RELEASE REVENGE
In the summer of 2008, Cambodians readied themselves for a unique public trial, the first of its kind, perhaps anywhere. It involved the prosecution of five former leaders of the Khmer Rouge. These men, now all aged, decrepit, and far from threatening, were once part of a gang of genocidal thugs—not quite as talented as the Nazis in such gruesome affairs, but surely no amateurs in matters of mass murder. From 1975 to 1979, the Khmer Rouge killed over 1.7 million Cambodians, fully one-quarter of the population—murdered by way of execution, torture, starvation, and overwork from forced-labor brigades. (The Nazis, by comparison, killed two out of every three Jews of Europe, and a high percentage of homosexuals and Gypsies, as well.)
What made this trial different, however, different from Nuremberg, different from Israel’s prosecution of Adolf Eichmann, was that it was established as a hybrid tribunal—as both a criminal proceeding and a civil trial. Therefore, the complaining party, the plaintiff, was not just Cambodia, as a nation, but hundreds of its citizens who had been victims of the Khmer Rouge. No other country devastated by genocide had ever undertaken such a trial before where the victims themselves were parties to the action.1 Cambodians responded to this trial with great anticipation and promise. The trial offered the people their own Nuremberg moment, their own South African Truth and Reconciliation Commission—even though the class of defendants was small, comprising only five elderly Khmer Rouge leaders.
Of all the differences between those earlier efforts at achieving post-atrocity justice and this Cambodian spectacle, the most significant was that actual victims were being given an opportunity to have a voice and play a role in the proceedings. Upward of thirteen hundred Cambodians applied to take part in the trial as designated official victims. And as victims in this special proceeding, they would be permitted to bring their own separate civil actions against the five men. Roughly half of the victims sought their own civil remedies. Unlike typical victims in international tribunals, or even the victims that crowd into American courthouses, these Cambodians were not relegated to the backbenches of the courtroom, called on merely to offer testimony about the crime on behalf of the state. No, they were to about receive a far more dignified official role as actual plaintiffs, true parties to the action.
And there was more. As plaintiffs to a civil action attached to the criminal case, they were permitted to participate in the investigation, to be represented by their own lawyers, to call their own witnesses, and even to question the accused. Indeed, even more astoundingly, given the treatment customarily afforded to victims, these parties—actual partners in the prosecution with the state—were allowed to address the court personally without so much as having their voices filtered through their counsel. By their very presence, in such an elevated position of importance in a legal proceeding conducted in front of the entire nation, they stood face-to-face and confronted the aged men whose hands, now wrinkled and arthritic, would never be able to wash clean all that Cambodian blood. Fortunately, this human confrontation was buffered by the apparatus of law. The confines of the proceeding made sure that this encounter would never become violent.
Ly Monysar, one of the victims who applied for official victim status said, “Only killing them will make me feel calm. I want them to suffer the way I suffered. I say this from my heart.” Sok Chear admitted that if she had a choice, she would prefer to slice the five elderly men of the former Khmer Rouge and pour salt in their wounds. And if permitted even further liberties, she would beat and torture them, then top it all off with electric shock in order to get them to speak the truth of what they had done to her family.2 Fortunately, for the defendants, who no doubt deserved all of this and more, Sok Chear, as one of the official victims, would have to satisfy herself with a far less violent, although still meaningful, role.
What was most unusual about this innovative tribunal was that it fully empowered victims—but only within the context of a trial. It offered victims and avengers the very thing implicitly promised under the social contract of enlightened societies: a true and respectful day in court, in exchange for the forfeiting of their right to seek private vengeance. They would be heard, in open court, in a criminal proceeding that had the power to punish. There would be a direct encounter between the offenders and the victims—without filters and procedural barriers, and without grandstanding lawyers sucking up all the oxygen. These complaining parties may not have gotten all they had wanted, but a full hearing they would receive.
And this hearing would comport with all the furnishings of legal justice, which meant that the plaintiffs would not be granted a license to resort to violence. And yet they would nonetheless still feel avenged. The sensation of moral relief comes with having their private cause of action adjudicated, and with the knowledge that the wrongdoers would be punished on their behalf. Indeed, these victims were about to be afforded the same center stage position in the trial as would be provided to the accused.
And from that position of empowerment and focal attention, victims were able to tell their stories of what had happened to them and their families and to speak to their outrage—openly and without interruption or prejudice. While many had filed companion civil actions against the five men, their claims were forever hitched to a monumental criminal proceeding. The endgame was still punishment, not solely compensation. But even with civil recourse sitting shotgun, the symbolic restitution they received was not meaningless. They did not reap large restitution checks, but memorials were erected and museums renamed to acknowledge their individual losses. Cultural memory, and the honoring of the dead, turned out to be the most valuable civil remedy of all. And they were satisfied—without receiving much in the way of traditional monetary relief and without inflicting the kind of torture and commensurate suffering they believed the wrongdoers otherwise deserved.
Commenting on the novelty of this proceeding and the inclusion of those who would in the ordinary course have been silenced and unavenged, Diane Orentlicher, special counsel to the Justice Initiative, said, “There has been a growing recognition, after 15 years of international and hybrid courts like this one, not to exclude victims from the justice that is being dispensed on their behalf.”3
In spite of a bloodied past that could very well have turned into a bloodbath, a Cambodian courtroom somehow managed to hold all of that consolidated emotion and rage without incident. All violence was averted, held in check by a system of justice that set limits but not without appreciating its obligation to help victims discharge their vengeful feelings and emotionally recoup their losses.
