted the Taliban—lawyer to lawyer. Wouldn't that have been the "justice" to which the president referred? The due-process clause of the U.S. Constitution, however, didn't apply to bombs and drones. Reprisals on such a lethal scale seem more like a nation taking justice into its own hands. And yet these acts are framed as legal undertakings rather than vengeful ones.
Nearly a decade later, when President Obama announced that Osama bin Laden had been assassinated by Navy Seals, Americans celebrated in the streets. Was all the joy the fulfillment of justice finally achieved—bin Laden receiving the punishment that, legally, fit the crime—or was the outpouring of emotion more akin to revenge? After all, given the relatively unguarded compound that the Navy Seals had discovered, they could have kidnapped bin Laden and returned him to the United States to stand trial. His son-in-law, Sulaiman Abu Ghaith, was just recently arraigned in Manhattan federal court for a civilian trial. The justice about to be meted out to Abu Ghaith is of an entirely different character than the summary execution received by his father-in-law.
Drone strikes in Afghanistan, Pakistan, and Yemen elicit a similar confusion: Are they just deserts, unlawful targeted assassinations, or the highly nuanced ground rules of a just war?
It can all make your head spin. But it shouldn't have to.
Clearly, Osama bin Laden's death was a victory for both justice and revenge. The actions of the Navy Seals, and the reactions of the American public, illustrate just how meaningless the distinction is between justice and vengeance. America is no less civilized or law-abiding because bin Laden was assassinated. The absence of a court proceeding did not lesson the justness of his final exit, nor did it convert the mission of the Navy Seals into an act of barbarism. And the cheering throng was right not to withhold their applause until a judge had spoken. America didn't need a courtroom with a robed jurist, preening lawyers, and a key-tapping stenographer to feel morally and legally justified. And there was nothing wrong with the sight of Americans experiencing the closure that comes from feeling avenged.
What's so shameful about the emotional clarity and moral imperative of getting even? Why all the hypocrisy surrounding revenge?
Before the Internet, those with a fondness for porn were left with little choice but to sneak into adult theaters in the seedy section of town wearing oversized raincoats and wide-brimmed hats. To be caught in the compromised position of standing in the ticket line while another PTA parent just happened to drive by was difficult to explain away. Society has long banished the perverted from the ranks of respectable company.
Revenge shares a similar public shame (though it is probably more acceptable to confess to having a kinky taste for porn than to acknowledge harboring feelings of revenge). The vengeful are deemed out of control, emotionally unhinged, perpetually angry, and unable to turn the cheek and move on with their lives. Yet the revenge film—think "Gladiator," "Braveheart," "True Grit," "Death Wish"—remains immensely popular, with decades of box-office appeal. If revenge is so shameful, then why don't audiences charge out of theaters in protest? Why, instead, do they settle into their seats with their blood rushing and their minds driven mad by the possibility that a fictional wrongdoer will escape punishment before the closing credits?
We watch revenge films without embarrassment because on some primal level we know that just deserts are required in the moral universe, that those who commit crimes must be punished according to their blameworthiness, and that wrongs must ultimately be righted. It's not our lust for violence that explains why we applaud payback, but our absolute need to live in a world that promotes fairness, law and order, and social peace. We're all better off when wrongdoers are punished.
Without the debt canceling, equalizing, restorative dimensions of revenge, faith in humankind is lost and the world makes less sense. That's precisely what people mean when they lament that there is "no justice in the world"—a wrongdoer has gotten away with murder, and all who depend, morally and emotionally, on the sum-certainty of vengeance are left helpless, dumbfounded, and enraged. The revenge we are so often denied in our private lives is experienced vicariously—courtesy of the movies.
So if justice and revenge are fundamentally the same, why can't we be more honest about the role that revenge plays in our lives?
It's finally time to humanize justice by restoring the face of vengeance. Doing so is not an invitation to lawlessness but a mandate that the law must act with the same moral entitlement, and the same spirit of human fulfillment, as the righteous avenger.
Vengeance is as old as man himself. It is an instinct at the very core of our emotions; indeed, it's a byproduct of our evolutionary history. Human survival depended greatly on convincing neighboring clans, tribes, and states that no attack or moral injury would go unanswered. Payback was nonnegotiable and self-regulating. Reclaiming one's honor was not undertaken out of haphazard rage. To avenge was to achieve justice, and to do what was just necessitated the taking of revenge.
The philosopher Robert C. Solomon has pointed out that "vengeance is the original meaning of justice. The word 'justice' in the Old Testament and in Homer virtually always refers to revenge.... Not that the law and the respect for the law are unimportant, of course, but one should not glibly identify these with justice and dismiss the passion for vengeance as something quite different and wholly illegitimate."
For much of human history, the resolution of disputes was a private matter. States were not yet in the business of maintaining legal systems or, for that matter, punishing wrongdoers for crimes committed against another. Law and order was enforced at the most local of levels. Governments became involved—essentially taking a monopoly on vengeance—only during the Enlightenment, when the social contract obligated citizens to surrender to, and faithfully accept, the rule of law.
