WHEN SELF-HELP IS PERMISSIBLE
Vengeance and justice are commonly understood as sharing the tortured history of sibling rivals. Justice is the wise child; vengeance is the wicked one. Justice serves the greater good; vengeance only benefits the rogue citizen who refuses to abide by the law. Justice is favored; vengeance abhorred.
Centuries of human history have been dedicated to distinguishing between legal retribution and lawless acts of revenge. The Talmudic hairsplitting and intellectual contortions. All those differences demarcated and distinctions made. The avenger takes his injury or loss too personally, whereas courts of law, governed by the rule of law, are focused not on the harm but on the act itself, not how a wrong wreaks havoc on individuals (and deserves to be punished for that reason alone), but how it diminishes the overall sense of security that is essential to the functioning of a well-ordered society. In medicine they say treat the disease, not the person. Its legalistic equivalent is punish the act not the harm; justice is for all and not for the victim. The morality of vengeance is always subordinated to the legality of retribution.
But the larger truth, the more complete reality, is much more complicated than that. Revenge is not a toxin that modernity left behind, and justice is not the panacea that cures all disputes. Vengeance can actually lead to the just outcome, with the wrongdoer being properly punished and the victim feeling the satisfaction that comes with vindication. At the same time, conventional notions of justice—where victims are consigned to the back row of courtrooms and are silenced from speaking and where wrongdoers are acquitted of all charges or are simply released due to a technicality—can leave citizens feeling bitter and betrayed. There is no justice when the legal system fails, and there is nothing but justice when avengers discharge their duty by paying back what is justly owed.
In actuality, when performed to perfection, vengeance and justice can and should serve the same societal purpose and fulfill the same human need. Each contributes to moral order and community repair; each offers hope that all is right in the moral universe. And they are each present on judgment day; they are not, as so often assumed, separate remedies used independently to address the same wrong. The reason why justice and revenge are treated as if they operate only at cross-purposes from one another is because vengeance is generally misunderstood, while justice is all too often misapplied.
Vengeance is not a social ill if citizens believe that wrongdoers won’t otherwise receive their just deserts. And justice cannot take place unless citizens believe that true justice is being offered to them. Justice cannot exist in name alone; it must be morally and emotionally experienced as just, otherwise it is merely an empty pronouncement. Indeed, its public legitimacy depends on a general feeling that it can be relied on as a refuge of first resort rather than as a setting for kangaroo courts and phony show trials. Justice is at its best when citizens believe that just outcomes within the law are possible—which invariably requires wrongdoers to be punished, victims to feel vindicated, and the citizenry to see the legal system as being capable of holding up its end of the bargain in the social contract.
Lamentably, that’s not how most people feel. A 2011 poll listed in the Sourcebook of Criminal Justice statistics indicated that only 28 percent of respondents in the United States have confidence in the criminal justice system, and only 3 percent think of lawyers very highly.1 A disturbing poll conducted by the American Bar Association in 2002 showed that 69 percent of respondents believed that lawyers were more interested in making money than in serving their clients, and 57 percent believed that lawyers were more concerned with their own self-promotion than with advancing their client’s best interests.2 Most people are of the opinion that the legal system is not a safe haven and that lawyers and judges are not fair arbiters of truth.
What is the source of this declining confidence in the law, this disconnect between a system of justice operated by emotionally detached practitioners and the promise made by the state that it would be better at delivering justice than would-be avengers acting as independent contractors—a disconnect that has produced a general feeling of injustice experienced by the very people to whom the promise was made? This should not have happened if justice and revenge were not actually rivals but rather mirror images, as I suggest in this book. Their common features would be more apparent, their codependency always on full display whenever a wrong was committed.
That would be the case except that states are wrongly invested in a form of justice that ignores the wishes of victims, the very group of citizens who ought to be the focal point of the law’s remedial powers. The way to best alleviate their suffering is to incorporate within the law the emotional and moral features that are present in revenge. In joining up with civilization, men and women gained many liberties, but they also forfeited a right to human dignity that was always available to avengers. The lingering question remains: Why can’t courtrooms offer up dignity while also dispensing justice?
Under the social contract, that phantom document which, among other things, deprived victims of the right to seek revenge, the rule of man was forever surrendered to the rule of law.3 Citizens can no more take justice into their own hands than a court of law can shirk its duty to ensure that wrongdoers are punished. The state, with its police, prosecutors, and jurists, must act as the victim’s surrogate. And, as any true proxy, the government must stand in the victim’s shoes and perform its deputized duty to answer the wrong.
The problem arises because governments do not wish to stand in the shoes of its citizens. What they seek instead is discipline and submission over moral purpose and community consensus. The justice system believes that it has a loftier purpose than merely serving as an avenger, a grander duty of upholding the law without regard to its particular effect on those who have been wronged. Evening the score for individuals is not a priority; setting a standard of conformity is.
Perhaps the best example of this institutional mindset can be seen by how victims are utilized in criminal trials. At no point is empathy for the experience of victimization a valued goal. Not only does the state not wish to stand in the shoes of victims, the victim is deemed to have no standing at all because the state essentially steals the victim’s shoes right out from under him. The state purports to be the victim while reducing the actual victim to the secondary status of witness on behalf of the state. On the absurdity of this twisted reversal of roles inside courtrooms, law professor Steven Eisenstat comments, “the statement that the community at large, and not the victim of the crime, is the wronged party of a criminal act, is intellectually disingenuous, factually mistaken, and emotional demeaning to victims. It is an example of legal formalism distorting reality, and ought to be recognized as such.”4
The marginalized victim and the emasculated avenger have no way to express themselves within the law. They are voiceless, peripheral characters in a morality play that isn’t very interested in morality. Each has been stripped of purpose and treated without dignity. Yet when it comes to resolving our disputes we are told to always look to the law, to not take it so personally, and to not allow our anger to evolve into revenge. Courtrooms—hallowed like cathedrals and hollow in so many ways that truly matter—lay down welcome mats for antagonists who have been declawed of whatever justifiable anger now brings them before the law.
Courtrooms are convened, if not actually designed, as places of neutral emotion. But harm does not come to the body alone. Human beings are not like dented cars, with fender benders that are easily fixed, leaving no trace of damage. No matter how reparable the bodily injury, there is always the lingering damage done to the spirit. To be victimized is to experience shame, which doesn’t disappear like a mere bruise. The human spirit is known for its good memory, but citizens are not permitted an inner life while waiting for justice.
In the film Eye for an Eye, a mother whose teenage daughter was raped and murdered by a man that the court system summarily released on a legal technicality is obsessed with having her revenge. An undercover FBI agent warns the grieving mother not to resort to vigilante justice:
KAREN MCCANN: I can’t let him go.
FBI AGENT: Let the law deal with this.
KAREN MCCANN: I tried that.
FBI AGENT: OK, let me spell it out for you. It’s against the law to kill a person, except in self-defense. They won’t care why you did it. You’ll spend the rest of your life in prison.5
The film Eye for an Eye is neither a fictional aberration nor a cynical distortion of the legal system at work. The criminal justice system actually wouldn’t care why she did it. The murder of her daughter, the moral outrage of her murderer’s release, would all become legally irrelevant. She would be treated as if she was a heartless killer, a danger to society, a woman who had murder on her mind and went ahead and acted on it. Yet, the law had failed her in letting her daughter’s murderer go free, and she couldn’t live with the result. That’s why she couldn’t simply “let him go.”
Emotion is what makes human beings fully human, yet emotional injuries go unaddressed under the law. And the legal system won’t permit emotion to be expressed within the confines of the law. In the logic of the law, emotion is always out of order. Emotion expressed by victims is what causes judges to pound their gavels in disgust. Judges are constantly reprimanding people, instructing them how to feel—or how not to feel—about the damage done to them, or how they should comport themselves within courtrooms. Show no emotion and keep your eyes straight ahead. Stand up straight. No slouching. Do not laugh; do not cry.
In one of my earlier books, The Myth of Moral Justice: Why the Legal System Fails to Do What’s Right, I called attention to the way courtrooms ignore the emotional grievances and moral injuries that underlie most legal actions.6 What we get are unfeeling “causes of action” that only lawyers can understand. The human dimension gets shredded away—all those indignities, betrayals, and broken promises become whitewashed of emotion, trivialized, treated as a psychological problem and not as a legal one.
People would never have voluntarily surrendered their right to seek self-help had they believed that that the honor they had lost, the suffering they had endured, would become irrelevant to the legal process—regarded more as a nuisance than as the foundational reason for the law’s very existence. Citizens still wanted the “self” to be satisfied, and they rightly assumed that the law would supply the “help.” They wouldn’t have imagined that the social contract meant that the harms done to them could no longer be taken personally. It’s one thing for the law to serve as the exclusive punisher. It’s quite another to presuppose that individuals no longer claimed an emotional stake in those punishments.
Anger and resentment, however, are present in the human psyche for a reason. No matter what form justice takes, judgment and punishment can’t be performed, if they are to have any meaning, without emotion. Justice must always be done; and the feeling of justice must be felt.
Gavels come down hard when judges are presented with human emotion being expressed in their courtrooms. Emotions are always regarded as irrational, which is why they have no place in buildings dedicated to reason alone. The acoustics of courtrooms mute the sounds of human feeling. They are designed with the very worst of emotional intentions. As law professor Samuel H. Pillsbury observes, “Under a retributive system, the effort to suppress all varieties of decision making anger or sympathy is neither morally justified, nor practically feasible. Emotional reactions to penal issues are part of basic human nature. They are also part of our moral experience. . . . We need to discard the traditional opposition of Reason and Emotion and instead distinguish between emotions. In short, we need to distinguish those emotions which are morally appropriate from those which are not.”7
Citizens are required to come before the law not as themselves but as plaintiffs and defendants from central casting, carbon copies of one another, their individual experiences and heartaches neutered and submerged. The parties to legal actions are even encouraged to all dress alike, their hair parted in the same way, their gazes like zombies, their lips untrembled and demeanor dimmed. The very place where people would be expected to arrive at their most emotionally vulnerable instead becomes monasteries of lifeless, deadened emotion. The emotions associated with getting even and settling the score, which are forbidden in courtrooms, is a large part of the reason why most people know that the legal system will never truly address their needs.
It wasn’t always this way. The legal system of the nineteenth century, where individuals served as their own public prosecutors, speaking on their own behalf, featured courtrooms that were, if nothing else, cauldrons of emotion. Law professor Stephanos Bibas notes, “Criminal justice used to be individualized, moral, transparent, and participatory but has become impersonal, amoral, hidden, and insulated from the people. It has thus lost some of its popular democratic legitimacy and support.”8
With a little fine tuning, courts could be deployed to simulate the experience of revenge, giving people the emotional space to dissipate their anger and discharge their resentment through criminal trials and civil lawsuits. Courtrooms could become places where dignity and respect are regained and reaffirmed rather than squelched. The coldly antiseptic, falsely sanitized presumptions of the legal system at work could surely stand for a human reality check. Anger doesn’t have to exist outside of courtrooms alone, permitted only so long as no one chooses to act on such feelings.
Paradoxically, however, it is not true that the legal system has entirely given up on the morality of getting even or, for that matter, the expression of human emotion. It does it all the time; it just isn’t honest about it. There is an apparent double standard—vengeance through subterfuge—ways for revenge to sneak back into the courthouse and take its seat in the halls of justice. Few barely notice when revenge is so strategically disguised—wrapped up in the law, without the violence yet fully loaded with emotion. Victims, and the families of victims, on certain occasions, are permitted to experience the sensations of revenge without running afoul of the law or inviting the scorn of law-and-order absolutists. What these victims receive is vicarious vengeance. Revenge makes an appearance without announcing itself. Its presence is felt but never referred to by name. Instead, some other presumptively overriding value is being addressed, with vengeance riding sidecar—not as a moral imperative but as a mere by-product of the law.
It isn’t as if the legal system takes the gloves off of revenge, setting it free to turn the tables on courtroom decorum. But it does allow certain exceptions where the emotions of revenge are expressed in legal judgments. Victims are given an opportunity to speak to their moral outrage—the vengeful impulse openly and shamelessly revealed.
Remember Eumenides, the third part of Aeschylus’s Oresteia trilogy? A son is driven mad by the Furies for having killed his mother. A trial is convened where the son is ultimately acquitted. The Furies, representing the wide panoply of human emotion, are welcomed inside courtrooms to participate in human judgment.9 The story makes room for revenge—even within the law. The ancient Greeks were much more honest about vengeance. Inside its courtrooms there was no delineated line where revenge could not cross.
In modern day American courtrooms, however, vengeance straddles the line. There are loopholes in the law, secrete passageways where emotions get taken into account. This is true even though courtrooms purport to be emotion-free zones. These pathways empower the victim emotionally without enabling the closed fist of self-help. Stoic and sterilized legal arenas become showered, temporarily, by the waterworks of grief. Despite all the pretenses and scaffolding of legal justice, some legal outcomes can be made to look a lot like vengeance. These exceptions within the law include capital punishment, victim impact statements, the temporary insanity defense, and general theories of self-defense.
Capital Punishment
No other legal issue is as politically explosive and emotionally charged as capital punishment. A majority of Americans support it; so, too, do a majority of state legislators, certainly in those states where capital punishment is lawful for certain crimes. The Supreme Court has ruled that state laws that permit death sentences for those who commit premeditated murder—and surely for cases involving the worst of the worst—do not violate the Eighth Amendment to the Constitution’s prohibition against “cruel and unusual punishment.”10 Nevertheless, despite what the people want, what the wrongdoers deserve, and what the Supreme Court has pronounced, very few murderers on death row end up being executed by the state for their crimes.
So much for democracy in action.
For all the conflict and confusion over the death penalty, it is not as if capital punishment is one of those political issues without a clear moral consensus (for instance, abortion, gay marriage), or where public sentiment varies widely depending on shifting political and moral opinion. On the contrary, all over the world opinion polls show unqualified support for the death penalty—especially in cases of serious crime. In spite of that, most Western nations have outlawed capital punishment.11 The worldwide public support can’t be attributed entirely to a degenerate bloodlust. Something profoundly moral is being suggested in this public sentiment—a longing that those who deserve to be punished should receive their due.
“There is zero evidence that support for the death penalty has gone down,” claims Dudley Sharp, an advocate for victims’ rights and a death penalty supporter in Houston. “The law on the death penalty has pretty much reached a consensus, too. . . . No one can seriously argue at this point that the death penalty is unconstitutional.”12
In a recent Gallup Poll Crime Survey, which was reported on November 8, 2010, 64 percent of Americans support the death penalty; 49 percent of those surveyed said that the death penalty is not imposed often enough.13 These figures have remained consistent for many years. In fact, support for the death penalty in the United States has not fallen below 60 percent since 1972. In an October 2009 Gallup Poll, 65 percent of Americans favored the death penalty; in November 2008, the number was 64 percent.14 Polling numbers in support of capital punishment were consistently above 70 percent from the mid-1980s through the late 1990s. It reached a high of 80 percent in 1994. In fact, support for capital punishment drops to 50 percent only if Americans are given a somewhat more acceptable alternative to a death sentence, such as life imprisonment with no possibility of parole. What cannot be denied, however, is that when Americans are surveyed about what should be done with the worst of their criminals, just deserts is their guiding principle, not deterrence or rehabilitation.