We don’t know whether the Cambodian architects of this proceeding ever read Aeschylus or whether they were familiar with Eumenides, the third portion of the Oresteia trilogy, but they seemed to have captured the very essence of Athena’s role for the Furies in public trials. The Cambodian trial featured not just a dry presentation of facts assembled by state prosecutors and defense counsel. What was most active in these proceedings were the emotions of the victims, the full sweep and variety of their anger and indignation, welcomed into the courtroom—not dismissed, interrupted, deemed irrelevant, silenced, admonished, browbeaten, but fully represented, as if the trial would have no meaning unless these raw feelings were on full display. The Cambodian legal system was being asked to host all of those feelings in its grandest courtroom—to endure the anger and to listen to the sadness. Why? Courts are morally bound and it should be legally incumbent upon them to do so; to do anything less only invites vigilante justice. The message was sent throughout the country: the court is open for business, and, when it came to Cambodia’s darkest tragedy, it means business.
It was particularly interesting that the trial took place in Cambodia, given the nation’s long-standing twist on the talion, where an eye for an eye had always been reinterpreted as a head for an eye.4 Culturally, they always believed that victims were entitled to more. The Cambodians have taken the talionic formula, modified it with modern principles of legal as well as restorative justice, and found a better way to achieve measured justice in the most transcendent of all trials—precisely because it took into account the full measure of what victims needed to feel satisfied.
In the United States, and in many countries around the world, there is no statute of limitations on murder—legally and morally (although, regrettably, there is for rape and robbery). And the burden to punish the guilty—to ensure that they do not get away with murder—is always greater with mass murder. To undertake and give voice to such trials invariably invites a perfect storm of amassed emotion—on display with the entire nation watching. There can be no limitation on how long these victims are permitted to hold onto their grief; no demand should be made to put it behind them so they can move on with their lives.
Human beings can’t simply forget, and they should not be made to do so. And it is folly to assume that victims will not possess feelings of righteous anger and rage toward those who had committed unspeakable crimes against them. This is especially true in societies where criminals do not receive their due and victims never receive vindication. Citizens will invariably internalize all the failures of justice—the empty promise, the lost opportunity. As Susan Jacoby astutely observes, “To permit vindictive rage to dominate one’s entire existence is assuredly destructive, but vengeful anger is at its most powerful and pervasive when there are no mechanisms for releasing it through legitimate channels.”5
And that’s what courtrooms are for: legitimate channels to release vengeful anger and where private pain can receive a public hearing. But that’s not how we understand it in the United States. We have courtrooms, for sure, and they are grand, and spacious, but they have a very different purpose. In America, courtrooms are the home court for lawyers to prance and preen, object and cross-examine, approach the bench or sit at their tables and stew with mock resentment. It is in such gladiatorial arenas where the hired guns and the sharks meet scowl-to-scowl to scorch the earth. Courtrooms are where cases are quickly dispensed and not where victims feel welcome. Courtrooms are conveyer belts of judicial efficiency and not deliberative places of moral inquiry dedicated to the search for the truth.
This recent Cambodian model, however, demonstrates the very essence of what a courtroom can be and what a legal system can do, and must do, in fulfilling its obligation to its people. The fault lies not with the untamed emotions of victims and their always active, vengeful imaginations. The problem is the law’s failure to do what is just and what citizens reasonably expect: the delivery of justice that avenges wrongs.
In Supreme Court Justice Potter Stewart’s concurring opinion in Furman v. Georgia, he wrote, “The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy, of self-help, vigilante justice, and lynch law” (emphasis added).6
We all know that the Supreme Court justice was addressing an elemental truth: the natural history of humankind—our most natural inclinations—depends on revenge as an instinctual necessity, the very first principle of moral order. And in forfeiting the right to avenge—a right so precious and unique to humankind—men and women had every reason to believe that the state would punish wrongdoers in accordance with their moral blameworthiness. But that expectation has gone unfulfilled, and a great deal of broken trust now exists between citizens and the legal systems that have failed to protect them. And even worse, vindication has virtually no meaning in modern American courtrooms.
Actually, the pervasive malfunction of legal systems throughout the world has led to a circular revenge paradox. And it goes something like this: Revenge is moral, but it can leave behind a big mess. In the eyes of civilization, it is perceived as always lethal, never satisfied—vengeance as virus that knows no cure. The state fears all manner of self-help that is retaliatory and violent in nature, as well as the different varieties of vigilante and frontier justice. It is believed that individuals who are personally invested in payback are unable to set limits, to take the proper measure of their losses, to stay within the bounds of proportionality, and to move on with their lives. What is feared is not so much revenge but its repercussions—the social costs of spillover and excess. Moral revenge presents great risks, which is why legal retribution, imperfect though it may be, is the default position for the delivery of justice.
Ironically, however, the state, in taking on the duty of retribution through the rule of law, not only divests the emotional experience that epitomizes revenge, but adds insult to injury by subtracting from the finely tuned equilibrium of the talion. The state does not pay enough attention to numbers and ends up collecting too little on the debt. The score is unsettled; the disarmed avenger never gets close to even. Victims are shortchanged, cheated out of what they deserve.
Citizens begin to see that courts are actually poor proxies for revenge. Plea bargains feel like pennies on the dollar to victims with massive unpaid claims; they are bargains only from the perspective of wrongdoers. And in taking too little, in sloughing off on its retributive duties, the state inadvertently welcomes the return of the righteous avenger. It brings about the very thing it abhors the most, the very thing it never wanted to see again—all due to its own neglect, the all too casual treatment of victim suffering. The legal system might not lose any sleep over the talionic deficits it runs, but the moral universe has a keener eye for measurement, and avengers are notoriously unable to sleep.
And that sense of being cheated—this time by the institution that was entrusted with the task of making things right—ironically provides victims and vigilantes with the moral authority to move the revenge meter from “not enough” to something more commensurate with what is actually “deserved.” The fear of excess revenge drives judicial philosophy and economy, but the reality of trivialized punishments reignites the victim’s dormant, but always present, revenge instinct. Without the law’s failure, the avenger would remain in a permanent state of retirement.
