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.
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?