Supreme Court Justice William Brennan, in Furman v. Georgia, the 1972 decision in which capital punishment was first ruled to be unconstitutional under the Eighth Amendment, which at the time effectively placed a moratorium on death sentences in the United States, wrote that “as the history of the punishment of death in this country shows, our society wishes to prevent crime; we have no desire to kill criminals simply to get even with them.”15 And, in a concurring opinion, Justice Thurgood Marshall wrote, “Retaliation, vengeance, and retribution have been roundly condemned as intolerable aspirations for a government in a free society.”16
Both statements, despite having been written by esteemed and iconic jurists, are demonstrably false, which perhaps accounts for at least part of the reason why four years later the Supreme Court, in Gregg v. Georgia, overturned its decision in Furman. As discussed in chapter 5, preventing crime is not the sole reason to punish criminals. Retribution itself can provide its own justification for punishment—wrongdoers receive what they deserve because of what they have done, regardless of whether it helps prevent a future act. Besides, many crime control experts no longer believe that punishment—whether in the form of incarceration or through capital sentences—actually deters crime.17 Criminals can’t be deterred, but they can be incapacitated—taken out of commission, removed from the general population.
Such is the life of the recidivist—the repeat, career criminal who leaves prison and almost immediately returns to a life of crime. As the distinguished social scientist James Q. Wilson recently suggested in an essay in the Wall Street Journal that appeared only a few months before his death, there is at least one explanation for why the crime rate has been falling despite America’s recent economic troubles. Many assumed that the crime would have spiked to match the nation’s increased levels of economic distress. Wilson, however, observes that, “when prisoners are kept off the street, they can attack only one another, not you or your family.”18 Preventing hardcore criminals from reentering society—whether through incarceration or death—may not influence criminals-in-waiting, but it surely goes a long way toward ensuring that wrongdoers are not given a second chance to commit yet another wrong. So preventing crime, with all due respect to Justice Brennan, is not a convincing reason to punish wrongdoers. We punish them because they deserve it, not because it offers society some tangible future benefit.
It’s also not true that the people who make up the society of which Justice Brennan speaks have no desire to kill criminals in order to get even with them. The general public does not make such neat demarcations between crime prevention and vengeance. For most people, all punishment carries with it the implicit, if not openly expressed, desire to get even, to ensure that the wrongdoer receives the poetic justice of just deserts. It is curious that even witnesses to injustice, those not personally harmed, are prepared to give up something of value in order to ensure that the cheater doesn’t get away with it, that he gets what’s coming to him. Why would they invest in this type of altruism—one that presents no personal gain but nonetheless carries the possibility of risk? Crime prevention has little to do with it. The main draw is always to restore moral balance, to see justice done.
Without hesitation Justice Brennan dismissed revenge as a human value. He discounted the emotional truth that people do, in fact, derive an internal sense of moral satisfaction when wrongdoers are punished. Human beings are invested—personally, emotionally, morally—in just deserts. It is the flipside of the moral revulsion that is felt when innocent people are punished. Both responses are inherently human—the innocent should be found innocent, and the guilty must be found guilty.
As for Justice Marshall, what is the source of this condemnation of revenge that he spoke of, these “intolerable aspirations for a government in a free society”? Surely it doesn’t come from the general public. The natural history of man and woman is one that made peace with revenge as an organizing principle in their lives. It is not revenge that’s “intolerable” to most people but, rather, the moral outrage of unpunished wrongs. That’s what keeps people up at night and causes them to shake their heads in disgust when wrongdoers are set free.
Most people are not repulsed by vengeance or capital punishment. How, then, did it happen that death sentences came to be regarded as outside the scope of modern civil societies? One reason is that capital punishment, as a political issue, became co-opted by cultural elites, both in the academy and in the media, who often project a vision of liberal, progressive values that are inconsistent with the opinion of the American mainstream. For many people on the left, capital punishment is just a legalized way to achieve what private avengers have been forbidden to do—take a “life for a life.” The fact that the state gets to administer the killing makes it no more acceptable. The very same condemnations against private vengeance are inveighed against judges who impose death sentences. If the taking of a life is wrong in the first instance, and retaliatory vengeance is no less a crime than any other act of violence—neither exempt from the law nor subject to some exception—then any form of killing should be deemed wrong no matter who performs it, regardless of why it was done, or whether the act itself was deserved.
We have all heard the aphorism: “the taking of revenge is wrong because two wrongs don’t make a right.” Jeffrie G. Murphy astutely notes that the latter is true only if revenge itself is actually wrong.19 And revenge is surely not always wrong. The taking of a life in retaliation for a cold-blooded murder isn’t necessarily wrong, even if the death sentence is not carried out. If vengeance and justice are seeking the same outcome, then in what way is either wrong simply because a murderer receives what he deserves? Confusion over capital punishment has a way of suspending one’s critical thinking on the nature of right and wrong. Revenge may be morally correct despite the fact that it is legally forbidden.
Another objection to revenge and its relationship to capital punishment is the idea that revenge forces the avenger to stoop to the same level of the wrongdoer. But it’s really the other way around. It is the wrongdoer’s act that has devalued the victim, making him low. Vengeance merely brings him back to where he was before the injury led to his descent.20 Suggesting that vengeance brings the avenger down to the same level of the wrongdoer misses the point entirely. The victim is already in the gutter. Vengeance is the elevator that restores him to his former stature. Revenge is an action of upward mobility with the avowed purpose of making things even again. The avenger is neither debased nor dehumanized; there is nothing downgrading about settling the score. Vengeance is restorative, not diminishing.
Another rap against revenge, and by association, capital punishment, is that it ends up hurting the avengers and society spiritually. It leaves them morally compromised and emotionally scarred. But if there is scarring it comes not from the taking of revenge but in its forbearance. Moral injury arises from the original wrong, and not from the retaliation. Indeed, there are moral consequences to living in a society that shows itself to be indifferent about its obligation to punish wrongdoers. When punishments are trivialized and dismissed, plea bargained and watered down, the morally wounded have no place to take their pain. They are sent home with the nauseating pronouncement that, despite all evidence to the contrary, “justice has been done.”
Remember John Foreman, the father from Rhode Island whose five-year-old son Jason was brutally murdered by Michael Woodmansee in 1975? In 2011, he was confronted with a nightmare that he justifiably assumed would not return so soon. Woodmansee had availed himself of Rhode Island’s “earned-time” law, which reduced the sentences of those who work during their time of incarceration.21
Foreman has threatened to kill Woodmansee “as aggressively and painfully as he killed my son,” as soon as Jason’s murderer is released from prison.22 A local neighbor, Walter Campbell, who was among those who searched for Jason when he first went missing several decades earlier, said that he was considering purchasing a gun if Woodmansee is released early. “I think that there are probably a lot of people who would want to kill him if he came back in this town,” Mr. Campbell said.23 Other residents of Rhode Island wondered why the earned-time law should even apply to violent and sadistic offenders and asked the legislature to repeal it. Dale Sherman, who in 1982 was a paperboy whom Woodmansee had drugged and attempted to strangle to death, has asked, “Why is this man still breathing, let alone trying to get out of prison?”24 Sherman is no doubt mindful each day that he had the good fortune to escape from Woodmansee whereas Jason Foreman was not so lucky.
And who could blame him? Surely this is what first comes to mind when hearing about the tragically grotesque murder of Jason Foreman and the man who, due to a plea arrangement, never served his full sentence even for second-degree murder, which was already a discounted punishment. Far short of representing a life for a life, the Foreman family, and the memory of Jason, have been grossly shortchanged. The phrase “the worst of the worst” applies to Woodmansee like it would apply to no other. His guilt is certain and his evil incalculable. All the same, instead of losing his life for the life he had taken, he bargained for a new punishment, and he received quite a bargain.
So the father of Jason Foreman threatened to accomplish what the state of Rhode Island had failed to achieve though its justice and penal system. And the residents of Rhode Island, where capital punishment is illegal, were also morally outraged and disgusted with this legal outcome. Many were not only rooting Foreman on but were prepared to seek vengeance themselves.
Another recent example of the worst of the worst occurred in Connecticut where all eyes were on the 2010 murder trial of Steven J. Hayes, who, along with an accomplice, Joshua Komisarjevsky, brutally and inhumanly took the life of a mother and her two daughters, and caused many Americans who followed the case to reconsider their feelings about capital punishment. The two men invaded the bucolic home of Dr. William A. Petit Jr., where they beat him unconscious, raped his wife, and strangled her to death, raped his eldest daughter, Hayley, seventeen, and then tied her and her sister, Michaela, eleven, to their beds, poured gasoline around them, and set the house on fire. In November 2010, the jury returned a death penalty verdict for Hayes.25 (The murder trials were bifurcated. Komisarjevsky, who was also accused of molesting the younger daughter, ultimately received the same sentence.)
When the judge, pursuant to the jury verdict, sentenced Hayes to die, and after Dr. Petit and other family members were given a chance to speak at the sentencing hearing, Hayes’s attorney, Thomas J. Ullmann, broke the silence in the courtroom by saying that, despite the admitted gruesomeness of the crime, the death penalty was still immoral. “Today, when the court sentences Steven Hayes to death, every one of us becomes a killer. We all become Steven Hayes.”26
Actually, we don’t. The jury sat through eight days of ghastly testimony—which included photographs of the murdered and violated victims, their ripped clothing, and the charred beds where the girls died of smoke inhalation—and the defense attorney’s conclusion is that the jury’s verdict, and all those who approved of it, makes them no better than his client. How does everyone “become” Steven Hayes simply by ensuring that he got what he deserves? The defendants were uncommon criminals—only nominally human, at best. This was not a situation where guilt was decided on the basis of flimsy circumstantial evidence or on unreliable testimony. Any reasonable doubt about what had happened on that day had been elevated to an absolute certainty. In fact, there never was any doubt at all. The actions the defendants took in terrorizing and killing these three women were surely not of the same character as a jury verdict that sentenced them to die. The former was monstrous; the latter justice.
Connecticut’s governor, M. Jodi Rell, reflected the prevailing mood of her constituents when she vetoed a bill that would have abolished the death penalty and cited the murders of the Petit women as one reason why, in good conscience, she simply could not outlaw capital punishment.27 (Less than two years later, however, a new Connecticut governor signed a bill to repeal the death penalty.) The defendants offered to plead guilty in exchange for life sentences. The prosecutors rejected the plea deal in this extreme case, demanding that they be prosecuted for having committed capital crimes. Dr. Petit summed up his own support for capital punishment by saying, “My family got the death penalty and you want to give murderers life? That is not justice. . . . I need to stand up for what is just in society and I need to stand up for my family personally.”28
Sometimes opposition to the death penalty is invoked not by defense counsel but by the prosecutors themselves. In November 2010, roughly the same time as the Hayes verdict in Connecticut was announced, jurors in a courtroom in Denton, Texas—and the aggrieved daughter of a murdered man—were left wondering why they were not permitted to consider the death penalty in the case of Noah Whitehead, who, along with a friend, robbed, stabbed seven times, and slit the throat of a cab driver before burning his body beyond recognition.
When the cab driver’s daughter, Lida Vatanpour, asked the district attorney why he was refusing to seek the death penalty for Whitehead, he said, “I just don’t feel comfortable.” Ms. Vatanpour expressed the feelings of most people in such situations by observing that capital punishment is “not for his comfort zone. It is for justice.” She went on to say, “My father was robbed. He had about $108 in his wallet. He was stabbed and hit on the head and he was set on fire. If not this case [for the death penalty], then what case is appropriate?”29
The jury ultimately returned a verdict giving Whitehead the maximum prison sentence allowable under the law, which nonetheless shortchanged a daughter’s understandable desire for vengeance. Another daughter of Texas, Mattie Ross, albeit fictional, from the novel and film True Grit, found herself in a similar situation where lawmen refused to do their job. She ended up having to carry out the punishment herself. Ms. Vatanpour, living in a more tranquil, law-abiding Texas, relied fully on the district attorney’s office.
And how did that work out for her—how was her faith in the legal system reciprocated? An assistant district attorney, Jamie Beck, recognizing that the punishment was painfully less than what the Vatanpour family would have expected or desired, said that she hoped the guilty conviction would aid in the family’s “healing process.”30 Such patronizing statements are offered by state prosecutors all the time, and nearly always couched in the language of “healing.” These platitudes are doled out like consolation prizes. And they are insulting. As Dr. Petit, a physician, someone who is, by profession, in the business of healing, pointed out after Steven Hayes was sentenced to die that whoever came up with the word “closure” as an endgame to capital punishment is “an imbecile.” He went on to say, “The hole in your soul is always there.”31
It is understandable that many people have difficulty confronting the hard but crystalline truth that some people, due to their voluntary actions, simply deserve to die. A strict Kantian knows that it all comes down to desert—what is owed—regardless of how it ends up making victims feel or satisfies what they want. We have an absolute, nondischargeable duty to punish the guilty. But how victims feel shouldn’t be so casually dismissed either. When John Allen Muhammad, one of the DC Snipers, was scheduled to die by way of lethal injection in 2009—seven years after he and his teenage accomplice terrorized the nation’s capital for three weeks—Nelson M. Rivera, whose wife Lori was killed by a sniper bullet as she vacuumed her van at a gas station, said, “I feel like it’s going to be the last chapter of this book and I want to see what his expression on his face is. And I want to see whether he says anything. I want to see his face and see how he likes that—confronting his death.”32
Rivera’s unabashed desire to witness the death of the man who murdered his wife surely troubles some people. But is he wrong? How many of us would feel otherwise if we were confronted with the same loss? How could we even imagine how we might feel? Several of the surviving family members of the 1995 bombing of the federal building in Oklahoma City, which killed 168 people, nineteen of whom were children under the age of six, expressed similar vengeful words during the sentencing of Timothy McVeigh, who was chiefly responsible for the attack. “The sooner [McVeigh] meets his maker the sooner justice will be served,” said Darlene Welch, whose four-year-old niece was killed in the blast. Ernie Ross, who was left severely injured after the bombing while working across the street, said, “He will get what he deserved in the afterlife, where he will meet Hitler and Jeffrey Dahmer.” Another survivor gruesomely suggested that McVeigh should have one of his legs amputated and then be suspended above sharpened but growing bamboo shoots that would eventually impale him.33 The court heard this recommendation and decided instead to proceed with the lethal injection. But can we fault a grieving survivor for openly acknowledging such feelings? Isn’t that precisely what a capital sentencing hearing should be expected to produce—the grief and rage of those who now look to the law to carry out the punishment that they have been denied from delivering themselves?
Sandra Miller’s son Rusty, a fifteen-year-old straight-A student, was abducted at a bus stop, beaten, raped, and then murdered by William Bonin, the notorious California “Freeway Killer,” who was eventually convicted of raping, torturing, and murdering fourteen boys. For sixteen years Miller waited until Bonin was finally put to death in 1996. “The rage is unbelievable,” she told Bonin in the courtroom. “I loved [Rusty] more than life. I think of how I could torture you. You’ve brought out feelings in me I didn’t know a human being could have.”34
Who could blame her; who would blame any of them? They’ve all suffered too much to be judged. In states that provide for capital punishment, these vengeful feelings are invited into the courtroom—or are spoken outside on the courtroom steps—no matter how uncomfortable it makes many feel and no matter how irreconcilable it is with the legal system’s standard repudiation of revenge. Victims should not have to pretend that they have no vested interest in seeing those who forever damaged their lives pay for their crimes. The debt paid back to society should be large enough to cover the debt owed, at least equally, to the victim.