To hold up their end of the bargain, states collected taxes to erect courthouses and police stations, and filled them with personnel responsible for keeping the peace. Governments assumed the role of surrogate avenger, minus the emotional involvement that a true avenger would naturally possess.
But regardless of who becomes the designated revenge-taker—either the state, with its impersonal security apparatus, or the avenger, who is discharging his personal duty—human beings can no more suppress their revenge impulse than can they curb their instincts for sex and hunger for food. Getting even is a biological necessity. We need our revenge, notwithstanding how feverishly religions and governments have worked to eradicate it from the human experience. Vengeance can be curtailed, but it can never be truly undone, nor should it. Vengeance keeps returning... well... with a vengeance.
The lex talionis, the law of the talion, which provides for the right of retaliation, has its origins in the Old Testament and in Hammurabi's Code, and sets forth the basic formulation of reciprocity in response to moral injury—measure for measure. "An eye for an eye," misunderstood as a mantra for the bloodthirsty, has attained a thuggish reputation. But it has an altogether different meaning. If anything, "an eye for an eye" is a check on excess. It demands exactness and has no tolerance for recklessness. The wrongdoer who causes someone to lose an eye will have to forfeit one of his own—no more, no less. And not out of pure hate, but in accordance with what is due.
The talion establishes a boundary for human loss. A debt is created, and the avenger is entitled to take the measure of his or her loss as payback. The wrongdoer is entitled to no discount, and the avenger is held to a standard that allows for no excess.
Society should always reject the wrongdoer who takes an eye and not the avenger who is duty-bound to even the score. Those who, like Gandhi, say "An eye for an eye makes the whole world blind" ignore their own moral blindness. Telling victims to accept their loss without recourse is not a sign of virtue—it's proof of cowardice. Turning the cheek may have religious significance to practicing Christians, but it is an awkward facial maneuver not readily practiced in the moral universe where the repayment of all debts is mandated.
There is a paradox in our distaste for "an eye for an eye." Most people abhor having to accept discounts in their professional or private lives. Businesses insist that invoices be paid in full; landlords evict tenants who are delinquent in paying rent; retailers gnash their teeth at having to mark down an item that should have sold at full price; those who emerge from bankruptcy are often socially exiled for paying pennies on the dollar to satisfy their debts; marriages fall apart when one spouse simply won't carry an equal load. The Beatles seemed to understand the principle when they wrote "the love you take is equal to the love you make."
We all want reciprocity, and we want the ledgers we keep with business associates and intimate partners to be balanced. Indeed, we expect it. Those who stand on principle and demand fair payment—insisting on precision and always inflexible about price—are thought to be righteous. And yet, when it comes to the most crushing of debts, the losses that are simply too much to bear, the injuries that are truly a matter of life and death—the murder or rape of a loved one, large-scale human suffering, an assault on dignity so great that honor is not easily recaptured—our math skills suddenly fail us, and we become reluctant to support equivalent punishments. A new calculus is created, one that doesn't add up.
So we tolerate a legal system where over 95 percent of all cases are resolved with a negotiated plea—bargained down from what the wrongdoer rightfully deserved. That means that convicted criminals are rarely asked to truly repay their debt to society. Even worse, this math-phobic system tragically discounts the debt owed to the victim, who is grossly shortchanged.
In Rhode Island, in 1983, Michael Woodmansee was sentenced to 40 years in prison for gruesomely murdering a 5-year-old boy, Jason Foreman. (Woodmansee allegedly ate the boy's flesh and shellacked his bones.) Rhode Island permits the early release of prison inmates for good behavior and for working prison jobs during their incarceration. In 2011, Woodmansee was scheduled to be released, having served only 28 years of his negotiated plea. From the moment of sentencing, with the trial aborted for a plea bargain, Woodmansee had already shortchanged the state of Rhode Island and the boy's father, John Foreman, of what was owed. Now it was measurably worse. On hearing that his son's murderer was soon to be a free man, Foreman said, "If this man is released anywhere in my vicinity, or if I can find him after the fact, I do intend to kill this man."
Many criticized Foreman: How could he so openly and unapologetically admit that he was planning to take justice into his own hands? (Woodmansee was voluntarily committed to a mental institution, and so his life was spared.) But who could blame Foreman for feeling that traditional justice had failed him, and that personal vengeance was now absolutely necessary?
Plea bargains, with their bargain-basement rationales, epitomize the degree to which our legal system has too little respect for victims and even less regard for the moral imperative that justice must be done. What is paramount under the talionic principle seems to be optional under our laws. A justice system that recognized the duty it owed to victims would not rely so heavily on this method of resolution, which casually distorts the truth and trivializes the remedy.