The moral imperative of getting even bears no relationship at all to what accounts for civil and criminal justice in America. We never ask victims at the conclusion of a trial or legal process whether they feel vindicated and, if they are not altogether satisfied, what would make them feel better—what more could be accomplished under the law. Legal systems smugly proclaim that justice has been done when, in fact, no such justice has occurred at all. What is meant by “justice” is simply administrative, efficiency-enhancing justice—a legal matter that received a docket number and a final disposition but with little regard for the moral legitimacy of the outcome or the relative satisfaction of the true parties to the action.
But it doesn’t have to be this way. The answer is not to do away with legal systems and return to the purported Dark Ages of vengeance, but to redeploy legal systems correctly, more humanely, and with a greater appreciation of the moral universe. Courtrooms have to become true houses of justice, where the therapeutic, restorative, emotionally complex feelings of vengeance are integrated into the legal relief granted. The signatures on the social contract signify mutual obligation. Therefore, these obligations must be taken seriously. Citizens surrender private vengeance; the government provides justice that takes accounts of the human need for moral closure. That mandate has never quite registered with the state. It is time to finally hold law enforcement and the judiciary accountable for doing their jobs. And an essential part of those jobs is to avenge the crimes committed against its citizens, to give victims a truer sense that justice is being done on their behalf—that they, and not some abstract legal principle or proclaimed state interest, are the reasons why we have public courtrooms in the first place. Like it or not, law enforcement officers and the caretakers of the judicial process serve as surrogates for victims who are looking to the law to do what an old-school avenger would never tolerate leaving undone.
Recognizing the morally corrosive effects of depersonalizing the prosecution of crimes, Jeffrie G. Murphy has written that “revenge ought to be institutionalized by the state; that is, that the state, taking on the personae of crime victims, should elevate (at least some of) the private grievances of individuals to the stature of public grievances.”7
There are many possible ways to accomplish this aim of doing a better job in prosecuting and punishing the guilty with the victim in mind. And the rewards are many. In addition to earning renewed trust, the legal system would show itself as an entity capable of feeling and less hostile to human emotion. Victims would experience the difference in treatment instantly. Instead of the legal system’s usual display of clinical coldness and emotional dispassion, the law would appear to be acting in solidarity with the victim’s suffering. Even the imperfections of constitutional justice, with its focal point on the rights of the accused and the burdens placed on the state, which often result in the acquittal of wrongdoers, would be less profoundly felt if victims became true partners in the pursuit of justice.
What we have now is morally intolerable. The legal system is broken; it has been broken for a long time. Regrettably no one has the heart, or the common decency, to say it out loud. Far too many victims walk away from legal proceedings embittered. Few leave ennobled or vindicated. A new paradigm in which victims become genuine stakeholders in the cases brought on their behalf would have immeasurable value in reestablishing a connection between justice and what actually awaited citizens as they ascended the steps of courtrooms all across America.
The legal system’s monopoly on revenge is missing the passion of the avenger. It isn’t worthy of the public’s trust without it, and it can’t regain its broader mandate if it doesn’t reclaim it. Because of the wide range of emotions that aren’t permitted to lubricate the legal machinery of the state, justice always seems to be grinding in gridlock and lacking moral purpose.
A number of legal scholars and moral philosophers have speculated on what would happen if justice and vengeance shared a greater institutional symmetry—if revenge was introduced, formally, into the conversation about justice, and where victims became part of that conversation.8 Legal systems would dispense with all pretense of emotionally detached, solely reason-based decision making. The old fears about private vengeance would be cast aside. As Walter Berns suggests, if vengeance produces a mess, it will be tidied up by the state. And victims will be pleased to see the state finally act with moral indignation rather than with the cold calculus of robotic legalism.9 Such reform, Berns notes, might even result in ancillary deterrence benefits. After all, once potential wrongdoers are introduced to a new sheriff in town in the form of an avenging legal system, they will come to understand that the state is not out solely for legal retribution. The law will take on the passions, and show the human face, of moral revenge. Wrongdoers will have an extra incentive not to break the law lest they be forced to come up against a legal system that aligns the interests of justice with the restorative benefits of vengeance.
If the legal system can adopt a new look, it will no longer be familiar just to trained lawyers but also to regular people. Revenge is justice with a human face, and the legal system must be called on to provide justice that is recognizably human. When the law serves the emotional needs of victims, it carries with it the moral authority of revenge.
One way to accomplish this is for courtrooms to be opened up to victims so that they can appear not as witnesses and spectators but as equal partners. Victims must have their day(s) in court because that’s what courtrooms are for. Courthouses are the true forums for the beaten and betrayed. This is where the wounded naturally come, where they seek both legal and emotional relief. And it is for this reason that they must be made to feel welcome. Perhaps most important of all, courthouses must become places where the role of the victim and the rights of the victim are taken seriously.
Law professors Stephanos Bibas and George P. Fletcher have each, separately, lamented the absence of human involvement in the law and have taken aim at what might be its worst culprit: plea bargains.10 Most criminal cases never make it to trial. They are tragically resolved through plea bargains that offer wrongdoers unjustified discounts on punishments that ought to have been paid in full. It is during this pretrial stage that marginalized victims wait helplessly as lawyers and prosecutors engage in the cynical sport of trading down on the punishment that is otherwise deserved. The negotiations all take place in secret, beyond the reach of victims and galaxies away from the general public. There is hardly any accountability—to the victim or the public. And prosecutors are not required to explain publically how the rule of law can be so subverted. The bargain-basement punishments that hardcore criminals receive every day simply cannot be reconciled with the strict laws that remain so fixedly on the books.
We have come a long way from the morality plays of colonial times when courtrooms were routinely used for the ventilation of private grievances made public.11 Citizens served as their own lawyers, spoke in plain English, and made themselves heard about the harms and indignities they wished to see resolved in a court of law. Nearly everyone agreed that such an outlet was preferable to becoming an outlaw. The courtroom served as an appropriate substitute for private vengeance because, like revenge, the endgame of the proceeding was vindication for the victim. That was the whole point. The ultimate ruling couldn’t merely just comport with the law. It had to make common sense and feel emotionally right to the complaining party as well. And in such a civilized setting, even if the outcome was less then satisfactory, at least victims were treated with dignity and respect, knowing that their participation was both welcome and necessary. Victims didn’t rush out of courtrooms feeling that their only alternatives now were either frontier or poetic justice.