Punishment is the cornerstone of a well-functioning and fair criminal justice system. But punishment is not merely what happens to the wrongdoer; punishment must also take into account the effect it will have on the victim. Will the victim feel that the penalty was fair, with full awareness that immoderately vengeful appetites violate the law of the talion? The victim’s subjective estimation of fairness cannot be divorced from the overall sense of justice. Being impaled by rising bamboo shoots is not what justice allows. The punishment doesn’t have to be perfect or ideal, but it must be fair, it must fall somewhere within the talionic range between underpayment and excess.
The punishment of a wrongdoer should serve as therapeutic vengeance for the victim, and the failure to recognize that value has most certainly not endeared the legal system to the general public. We think of restorative justice models in the context of the healing and repair of victims. But that’s only because we have stripped away from retributive justice the emotional core so central to vengeance. The repair of victims is often directly tied to their sense of vindication. There can be no repair if victims believe that their anguish was never addressed. It is for this reason that, paradoxically, healing and vengeance are not so dissimilar. One can even think about vengeance as a real-world example of restorative justice since the quest to avenge a wrong clears a pathway for victim repair. A victim who insists on having his revenge is taking the necessary affirmative step toward healing. And the legal system should help get her there.
Recognizing how restorative justice for the victim is actually a misnomer unless punishment is delivered to the wrongdoer, law professor Stephen P. Garvey observes that “missing from the restorative agenda . . . is the idea of punishment as moral condemnation. . . . Restorativism cannot achieve the victim’s restoration if it refuses to vindicate the victim’s worth through punishment. Nor can it restore the offender, who can only atone for his wrong if he willingly submits to punishment. And if neither the victim nor the wrongdoer is restored, then neither is the community of which they are a part.”35
The focus on capital punishment is always on the wrongdoer whose life will come to an end by the hands of the state. Rarely do we discuss the desire of victims who placed their trust in the law rather than take matters into their own hands. For most victims of violent crime, capital punishment offers the vindication they cannot achieve any other way. It restores the emotional, personalized component of justice and gives victims a voice. Society doesn’t maintain ledgers on the debts that are to be repaid by wrongdoers. Most people aren’t keeping score unless it is their duty to redeem those debts, when they themselves have become victimized. Actual victims are always keeping score. And they are entitled to feel that something was being done to even that score.
In 1993, seven-year-old Ashley Estell was kidnapped from a park playground while her parents were watching her older brother play in a soccer game. A previously convicted sex offender, Michael Blair, raped and murdered her. He was convicted and given a death sentence. After a number of appeals he was finally put to death. Ashley’s father, Richard said, “For me, it’s partly closure and partly the focus on personal revenge. I want to see him gone. I can’t get it out of my mind what my daughter must have felt.”36 All throughout history fathers have agonized over the damage done to their daughters. And they felt duty-bound—as a matter of honor and as true men—to see that justice was done. Neither the biblical Jacob nor the fictional Bonasera from The Godfather was alone in their grief and obligation.
Despite this allowance that the legal system offers them through capital punishment, victims who openly proclaim their desire to watch the death penalty carried out are often treated with scorn. In Houston, Texas, in 1996, the man who murdered Linda Kelley’s two children was executed, and she became the first victim in that state permitted to witness the death of a capital defendant. “My family and I have been characterized as hatemongers for wanting to watch him,” she said. “We are not hatemongers. If we were really bent on revenge, we would have gotten him ourselves at the trial. We are law-abiding citizens.”37
And Kelley is correct. She did exactly what the social contract requires—let justice runs its course and place her faith in the legal system. She obligingly did not take justice into her own hands. But when she wished to experience some personal satisfaction in watching the man who murdered her two children pay the ultimate price for his crime—a mere taste of vicarious vengeance—she was made to feel like a heathen with blood trickling from her mouth.
In 1979, when Brooks Douglass was a teenager living in a farmhouse in Oklahoma, two drifters invaded his family’s home, hogtied his parents and him and forced them to listen as they raped his twelve-year-old sister. After they were finished they sat down and ate the dinner that the family had prepared before their lives all but ended with such torment. The men then shot all four Douglasses in the back, then walked away with the weddings rings of the parents and $43 in cash. Brooks and his sister miraculously survived. It took seventeen years and multiple trials and appeals before the Douglass children—more than half their lives squandered in the search for justice—lived to see the execution of one of the men who terrorized their family. Brooks Douglass eventually became an Oklahoma state senator and sponsored a victims’ rights bill, which, controversially for its time, allowed victims to witness the execution of those who had turned them into victims.
“I was criticized for fostering revenge,” Douglass said. “So what? Who are we to question what a person’s feelings are when they go view an execution? There is no other party that has more to benefit from seeing the killer executed than a family member.”38
Critics of capital punishment point out that executions do not actually bring relief to victims. Some victims report feeling no better at all. This same argument has been offered against the taking of revenge, with Inigo Montoya, the master swordsmen and faithful son from The Princess Bride, perhaps the best fictional example of an avenger with decidedly mixed post-vengeance feelings. But should that matter? The obligation to avenge is not contingent on making the victim happy but, rather, on restoring honor to the victim and serving the memory of the dead. Happiness is not an expected outcome nor is joy necessary for revenge to be justified. All that is required is satisfaction, which is not about happiness but, instead, a sense of liberation. The avenger can still feel miserable afterward, but that doesn’t affect the duty or alter the responsibility to settle the debt.
Society can justify taking a life for a life without having to simultaneously relieve victims of their heartache and pain. Vengeance is not a guarantor of closure. Revenge comes with no warranties. It is only the score that gets settled, not the agony of the aggrieved. Opponents of capital punishment use this very lack of closure as a reason why society should not assume the role of designated avenger and kill in the name of another. After all, if the death of the wrongdoer won’t bring relief to victims, then why should states undertake the logistical and moral burden of performing executions and making capital punishment lawful?
“Taking a life doesn’t fill that void, but it’s generally not until after the execution [that the families] realize this,” said Lula Redmond, a psychotherapist who works with families who have lost loved ones through violent crime. “Not too many people will honestly [say] publicly that it didn’t do much, though, because they’ve spent most of their lives trying to get someone to the death chamber.”39
But that, too, misses the point. In cases of capital punishment, victims may not feel completely unburdened by the wrongdoer’s death, but few ever doubt the righteousness of the remedy. If anything, they regret only that the wrongdoer didn’t die sooner, that he managed to drag it out and live longer, that the lethal injection was not sufficiently harmful because it failed to produce the kind of equivalent suffering that the wrongdoer had inflicted on another. After all, the “cruel and unusual punishment” clause of the US Constitution works in only one direction: to protect the guilty, to place limits on what can be done to them. It isn’t concerned with the cruelty of the wrongdoer’s act, whether the manner and method of his torment was unusual in any way and therefore deserving of a reciprocally cruel and unusual penalty. Punishment in American courtrooms isn’t tailored in accordance with the cruelty of the initial act. The law of the talion requires that the retaliation be inflicted measure for measure. But in all instances, humanitarian concerns will override just deserts.
Actually, surviving family members of murdered crime victims are not nearly that naïve. Most realize beforehand that the carrying out of a death sentence by the state—or even by their own hands, for that matter—will not free them from their own private prisons of torment in which life sentences are served without bars. There is no panacea in simply witnessing an execution; crime victims are not released from their pain the instant the wrongdoer is deprived of a pulse. As discussed earlier, revenge is sweet in its anticipation, largely because there are emotional and moral imperatives at work and because vengeance is mandated by brain circuitry and human evolution. Nevertheless, the sweetness of vengeance will, for some, eventually give way to a bitter aftertaste. Ambivalent feelings set in, but they don’t result in second-guessing. The wrongdoer deserved what he got and the victim is leftsatisfied. Hollywood revenge movies remind us that happy endings are for the audience to savor, and not for the avenger, who is often not around at the end to celebrate.
To be sure there are always surviving family members of violent crime who are opposed to the death penalty based on religious grounds or for reasons having to do with their own moral code. The tenets of their faith, and the convictions of their moral belief system, don’t allow them to accept the taking of a life—for any reason and under any circumstances. They believe in compassion, mercy, and forgiveness and see very little personal or moral value in achieving talionic justice. Given that this book is, if nothing else, dedicated to calling attention to the sensitivities of victims and the rights denied to them once they relented to the rule of law, no one can begrudge them a remedy that ignores the moral imperatives of just deserts—if that’s what they want. A victim may choose to forgo justice in favor of some other spiritual reward. No one should tell victims how to feel about, or respond to, the losses they have suffered. There is no greater disrespect to a victim than to dictate the terms of his or her repair.
But the state has its own interest in seeing that justice is done, and victims cannot trump those interests either. Victim satisfaction must be balanced against the government’s obligation to punish—all according to the moral blameworthiness of the wrongdoer. The problem in the ordinary course of criminal justice system is underpunishment, where victims are left unavenged and wrongdoers do not receive the punishment they deserve. That is the moral dilemma this book seeks to address: the feeling that justice is not served and victims are left shortchanged. Victims who surrender to their faith or, through their own force of will, are satisfied with incomplete justice have less to complain about when the legal system fails to punish. But surely those victims are not representative of the majority of citizens who are appalled at the assembly line of botched prosecutions and plea-bargained sentences, which leave behind not residual feelings of forgiveness but rather rueful feelings of unconsummated vengeance.
The emotional satisfaction that is a by-product of revenge and that inheres to the victim should never trump the interests of society in seeing justice done—for its own account. Even if the victim would feel no satisfaction at all from settling the score, society still would have an obligation to seek legal retribution against the wrongdoer. The victim’s wish not to receive repayment does not in any way cancel the debt owed to the state. If this were not the case, wrongdoers would have the incentive to preselect their victims only among pacifists, whose family members may be similarly inclined toward leniency. Surely those wishes could not control the fate of a murderer and his destiny with just deserts.
Walter Rodgers, a former senior international correspondent for CNN, wrote an essay for the Christian Science Monitor in connection with the sentencing of Steven Hayes, one of the two men who were convicted of triple murder in the Connecticut home invasion of the Petit family. Rodgers was apparently shocked when a friend of his, an “educated physician,” no less, admitted that he wanted to see the two assailants receive the death penalty. How could this man, a healer by trade, possibly be in favor of vengeance, the cold-hearted wish to take the lives of the Connecticut killers? Rodgers wrote, “People may have strong feelings about the need for Connecticut to execute Hayes for murder, but let’s be honest: Capital punishment is itself about killing. It is a conjoined twin of vengeance, which is blatantly immoral.”40
Of course capital punishment is about killing, but not all killing is wrong—legally or morally. Wars are fought for righteous reasons and they are not made any less righteous because they result in casualties of war. Indeed, it is in the killing that wars are won and how they come to an end. Surely one can be against all wars, but pacifists and conscientious objectors are not the final authorities on whether the fighting of a war is just and necessary. Moreover, as discussed earlier, the title of the John Grisham novel A Time to Kill, which was adapted into a feature film, is not just catchy, it’s also correct. There are times when it is necessary to kill; even those who otherwise object to killing come to learn this sad but unavoidable truth. To say that capital punishment is killing is hardly a revelation unless Rodgers is also saying that all killing is wrong and that capital punishment is simply a legalized way of accomplishing that same wrong.
Surely this doesn’t require much elaboration, but there is a world of difference between a killing and a murder. Murder is unlawful; killing, however, is not necessarily against the law. The biblical “thou shall not kill” applies to the wrongdoers; it is a preemptive, prescriptive warning that they rethink their evil inclinations. It does not apply to talionic retaliators. The wrongdoer’s deed now leaves them without choice. There are many forms of killing that all nations and peoples accept as appropriate—whether in self-defense or in the case of just wars. States that execute their worst-of-the-worst criminals are not committing acts of murder; they are simply carrying out deserved punishments against those who have already taken a life and must, due to their own moral blameworthiness, be punished commensurate with that wrong.
Moreover, when Rodgers writes that capital punishment is the “conjoined twin of vengeance,” he completely misapprehends the meaning of vengeance. Revenge is a remedy to a wrong; it has no independent existence without that initial wrong. And, yes, capital punishment is related to vengeance, but it is equally related to justice. It is the wrongdoer himself who chooses his weapon and, thereby, sets the stage for his ultimate undoing. As sociologist Ernest van den Haag has written, “By committing the crime, the criminal volunteered to assume the risk of receiving a legal punishment that he could have avoided by not committing the crime.”41 Capital punishment and vengeance are “twinned” only because a wrongdoer has made it so. Neither are necessary unless and until a wrongdoer undertakes a fatal decision that requires a proportionate response in the form of a capital sentence.
And with equally condemning fervor, Rodgers writes that vengeance is “blatantly immoral.” How does he come to that conclusion so emphatically and absolutely? If anything, vengeance is patently moral. The reason for its presence in human evolution and its lodgment in the human brain constitutes the very essence of moral development. It is not an outlier in human evolution, like a bad smoking habit that humankind managed to pick up along the way, foreign and corrupting to the human cell structure and enterprise. Vengeance sits comfortably and nobly within the select inventory of human instincts. It needs no invitation to join the club. Revenge, when properly exercised, is plainly moral; it supplies its own justification.
Love and sex, for instance, require no moral justification for human beings to act on those feelings. Nor do honor and duty depend on some independent moral permission slip. Governments won’t admit that revenge is as much a divine right as liberty and the pursuit of happiness. Religions would prefer that their foundational texts had never raised the subject in the first instance; the talion’s eye for an eye, as civilization evolved, became a poke in the eye. But revenge is in no danger of forfeiting its moral gravitas merely because there are those who refuse to acknowledge how indispensable it is and what purpose it serves. The emotional benefits of vengeance are not so easily disentangled from the delivery of justice, especially in the case of capital punishment, where the linkage between justice and revenge are so starkly clear.
Yet, resistance remains great to the simple truth that there are, indeed, occasions where a death sentence is precisely what justice demands. In cases of capital murder, victims are repeatedly denied, if not outright mocked, for wishing to free ride on a legal punishment that they have every right to expect. What victims want, and what murderers deserve, is not legally prohibited. So why not use it more often?
In the Oklahoma City bombing case, US District Judge Richard Matsch limited the number of survivors who were permitted to speak in court during the sentencing phase of the trial. Many more wished to do so. He chose to minimize the list because he didn’t want to turn the hearing into “some kind of lynching.” He went on to say, “We’re not here to seek revenge of Timothy McVeigh.”42
Once again, who, exactly, is he speaking for? Surely, and understandably, vengeance was on the minds of those who lost loved ones to McVeigh. What kind of relatives would they be if they didn’t feel justified in having those feelings and wishing to express them, in open court, as a way of remembering those who can no longer speak for themselves? They had no other way to vindicate this crime. McVeigh was sentenced to die for many reasons: certainly because he deserved it but also because it satisfied the wishes of his victims. And this is why so many of them wanted to speak at his sentencing hearing. Very few, if any, would have expressed ambivalence or shame. The surviving families of McVeigh’s grotesque act of domestic terrorism wanted to experience, at least vicariously, the emotional benefits of revenge. Enabling McVeigh’s victims to take part in the process that would determine his punishment was the least the legal system could do.
In 2010, soon after retiring from the Supreme Court, Justice John Paul Stevens wrote in the New York Review of Books, “An execution may provide revenge and therapeutic benefits. But important as that may be, it cannot alone justify death sentences.”43
It doesn’t have to be the only reason. Moral outrage can take many forms—from the mandate to set a public example to a state’s legitimate interest in crime control. But certainly one reason why capital punishment should be utilized with greater frequency is quite simply because that’s what crime victims want and that’s what they need.
