Tuesday, April 9, 2013

The academic justification for revenge

There I was, in my car, minding my own business. I had just dropped off my girls after school for their Brownie meeting when I turned on the radio to listen to Talk of the Nation

Now, let's be clear about a couple of things here. The host of TOTN, Neal Conan, is very much a lightweight when it comes to serious matters. He's fine for his weekly "Political Junkie" segment and he's good for interviews with authors and directors. But, put a serious topic in front of him and he's out of his league.

And such was the case on Monday. He was interviewing Thane Rosenbaum, a lawprof and director of the Forum on Law, Culture and Society at Fordham University. The topic du jour was his latest book, Payback: The Case for Revenge. In it, Mr. Rosenbaum argues that crime victims deserve to get a bit of revenge for being wronged.

His thesis is that the victim needs a seat at the table when it comes to resolving criminal cases. He claims that victims are shortchanged when prosecutors make plea bargains with defendants to resolve their cases. He's upset that while the accused is entitled to representation crime victims aren't. It gnaws at him that crime victims don't get a seat at the prosecutor's table during trial.

To Neal Conan's credit, he did point out that as society has evolved we've decided that certain actions are crimes against the state and that society as a whole, not just the victim, is the aggrieved party. Mr. Rosenbaum just blew right past him and said that that notion was absurd and only served to trivialize crime victims.
What we do now in courtrooms is we reduce victims to witnesses on behalf of the state. We sit them in the back of the courtroom. We say to them, we're not your lawyers. You're not entitled to a lawyer. The - it's a strange to me, Neal, that the victim is the only party in a criminal action who's unrepresented by counsel. And what would be the problem if the state said, there are two debts, the debts owed to all of us and that debt that's owed to the individual. And we want to make sure that the individual feels avenged at the end of this proceeding. -- Thane Rosenbaum
Mr. Rosenbaum praised the moral code of The Godfather when Marlon Brando tells a man that he cannot have the men who raped his daughter killed because she was still alive. You see - they were honorable men who would only take an eye for an eye. Nothing more, nothing less. 

Mr. Rosenbaum's thesis is absurd. Back in the day when we roamed the earth in small clans and settled in villages revenge could be meted out. No one took into account the circumstances of the act. But we also ran around in loin clothes and lived in caves and tents made of animal skins. We had primitive tools and we lacked a written language. I dare say we have evolved a bit since then (except for the warmongers in Washington who seek more targets for their cluster bombs and other weapons of death supplied by corporations who shower our elected representatives with unending wads of cash).

When we developed our first criminal codes we were creating the framework for a society. It was better to have a dispassionate individual render judgment rather than allow the hot tempers of a mob to do so. We developed codes that classified crimes according to who the victim was and what damage was caused.

Every criminal case in Texas is The State of Texas v. someone. It's not Jane Doe v. Jack Daniels. Mr. Rosenbaum doesn't like the fact that prosecutors don't run plea deals past crime victims before making the offer to the defendant. So freaking what? Prosecutors, defense lawyers and judges have an idea of the punishment levels for various crimes. An ordinary citizen hasn't the slightest clue what is considered an appropriate sentence in a give case.

A crime victim also has too much emotion invested in the case and is (generally) unable to see the matter clearly.
We run away from this idea that the death penalty is something that we should abhor. But remember, when someone takes an eye, or in this case a life, they've made a decision to take a life. And there's - one wonders why there's - that there should be a discount on what payback should look like. That why is it that in every other aspect of our lives, we always expect to be paid back in full, right? Landlords expect it, businesses with commercial invoices - discount - department stores don't like to take discounts or marked downs on items. But when it comes to the worst crimes, the worst violations, we always immediately reflexively say that a discount is appropriate. 
Now, in cases where we have the worst of the worst, where there's no question of someone's guilt - heinous murders - why is it that we're so ambivalent about actually providing just dessert? -- Thane Rosenbaum
When someone steals a car, our system seeks to send a message to other folks who might be tempted to do the same thing. The purpose is to deter people from stealing. Yes, someone suffered as a result of the theft. The victim will either get his stuff back or he won't. But that's not the function of the criminal (in)justice system. The purpose of the system is to set boundaries - not to exact revenge.

We used to have that - it was called the Wild West.

It is a unique attribute of revenge that it can never satisfy the avenger. Regardless of how he achieves his vengeance, he can never fill in the hold left behind by the target of his revenge. If he is seeking revenge for a death - nothing he does will ever bring that person back to life. Which brings us to one final point.

If the right of revenge belongs to the victim of crime, then there is no justification for the death penalty because the victim of the crime is no longer with us. Unless we're going to have an ever-expanding definition of who's a victim. there is no one to avenge a murder. Of course, we can't let logic get in the way of our argument, can we, Professor?

While Mr. Rosenbaum has shown us why he is unfit to practice law in the real world, it's more than a bit troubling that he's sitting in the ivied tower of academia spouting his special brand of ignorance.

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