But this is no longer the case. Victims are always cast aside on the periphery of decision making. And from the vantage point of exclusion, vengeance always looks more appealing than placing one’s faith in the law. Indeed, the widely perceived futility of the legal system leads to the worst kind of lawlessness: self-help where the law is never even given a chance to make things right—the avenger preemptively denies the legal system the opportunity to fail, knowing that relying on the law is a waste of time. In the murky underbelly of the pedophilic priests and the Penn State sexual abuse scandals, the world was reminded of how helpless parents of sexually abused children can end up feeling, and how poor their legal remedies are. Jerry Sandusky, who was sentenced to 30 to 60 years in prison for his sexual molestation of at least ten boys over a fifteen-year period, seemed by many to have been underpunished for his crimes. He was by no means the first coach to have exploited his access to young boys. But he may have been among the most fortunate in having avoided the righteous revenge of his victims.
In 1984, Jeff Doucet, a karate coach in Louisiana, kidnapped one of his students, Jody Plauche, then eleven years old, took him to Disneyland, and sodomized him for ten days. After being arrested, Doucet was flown back to Baton Rouge but, unlike Sandusky, he never made it for his appointment with legal justice. Gary Plauche, the sexually abused boy’s father, waited at the airport by a bank of telephones near the gate, removed a .38 snub-nosed revolver from his right boot, and fired a bullet into Doucet’s brain from three feet away.12 A father’s justice trumped any chance of Doucet receiving the more conventional treatment of legal retribution, which all too often is unreliable and insufficient from the standpoint of victims.
So here was a display of moral revenge at its most improvisational, with the legal system given scant opportunity to run its usual course. Gary Plauche treated himself to the most selfish form of self-help. But might his intervening actions have been avoided altogether had he believed that he could experience the same vindication in a court of law as he managed to achieve by lurking in an airport with a gun?
In his important book The Machinery of Justice, Bibas writes, “Participants see the law as more fair and legitimate when they have some control over the process and feel they have been heard, whether or not they control ultimate outcomes. A participatory role and fair and respectful treatment would go a long way toward addressing victim’s grievances, regardless of outcomes.”13
Even with a bureaucracy as impenetrable as the legal system, there are various crevices through which victims’ voices can be heard. Under the current criminal justice model, victims are shielded from the legal process until the very end, after guilt has already been established. Only then, and not in every case, will they be heard, during sentencing, where they can finally, and openly, express their grief. But there is a long, interminably grueling, and uneven road that runs from the arrest of a suspect to the punishment of a wrongdoer. Empowering victims and giving them a genuine sense of involvement in the legal process requires that they be permitted to participate in the pretrial stages of the case. It is at pretrial where prosecutors make the pivotal decisions that culminate in whether the case will even to proceed to trial. In the vast majority of cases, the heavy lifting is done outside the presence of the judge, involving only the prosecution and defense counsel as they haggle and horse trade, trying to arrive at some plea agreement—an agreement to which the victim is most certainly not a party or participant. His views are not solicited; her wishes are not honored.
Victim impact statements already validate the victim’s need to address the court and speak to his or her loss. (But, generally, only in capital murder cases.) Instead of merely having these statements read by the judge, they should be read aloud—by the parties making them. And instead of having the crime’s impact elicited only during the sentencing phase of the trial, there is no reason why victims can’t speak with, ask questions of, respond to the lawyers, and even the defendant, during the plea-bargaining stage, the guilt phase of the trial, and, finally, during the sentencing hearing. Consigning victims to make their appearance only at the end of the proceeding when guilt has already been decided reduces them to an afterthought. The legal system doesn’t want to hear from victims until sentencing, in part, because it abhors emotional histrionics, which would be unfair to the accused, and also because it doesn’t wish to expose victims to cross-examination, which would be required under the confrontation clause of the Sixth Amendment. But the finger of accusation is most profoundly pointed when the wrongdoer must defend himself of the charges brought against him, and not when he or she has already been judged guilty. That’s what it means to stand in judgment of another, and that’s the posture victims wish to take.
The role of the public prosecutor could stand for some reform, too, if not a complete overhaul of attitude. Prosecutors should be required to consult with victims before they drop charges against a wrongdoer, enter into a plea bargain, or decide whether to appeal a sentence. The pretrial stage should not be such a black hole to victims. Of course, many prosecutors would claim that they are already under an obligation to inform victims about the progress of the case. Yet many victims complain that such encounters are perfunctory, occurring so far after the fact that they have no real meaning. The Jodie Foster film The Accused (1988) is a ruefully accurate depiction of the wide gap between plea bargaining and victim involvement. The victim can end up being among the last to know that the wrongdoers who caused her harm have cut a deal that will result in an unconscionable underpunishment.14 But even when prosecutors remember to call the victim to alert her of the status of the case, this is not the same thing as meaningfully consulting with her and accepting that no decision can be made without her approval.
Acknowledging the back deal nature of the plea-bargaining process, Bibas writes, “Currently, plea bargains work through brute force. Defendants promise to give prosecutors their pleas, and prosecutors in turn trade bargaining chips as a matter of unreviewable executive grace. They need not explain their actions nor have any particular reason for doing so. Plea bargains need to become less an exercise in power and more a discourse of reason.”15
And during criminal trials, prosecutors should be reminded that they are standing before the law not only in their representative capacities as the state’s lawyer, but also on behalf of the victim. The victim is the only party in a criminal proceeding not represented by a lawyer. Everyone believes, implicitly, that the state’s attorney is also looking out for the victim—but that is simply not the case. Private attorneys who are retained to represent the victim are not permitted to participate in criminal trials. They can make speeches outside, on the courtroom steps, playing to the press, but they may not actually address the court. Indeed, there is generally little cooperation between the district attorney’s office and the victim’s private attorney. He or she often receives even less information than the victim himself. If private lawyers can’t play a more constructive role, then prosecutors should announce themselves formally as the attorney for the people, and the victim as well.