Courts do not impose death sentences for armed robbers and rapists or even embezzlers on the scale of a Bernard Madoff. Capital punishment is reserved for capital crimes. The penalty is triggered by the wrongdoer’s deed rather than the victim’s need. But if it’s true that murderers decide the punishment they will receive by making the choice to commit a particular crime, then death sentences can be viewed as simply statutory punishments, established by the state, automatically applied and fully depersonalized—and neutered of all emotion. The victim’s feelings are incidental to the penalty. Vengeance is commonly regarded as emotional, primal, and uncontrollable. But capital punishment, if performed without end-zone celebrations, only incidentally resembles the vengeance that societies traditionally deplore.
Nevertheless, issues surrounding the death penalty are confusing precisely because they are tainted by their association with revenge. Governments admonish citizens not to resort to self-help because vengeance is unlawful and plainly wrong. But when the state imposes death sentences for capital crimes, isn’t that the most “vengeful” penalty of all? Obviously revenge can’t be all that bad if the state allows itself the privilege but denies it to its citizens—those who actually suffered the harms and have the true moral authority to avenge. Why is the government a more appropriate executioner than the actual victim, or his or her delegated surrogate?
Intrinsic to the law of any state that permits capital punishment lies a deceitful double standard. Crime victims are desperate for personal vindication whereas the state has no emotional investment at all in whether the wrongdoer lives or dies. States can be indifferent to a choice between capital punishment and life imprisonment with no possibility of parole. As long as the wrongdoer has been removed from society permanently, the state can, theoretically, accept either remedy. Crime victims, however, often cannot.
A life sentence without parole for a grieving family member can feel as if the wrongdoer truly did get away with murder. Victims are left to wonder why the talion should be so trivialized; why should the taking of a life result in a penalty so out of proportion with the seriousness and consequences of the crime? A state, however, stripped of any emotional involvement, can regard a life sentence as perfectly proportionate. Deterrence and crime control serve as core values of criminal justice. Death sentences and life imprisonment are alternative strategies to enforce law-abiding behavior and maintain safe streets. Once emotion is introduced into the decision, however, there is a world of difference between them. Capital punishment is not supposed to be about helping victims achieve some individual catharsis or closure. But it invariably does because it gives victims what they want—even though the legal system insists that the emotional benefits of revenge is not something citizens are entitled to enjoy.
In its 1976 decision in Gregg v. Georgia, the Supreme Court overturned its earlier decision in Furman and ruled that state legislatures were once again free to decide whether to put its most violent criminals to death based on the interests of the state in fighting crime and the values of the state in ensuring justice—provided that certain guidelines were met consistent with evolving standards of decency in American society. The court wanted to make certain that, in restoring the death penalty as the highest price a murderous criminal defendant could pay in the United States, no one should confuse capital punishment with the barbaric punishments that once existed in Europe before the Enlightenment.
Justice Potter Stewart wrote for the majority, “The decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death. . . . Capital punishment is an expression of society’s moral outrage at particularly offensive conduct” (emphasis added).44
Justice Stewart invoked the concept of moral outrage as a primary value in the constitutionality of capital punishment. Most people in the legal profession do not speak of moral outrage, and when they do, they don’t usually ascribe any legal significance to the term, as opposed to more obscure, even Latinized terms, such as stare decisis or the “rule of law.” Moral outrage has its own plain meaning—the disgust and revulsion of the community—and it should be a relevant consideration in determining how a wrongdoer is to be punished. Indeed, there might not actually be a more worthy reason to punish. As Walter Berns has written, “Punishment arises out of the demand for justice, and justice is demanded by angry, morally indignant men; its purpose is to satisfy that moral indignation.”45
The community should have a voice in denouncing certain crimes so odious that no reentry into civilized society can ever be possible again. And the community’s moral outrage should also supply the moral basis for why a murderer must be expected to forfeit his own life. By linking capital punishment with the “community’s belief”—its moral outrage—Justice Stewart provided a legal explanation for introducing moral and emotional elements into sentencing decisions. The death penalty takes the coldness of legal retribution and infuses it with the rich emotional life force that is the very embodiment of moral outrage.
Writing further in Gregg, Justice Stewart acknowledged that the rationale in support of capital punishment, one that depended on society’s revulsion, “may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate wrongs.”46 He goes on to quote Lord Justice Denning, writing in an earlier time but also in a common law court, as a reminder that the rule of law, deriving from the social contract, carries with it an obligation that the state has to its citizens that “in order to maintain respect for the law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.”47
There can be no better way to describe the duty owed to citizens under the social contract. In recognition that citizens surrendered their right of revenge, and in order to earn their respect, the legal system must punish wrongdoers in a manner that reflects the revulsion and common opinion of the people. The Supreme Court, in Gregg, drew a legal connection between two retributive values that guide the obligation of states to punish criminals: just deserts and moral outrage. By accounting for the denunciation of the community, the court soared above stacks of law books and entered the domain of the moral universe. And when emotion is introduced into sentencing decisions, the dry concept of legal retribution begins to beat with the quickening pulse of moral revenge. In cases of capital punishment, revenge is given a ringside seat in the courtroom alongside other values under the rule of law. Ironically, it is through death sentences that revenge is given a legal life.
Accepting moral revulsion as a reason to punish is tantamount to taking the blindfold off Lady Justice and outfitting her with x-ray vision. The Supreme Court implicitly ruled that, when it comes to capital punishment, the vengeful feelings of the community are placed on equal footing with the retributive objectives of the state. For thirty-five years Gregg has validated vengefulness and acknowledged that the community has the right to be emotionally invested in the nexus between justice and punishment. Sentencing decisions cannot ignore the emotional commitments that the public has in seeing that the legal system is meaningfully interested in achieving moral balance and just deserts.
In the summer of 2011, a Florida jury acquitted Casey Anthony of charges of first-degree murder, aggravated manslaughter, and aggravated child abuse in the death of her toddler daughter, Caylee. During a month-long period when Caylee had purportedly gone missing, Anthony moved in with her boyfriend, got a new tattoo and a liberated life, partied nightly and shamelessly with her friends—and even entered a hot-body contest at an Orlando club. Only at a later date did she report that her daughter had died accidentally. The wealth of prejudicial, yet circumstantial evidence apparently did not disabuse the jury of their reasonable doubt that this negligent mother may have also been a murderous one. Had Anthony been convicted she would have received the death penalty.
In the days following the verdict, however, there was widespread disbelief over the outcome. A number of states immediately proposed enacting a law in honor of Caylee, making it a felony to wait more than one day to report a missing child. Casey Anthony was released from prison and remained in an undisclosed location. Legal justice had run its course, but the more vengeful variety, typified by vigilante justice, was heating up. The drumbeat of moral outrage carried through the rest of the summer.48 One could say that the masses outside of the courtroom and around the country were nothing more than an ignorant lynch mob who had long since overdosed on the media circus that surrounded the trial and were in desperate need of a civics lesson on the judicial branch. What did they know anyway? Wasn’t it better that twelve citizens had been empanelled as a jury of peers and spent months examining the evidence, ultimately concluding that there was reasonable doubt that Casey Anthony had committed an aggravated crime? Wasn’t it equally possible that this was a case where a death sentence imposed on a young, innocent mother had been mercifully avoided by a legal system that took its time to evaluate the evidence and conclude that it was insufficient to convict?49
What can’t be denied, however, is that the community, and much of the country, were thoroughly invested in this outcome. And the fixation wasn’t based entirely on the salacious, sordid events and cover-ups that accompanied the death of this little girl. There was a profound sense of incompletion, of justice denied, of obliterated faith in the jury system, of moral failure in the face of smug legal proceduralism.
Justice Stewart was correct in leaving room for the moral outrage of the community to become a factor in sentencing decisions for capital cases. The people who root for the avenger inside darkened theaters while watching feature films are the same ones left mystified by the law’s failure when they reenter the light of day and glimpse travesties of justice that can’t be corrected—either by caped crusaders or Legal Aid lawyers.
The legalization of capital punishment, and the overwhelming majorities that are in favor of the death penalty, is an explicit acknowledgment that, in the minds of ordinary citizens, the law of the talion is not a mere artifact from the Bible with no contemporary relevance. Justice can be blind, but citizens are not expected to have blind faith in the legal system. The community’s faith depends on the legal system’s own fidelity, if not outright assurance, that evil will be punished. Faith in the law requires the legal system to honestly judge itself worthy of that trust. And one way to earn that trust is by making sure that victims are not denied the vicarious pleasure of knowing that a debt owed has finally been repaid. Walter Berns wrote that, by invoking the language of retribution in Gregg, the Supreme Court “recognized, at least implicitly, that the American people are entitled as a people to demand that criminals be paid back, and that the worst of them be made to pay back with their lives.”50
Presently there are 3,261 prisoners on death row, with California having the largest number, 697. Acting on the authority of Gregg, thirty-four states now allow for the death penalty, but only forty-six people were executed in 2010, a 12 percent drop from the previous year.51
A majority of the states allow for it, and a clear majority of citizens wish to see it carried out—and yet so few executions actually take place. Some of the decline is related, no doubt, to the publicity surrounding cases where DNA evidence is later discovered that leads to the exoneration of a formerly condemned man. New advances in forensic science and the various iterations of the CSI franchise, which has turned ordinary beat cops into chemistry geeks, have made everyone aware that DNA can live even underneath a shoe, lodged within a keyhole, and scattered microscopically on bathroom floor tiling. We have all been led to believe that invisible yet fully incriminating or exonerating evidence is littered all over a crime scene, provided that the PhDs on Bones and NCIS will simply show up and retrieve a sample.
We also live with the knowledge that trials are sometimes sketchy, highly inexact presentations of what took place at the scene of the crime. A criminal trial can get it all wrong; an innocent person may be placed in jail or, worse, ultimately lose his life. (And when it comes to the death penalty population, 98.2% are men.)52 Sometimes the truth is not reliably uncovered until long after the judge’s gavel has pounded and the accused is already taken away, incarcerated, or standing in the condemned queue of death row. In such situations there are those with an incentive to keep the truth concealed, to not own up to their mistake. And far too many death penalty cases result in convictions based entirely on weak presentations of circumstantial evidence.
Capital punishment, when imposed on an innocent man, magnifies the moral consequences of making a mistake and inflames the moral outrage of those who oppose, on principle, the state taking a life. Understandably, there is a growing sentiment that capital punishment is too final and irreversible a remedy to impose given the uncertainty that exists and the improprieties that take place in many murder convictions.
In Justice Stevens’s recent commentary on the subject, written as a former justice on the Supreme Court, he pointed out that 130 death row inmates have been exonerated since 1973, largely due to DNA evidence.53 Tragically, some innocent people—falsely accused and misidentified—have been put to death. Sociologist Ernest van den Haag estimates that of the seven thousand people executed in the United States from 1900 to 1985, twenty-five were innocent of a capital crime. Included in that ill-fated group are Ethel and Julius Rosenberg, as well as Sacco and Vanzetti.54
Surely the execution of an innocent man or woman is the ultimate moral failure of the legal system. But the worst of the worst are never among the innocent. The worst of the worst receive this label precisely because they stand out among the accused—their crimes are more deplorable, their guilt unquestionably established.55 These are the men whose crimes shake the conscience and shatter our faith in humanity. They are never wrongly executed for reasons of mistake. One may disagree with capital punishment on moral grounds, but when it comes to the worst of the worst, the objection can’t be that they may be innocent after all. The monstrousness of their mayhem, the proficiency of their crimes, and the verifiability of their guilt were actually never in doubt.
Moreover, in such cases, there is no exclusive reliance on shaky circumstantial evidence, no mishandled evidence, no mistaken witnesses, no exonerating DNA, no false confessions owing to coercion or duress—nothing but unequivocal guilt. When absolute certainty exists, when the evidence of guilt is direct and conclusive, or where the confession is voluntary and resolute, there is no fear that the legal system has convicted the wrong man. No other truth will one day present itself that will contradict the finding that the wrongdoer was guilty. When dealing with the worst of the worst, why not more regularly apply the highest penalty under the law and provide victims of capital crimes with the emotional satisfaction of having their revenge? A murder conviction on the basis of inconclusive circumstantial evidence should never receive the death penalty. But the worst of the worst, by definition, is a special category where guilt beyond a reasonable doubt is established beyond any doubt at all.56
The moral appeal of the death penalty is greatest in situations of the worst of the worst precisely because, as a former prosecutor and now law professor, Bob Grant, has said, “it is the expression of society’s ultimate outrage.”57 Heinous acts deserve death because no other punishment is appropriate. Grant prosecuted the only man to have been executed in Colorado since the 1960s. In 1986, Gary Davis kidnapped, tortured, sexually assaulted, and then finally murdered a young mother. There was no doubt about his guilt. The evidence that he committed the crime was overwhelming. Why shouldn’t he have paid the ultimate price, the only penalty that came even close to approximating what he had done to his victim?
In 2011, a prosecutor in Orange County, California, vowed to seek the death penalty against Scott Dekraai, who, dressed in body armor and armed with three handguns, entered a hair salon and shot nine people, murdering eight, including his wife. The prosecutor, Tony Rackauckas, spent little time considering whether there were any mitigating and extenuating circumstances that would warrant a lesser penalty than death. “There are some cases that are so depraved, so callous and so malignant that there is only one punishment that might have any chance of fitting the crime,”58 he said.
It’s not just the United States where governments are reluctant to execute its worst criminals despite the wishes of victims and the general public. The implementation of the death penalty has been in decline all throughout the Western world and in Latin America, even though a majority of the world’s peoples support it, and a majority of those people live in countries that allow for capital punishment: China, India, and the United States.59 In capping the ultimate punishment for criminals as something short of death, governments purport to know more about what is morally right than the people they govern. But shouldn’t representative democracy matter—at least in democratic nations? The will of the people is that those who commit the worst of crimes will be made to suffer the worst of penalties. Jeffrie G. Murphy asks, “For what is a democracy except a form of government in which the majority gets to have its dominant preferences enacted into law—even if those preferences are condemned by a refined and condescending elite?”60
The reasons why death sentences are all too infrequently carried out extend from the humanitarian to the utilitarian to the theological. Since state executions have proven ineffective in deterring future crime, there is no utility—no net benefit—to taking the lives of criminals. Courts are not in the business of executing criminals merely to satisfy aggrieved, vengeful victims. Prosecutors are not given the mandate to represent both the interests of the state in crime control and the wishes of victims to feel avenged.
A humanitarian reason to oppose capital punishment is even more perplexing. Human rights groups have conflated the cause of capital inmates with the victims of torture and genocide—two groups of people who have nothing in common. Under this twisted reasoning, the taking of a human life is wrong no matter who does it or whether there may be valid reasons for doing so. The execution of a convicted murderer is no different from an act of terrorism that results in death. The talion is reformulated to read: “A life is a life,” rather than “a life for a life.” Many are persuaded by the humanistic principle that there is dignity, decency, and goodness in everyone no matter how abominably they may have once behaved. Redemption is always possible; therefore no one deserves to die. Supreme Court Justice William Brennan, siding with the majority in Furman v. Georgia, wrote in a separate concurring opinion that capital punishment is in all cases wrong and unconstitutional, in part because “even the vilest criminal remains a human being possessed of human dignity.”61
Such expansive generosity in ascribing dignity to everyone regardless of individual merit or evil inclination can test the gag reflex of even the most tolerant and peace loving among us. The constitutional law scholar and political philosopher Walter Berns said it best when he wrote: “What sort of humanism is it that respects equally the life of Thomas Jefferson and Charles Manson, Abraham Lincoln and Adolf Eichmann, Martin Luther King and James Earl Ray? To say that these men, some great and some unspeakably vile, equally possess human dignity is to demonstrate an inability to make a moral judgment derived from or based on the idea of human dignity.”62
Popular support for the death penalty is being overridden by a hesitant legal system that insists on taking the personal, emotional, and moral out of sentencing decisions. Yet, in many instances, this sanitizing of punishment becomes unbearable for victims and the community. The legal system clumsily magnifies the overall harm by insufficiently punishing the originating source of that harm. Plea bargains distort the truth of how the victim came to be victimized, a whitewashing that makes criminal justice resemble a wheel of fortune or, even worse, a den of shady backroom deal making. In such a transactional environment, every absolute truth, each unrepentant crime becomes negotiable, receiving a downward adjustment to something less felonious and completely unrepresentative of what actually took place. The eye for an eye is now substituted for a lesser organ. The underlying crime and punishment have been reduced to both a lie and a farce. In situations of first-degree murder, the proper punishment is available under the law, but the will to carry it out is sorely lacking.
