Where ‘An Eye for An Eye’ Should be the Letter of the Law

The courts have failed victims of violent crimes, according to one Fordham law professor, but does that mean that vengeance is justified?

By Amy Crawford
Smithsonian.com, April 08, 2013, Subscribe

Voodoo doll (Aaron C. Engelberg Photography / Getty Images)

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The Iran case prompted international outrage. Would you like to see judges in the United States imposing such sentences as well?

I’m in favor of leaving options available to allow judges to impose punishments that more closely approximate the injury and violence that the wrongdoer committed. Judges should be mindful of what the victim needs to see happen in order to feel avenged.

How do we prevent judges from meting out “cruel and unusual punishment”?

If the principles of the Constitution applied equally to protect victims as much as the accused, I would say that it is “cruel and unusual punishment” to deny victims the right to experience the reclaiming of honor that comes with punishing those who have done them harm. The judge, of course, is in the best position to reduce or limit the victim’s request, because the victim might be asking for a disproportionate punishment.

As you note throughout the book, our justice system sometimes fails to punish wrongdoers all together. Do you believe we ever have a right to enact our own vengeance?

I’m not arguing that people should engage in self-help. I call for the legal system to do it right and to take certain precautions to recognize what happens when the system does it wrong. The transaction costs are tricky when individuals go about it. You could always get the wrong person.

If the legal system fails, which it often does, and individuals can’t live with the outcome, and they have to take justice into their own hands, we should at least recognize what it was, instead of treating it like a separate crime. In the book, I mentioned a case in Rhode Island, the father whose 5-year-old son was killed and eaten by a pedophile, Michael Woodmansee. Woodmansee got a 40-year plea bargain, and he got out in 28 years. The media spoke to the father and he said, “If this man is released in my vicinity, I do intend to kill him.” Many people reacted with outrage. But how can we not sympathize?

If a father killed his child’s murderer, how should the legal system treat him?

We need a revenge statue that would say, “This crime took place wholly in the context of a justified retaliation,” in the same way that we permit self-defense. This isn’t premeditated murder; it’s something like manslaughter. I would always give the legal system the first chance, but if something like this were to happen, we should understand it in the context of a justified revenge.

You write about the place of revenge in “the moral universe.” From where do you derive your understanding of morality?

It’s not religious. There are some things that are just right and wrong. It’s better to tell the truth than to lie. It’s better to treat people with kindness than to harm them. I don’t accept a moral relativism there. Similarly, there is a kind of moral absolutism when people who are guilty of something are sufficiently punished. There’s a chapter on science in the book, and all the recent research is without any question: we are wired for justice and fairness and retaliation. We respond to justified retaliation with a sense of relief, of satisfaction. Certain sectors of the brain light up when a person receives his due.

You’re obviously very passionate about this. Have you ever been the victim of a crime?

No. Aside from the fact that my parents were Holocaust survivors, I’ve lived a very charmed life.

You don’t think your parents’ experience has anything to do with your feelings of moral outrage when people get away with murder?

No. They died when I was very young. This isn’t personal to me, this just makes sense. The human experience means something to me. I don’t like the antiseptic way in which we think the law is supposed to deal with individuals. People come to the law when they’re at their most vulnerable, their most emotional, their most morally injured. We have to respond to them at that level. Vengeance has a purpose. It has an emotional purpose, a moral purpose, a therapeutic purpose. Why can’t we just be honest about it?

Most of us are taught from a young age that revenge is wrong, and it’s better to turn the other cheek. But far from condemning vengeance as something we must learn to overcome, Fordham University law professor Thane Rosenbaum argues in his radical new book, Payback: The Case for Revenge, that the desire to get even is an indelible part of our nature, and that it’s nothing to be ashamed of. In fact, he says, we’d all be better off if society makes a place for revenge in our legal system, accepting it as an integral part of justice. Using examples from history, mythology, popular culture and recent events—such as the widely-celebrated killing of Osama bin Laden—Rosenbaum asks us to “give revenge a chance.”

Doesn’t an eye for an eye leave the whole world blind? Won’t we have a more peaceful society if we abstain from seeking vengeance?