By definition, plea bargains are breaches of the social contract, because they enable states to leave unfulfilled their obligation to punish on behalf of their citizens. These are the very same citizens who, through the force of law, have been deprived of their ancient right to personally enact revenge. The justice system can't have it both ways: outlawing personal vengeance while at the same time devaluing legal punishment. The public places its faith in the state, but it is unworthy of that faith unless it can fully accept its role as proxy—the revenge denied to victims must be undertaken by the government, because states have assumed the task of punishment to be theirs alone. And yes, in cases of premeditated murder deemed "the worst of the worst," a penalty of death is what the wrongdoer deserves, what the victim is owed, and what the state should not hesitate in carrying out.
Other nations around the world allow for revenge—whether in the form of individual relief or under color of law. Of course, what many of these nations have in common is that they are located in regions of the world where law enforcement is otherwise weak, so the state deputizes its citizens to settle their own scores. And it works. Everyone is on notice that avengers will pursue wrongdoers based on the law of the talion, and all revenge-takers are aware that if their vengeance is disproportionate, they will have violated the boundaries of revenge, with the consequence of possibly igniting a blood feud—the recycling of vengeance that knows no end. Disproportionate revenge—the taking of more than an eye—loses the moral authority of revenge because the strict and established rules of vengeance are exceeded.
And other nations, including Cambodia and Iran, better incorporate vengeance within their legal systems. (Iran's and Cambodia's human-rights records are a different matter entirely.) There is a more honest and humane recognition of the personal investment that victims have in seeing justice done. Indeed, in some cases they become full participants. Instead of being shunted aside and marginalized, their need for vengeance is seen as natural and healthy rather than pathological and sickening.
What works best is when the legal system can serve as a safe environment in which victims can experience revenge vicariously, all in the context of justice being done on their behalf. What we have now in the United States achieves the very opposite: Victims have no role in trials until sentencing, if at all, and they largely serve the symbolic purpose of being witnesses to the crime rather than parties to the underlying action. Prosecutors are not their attorneys; they work for the state. Victims are the only interested parties without counsel. Prosecutors have little obligation to consult with them regarding plea bargains and trial strategies. And even when victims are heard, through "victim impact statements," there are often limits on how many can speak and how long they can speak. It is a patronizing, highly marginalized experience. And it comes too late in the process, only after the determination of guilt, and ultimately can have little bearing on the punishment the wrongdoer receives.
And in cases where the legal system fails to properly punish the wrongdoer, victims who choose to become avengers are treated as common criminals. They are punished with little appreciation for why they broke the law. It should never be forgotten, however, that avengers are not deliberate murderers. They are otherwise law-abiding citizens who came before the law in good faith expecting justice to be done. Instead they found themselves with no choice other than to eventually take justice into their own hands.
At the very least, the law has to truly acknowledge the experiences of victims and how they came to be victims. And the best way to accomplish that is to provide an opportunity to memorialize their loss by giving them a meaningful day in court.
In August 2012, Norway placed on trial Anders Behring Breivik. A year earlier, Breivik had detonated a bomb in Oslo, killing eight people and wounding many more. He then went to Utoya Island, where he machine-gunned and murdered 69 people, mostly teenagers who were participating in a youth camp.
Before the trial started, the court appointed 174 lawyers, paid for by the state, to represent the interests of each victim during both the investigation of the crime and the trial. The court heard 77 autopsy reports, for each of the dead, including technical details about how each of them died. After each report, a photo of the victim was projected onto a screen and the audience listened to a short description of who the victim was, and the promising lives extinguished. The survivors of the crime were also permitted to speak in open court—at an early stage of the trial, long before final sentencing. And even before final sentencing, representatives of the victims' families were given an opportunity to speak to the incalculable horror and magnitude of their loss. So, morally, Norway gets it right because they permit victims a form of vicarious revenge. On the other hand, the trial had an arguably immoral and unjust outcome when Breivik was sentenced to a scant 21 years in prison, the maximum under Norwegian law. Thus it's not clear whether these victims, despite the meaningful and respectful role they played at trial, ended up feeling avenged.
Justice is satisfied only when wrongdoers are properly punished and victims have their voices heard and losses avenged. The emotional component of vengeance matters greatly. Courtrooms sanitized of these feelings offer no moral closure. And the public loses faith in the law—with all its false outcomes and broken promises. The face of vengeance and the face of justice are ultimately mirror images, staring back at each other, occupying the same scale, measure for measure. Ω
[Thane Rosenbaum is a novelist, essayist, and law professor; the author of the widely praised stories and novels, Elijah Visible: Stories (1996), Second Hand Smoke (1999), The Golems of Gotham (2002), and Payback: The Case for Revenge (2013). His articles, reviews and essays appear frequently in The New York Times, Los Angeles Times, Wall Street Journal, Washington Post, and Huffington Post, among other national publications. Rosenbaum received a B.A. (summa cum laude) from the University of Florida, an M.P.A. from Columbia University, and a J.D. (cum laude) from the University of Miami. He is the John Whelan Distinguished Lecturer in Law and Director of the Forum on Law, Culture & Society at the Fordham University School of Law.]
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