The South African anthropologist, Lyall Watson, writing in Dark Nature: A Natural History of Evil, lamented that the typical jail sentence for manslaughter in the United States is three to five years with the possibility of parole after only eighteen months. Responding to this all too familiar pattern of devaluing crimes in the legal system, he notes, “justice is very often not seen to be done and relatives still carry hate and feel an unrequited thirst for revenge. We ignore such passions at our peril, and ought to think twice about dismissing revenge as ‘sterile’ or somehow unseemly. We lost something of value, a pattern that made evolutionary sense, when we decided to make justice remote and impersonal. Perhaps we should think again and restore once more the old notion of ‘just deserts,’ of measured retribution that is satisfying and comprehensible to all concerned, because it is totally appropriate to the crime.”63
Victim Impact Statements
Death penalty executions are grinding to a near halt. But at least sentencing hearings in aggravated felony cases are being used to give voice to the vengeful feelings of victims who are otherwise prohibited from availing themselves of self-help. Victim impact statements—both in their written form and when delivered orally—are yet another side door into the law that invites the emotions of revenge inside the courtroom without the violence and imprecision that society fears in situations of privatized vengeance. Crime victims, and the family members of murdered victims, are given an opportunity during the sentencing phase of the trial once guilt has already been established, to speak directly to the court and articulate the impact that the crime has had on their lives. The state insists on retaining the sole burden and prerogative to punish wrongdoers, but that shouldn’t mean that victims must be denied a respectful role in the proceedings or be deprived of having their voices heard in the determination of punishment.After all, it is the victim who possesses the greatest interest in seeing the wrongdoer paid back for his wrong. The caption People v. Jones may be the formalized way that the justice system frames the state’s case against a Mr. Jones. But do all the “People” really have a score to settle with Mr. Jones? At any given moment district and state’s attorneys all across America are prosecuting accused criminals on behalf of the “People,” but only one segment of the populace—the victims of the crime—are personally invested in seeing the prosecution and punishment of the wrongdoer carried out to a satisfying conclusion.
As lawyer and social critic Wendy Kaminer observes, “To a victim the notion that crimes are committed against society, making the community the injured party, can seem both bizarre and insulting; it can make them feel invisible, unavenged, and unprotected.”64
In a legal system that relegates crime victims to the diminished role of witnesses on behalf of the state, victims are entitled to no ownership stake in the process. The stories that brought them to the courtroom have been adopted—co-opted, even—by the state, forever depersonalized, treated more like a banal statistic than an actual lived experience. The victim becomes an afterthought, a buried footnote, and not the center of attention. In a Texas nightclub in 1989, David Lee Herman, a former manager, returned to rob the establishment he once ran. Before leaving the scene of the crime, he forced one of the three women in the office, Jennifer Burns, to strip naked so he could fondle her. “This is where the fun begins,” he said before shooting all three women. Herman received the death penalty and was executed. But the dehumanizing experience of being a member of the victim’s family never left Paula Foster, the mother of Jennifer Burns. “It was always the state of Texas versus David Lee Herman. You feel like you’re not important. [The prosecutor] has no idea of your need to be involved.”65
At sentencing hearings where victim impact statements are introduced, victims are, essentially, given their own hearing. Quarantined from the guilt phase of the trial, marginalized as overly biased and unreliable, it is only during the sentencing hearings where they finally receive their day in court, such as it is. For a short moment in time, a proper forum is provided for the expression of grief and the dissipation of rage. The wrongdoer might end up escaping a death sentence. He may, ultimately, not be punished commensurate with his crime, equal to what he deserves. The victim might not actually get even with the wrongdoer. But with victim impact statements the microphone will be yielded to the victim and he can give full human voice to his loss in a public setting, inside a courtroom, witnessed by a judge, and memorialized as part of a criminal proceeding.
These hearings are held, specifically, in connection with the sentencing of a wrongdoer who has already been found guilty in that same courtroom—part two of his appointment with justice. It is here where the victim seeks to influence the court in imposing the maximum penalty—a reminder that justice done on behalf of the state must also take into consideration the victim’s separate need for personalized justice. Victims appear at these hearings at their most damaged and heart-stricken—unreservedly subjective in their bearing. Neutrality is beyond their capacity. After all, their experience with victimhood matters and will continue to matter even as the wrongdoer serves out his or her sentence. The passage of time will be counted on the victim’s own clock. With each parole hearing, at every stage at which the status of the wrongdoer’s punishment is being reconsidered, the victim will be present once again as a reminder that the criminal act was not directed at some abstract target—the wrongdoer didn’t merely just break a law, he or she committed a crime against a specific individual. The consequences of the crime did not disappear with sentencing. The crime had casualties and left an impact on real people.
These hearings are not to be discounted as mere group therapy sessions, the waterworks of family grief at the public’s expense. To be sure, their statements are emotional, but that doesn’t mean they are not purposeful. Victim impact statements allow for an emotional release that for many people can replicate the experience of revenge—the human encounter, face-to-face, with the full-throated utterance of all that was lost. These statements are made live and in front of a judge, absent the violence of self-help but not without an acoustical cry for help.
Its origins can be traced to the very beginnings of the victims’ rights movement. There was a growing disenchantment that many felt about a justice system more focused on the rights of the accused than on the experience of victims, those who encounter the law on a lesser footing than the reception received by the victimizer. The damage done to the victim received no constitutional relief, unlike the due process and equal protection guarantees that are specifically intended for the accused. As an egregious example of this moral imbalance, the accused is permitted to introduce mitigating and character evidence to lesson his punishment, but any evidence of the impact that the crime has had on the victims was once regarded as irrelevant to the crime and far too prejudicial to the accused.
The introduction of victim impact statements humanized the victim and enabled family members to enlighten the court as to the dimensions of their grief and the character of the life that was taken from them. By now such testimony is common in the United States, Australia, and Finland. Victim impact statements in the United States began with the Manson murders in 1969 and the death of Sharon Tate, the pregnant wife of film director Roman Polanski. It was Ms. Tate’s mother, Doris Tate, disgusted by the cult status that Manson was achieving and the mere footnote her daughter was becoming, who feared that Manson’s cohorts would one day receive parole and her daughter would be forgotten. She organized a public campaign in California against the dismissive, insensitive, and morally inverted manner in which crime victims are treated.66
Tate was not alone in her agony. Andrew Serpico’s wife, Bonnie, was murdered during an attempted rape in 1979 by James Free. At the trial, the judge insisted that Serpico and his three daughters sit in the back row of the courtroom. Free’s mother, however, sat in the front row, beside the jurors, weeping. In an era before victim impact statements, the judge refused to allow Serpico to inform the jury that his wife was the mother of three girls and to somehow express to the jurors the enormity of the loss that each suffered. The judge ruled that it would be too prejudicial to their mother’s murderer.67
By 1982 the President’s Task Force on Victims of Crime recommended that “judges allow for, and give appropriate weight to, input at sentencing from victims of violent crime.” The Supreme Court in Payne v. Tennessee (1991) ruled that the character of the victim, and the impact of the harm caused to either him or his family, should be taken into consideration by the court, but not during the guilt phase of the criminal trial, where the evidence about the crime and the determination of guilt should be free from emotional, subjective influences.68 The court recognized that victim impact statements are, by their very nature, emotional and subjective and, therefore, should not be confused with standards of objective proof that govern the determination of guilt in criminal trials. The sentencing phase, however, where punishment flows from proven guilt, is fair game for emotional influences to be on display. There is no mistaking that victim impact statements are written and uttered in the language of grief. At sentencing hearings, subjectivity reigns and emotion echoes all throughout the courthouse. A family member isn’t required to supply proof of grief; it is obvious from their statement before the court. Their faces awash in anguish; their pain judged to be true.
During sentencing, where the issues are limited to the degree of punishment, the “human cost” of the wrongdoer’s act should factor into his or her penalty. And it should also take account of “each victim’s uniqueness as an individual human being.” You can’t get more subjective, or personal, than that. In his dissenting opinion in Booth v. Maryland, the 1987 decision that had initially found victim impact statements to be unconstitutional, Justice Antonin Scalia summed up the reasons behind the public clamor for the victims’ rights movement as “an outpouring of popular concern for . . . what its proponents feel is the failure of courts of justice to take into account in its sentencing decisions not only the factors mitigating the defendant’s moral guilt, but also the amount of harm he has caused innocent members of society.”69
And this “taking into account” of the impact on victims the crime has had provides yet another legalized loophole for revenge to make its way into courtrooms. The very thing the law purports to avoid when casting judgment over human beings—the messy, unstable emotions peculiar to revenge—becomes an integral part of the sentencing determination. Rather than remove the personal from the punishment of the guilty, the use of victim impact statements serves to institutionalize revenge by adding a vengeful voice to the punishment process. Not unlike capital punishment, which can resemble revenge, the use of victim impact statements shows legal retribution to be not entirely impersonal. Victims share with the court the impact the crime has had on them and their families, which personalizes the crime and gives victims an ownership stake in the outcome.
In a study conducted in 1987, 54 percent of victims who filed an impact statement and spoke in open court reported that “they felt different after making their statement to the judge,” and 59 percent expressed “positive feelings of satisfaction or relief.”70 This form of victim empowerment is particularly acute in cases where judges, in making their sentencing determinations, quote directly from the impact statements, giving true meaning and legal significance to the victim’s words. It also demonstrates that the victim’s role in the punishment of the wrongdoer is not perfunctory. The experience of speaking to the loss, and having a judge meaningfully listen, humanizes the loss, making it personal to the victim and far less remote to the state.
The Supreme Court in Payne reasoned that since the wrongdoer is entitled to put forward mitigating evidence that might persuade the court to reduce the punishment, so, too, should victims be permitted to introduce evidence showing the magnitude of their loss, thereby offsetting whatever sympathies the wrongdoer has managed to evoke in the court. The court ruled that, “just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.”71
Vengeful people are blamed for their lack of maturity and self-control in failing to tame their emotions and suppress their hateful feelings. Yet the presentation of victim impact statements validates those very feelings; in fact, such statements become monuments to those feelings, giving them voice and moral urgency. Perhaps this is why there is still a good deal of push back against the use of victim impact statements. Those opposed to revenge, in principle, and opposed to its camouflage under the guise of victim impact statements, in particular, have argued against their use. Such opposition is yet another assault against emotions playing any role in legal decision making. Punishment should be based on moral blameworthiness alone, it is argued, and not on the character of the victim or on how much his grieving relatives may miss him. Overly articulate and bereft relatives who can fill a courtroom with cascading waves of pity should not be able to tip the scales of justice and increase the punishment of a wrongdoer who haplessly picked a victim whose death will now command the greatest punishment—either because he is more worthy or he is more greatly mourned than another victim. Murder is murder, after all, and equal protection demands equal treatment—even among murderers. It is the wrongful act that determines its punishment, not its consequence.
Observing in an earlier age the unfairness that victims experienced when they came before the law, Supreme Court Justice Benjamin Cardozo wrote in a 1934 opinion, “Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”72 The imbalance between the rights of the accused and the remoteness of the victim has always been accepted as a staple of constitutional justice. Victims can be prejudiced before the court; the accused, however, must always be judged without prejudice.
When the victims’ rights movement finally began to press for more dignified treatment for crime victims, there was the question of how, precisely, to rebalance the scales of justice? Giving victims a voice appeared to be a good idea, but what would such a voice be allowed to sound like? Could it resound with unrestrained wrath, or must it be merciful, as Portia counsels Shylock in Shakespeare’s The Merchant of Venice? The legal system ordinarily favors the dispassion and disinterest of third-party witnesses, precisely because as nonparties who are not invested in the outcome, they are more likely to be objective and truthful. And they are unlikely to become emotionally unglued. Given the law’s preferences for bland neutrality, victim impact statements ought to be the legal system’s worst nightmare. These flash points of grief have little purpose other than to throw a spotlight onto the overwrought lives of damaged victims. The hearings can descend into emotionally unmeasured affairs, roller derbies of vengeful feelings that break with the legal system’s more customary decorum.
Jeffrie G. Murphy wondered why the outpouring of such feelings should surprise anyone, and, moreover, why anyone would begrudge a family member of the opportunity to speak about the most tragic day of his life—especially if it offers the dual benefit of empowering the victim and informing the court’s sentencing decision. He then asks, “Can it be shown to be fundamentally wrong in principle for the suffering that criminals receive from the state to be contingent to any degree on hatreds and desires for revenge felt by their victims? Do criminals have a fundamental right to be shielded from the consequences of such feelings?”73 Surely the Founding Fathers didn’t believe that the Sixth and Eighth Amendments to the Constitution protected wrongdoers not only from the arbitrary and unprincipled abuses of the state but also from the tremors and aftershocks of righteous anger that their victims justifiably feel toward them. The rights owed to the accused cannot possibly extend that far.
All that should matter is that the victim’s vengeful wishes not unduly influence the court in punishing the wrongdoer in excess of his moral blameworthiness. The upper limit on the talion always applies. The moral universe never wavers in its demand for proportionate punishment; the wrongdoer should not be expected to pay back more than what he owes. But the moral universe also recognizes that victims have a legitimate interest in having their anger satisfied. And the only way for that to happen in a civil society that outlaws private vengeance is to allow victims the right to participate in the punishment.
Of course, that may not be enough for victims. Merely free riding on legal retribution may not fully satisfy the depth of their personal loss. The legal system does all the heavy lifting in enforcing the punishment. In this Hollywood movie, all the glory goes to the state. Victim impact statements exist as a discharger of emotion only. That’s all victims get and what the state will allow.
And the value of victim impact statements is limited by other restrictions, as well. In most cases the victim only submits a written statement that may, or may not, be read by the judge during sentencing. The emotional power of the victim’s actual voice is generally not required to be heard in open court. Victim impact statements operate only after a guilty verdict is reached and not before, silencing the victim during the pretrial stage of the proceeding and during the entirety of the trial itself, which is precisely when the most important legal decisions are made and facts bearing on guilt are presented—all without the victim’s input. Worse still, whether and to what extent victim impact statements must be considered by the court varies widely. In capital cases, some states disallow such statements. The rape victim who survives her attack may not exercise her opportunity to rage against the trauma of the rape, since the trial itself often exacerbates the sense of personal violation and outright fear that she experienced. The victim of an assault knows plenty about the fear that pervades her days and remains imprinted on her life. But her moment to share that suffering with the judge or jury is often too late to alter the sentence.