To me, there’s a greater moral outrage in not taking an eye for an eye, or in taking less than an eye for an eye. It’s the moral outrage that comes when people feel they can get away with something. We’ve been taught that vengeance is an artifact of our primitive past. But there is no justice unless people feel avenged. Criminals and wrongdoers should be made to pay back what is owed.

If revenge is natural and right, how did we get to the point where society considers it barbaric and primitive?

There’s a fear of revenge run amok, like when we hear of the Hatfields and the McCoys, where there’s been so much tit for tat and doubling down on tit for tat that nobody knows how to stop it. But I think a blood feud is different from vengeance, because vengeance by definition is proportionate.

Your book focuses mainly on changing our legal system, and you write that courts need to provide “permissible, legal pathways” for vengeance. What would that look like in practice?

In the United States, our legal system says, “Don’t take anything personally. You are merely a witness on behalf of the state.” It doesn’t allow victims to speak honestly about the harms committed against them. And it doesn’t let them have the necessary biological, psychological and moral imperative of an emotional release. Victims should be part of the suit, rather than calling it People vs. Jones. Victims should be participating in the prosecution, they should be able to speak—and not just at the sentencing hearing, they should speak during the part of the trial that deals with guilt itself.

I also raise the possibility of a victim veto, where if the state enters into a plea bargain that is insufficient in the mind of the victim or the victim’s family, they can say, “Judge, I can’t live with that. This person killed my daughter. I can’t possibly go home and think this is appropriate,” and prevent the bargain from taking place.

Why isn’t it enough to give victims or their families a chance to speak before a convicted criminal is sentenced, as we sometimes do today? Doesn’t including them in the part of the trial meant to determine guilt risk prejudicing the jury against a defendant who is presumed innocent?

The burden is still on the state and the victim to get the right person. And we already do engage victims as witnesses in the guilt phase. It’s not as if they aren’t a part of the process, it’s just that we don’t let them speak to the jury, and they become voiceless. But I want the victim involved. Be a face we can see!

A Thane Rosenbaum courtroom is a much messier courtroom—it’s emotionally open. It’s not as clipped and canned and sanitized. It gives people an opportunity to express their grief, their loss, to speak to their pain. We don’t do that now. What I’m talking about is a much more tearful expression of justice. It’s much more honest; it’s therapeutic. There’s something very powerful in standing before your community and speaking to your loss.

That might not be consistent with provisions in the Bill of Rights that protect the accused, like the Sixth Amendment’s requirement that a jury be impartial, and that a defendant be allowed to cross-examine anyone who testifies against him. Would you amend the Constitution to protect victims’ rights as well?

Our Bill of Rights is set up to address the needs of the accused, but we’ve completely renounced any obligation to worry about victims’ rights. The Fourth, Fifth, and, most especially, Sixth Amendments are completely designed to protect the accused. No such reciprocal amendment protects victims, and any such amendment might conflict to some degree with those other three. But what if there were a Sixth Amendment subsection which read, “Notwithstanding all the rights just enumerated in favor of the accused, crime victims also have the right to confront witnesses, to participate in trial proceedings, to have their own counsel representing them at criminal trials, to participate in both the guilt and sentencing phases of criminal trials, and to exercise a victim veto.” You want to truly put an end to vigilante justice? The above language would probably go a long way toward accomplishing it.

You write a lot about murder and its impact on victims’ families. Do you believe the death penalty is an appropriate way to help survivors feel avenged? What sorts of punishments are fair for the most heinous crimes?

I only feel strongly about the death penalty when we’re talking about the worst of the worst. I’m not saying the death penalty or life in prison without parole can ever redress the harms that were committed. But I do know that to under-punish, to shortchange, is a kind of moral violation that we should find intolerable. I write about the woman in Iran who was blinded by a classmate, with acid thrown in her face. Originally the sentence was that a doctor would put acid in the eyes of the person who did that—truly an eye for an eye. This woman has been blinded and disfigured for the rest of her life, and why should the other person not experience the same thing? In the end, both the court and she decided not to go through with that remedy. Some people were relieved. But I think it at least sends a message that she was entitled to that.