If victims were to become equal partners with the state, if they were convinced to buy into the benefits of legal retribution over moral revenge, if they were offered a true ownership interest in the case, then at least decisions binding on them will have happened with their participation and under their watch. The more of a participatory role the victim is given, the less likely he or she will walk away from a legal proceeding believing that private vengeance is the only solution to his or her problem—even if the legal outcome turns out to be less than satisfactory. A courtroom environment that treats victims with dignity, offers them a seat at the table, listens to what they have to say, involves them in decision making, gives them an opportunity to address the court, and allows them to express their emotions, is a legal system that recognizes a higher calling for its courtrooms.
Forfeiting the right to avenge privately doesn’t mean that vengeance cannot take place in another form, and in a different forum. In a civilized society, courtrooms are the places where victims can localize their grief and settle their scores. But that only works if the legal system accepts its duty as designated avenger, if it embraces its role as even-tempered surrogate. Courtrooms can’t serve a score-settling function when plea bargains overwhelmingly outnumber public trials, victims’ voices are marginalized, and the punishment of wrongdoers is more of a crapshoot than a moral imperative.
Victims must have legal standing in criminal cases to question judicial rulings. And they should have an independent right to appeal lower-court decisions even if the government is satisfied with the outcome. In cases of violent felonies, the victim should be granted a right to appeal a sentence, or the right to an interlocutory appeal of an especially revolting plea bargain that has the potential of transforming a calmly composed victim into an irate vigilante.
As law professor Lee Eisenstat points out, prosecutors and judges continually make decisions that are binding on victims, and yet victims are without legal standing to challenge those rulings.16 Prosecutors determine how to try the case, and even whether to try the case. Those tactical decisions might result in an acquittal—without ever having received the victim’s input. And the victim is forever stuck with and bound by those decisions. Judges make rulings on evidentiary matters, Fourth Amendment challenges on the gathering of evidence, and the admissibility of that evidence. Those rulings end up being dispositive of what ultimately happens at trial. Victims are expected to sit stone-faced throughout. As Eisenstat has written, “Victims deserve the right to be actively involved in decisions regarding punishment, even if they are motivated by revenge.”17
And it’s possible to go even further. Victims can be given the right of a veto that he or she can exercise at the pretrial stage.18 If the victim is satisfied with the negotiated plea as it is presented, if he or she believes it to be fair and, perhaps most important, if he or she participated in arriving at the plea, then the victim can sign off with a release, as a party to the criminal trial, indicating that he or she consents to the terms of the plea arrangement. Should the victim reasonably find the plea bargain to be too lenient, he or she should then be free to withhold consent, refuse to sign the release, and exercise his or her veto power. Subject to the rules governing speedy trials, if the prosecutor and wrongdoer cannot agree on an offer that the victim can accept, the case must go to trial. This model of justice adopts the retributive elements of just deserts and combines it with a victim’s preference, a right of refusal, reasonably exercised—just like any party to a civil action, acting in good faith, can do.
This retained veto power doesn’t only have to operate at the pretrial stage. Victims could actually exercise this veto over all prosecutorial and sentencing decisions in cases of violent crime. The state might be satisfied with the verdict, but it is the victim, after all, who is required to live with it. And if he or she can’t, then an avenue of appeal should be made available, otherwise the simmering flame of the avenger might beckon with the promise of vindication.
There is no evidence that, if such reforms are adopted, victims will insist on harsher penalties by taking full advantage of their veto rights. As discussed earlier, human beings have a long cultural and genetic history of applying the law of the talion faithfully and honorably. When it comes to punishment, citizens have a far better understanding of proper measurement than do legal systems. The victim is the quintessential keeper of the books. Legal systems, with their administrative efficiency rationales, have a tendency to fudge the books, or even worse, cook them. No one can possibly know what the victim is owed better than the victim himself. As William Ian Miller points out, “People like to dismiss these victims’ rights groups as a bunch of crazed, vengeful, red state lunatics. I think they could be on to some deep moral sense that the wronged party has been undervalued in our fastidious concern not to undervalue the dignity of the wrongdoer. I think we may be in a zero-sum game here. Any anxious dignity you might confer on the wrongdoer is subtracted from the victim. Unless you find a way of making that up, victims and their kin will feel forgotten or undervalued. They’re not getting the price right.”19
Besides, if there is any concern about the victim’s possible vindictiveness, that’s what legislatures are for—to establish sentencing guidelines, the modern-day versions of tribal societies, meticulously setting forth talionic equivalences for every known loss or injury. As they do now, legislatures set the appropriate level of punishment in criminal cases, subject to some judicial discretion, which includes taking account of aggravating or mitigating circumstances.
Gary Plauche, who most deliberatively executed the man who sexually abused and kidnapped his son, was given a seven-year suspended sentence, five years of probation, and 300 hours of community service.20 The judge ruled that under the exceptional circumstances of this case, and with no prior criminal history, Plauche was surely no threat to the community. The only serious threat he posed was to anyone who dared violate his child. Presumably it didn’t occur to the court to treat this father’s lawless act as if it was a separate, more serious crime than Jeff Doucet’s act of molestation against Plauche’s son. The court exercised its discretion in ruling that a father’s vengeance might in some situations deserve the most mitigated of punishments.
And in civil cases, damages in tort, along with worker’s compensation laws, are subject to a range of liability, which can also include the assessment of punitive damages. Judges are not without guidelines in knowing when a victim has gone too far in his or her request for justice. Indeed, judges can play a role as referees in determining that the victim’s proposed remedy is unjust. The victim can be empowered, but she must not hold all the power. Mandatory sentences, judicial oversight, and sound judgment can still supervise and regulate the ultimate penalty.