Moreover, since the vast majority (well over 90 percent) of criminal prosecutions are resolved by way of negotiated pleas, most victims will never get a chance to make a statement in open court that will influence the judge’s sentencing decision at all. Far removed from a rampant and unremitting plea-bargaining process, and with no say in decision making, it is the rare victim who will actually receive a day in court—even symbolically. With plea bargains the debt is not only discounted but also immune to the victim’s righteous outrage.
And while it is true that other legal remedies, such as civil tort actions, are available to victims, these cases are equally unsatisfying. Just ask the Goldman family of Santa Monica, who, in 1997, obtained a judgment in the amount of $33,500,000 against O. J. Simpson after a jury found him liable for the wrongful death of their son, Ronald. After all these years, the Goldmans have managed to recover only $500,000 of that judgment. Laws shielding pensions and real property from being used to satisfy legal judgments have left the Goldmans still bereft and Simpson, until very recently, remained a wealthy man.74 Ironically, he now sits in a Nevada jail, but for an altogether different criminal conviction. In 2007, the Goldmans obtained the rights to his book, If I Did It, in which Simpson all but confessed to having committed the crime.75 Other than shedding more light on the truth, it will not contribute much to satisfying the judgment they have against him.
Most victims of violent crime, however, can expect to do even worse than how the Goldmans fared before a civil court. After all, most perpetrators of violent crime are not professional football players and movie stars. They commit violent crimes, in part, because of their dire economic circumstances. Civil lawsuits against violent wrongdoers are likely to receive no better than a token victory. A monetary judgment against an indigent, judgment-proof wrongdoer is valueless, even if the court awards punitive damages as a way of maximizing the wrongdoer’s debt. Multiples of zero always produces the same empty sum. A judgment that can never be collected is hardly a fair substitute for what the avenger could have accomplished in settling the score on his own terms.
Besides, a civil judgment is not the same as retributive punishment, and can’t possibly accomplish the same aim. A recent study in the Netherlands confirmed that even those who observe a wrong prefer to see the wrongdoer receive his due rather than the victim receive compensation.76 Victims may have been left with a material loss, but mostly they have been made to suffer, had their self-worth plummet, and had their status as a member of society erode all on account of the actions of another. Compensatory damages, measured in money alone, can never measure up as suitable vindication for damaged pride or bereft loss. What victims wish to see is commensurate suffering, the rebalancing of moral worth, which can only be restored when the wrongdoer is punished in a criminal proceeding. And while punitive damages, which are monetary in nature, appear to embody punitive goals, plaintiffs who seek punitive damages rarely, if ever, assert their claims in the language of revenge.77 Perhaps that’s because punishment that is focused entirely on the payment of money never feels sufficiently punitive.
Perhaps civil lawsuits, by definition, owing to a certain civility, can never truly function as an alternative to revenge. The theory of tort law known as “civil recourse,” pioneered by a colleague of mine, taps into the “primitive ‘instinct’ of retributive justice.”78 But civil recourse theory makes clear that “it is about not getting even”—indeed, it’s “what the state gives us in place of getting even.”79 Revenge, however, is unapologetically about getting even. Despite sharing some of the vindicating elements of vengeance, civil lawsuits, which cast judgment only by ordering the payment of compensatory damages from wrongdoers who may have no ability to pay, are actually poor substitutes for the raw emotional power of revenge. Vengeance is often framed in the language of redeeming debts, but this sort of debt is not connected to a dollar sign. Vengeance, generally, has very little to do with money and everything to do with denouncing and punishing wrongdoers. If courtrooms are where such punishments should take place rather than in more personalized arenas, then it is best left to a criminal court, not a civil one.
Another limitation of victim impact statements is that it’s not at all clear whether judges actually value the emotion that these statements deposit inside their courtrooms. The victim’s experience might end up being more performative than purposeful, the statements having no impact on judges, exerting little influence on them—a misnomer from the outset. Judges who preside over criminal trials may become inured to all that raw emotion or, worse, dismissive of it. They are empowered to punish wrongdoers based on many factors, including the persuasiveness of the victim’s anguish and grief. But what if the purported safety zone for vengefulness is nothing but an echo chamber—there only for the victims to vent, without any true effect on the actual legal process? Judges might become deaf to the victim’s pleas. All that anger and grief becomes the legal equivalent of shouting into the wind.
The problem, as discussed throughout this book, is that the law has a systemic, near pathological aversion to the emotional life of human beings. Just because emotion might be permitted limited access inside courtrooms doesn’t mean that judges will know what to do with it. Revenge, after all, and its connection to justice, is always an internal, emotional, and moral phenomenon. If victim impact statements are to serve as vicarious substitutes for revenge, their full moral force will be wasted unless the emotion is not simply listened to but also acted on.
Unfortunately, so very often that is not the case. The people whose job it is to evaluate the emotional force of these statements are themselves constitutionally ill equipped to deal with tears. Judges take pride in their ability to exist solely in the world of reason; they show little patience or appreciation for the emotional sphere. Only a sissy judge would keep a box of Kleenex beside him on the bench—no reason to coax the waterworks out of witnesses, or himself, for that matter. And anger, the rocket fuel of revenge, is the most unacceptable emotion of all.
Mary Lay Schuster and Amy Propen collaborated on a recent report for the Association for the Study of Law, Culture, and Humanities, in which they examined judicial responses to victim impact statements. The researchers came away with some very disturbing findings. Feelings of anger, especially if it comes across as vengeful, are very much unwelcome in courtrooms and many judges find such emotions to be unproductive. Angry victims are regarded as dishonest, out of control, or simply unable to gain any perspective on the crime. Worse still, judges perceive the victim’s expression of anger as an unwillingness to move on with his or her life. For instance, they detest listening to the very words that one would naturally expect to hear in these minitrials of grief: “lock him up forever and throw away the key.” In one case where the wrongdoer killed a man and then sexually assaulted, kidnapped, and attempted to murder the victim’s girlfriend, the judge was apparently turned off when the woman, who was, after all, a victim herself, ended her statement by saying, “The time has come to lock up Satan.”
Here is how one judge described just how unmoved he is by the emotions of anger and rage: “People get up, and I can tell that they are overstating something, or they have a vengeful purpose behind it, or they want the world and in particular the defendant to be responsible for all their life’s problems.” Another judge plagued by similar deficits in emotional intelligence, added, excessive anger “can certainly backfire in the sense that of the judge’s reaction because sometimes victims don’t understand that their hatred of the defendant will convey itself to the judge, which undermines the credibility of what they are saying in their sense of objectivity.”80
Okay, some judges are not only emotional morons, they also have trouble with the English language.
Why should crime victims be objective? Surely we can’t expect them not to vocalize their feelings of anger in the very forum in which they have been invited to express their rage. Victims can’t very well check off the many ways in which they have been damaged with the same bland affect as if reciting a grocery list. These are sentencing hearings, after all, and victims naturally wish to be heard. Judges fear that anger expressed so openly threatens the precious decorum they maintain over their courtrooms. But such self-importance about courtroom etiquette has not served the judiciary well, and has, in fact, contributed to an erosion of respect from the general public. It would be far better for everyone if judges allowed the heartbreaking words of victims to penetrate the thick skin of their own emotional detachment.
What a bizarre paradox: Victim impact statements can actually prejudice some victims whose emotional response makes them seem out of control in the eyes of the court. After being forced to sit through a trial in silence and now finally given an opportunity to speak, their guileless demeanor ends up disqualifying them as a sympathetic victim. They lose credibility. Victim impact statements were instituted, implicitly, as legal stand-ins for the kind of lawless self-help that society will not accept. A physical retaliation is not permitted, but victims are allowed to have their Inigo Montoya moment: they can announce themselves to the wrongdoer, confront him with what he did, and, short of taking their own revenge, they can request of the court that it deliver the harshest penalty permitted under the law. Meanwhile, in the typically deflating fashion of the legal system, emotionally obtuse judges react negatively to these unguarded moments of grief and end up punishing victims by underpunishing the wrongdoers—all because they found the victims’ candor to be disturbing.
Truly listening means accepting the hurt underneath all the words spoken in anger. As Schuster and Propen point out, courts are more sympathetic to compassionate victims, those perceived as more mature and emotionally composed, who can somehow look beyond their own hurt and focus instead on the larger needs of society and the court’s own limitations in an imperfect world.81 But consider this: What kind of people appear at sentencing hearings prepared to withhold their true emotions all for the sake of not giving a judge an unfavorable impression of the victim’s true feelings?
Voluntary Manslaughter and Self-Defense
The emotions of revenge appear in various guises in criminal law but are rarely acknowledged for what they are. In the same way that capital punishment and victim impact statements provide a legalized forum in which to articulate vengeful feelings, so, too, can certain crimes offer a backdoor way to behave vengefully without incurring the full cost of revenge.
Take voluntary manslaughter, for instance, which is, essentially, a homicide with an emotional component attached to the crime. Under common law, whether British or American, voluntary manslaughter is a killing committed in the “heat of passion” brought about by some “provocation” without sufficient “cooling time” in which to dissipate the attendant emotions, ultimately giving rise to murder.82 Those who are found guilty of committing voluntary manslaughter are treated as if they were without choice, emotionally driven to a point of impulsive desperation. Such conduct is distinguished from the wrongdoer who commits premeditated, first-degree murder, or even a criminal act motivated by a reckless disregard for human life. Voluntary manslaughter is essentially the crime of murder mitigated by a passionate response that was provoked by the victim of the crime, who may have been a wrongdoer of another sort.
The term of art “heat of passion,” and the way it mitigates premeditated murder to a lesser crime, represents a tacit acknowledgment that emotions that motivate crimes are of a far less detestable nature than crimes that emanate out of wickedness and bad intention.83 Emotion is the essence of human nature, something that all human beings share. Depravity, by contrast, is special and more rare, possessed by human beings whose wickedness can lead to malice aforethought. As law professors Dan Kahan and Martha Nussbaum pointed out, the man who dispassionately kills his wife’s paramour with no greater emotion than his killing of a mosquito, shows that “he invests too little value in fidelity; his act of killing without anger would show us that he invests too little value in others’ lives.”84 Killing with emotion is treated more favorably under the law than killing without feeling. This leads to the paradoxical outcome that while emotion is not welcome inside courtrooms, a criminal defendant will receive a lesser sentence if his crime was committed while in the grip of emotion outside of the courtroom.
Emotion, which serves as the cornerstone of revenge can, in certain cases, supply the critical fact that turns a homicide into the lesser crime of voluntary manslaughter.
Similarly, if too much time passes after the heat of passion first showed itself, the wrongdoer will be denied any defense that his act was not premeditated. Once the intensity of emotion subsides, he can no longer claim to have been deprived of his reason. His anger is expected to have cooled and been brought under control.85 What qualifies as voluntary manslaughter is precisely the kind of righteous rage that is ordinarily associated with revenge—the recognition that no cheek turning is possible, that retaliation, arising from inflamed emotion, is humanly necessary. Anything less demonstrates a lack of honor and personal pride. As one federal appeals court once ruled, “The deliberate killer is guilty of first degree murder; the impulsive killer is not.”86
Another way to look at it is like this: the wrongdoer who commits a homicide does so in cold blood, whereas the person who commits voluntary manslaughter was quite possibly forced to do it as a result of the hot blood of passion. The presence of that heated emotion, and its influence over him, reduces his culpability. Under the law, passion can constitute a mitigating circumstance; it receives a discount on the act, reducing it to a lesser crime. Murder in cold blood, by contrast, being committed without emotion, receives no such sympathetic treatment.
Oddly, a legal system that condemns the taking of revenge because of its emotional commitments allows for separate pathways to justice—and more leniency—for crimes motivated by the very same emotions that are active in vengeance. As a further example of how the law takes proper account of human emotion in recharacterizing the nature of a crime, Susan Jacoby has observed that certain crimes that occurred within a family context, among intimates, were treated differently than they would have been had the same crime been committed against a stranger.87 Wives and girlfriends who kill their violent and abusive husbands and boyfriends, whether they invoke the battered women’s syndrome or some other legal defense—or excuse—are punished less severely than a woman who kills a man after an awful first date.
In fact the law used to take even greater account of emotion. There was a time, in most jurisdictions, when men who battered their wives were not regarded as criminals precisely because the connection they had to their victims was personal and emotional. Against a stranger the crime would have been deemed cold-blooded; against an intimate it qualified as a lesser crime—if even a crime at all. And the reason for that mitigation was based entirely on the emotional history that the wrongdoer had with his or her victim. Emotion intervenes to alter the character of the crime. This contradicted the most basic canon of criminal law: punish the act, not its consequence; criminals deserve equal protection under the law, too. A punch is actionable no matter who is on the receiving end of it; a battery is a battery whether committed against a stranger or a spouse. But since the crime against a wife was credited as having been motivated by an emotional connection and carries its own emotional history, it was viewed differently. These very same passions, however, were not unlike the emotions emblematic of revenge, which otherwise received no protection under the law. The legal system persisted in the charade that courtrooms are to be emotion free, and vengeance is wrong precisely because it is too emotional. But this leads to a double standard when emotional complexity among lovers and spouses is accounted for under the law, whereas no such allowance is made for strangers.
Despite all of its protestations to the contrary, the legal system has always made some concessions to the emotional life of human beings. Emotions may have been kept out of courtrooms, but if the exercise of an extreme emotional response was the reason why the defendant ended up in a courtroom, that emotion often served as evidence to lessen the punishment.
Just to see how far this double standard once went, Jacoby pointed out that creepy uncles or psycho fathers who committed acts of sexual molestation against their own children were treated as if the act was less a penal offense than a medical problem—no matter how loathsome the act.88 In many jurisdictions the matter was referred to a family therapist rather than to a law enforcement officer—that is, treated as a medical problem to be handled within the family. Meanwhile, pedophiles with no family connection to children they molested were rightly viewed as if they had committed an unspeakable, punishable crime. Among intimates, criminal conduct ended up unpunished. The more personal and emotional the relationship, the less legal accountability was expected of the wrongdoer.
In reflecting on this disparate treatment—and separate set of legal protections—that once existed between strangers and family members, Jacoby wondered, “ought people who are bound together, either by formal family ties or by the informal but emotionally binding ties of passion and intimacy, be allowed to take revenge upon each other in ways that would ordinarily be forbidden by law?”89
A similar exception that enables revenge to sneak inside courtrooms and influence the legal outcome arises in cases of self-defense. The common law rule is clear: a person can use deadly force that is necessary to protect himself from another’s attack, provided that the threat is imminent and unprovoked. But the philosophical basis supporting self-defense is often no different from the justifications for revenge. For instance, the “necessity” requirement is satisfied even if it can be shown that the person could have safely avoided the life-threatening assault merely by stepping aside or, in the most prudent circumstance, simply by running away. Why privilege an attack launched in self-defense if it could have been avoided altogether? The reason has to do with dignity and honor, the very same human values that can create a moral justification for vengeance.
Actually, self-defense offers a legally acceptable way to engage in self-help. Provided that the retaliation is imminent rather than deliberate, there is very little philosophical difference between vengeance and self-defense. Yet vengeance receives no justification under the law, whereas acting in self-defense is a well-established excuse to commit a crime that might have the exact same implications as a revenge killing. The moral justification for vengeance relies on the principle that to do anything less is an insult to one’s honor. Self-defense is legally justified, to some degree, for very much the same reason.
In a Supreme Court decision written in the nineteenth century, the justices understood how demeaning and dishonorable it would be for a “true man . . . to fly from an assailant, who by violence or surprise maliciously seeks to take his life or do him enormous bodily harm.”90 The rule that permits self-defense is as much about maintaining honor and dignity as it is about self-preservation. Indeed, legal commentators have observed that the No Retreat Doctrine, where a person who is faced with an attack is not required to run away to avoid the harm—even if he could easily do so—is based on “a policy against making one act in a cowardly and humiliating role.”91 Honor and dignity, so vital to the moral legitimacy of vengeance, are equally present in the legal theory of self-defense.
Throughout the United States, variations in how self-defense is treated reflects regional differences on the importance of maintaining one’s honor and dignity. The majority of northern states impose a general duty of retreat in response to deadly force. In the south and northwest, the number of states doing so is just a little more than half. Perhaps this explains why the practice of dueling, which served for centuries as the only manly response to an insult, lasted much longer in those regions of the country than elsewhere.
Vigilantism as Preemptive Self-Defense
One understandable outcome of the state’s failure to live up to its part of the bargain in the social contract is the occasional presence of vigilantes who insist on doing the bidding of an ineffectual legal system. Paradoxically, the state’s obligation to be vigilant on behalf of its citizens is the main reason why we even have vigilantes. After all, the enlightened philosophers of the eighteenth century assigned the job of watchfulness to representative governments who were in possession of newly democratic ideals. Vigilance was owed and vigilance must be delivered on behalf of the citizenry. It soon became obvious, however, that if the government wasn’t taking its duty of vigilance seriously, if the state was somehow unable to deliver justice on its watch, then someone else must do so in its stead.
By default, the vigilante becomes the lone member of society sickened by the state’s casual, all too familiar breach of the social contract. He or she chooses to act in response to the government’s general neglect. The vigilante operates outside of the law and, thereby, becomes a fugitive from the law by having to break the law. It all starts when an ordinary citizen is summoned into duty to avenge, either by way of family honor or moral conviction, or because he, himself, is the owner of the debt that must be collected from the wrongdoer. The vigilante picks up where the government last tried and failed.
Painful as it is for law enforcement officers to acknowledge, a vast majority of Americans do not disapprove of vigilante behavior. In a 1985 Gallup poll, 74 percent believed that vigilantism is “sometimes justified,” while 8 percent believed that it was “always justified.”92 Of course, this poll was taken shortly after the 1984 Bernard Goetz subway shooting in New York City. Goetz, a middle-aged man, defended himself in an attempted subway robbery by firing an unlicensed firearm at four young men, nearly killing them all. He had been victimized once before and was determined to not let it happen again. Indeed, it was the law’s failure that had ennobled Goetz as a justified vigilante; the legal system’s broken promise turned lawlessness into righteousness for the price of a subway token.
Goetz was charged with attempted murder, assault, reckless endangerment, and the criminal possession of a deadly weapon. He was convicted of only the latter charge. The jury acquitted him of the more serious offenses under New York’s self-defense statute. The would-be robbers were all African-American and had criminal records that they improved on after recovering from their injuries. Each ended up in jail for other offenses. The jury was nearly all white, half of whom had been victims of street crime.
Of course, this all took place during the peak years of New York City’s battle with urban crime. There was a tremendous outpouring of support for Goetz from New Yorkers (and the entire nation) outraged by the lawlessness on the city’s streets and the ineptitude of the police in protecting the citizenry from crime.93 Thousands of dollars were raised for his legal defense. In the age of Death Wish, Bernard Goetz was an authentic subway vigilante who had lost faith in the legal system’s capacity or willingness to do justice. So he armed himself in case he would one day need to resort to self-help
Goetz was unapologetic in his own defense. The shooting was not premeditated, but it was no accident, either. He had, indeed, prepared himself to fight back in the event of an attempted mugging. He refused to be defenseless in his own city. Finding himself in a situation where his life was imperiled, he took the law into his own hands and nearly killed the four assailants. He said, “My intention was to murder them, to hurt them, to make them suffer as much as possible. If I had more bullets, I would have shot ’em all again and again. My problem was I ran out of bullets.” He then added, “I was gonna, I was gonna gouge one of the guy’s eyes out with my keys afterwards,” but said he stopped when he saw the fear in the mugger’s eyes. Goetz allegedly told one of his assailants who he had already shot, “You look alright. Here’s another.”94 Defense attorneys argued that such statements were examples of the “extreme emotion” under which the crime took place.
And it was doubtless the emotion of the jury that resulted in Goetz’s acquittal of the more serious charges. Law professor George P. Fletcher wrote that the verdict captured the public mood of a morally outraged society tired of feeling helpless, which led a jury to find for “the right of decent citizens to hold their ground against the terrorizing effects of the mugging subculture.”95 Goetz benefited under the law from his emotional response to an imminent, unprovoked assault, manifested in a mindset to defend himself as much against violence as dishonor.
Most people regarded this disturbing case of frontier justice in the inner-city subway as an example of the deteriorating conditions of urban life, a tragic consequence of the failure of law enforcement to uphold its duty to protect the people. The Guardian Angels, a citizens patrol group that rode the subways of New York City, was a direct outgrowth of this fear. And they, too, were accused of engaging in vigilante behavior—watching over strap-hangers, ordinarily the job of transit cops.
The verdict stood as a bold statement by the jury—a shrieking pronouncement of communal anxiety—in rejecting the prosecution’s attempt to punish Goetz. Everything was upside down: the government made no apologies for the high crime rate and the menacing dangers that accompanied any luckless trip on the subway. Yet the government was insistent that Goetz possessed no right to defend himself. He, alone, had deputized himself to perform police work, which was best left in the hands of experienced officers of the law. The police, the men in blue, were deemed “New York’s Finest” even though there was massive failure throughout the ranks of the NYPD. “Finest” was a gigantic exaggeration, certainly in those grittier days of urban crime. Nonetheless, the prosecution regarded Goetz as an outlaw who must be taken off the streets. Most certainly he should no longer be permitted to venture underground with a gun. The public, however, saw Goetz as an urban folk hero, a man who stood up for himself and held his ground against four muggers.
No wonder the Death Wish films were so popular throughout the 1970s and early 1980s, when the Wild West had taken up permanent residency in many inner cities across the United States. The logic of the legal system seemed delusional. And the jury in the Goetz case spoke directly to that delusion by spray painting a plea to the legal system in the manner of subway graffiti artists: “Do your job, and if you can’t, or won’t, then don’t complain if ordinary citizens are forced into the position of having to do it for you, and for themselves.”
The Goetz jury was not alone in delivering messages of disgust with the legal system and support for a vigilante who, in the absence of the law, must, by necessity, become the law. Jurors, either through jury nullification or with the full blessing of the court, have, on occasion, treated those who ultimately took the law into their own hands sympathetically. In 1992, Lance Thomas of Los Angeles killed five men and wounded another who attempted to rob his store. A jury found that all the killings were justified. A grand jury in New York dismissed all charges against Kenny Mendoza in connection with his shooting of an intruder who threatened his pregnant girlfriend.96 Were these cases of self-defense, voluntary manslaughter, or revenge rewarded—or preemptive strikes against the legal system itself?
Even jurisdictions that impose a general duty to retreat when confronted with violence provide for an exception in cases where someone is holding his ground against an attacker in his own home. The principle here, once again, is to spare a homeowner from the indignity of not being permitted to defend himself in the one absolute place where he has a right to be and where no retreat is possible or expected—in his own home. In many jurisdictions, the same act of self-defense while one is a guest in someone else’s home would not lead to the same legal defense. The rule generally does not apply to shield nonowners precisely because they are understood to have no emotional attachment to someone else’s home, and no humiliation should arise when retreating from the home of another. The law would not, however, impose such an emotional hardship on the actual homeowner.
But if criminal law is primarily focused on the act rather than its consequence, why should it matter whether a person is forced to defend himself at home rather than elsewhere? The reason for any difference at all reinforces the moral principle that dignity matters to human beings. To be compelled to act in a cowardly manner in one’s own home is a true deprivation of dignity. Conceptually, a self-defender is like an avenger who is attacked in his own home—and is given legal protection to do so. The avenger, in all cases, however, remains a lawbreaker and is given no benefit of the doubt or room for excuse.
Self-defense, and its connection to revenge, has a similar role to play in the crime of rape. Typically, the best way to rebut a defense by the alleged rapist that the sexual intercourse was consensual is to show that the rape victim fought back against her attacker. Rape victims have a far better chance of seeing the rapist punished under the law if they resisted the attack. It is not an element of the crime that they show resistance. Indeed, the law once made such a requirement an element of the crime, but that is no longer the case. Nonetheless, a rape victim who fights back supplies the most important aspect of proof. For this reason, a prosecutor with a rape victim who was left unbruised after the attack has a difficult burden to overcome in actually proving nonconsent. The rape victim isn’t required to resist, but if she does, she becomes a more credible witness, and her bruised body serves as compelling evidence of the crime.
In the years before the law changed, courts wanted to see that the victim exerted “utmost resistance.” Without such proof, courts believed that they were left with nothing more than murky “he said, she said” scenarios. And prosecutors were more disinclined to take on such cases. But even today, rape victims are in a far better position of seeing justice done if they fought back against their attacker because resistance supplies proof that the alleged sex crime was nonconsensual. Nonconsent is the one key element of the crime of rape. But proving the absence of consent is too high a burden without establishing resistance, even though such retaliatory action might expose the victim to further harm.
Why then does the rape victim’s resistance become factually, if not altogether legally, necessary?
Rape is not only a physical violation, it is also an insult to the victim, an implication of promiscuity, a stigma that she was taken advantage of sexually and must now be thought of as a damaged, unworthy woman. And in the most vulgar of male fantasies, the rape victim actually enjoyed having sex even if it wasn’t her idea at the outset. Self-defense in such instances plays better in court in rebutting consent and establishing that the victim was defending her honor and standing up for herself.97 Putting up a struggle is what juries want to hear presented as evidence. The honorable rape victim is permitted, if not required, to perform an act of self-defense that appears to be indistinguishable from self-help.98 The honorable victim, however, male or female, who resorts to self-help in cases that do not involve rape, is an avenger whose act is legally indefensible. The only difference in such cases of self-defense is the immediacy of the retaliation. In all other respects, the victim’s actions and motives are the same.
As law professor Kenworthey Bilz frames it, “a true man would not pusillanimously wait for someone else to protect him; a pure woman would not run the risk that others would believe intercourse under the circumstances was consensual.”99 The rape victim is most certainly not required to make such a showing of self-defense. But without such evidence, she may be forced to endure a great deal more indignity under cross-examination. She will be characterized as the woman who didn’t properly and forcefully say “no” at the time, and only now wants to punish an innocent man for her own earlier indiscretion.
The same defense of honor that is expected of rape victims morally applies to avengers. Legally, however, avengers cannot defend their honor unless they find themselves under imminent attack. However, if honor is the value that the law is ultimately protecting in cases of self-defense, why then can’t vengeance also receive a similar legal excuse or affirmative defense? After all, vengeance is justified only when it amounts to a proportionate retaliation against another’s wrong. Aside from the timing of the retaliation, the very same emotional elements are deemed exculpatory in both self-defense and revenge.
In looking at these various examples it is clear that self-defense provides a legal basis for granting a right of retaliation that otherwise does not exist. It demonstrates, once more, that the legal system has a sweet spot for honor crimes, for situations in which the attack is as much an assault on human dignity as it is an injury to the body. And the result is the privileging of self-defense in ways that legally makes it resemble revenge. Self-defense operates like yet another surreptitious way for the legal system to allow vengeance access inside courtrooms—although, as usual, it is referred to by another name. Given this apparent contradiction, it is difficult to see why vengeance is deemed so anathema to justice when retaliations delivered in self-defense are celebrated as the very embodiment of justice. The same moral principle is always at work—the defense of honor, which is not unlike the way the heat of passion can mitigate a murder while similar emotions present during an act of revenge are condemned as barbaric. Self-defense ends up as a legal excuse, while vengeance is always lawless and without justification.
All the while legal distinctions are being made despite the very slight differences between them. And these invariably turn out to be unprincipled distinctions because they lead to unequal treatment. The avenger is reclaiming his honor; the protective homeowner is defending hers. The avenger is no less bound by moral duty and guided by honor than the homeowner. Avengers refuse to be defined by the wrongdoer’s act; the man who repels a deadly attack performs a similar safeguarding of personal dignity. The avenger will not be taken advantage of or treated like a mere plaything; the rape victim will not allow the rapist to believe—or a future juror to conclude—that she consented to what was a sexual predatory attack. Each is responding to another’s wrong, and each might end up with a violent outcome. The only difference is that the avenger is taking the law into his or her own hands, while those who resort to self-defense are given a legal defense to the very same act that would be actionable if performed by a lawless avenger. Should the immediacy of the retaliation make that much of a difference when the emotional element, and the imperative of honor, are present in both situations?
Juries have been shown to be more sympathetic to husbands who end up killing their wives’ paramours than say, a trash-talking lout at a bar. In many cases the husbands are only found guilty of voluntary manslaughter for which the court finds a reasonable excuse or explanation on account of an extreme emotional disturbance. But historically the legal principle that was often invoked to justify such a killing was yet another versatile application of self-defense. Catching your wife in bed with her lover and then immediately taking retaliatory action against him has a lot more to do with honor and dignity than self-defense. The same was true of the father who killed the man who ravaged his unmarried daughter. But a true man knows that a betrayed husband has an obligation to defend his own lost honor, and a father must avenge the rape of his defiled daughter. Yet in neither of these cases was the husband or father repelling a physical attack. The paramour and the rapist presented very little of a physical threat to the avenging husband or father. Juries of an earlier era essentially ignored the elements of self-defense and misapplied the defense to enable husbands and fathers to commit murder, not in retaliation for an imminent attack, but solely for the sake of reclaimed honor.
But even the modern rule, which gives betrayed husbands a license to commit voluntary manslaughter against their wives’ paramours if the husband is found to have been suffering from an extreme emotional disturbance, is yet another fiction and double standard. What we see time and again is that emotion matters in certain preselected cases—such as with betrayed husbands. But the law, generally, won’t take account of such raw feelings of anger or displays of heated emotion. The real principle at work seems to be that the very same emotions that ignite the taking of unlawful revenge can also, under certain circumstances, inflame retaliations that the law will look on more favorably. What appears to be an obvious case of premeditated murder is mitigated to manslaughter in the first degree. A man so dishonored and emasculated is given some license to take his liberties, immediately, against someone who caused him such shame. On a more global scale, no doubt America’s war in Afghanistan involved similar emotional justifications.
Juries are more sympathetic to cuckolds than garden-variety avengers because of the emotional violation and decimated dignity they endured. These legal outcomes end up legitimizing a first strike that in other contexts would constitute murder in the first degree. No such similar legal loophole exists outside of the bedroom—especially in barrooms when two macho strangers get in a fight because one of them made an unwanted pass at the other man’s wife. In cases of infidelity experienced by surprise, the emotions of vengeance are recharacterized as an “extreme emotional disturbance.” And what looks like revenge is magically renamed voluntary manslaughter. Legally, a husband gets away without having to pay the price for committing a more violent crime. What results is a more acceptable moral outcome. But it’s just vengeance dressed up to look respectable. Why not just call it what it is?