Victims should become true parties to criminal proceedings, serving in the role of coprosecutors, or plaintiffs in criminal actions, always reserving the right to bring an independent civil suit at the conclusion of the criminal trial. Hearing from the victim earlier than the sentencing phase, and in a way that transcends the cookie-cutter dimensions of the victim impact statement, means, for one thing, that he or she should be permitted to make an opening statement—orally and directly to the jury. The jury needs to hear from the victim, not just the prosecutor. The victim has a slightly different story to tell, and it is not irrelevant for the occasion—a story of loss and hardship that establishes the emotional link between the victim and the crime being prosecuted before the court. And victims should be permitted to direct questions to the witnesses and conduct their own cross-examination—if they are willing and up to the task. Because victims lack the necessary trial skills, this is where the hiring of separate counsel would be most useful and appropriate. But even if represented by counsel, their open court statements should be made in their own voices.
Yes, surely there are Sixth Amendment challenges to allowing victims to address the jury. If not subject to cross-examination, these statements might violate the accused’s right to confront those witnesses who are testifying against him. But if the victim is truly serving in the capacity as coprosecutor, then, arguably, his or her unsworn statement is not in the nature of testimony but, rather, is purely prosecutorial.
The Sixth Amendment notwithstanding, the question of how to integrate the victim into an actual criminal trial is a uniquely American problem. As George P. Fletcher points out in his book Justice for Some, many countries in Europe permit injured parties to join in criminal proceedings where they assist the government in its prosecution and simultaneously pursue their own civil remedies. The role embodied by victims in American courtrooms is a different story entirely, however, largely owing to a different choreography between the judge and the attorneys. The axis of influence in American courtrooms tilts in a divergent direction. In Europe, the judge is the center of the legal universe. He or she calls the witnesses to testify and determines the relevant facts—most often without the aid of a jury. He or she directs questions to the witnesses and the parties to the dispute. The attorneys and the parties are recruited into the service of assisting the court in discovering the truth so that the court can make a ruling.21
In the United States, by contrast, truth is more fungible and relative, largely because the lawyers for each side set the tempo of the trials. The American adversarial system regards the discovery of the truth as a jousting match between lawyers. The actual truth is of lesser value than the process that is set in motion in search of relevant facts. The facts are found by the jury, but only after the lawyers have presented their cases, called their witnesses, and made their arguments. A trial is a performance piece where the lawyers put on a show for the judge and jury. And the stakes are high because trials are zero-sum, winner-take-all affairs. Both sides can’t win. Little cooperation is shown among attorneys. Truth seeking takes a backseat to gladiatorial conquest. With the stage set, there is no room at the front tables for laypersons with an insufficient command of legalese. A victim without a law degree is clearly the odd man out, and judges are reduced to ringmasters in what sometimes can resemble a legal three-ring circus.
But in such a circus, featuring lawyers, judges, and victims, it is the victim who should always be given the center ring and the brightest spotlight. The victim’s encounter with the legal system must recapture the dignity and self-worth that was lost on account of the wrongdoer’s conduct. Law and vengeance are equal opportunity vindicators. By choosing a legal path to justice, the victim is nonetheless expecting the same outcome—vindication. And in order for victims to experience the vindication that comes from revenge, they must be able to simulate the experience of vengeance by participating fully in the prosecution of the accused. They need to be able to confront the wrongdoer and give voice to their private suffering, in the most public of all settings—a criminal trial.
Indeed, as George P. Fletcher has suggested, the whole point of a trial is to stand by the victim, to demonstrate, publically, that his pain was not forgotten. Fletcher writes: “A just legal system must stand by its victims. We may neither deter future offenders, nor rehabilitate present inmates, nor achieve justice in the eyes of God. But by seeking to punish the guilty, we do not abandon the innocent who suffer. We do not become complicitous in the crimes committed against them. We seek justice not only for offenders but for all of us.”22
What it means to do justice is not just moving the machinery of the legal system, pushing buttons, pulling levers, and punching the clock at the end of the day. Doing justice means doing right by the victim. What we offer instead is justice that is patronizingly tangential to what victims need—and far too removed from what vengeance once offered.
I am under no illusions that such a broad mind-shift in legal reform is easily attainable. Prosecutors and defense attorneys like the ground rules as they are presently played. Actually, they all but invented them. Raw meat–eating zealous advocacy is the bread and butter of the bar. The more complicated, convoluted, and inaccessible the system is, the better, as far as the bar is concerned. Victims should be unseen and unheard. “Let the lawyers work it all out,” is what we are told. They know from such things, those unknowable procedures and opaque rules that shed no light on the meaning of the law.
And as for judges, they already feel overburdened; adding an obligation to have victims leave their courtrooms satisfied and avenged would be, truly, well beyond their pay grade. Isn’t that kind of service better left for mental health professionals anyway? And law schools spend no time teaching young lawyers about the emotional life and moral claims of their future clients. Moral outcomes are most certainly not what lawyers and judges strive to achieve. If revenge is ultimately moral, if vindication is a moral remedy that victims prize above all else, then avengers will find only a dead end if they are looking for justice in the law. But such moral roadblocks have not served society well over the years. Citizens who return from courtrooms with vengeance beating even more palpably in their hearts are a danger to themselves and to us all.
Finally, reducing the centrality of plea bargains in the criminal justice system—giving victims a meaningful day in court rather than a marginalized existence outside of court—would require building more courthouses and adding more judges. And they would need to be far better, more humanized judges. Who’s going to pay for all that? I don’t know. What I do know is that when this nation is determined to go to war, no cost is too great to prevent our resolve or lessen our purpose. And when banks must be bailed out because they have been allowed to grow into behemoths of corporate irresponsibility, no one can now doubt that their capital will be magically restored as a reward for their failure. The physical and moral health of millions of victims and their search for justice are equally deserving of such a blank-check commitment from their government.