Temporary Insanity
Finally, there is yet one more special passageway offered under the law that gives cover to revenge: the range of defenses known as temporary insanity, irresistible impulse, and diminished capacity. Revenge attacks that can be characterized as emanating from a temporarily deranged mind will be excused. A legal defense by way of insanity, however, might look to another as a revenge strike that should otherwise be inexcusable under the law. Of course, the insanity defense has had a long ignominious history. Many believe that the entire defense, in whatever variety it presents itself, is all concocted and contrived, a cynical tactic defense attorneys reflexively use to avoid having their clients held legally accountable for their actions. Some states have abolished the defense altogether. After John Hinckley was found to be legally insane and acquitted on the charge of attempting to assassinate President Ronald Reagan in 1981 (all somehow tied to an imaginary love affair he had with the actress Jodi Foster), the general mood for the defense soured even further.
The insanity defense can be traced to the M’Naughten case in London in 1843, which gave rise to a test bearing its name. To establish a defense on the ground of temporary insanity, “it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing, or, if he did know, that he did not know what he was doing was wrong.” Since then there have been various modifications to the standard, and even to the definition of the defense itself. The “irresistible impulse” insanity defense, for instance, added volitional impairment to the test. By invoking “the science of psychiatry,” the 1954 Supreme Court decision in Durham v. United States dispensed with both the M’Naughten test and the one based on “irresistible impulse” and created a new rule that the “accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.”100
Appreciating all the cynicism surrounding these theories and their impact on justice, Steven Pinker refers to the insanity defense as “dueling rent-a-shrinks and ingenious abuse excuses.” He writes, “The Durham decision and similar insanity rules, by distinguishing behavior that is a product of brain condition from behavior that is something else, threatens to turn every advance in our understanding of the mind into an erosion of responsibility.”101 As Pinker sees it, the moral outrage that many feel is based on the fallacy that because someone can’t be deterred from committing a crime—either because he or she is acting under an uncontrollable impulse or is overcome with a mental disease—he or she should not be held personally responsible for his or her actions. He argues that even for those criminal defendants who have brain damage or suffer from other forms of psychopathology, “we do not have to allow lawyers to loose them on the rest of us.”102
The insanity defense works on the presumption, as a matter of law, that a wrongdoer who commits an act while under the influence of a diseased mind can’t be held personally accountable. But why must one necessarily cancel out the other? Insanity, temporary or otherwise, should not be tantamount to blanket innocence. Law professor and criminologist Norval Morris wondered why, for instance, should mental illness, even if taken to be genuine rather than feigned, be entitled to a special defense whereas extreme social adversity is not?103 “Social adversity is grossly more potent in the pressure toward criminality, certainly toward all forms of street crime as distinct from white collar crime, than is any psychotic condition.”104 And yet extreme conditions of poverty, for instance, do not furnish a legal excuse or affirmative defense for criminal behavior, whereas the insanity defense automatically does. The conditions of the wrongdoer’s diseased mind could be completely fabricated, whereas poverty is not so easily staged. The same is true for blindness and deafness: neither would reasonably furnish an absolute excuse from a criminal act. And yet we are all sympathetic to human beings who manage under such impairments.
The insanity defense, meanwhile, is both used and abused in instances of murder where a wrongdoer is deemed not responsible for his crime. Insanity is rarely invoked as a defense in cases of burglary, theft, or rape even though an insane person is as capable of committing an act of lesser severity where his judgment is impaired through some form of mental sickness. The insanity defense surfaces most frequently to avoid murder convictions and death sentences. This only deepens the public’s cynicism toward the legal system—the general feeling that the system is itself rigged, that it can be gamed by lawyers in conspiracy with mental health professionals. Many factors and social circumstances influence criminal behavior, but only mental impairment results in an absolute excuse. The psychological is favored over the social despite each having some bearing on human life. It is for this reason that some have argued that rather than supplying an absolute special defense, mental disorder, to the extent to which it even exists, should serve only as a mitigating factor, making it no different from the more general defenses of self-defense or duress. Mental defect would then apply only to the degree of culpability and should not constitute an automatic exonerating defense.
But a more serious moral problem with the insanity defense is not that it can be feigned but that it is sometimes applied to those wrongdoers who were perfectly rational and righteous in their actions, and the insanity plea is encouraged by the legal system as the only way to avoid a death sentence. This twisted outcome is responsible for yet another type of cynicism, another way for the insanity defense to be manipulated to an immoral end. On the one hand the insanity defense is asserted to protect wrongdoers who don’t deserve it; and on the other it distorts the truth and dishonors the actions of avengers who were completely of their right minds when they committed the crime and are proud of their actions. With justified vengeance not available as a legal defense, avengers are encouraged to pretend to have been temporarily insane. An act arising out of honor is debased by lies or mitigated circumstances. The avenger would prefer to own up to, if not extol, what she did and why she did it. Instead, as a concession to a legal system that will not allow vengeance to serve as a legal excuse, the avenger is advised to lie and dishonor the virtue of her deed.
Susan Jacoby tells the story of Francine Hughes, who, in 1977, took revenge against her abusive husband by pouring gasoline around the bed while he was asleep, burning him alive. Years of victimization and violence resulted in one redemptive act of escape for herself and her four small children. On the final day of his life, James Hughes beat Francine, forced her to have sex with him, and then burned all of her schoolbooks in their backyard. She was taking business classes at a local community college. She wanted a new life; James was quite satisfied with the one she was living. The only way to protect herself and save her children was to gain her freedom by killing him. The story of Francine Hughes was made into an Emmy- and Golden Globe–nominated television movie, The Burning Bed (1985), starring Farrah Fawcett.
Francine Hughes was charged with premeditated murder, but a jury in Lansing, Michigan, acquitted her by reason of temporary insanity. A short while later she was released from custody altogether when a psychiatrist pronounced her to be sane. So much for all that scientific evidence that was produced at trial showing that she had not been of sound mind when she committed the act. Of course, the jury only ruled that she was “temporarily insane,” so there was no reason to treat her as if she had a permanent condition.
Jacoby points out that the use of the insanity defense in such instances is merely a way for the legal system to avoid having to exact a harsh penalty when the facts call out for more compassionate and merciful treatment.105 In essence, the legal system finds yet another way to sanction revenge. But surely this outcome is not consistent with equal protection under the law. Francine Hughes committed a capital crime but was nevertheless ultimately excused from all personal responsibility and avoided any legal consequence from her actions. James Hughes may have been a vile and loathsome husband, but did he deserve to die, and to be killed in such a gruesome manner? He was burned alive while asleep. Emotionally, jurors refused to punish Francine commensurate with her crime—or perhaps they didn’t regard her actions as criminal. Should she have been made to burn in her bed, as well? The jurors allowed her to exploit a legal defense that gave her a pass on a revenge killing—one that was no doubt deserved. Other avengers, however, either because they were less sympathetic or because a jury was unwilling to apply the insanity defense in their favor, would have been convicted of murder and perhaps even received a death sentence.
The insanity defense offered these Michigan jurors an emotional escape hatch through which they avoided having to hold Francine Hughes legally accountable for murdering her husband. The moral outrage of Francine Hughes’s domestic dilemma, and the natural emotions that a jury inevitably applied to this case, allowed this crime to be treated as if it was not a crime at all. She was very quickly released from a mental facility, miraculously pronounced cured. This sequence of events gives the appearance of a legal system that apparently looked the other way so that Francine Hughes could avenge her miserable marriage.
At the time of this murder trial, battered woman’s syndrome was not widely known. Feminists disapproved of the Hughes verdict not because they didn’t believe Francine to be innocent. They knew that her vindication was not an act of insanity. For years she had been subjected to repeated torment by her menacing, imprisoning husband. When she finally had the courage to pour gasoline around his bed, she had never been more rational, right-minded, and thoroughly sane in her entire life. Why should she cheapen the dignity of her act by claiming that she suffered from some temporary mental impairment? This was an act of liberation; it was the product of a righteous mind, not a diseased one.
The very emotions that Francine Hughes called on to kill her husband are indispensable to revenge. Her actions were rational and deliberate, in the same way that vengeance is not incompatible with sound thinking. Yes, of course there are psycho avengers who can’t control themselves and who give vengeance a bad name. They start blood feuds; they treat the talion like a slot machine; they act without either justification or any sense of proportion. And they won’t listen to reason. They become the poster children for revenge run amuck, and they scare society back into the arms of the state’s monopoly over revenge. But no matter how one regards their actions, reckless though they may have been, these actions aren’t necessarily indicative of insanity and won’t be treated as justified revenge. Michael S. Moore refers to such false avengers as “unhinged by powerful emotional storms.”106 Susan Jacoby writes that this is precisely what Heinrich von Kleist had in mind when he wrote the novel Michael Kohlhaas.107 One thing is for certain: this example of irrational, implacable vengeance is not what animated Francine Hughes.
Some believed that a more traditional theory of self-defense was a more appropriate defense strategy for Francine Hughes’s lawyer to pursue. The fact that James Hughes was not imminently violent was offset by the deplorable backstory of their marriage: his violence was pervasive and perpetual, capable of surfacing at unpredictable moments—without the slightest provocation. Francine’s deed was more akin to a preventative, preemptive strike: the legal justification available to nations under international law. In 2011, in New York, a Queen’s County jury acquitted Barbara Sheehan of murdering her husband even though she used two guns and fired eleven bullets while her allegedly abusive husband was shaving. The evidence showed that she had been the victim of a sustained pattern of violent abuse over many years. The jury believed that she reasonably feared for her life and killed her husband in self-defense, even though it didn’t appear as if his first strike was in any way imminent. Her husband’s brother, dissatisfied with the verdict, said this about the jury: “People make decisions based on emotion.”108
Yes, they do. And sometimes the law supports those emotional leanings.
Preemptive self-defense, or, as in the legal theory that apparently acquitted Barbara Sheehan, battered woman’s syndrome, essentially recognizes the right of a wife to kill a husband before the next battery arises—even though the retaliation is clearly premeditated and the abuse is not technically imminent. But that is an artfully reimagined reading of the law of self-defense. Barbara Sheehan’s act far better resembles old-fashioned vengeance: the just deserts owing to a most deserving husband.
Could a similar argument be made in support of a rape victim who manages to kill her rapist after the assault? In such cases she would undoubtedly be charged with homicide and not retroactive self-defense. Why the disparate treatment? Why shouldn’t both classes of women receive the same legal defense? After all, each was assaulted sexually by overpowering males who could not be stopped the first time. Is it because, once again, crimes committed in the context of intimate family relationships are treated differently under the law? In this case, the rapist is a stranger who receives more rights than a violent husband who rapes his wife every day. (Is there any wonder why there are so few women willing to come forward with rape allegations, and even fewer convictions of such crimes?) Wives can murder the husbands who repeatedly rape them at any point after the last assault; rape victims of a single assault, however, cannot retroactively avenge themselves against their less familiar attackers. Deep emotion is once again taken into account, the very same emotions that are most active in vengeance. However, outside the context of those family relationships, the legal system would judge the conduct to be a lawless act of revenge, and it would be granted no excuse and shown no sympathy.
Western nations that make no allowance for capital punishment are equally confused on what to do in cases where the avenger is perfectly sane, but where the legal system’s response to the crime is itself crazy making. In July 2004, Vitaly Kaloev killed the Swiss air traffic controller who, two years earlier, was negligently responsible for a cargo plane’s midair collision with a passenger jet. Kaloev’s wife and children were passengers on that plane.
Kaloev received an eight-year sentence from a Swiss court for stabbing the man to his death. For the first two years after the collision, the air traffic control company, Skyguide, refused to take responsibility or apologize. Kaloev finally snapped. His lawyer argued that Kaloev acted under diminished capacity. The sentence was reduced, and he was finally released a few months after four employees of Skyguide were found guilty of negligence and manslaughter. Three of the four were sentenced to only one year in prison; the fourth merely had to pay a fine. Given the premeditated act and absent provocation or a situation of self-defense, Kaloev ended up spending very little time in jail—all due to his attorney having mounted a successful temporary insanity defense. The four men responsible for killing his family, however, spent virtually no time in jail.109 The problem is that Kaloev was not temporarily insane; he was simply a man whose family was taken away from him without even an acknowledgment of his loss, much less an apology. As for the Swiss legal system and its handling of this matter, no one is prepared to vouch for its sanity.
The application of the insanity defense in the case of Francine Hughes (and even, to some degree, in the Swiss case) once more establishes that crimes committed in a familial context or against family members—driven by emotional bonds and passionate feelings—can, at times, be judged very differently from other crimes. When the legal system allows itself the privilege, vengeful impulses can find a home within the law, inside the very same courtrooms that otherwise banish emotion from its marbled walls and condemn vengeance as unworthy of any favor.
But, to those who live outside of courtrooms, it all appears to be a charade, a complete lack of honesty within the law. Each of these loopholes is ultimately a sham, a way to disguise vengeance as mitigation rather than redemption. Heat of passion or mental impairment is invoked as an excuse. But the entire time the avenger was wholly rational while engaged in a premeditated, intentional act of righteous sanity.
Hamlet might have acted insane, but he wasn’t doing so in order to convince a Danish court to legally excuse him pursuant to a plea of temporary insanity. There is honor in payback; there is absolutely no honor in proclaiming “the devil made me do it” or “I was hearing strange voices in my head” or in creating the pretense that some alchemy of “animal spirits” were at work, conspiring to rob the wrongdoer of his sound mind. For the righteous avenger, the revenge impulse was irresistible not because of some mental defect but because of moral necessity. The avenger’s mental capacity was not diminished but, rather, enhanced—all in the service of honor.
In the film A Time to Kill, an African-American man in the Deep South whose ten-year-old daughter was raped, urinated on, and battered by beer bottles thrown at her body, ends up killing the two men who scarred his daughter’s life forever. His attorney seeks to assert a defense of not guilty by reason of insanity. The crime occurred in a state where the death penalty was available. Surely a Southern jury will gladly convict a black man who kills a white man—regardless of the reason. And the father is likely to be executed for this crime should he be found guilty.
The defendant does not wish to undergo the psychological testing necessary to establish that he had gone temporarily insane on seeing his daughter so visibly violated and left for dead. He also knows he was most decidedly not insane on that day; he was mad, for sure, but not suffering from madness. His act in avenging his daughter was necessary, not delusional. In fact, his mental clarity had never been more acute, his moral compass never more accurate. What kind of a father would hide behind a temporary insanity defense when his daughter had suffered that much pain and had undergone such a nightmarish experience? He could not properly reclaim the honor of his family and redeem the debt owed to his daughter if his actions in avenging the crime were attributed to a mental defect rather than an absolute moral duty.110
Noting the dilemma that righteous avengers face given the appeal of the temporary insanity defense, Susan Jacoby observes, “By obfuscating the motives and questioning the rationality of one who commits an act of revenge, they deny the avenger his or her dignity in exchange for freedom.”111
And such a bargain, where dignity is exchanged for freedom, was not one this father was prepared to make. He acted out of honor and would not deny the moral force of his deed simply to avoid going to jail—or even the electric chair. If there were an act of insanity, it would be in asserting the insanity defense, not in forsaking it.
Of course, these decisions are much easier to make in art than in life. The daughter in True Grit; the father in A Time to Kill; Hamlet, the avenging son whose very name is synonymous with conflicted vengeful duty: they are all fictional. They can afford making bold statements by undertaking righteous acts. Would an actual father risk a death sentence as a testament of fatherly love? Well, let’s return to a real example: Would it have been saner for Francine Hughes to remain in the same house with her violent husband, exposing her children, and herself, to daily trauma and the possibility of a violent death? If the answer is no, why then couldn’t her vengeance have simply been recorded as justice, rather than insanity, in a court of law?