Seeing an opportunity for courtrooms to play a more meaningful role in the lives of victims, Charles K. B. Barton has written that “taking victim rights and victim justice seriously requires, among other things, the validation of the legitimacy of victim resentment and anger. It also requires acknowledgment of the moral legitimacy of victims’ need for retributive justice . . . [and] victim empowerment . . . where victims can express their legitimate feelings of resentment and anger, forums where they can demand satisfaction in terms of adequate restoration, apologies, or retributive justice in a controlled and civilized manner.”23
Barton refers to this process as the “moral permissibility of institutionalized revenge,” where revenge becomes part of the institutional framework of a legal proceeding. Indeed, revenge can look a lot like restorative justice, where victims and their families participate in the punishment of wrongdoers. Revenge that is more sanitized than dangerous. Through the restraining filter of the legal system, old-school blood vengeance can live on, harmlessly, as a court proceeding. Citizens wear suits rather than body armor. They express their resentment with words rather than with fists. Disarming the public is more than simply taking away their weapons; it also means discharging their rage, providing a forum where people can safely unload their grief. Outlawing vengeance only works if the law offers a genuine and meaningful alternative. The only way to put private avengers out of business is to create an essential, procedural equivalence—all encapsulated under the rule of law and with the legal system as sanctioning body—between justice and vengeance. Only then will victims come to accept that self-help can still be served but not by ignoring the greater good.
Offering victims an active role that replicates the emotional experience of revenge is critical to the reform of the legal system. It would restore a feature of justice that once existed, one where moral revenge and legal retribution were not so far apart. In the United States, before the late nineteenth century, the state was happy to supply the courtrooms, but the responsibility of tracking down and capturing suspected wrongdoers fell on the victim. Many prosecutions were privately initiated. As Mattie Ross discovered in True Grit, there were courtrooms and traveling judges, but law enforcement and criminal trials were spotty in the Wild West. There was simply too much wide-open space for US marshals to cover, very few lawyers, and judges who were stuck somewhere along the circuit, traveling from courthouse to courthouse on a slow horse. And there wasn’t enough courage and grit to go around. If she was going to obtain justice for her father by getting even with his murderer, she was going to have to arrange to track him down and kill him or return him to face trial—herself. Nearly all cowboy Westerns romanticize the posse comitatus, that obligatory moment where a roundup of horse-riding, gun-toting fellow neighbors take to the prairies or mountains, giving chase to wrongdoers in the absence of a more reliable, and professional, method of law enforcement. The lynch mob, yet another motif of the Wild West, was never accorded the same respect and always emerged at the movie’s most ominous moment.
Victims were once equal partners with legal systems. And they were trusted to act with measure and restraint. They weren’t banished and reduced to the outsider status of bitterly unavenged victims. Restoring rights to victims in a new paradigm of legal justice, one in which they are given equal billing in criminal trials, is simply a modern way of reviving the practice of earlier eras when the state, and its citizens, were in the same business of tracking down and punishing wrongdoers. In such instances, the avenger was not reviled but, rather, respected for having the courage to stand up for himself, get up on a horse, and trot off in search of the wrongdoer who had made dust of his self-worth.
And the avenger’s neighbors, hardwired with the same brain circuitry and familiar with the rough terrain, were compelled to help out, to altruistically race off to punish on behalf of another; to do anything less was morally wrong and downright uncivilized. Everyone was fully engaged and determined to bring about justice. But this kind of justice sure resembled revenge, and that’s because it was that, too. The state hadn’t merely outsourced the task of punishment to its righteously vindictive citizens. The lynch law gave way to the court of law. The state maintained those courthouses, roving judges, and, in many cases, public prosecutors who took over once the posse had returned with a wrongdoer who was very much alive and ready for his court date. When the twentieth century settled into postindustrial, modern life, the American legal system came to mistrust its citizen avengers, and victims lost faith in criminal justice precisely because it left them feeling alienated and sorely unavenged.
And it’s so easy to see why. Steven Eisenstat laments that “how our law has (d)evolved from the laudable purpose of seeking to eliminate the ravages of revenge, to where today, the law denies victims standing to even petition courts to enforce punishments which have been lawfully imposed upon convicted wrongdoers.”24
The flashpoints of the law’s failure are abundantly clear: the lack of standing, the casting aside and marginalizing of victims who, in a moral universe, would be the center of attention, the trivialized punishments through plea bargaining, the acquittals of the guilty due to procedural error. In revenge movies, victims are instantly transformed into avengers once the legal system fails in its obligation to punish the guilty—and where there is no alibi for its failure. Outside of Hollywood films, however, where real life can get in the way of a moral solution, the answer to the law’s failure is a patronizing instruction to victims to simply go home, forget about it, and get it out of their heads. No further legal recourse is available under criminal law. There is no appeal to another, higher authority. And certainly no vindication is to be found through self-help, which will be treated as a separate and, in many cases, a more serious punishable offense.
Victims must be given a right in criminal proceedings to seek redress. And the only way to do that is to make them parties to the action, with a seat at the prosecutorial table and their names plastered right alongside “the People” or “the State.”
Revenge was never quite the problem that justified its wholesale banishment from civilized society. The problem had always been the inadequacy of lawful outlets in which victims could replicate the essential feelings of revenge. The legal presumptions about vengeance always had it wrong: it’s not possible, emotionally, to ignore injustice, unfairness, indignity, dishonor, and disrespect. If human beings had no emotional reaction to moral injury, if no anger arose from the infliction of pain, loss of property, and breaches of trust, there would be no need for legal systems at all.
Walter Berns has considered wisely what would happen if, in response to criminal activity, there was no community outrage, no concern about crime, if everyone was guided by the principle of self-interest, of going it alone—every man for himself when it came to crime.25 In such a case, Berns speculates that there would be an easy solution to the government’s breach of the social contract: treat it as a real contract where the government would have to pay actual damages for its breach. In exchange for the state’s inability to keep the peace and protect the people, it would be required to pay for its nonperformance—each time it failed. Tens of thousands would file individual claims showing damages directly resulting from the state’s failure. The government would have to protect itself from such widespread and perpetual liability, but at least the social contract would then have material, and not just symbolic, value.
Subject to so many legal claims, the state might have to purchase general liability insurance. The government would essentially take out insurance on behalf of its entire citizenry. In fact, insurance would replace the need for police, prosecutors, and judges. The cost of the yearly premiums might actually be cheaper than the cost of maintaining law enforcement agencies, along with justice and penal systems, on both the state and federal levels. Instead of apprehending, prosecuting, and punishing wrongdoers, the government, with the help of its insurers, and subject to a deductible, would simply compensate victims of crime and the families of murdered citizens for their losses and traumatic experiences.
Thankfully, we don’t live in such a world where there is no moral outrage, anger, and indignation about crime. Citizens wish not to be insured against the monetary losses that arise from violent crime, but to be protected from the actual criminals. No amount of compensation is valued over the knowledge that the state is duty-bound to apprehend and punish the guilty. Citizens are angry about crime, and there is moral outrage when wrongdoers go unpunished. No one who has given up the right to avenge wants to let the government off the hook so easily. Injustice is itself a moral crime and not an insurable event. The state has an obligation to keep the peace, and avenging the innocent is part of that peacekeeping commitment. The problem is that the legal system has never been comfortable stepping into the shoes of the avenger and acting on behalf of the victim.
The law has to get it right: it has to do its job of making the right arrest and delivering the right punishment. But the legal system must also understand what may happen if it gets it wrong—gets it terribly wrong. If the law fails and a wrongdoer is released back into society unpunished, or insufficiently punished, then a righteous avenger is likely to surface. Morally, the avenger is expected to make things right. He has a duty to discharge. And he won’t be easily deterred.
Yes, of course, the avenger then, too, will have committed a crime. But it is not a crime without justification. Moral outrage sets vengeance in motion. The avenger’s retaliation is neither an ordinary crime nor an unexpected one. Therefore, it should not be treated as if the backstory of vengeance is irrelevant to motive. Indeed, the backstory supplies the entire motivation for the avenger’s act—a motive not to commit a crime, but to avenge one. The avenger would not have acted, would not have been compelled to right a wrong, had the wrongdoer not acted first and had justice been adequately fulfilled. The legal system, thus, becomes a secondary accomplice. The avenger’s march toward justice was brought about by its own failure, which must always be kept in mind in deciding how to now judge the avenger when he or she is brought before the law.
If states can find meaningful ways for victims to participate in criminal proceedings, it is less likely that avengers will require another chance at vindication. But some will. And if the legal system can’t be reformed in ways that include a participatory role for victims, then botched prosecutions will doubtlessly always become invitations for the return of the avenger. Given that human beings cannot live with injustice and that legal systems are prone to make mistakes, state legislatures should pass revenge statutes, very much in the same way that they presently enact hate crime laws. The latter allows for enhanced penalties for crimes committed against a protected class of discriminated citizens where animus becomes part of the crime. The former would protect the righteous avenger who was compelled to perform his duty after the legal system left him with no other choice.
Such institutional failure should never be lost on courts when standing in judgment of avengers who otherwise would not have broken the law. The appropriate remedy is not to mischaracterize an act of justified vengeance as either a moment of temporary insanity or a bout of extreme emotional disturbance. The intent is clear; the motive is obvious—taking the life of the wrongdoer was deliberate even if impulsive. A reduced charge of manslaughter is a legal fiction. And any legal excuse cheapens the moral force of the act.
Instead, revenge statutes should function not unlike the affirmative defense of self-defense. The act was justified. Under these special circumstances, an act of revenge could be treated no differently from the way provocation and self-defense presently operates under the law. Revenge is a form of self-defense held in abeyance, without the imminence requirement. The wrongdoer received his due, in due time. A justified revenge killing is not the same as ordinary, premeditated murder. And judges and juries, as fellow human beings, can make that determination as a finding of fact: Was the defendant justifiably motivated by revenge? Did the legal system’s own failure to punish the guilty unleash the moral necessity of this act of retaliation? Such a determination is not too difficult for juries to make. In deciding whether to convict a defendant of a hate crime, juries are required to find bias, a search that benefits from emotional intelligence. The same is true with revenge. Was the defendant responding to an unavenged moral injury? Moral outrage as a response to injustice is fundamental to our moral development; it is lodged in the very genetic fabric of our DNA. Juries, and audiences to revenge films, possess this basic insight in common.
We know there are vast differences between the imagined slight and true moral injury. And we know when revenge is a sham, when its purported justification has been widely exaggerated and exceeded. Even if judges and juries choose not to acquit by reason of a revenge defense, but to hold the avenger responsible, mitigation of the punishment may still be appropriate—the avenger is entitled to a downgraded penalty—from murder to manslaughter.
Most important, however, a revenge affirmative defense should never be conflated with—or intellectually mangled by—an act committed under the exonerating spell of extreme emotional disturbance, temporary insanity, or diminished capacity. The avenger’s duty is an honorable and obligatory one. He or she doesn’t undertake the role lightly. When vengeance must be done because justice has otherwise failed and honor cannot be restored any other way, the act is infused with moral purpose and performed with a clear head. It is the product of a sound mind and a righteous heart. The outcome might still be punishable under the law, if not subject to a legal excuse or justification, but it should not be trivialized and misunderstood, made false by a fiction that the avenger was without his mental faculties, that he didn’t know what he was doing, that he had no intention to stand up for himself. The criminal justice system is at least required, in its legal pronouncements, to provide a much more intellectually honest assessment of what happened and why.
Because, in the end, isn’t that what we all most want from the law: a respect for the truth and the capacity to make things right?