D.C., Maryland and Virginia candidates make the final turn and head down the home stretch toward Election Day.
Guest Host: Marc Fisher
Revenge is a powerful motivator. It’s fueled violence, war and vigilantism across human history. But this most basic impulse also makes many Americans uncomfortable, particularly with regards to our judicial system. One legal scholar argues that “justice” and “revenge” are intertwined, and victims would be better served if there was more focus on the latter. Kojo explores the complexities of the emotion, where it’s appropriate and how it might be effectively deployed.
- Thane Rosenbaum author, "Payback: The Case for Revenge"; John Whelan Distinguished Lecturer, Law at Fordham Law School; Director, Forum on Law, Culture, and Society at Fordham Law
MR. MARC FISHERWelcome back. I'm Marc Fisher of the Washington Post sitting in for Kojo Nnamdi. When wronged in big ways as in the aftermath of the bombings in Boston, and in small ways as in personal conflicts that play out in private, Americans talk about seeking justice or restoring moral balance. What we're not necessarily so comfortable with is the idea of revenge, a notion with stronger emotional implications.
MR. PIETRA RIVOLIThat prevails in pop culture but is largely frowned upon in our courts. And here to explain how victims in particular might be better served by having a stronger concept of revenge is Thane Rosenbaum. He's the author of several books and novels, the latest of which is "Payback The Case for Revenge." He's the John Whelan Distinguished Lecturer in Law at Fordham Law School where he runs the school's forum on law, culture and society.
FISHERAnd, first I guess we should start off, what's the difference between justice and revenge?
MR. THANE ROSENBAUMWell, Marc, there isn't any difference at all. I mean, we've been told that they're completely different, that justice is cruel, dispassionate, legalistic. It takes all the emotion and all of the recklessness out of the rage of a person seeking to be avenged. And we're told that revenge is all emotional, unhinged, primitive, barbaric and that these are separate ideas. "Payback: The Case for Revenge" makes the argument that they're identical. That we spin ourselves in circles trying to justify justice and condemn revenge.
MR. THANE ROSENBAUMBut in truth, there is no justice unless victims feel avenged at the end of the outcome. And revenge is not moral if it's disproportionate. When you say -- I'm sorry -- so when you said before moral balance, I hear that and I think, well Marc said the right word. Moral balance to me is revenge. That's how you restore moral balance. Law -- the legal system, it essentially fails in restoring moral balance because it under punishes.
MR. THANE ROSENBAUMIf moral balance means a measure for measure, an eye for an eye, getting people even so they can settle the score, then you really are talking about revenge. You're not talking about legalistic justice or administrative justice, which we receive which oftentimes short changes victims.
FISHERAnd that distinction -- or that sense of justice has been somehow removed from what one person the victim wants of the criminal is sort of one of the ways in which we tell ourselves that we're civilized people, right. I mean, it's a construct. And, I mean, I looked in the dictionary and there's this sense of justice is being defined as being just, impartial, fair. Righteousness is mentioned. And then you look up revenge and it says to inflict injury in return for an insult. And so there's this sort of courser aspect to it, more personal aspect to it.
ROSENBAUMBut it's actually an interesting but an incorrect definition. One can be avenged without inflicting injury in return. The idea is to be restored to be avenged. Revenge is another way of looking at restored of justice. Some people can be feeling avenge from a public apology or from the acknowledgement of what took place. That -- to me that definition is part of the problem, that it immediately stigmatizes revenge as being solely ripping and tearing people apart, instead of the very concept of what is just and what is fair.
FISHERYou can join our conversation at 1-800-433-8850 or email us at email@example.com. Would you feel as if revenge is a taboo topic? Why or why not? What's the proper place for revenge within our society or our legal system? Give us a ring, 1-800-433-8850. And so we're in an interesting moment in the last decade, certainly since 9/11, where the public discussion about revenge has been much more overt and much more accepting than it had been, at least in our country, for many years before that.
FISHERWhen the Boston bombings occurred, immediately you have major political figures saying, we're going to exact revenge against whoever has done this. And certainly that was the policy of our country in the aftermath of 9/11. So have we evolved or shifted to a point in recent years where we're more open, both about discussing revenge and seeking it?
ROSENBAUMMar, it's interesting that you phrase it that way because I hear it slightly differently. In the immediate aftermath of 9/11 President Bush proudly announced that we are a nation that is interested in justice. We seek justice and not revenge. And then we proceeded to bomb Afghanistan. Most people would say that looked vengeful. We didn't conduct a trial with the Taliban. We didn't, you know, take the courthouses of Afghanistan and decide we're not going to prosecute people. Even today with drone strikes, right, you can make the argument that this is still this ongoing seeking of revenge for what took place in 9/11. But it is also perhaps just.
ROSENBAUMSimilarly in the immediate aftermath of the Boston Marathon massacre, President Obama said that we want to make it clear that the perpetrators will receive the full weight of justice. But what did that mean, right? I mean, you know, look at the way we took out Osama bin Laden. You know, Osama bin Laden was shot in the head by a Navy SEAL. He was protected by two teenagers. He could've been kidnapped. We were told not to kidnap him, to just take him out.
ROSENBAUMMost people didn't walk around after the killing of Osama bin Laden and said, that was justice and not revenge. It's both. They should be both, that people feel that ultimately the just outcome took place and it also avenged the crime, it avenged the loss.
FISHERSo in the aftermath of these enormously affecting terrorist events, we've been told again and again that these are exceptional, that we have to break from our ordinary legal system and do extraordinary things and have separate categories for enemy combatants. And have Guantanamo instead of using our own courts and all of that.
FISHERPatriot Act. So -- but to take this down to a much more mundane level, my house got burglarized a couple of years ago. And when the culprit was caught the District of Columbia courts, the prosecutor invited me to come to the courtroom and address the judge about what I thought the proper punishment should be, which I, on one level, was happy to do because I wanted to put this guy away. But on another level, I thought, why should I have any voice in this? Shouldn't this be the role of a dispassionate judge making a decision about what's best for society rather than doing my -- arranging for my vengeance for me?
ROSENBAUMWell, Marc, first of all, I congratulate you, because that was actually an unusual experience. Most prosecutors and judges don't essentially invite, welcome victims in for the purpose of saying, what would you like to see me do. In my view, in the book "Payback: The Case for Revenge" that's precisely what I suggest, that the legal system should make victims full participatory partners in the dispensation of judgment and justice.
ROSENBAUMSo I -- you know, again, I think that's fabulous that that's the way you were treated. And -- but I also think, Marc, that you were an aberrational victim in that case, because most victims actually want to address the court. They want a public moment to speak to their loss. And they want to be able to look the perpetrator, the wrongdoer in the eye and said, this is how you violated me.
ROSENBAUMRemember there's the -- "Payback: The Case of Revenge" is filled with lots of cultural references. And there's the famous scene in "The Princess Bride" when Inigo Montoya says, you know, I'm learning how to duel and sword fight until one day that I want to address the man who killed my father. And I say, you know, hello, my name's Inigo Montoya. You killed my father. Prepare to die.
FISHERPrepare to die, yes.
ROSENBAUMPrepare to die. And, in fact, Marc Fisher didn't want that moment.
ROSENBAUMBut most victims want the moment to look in the eye of the wrongdoer and said, this is how you harmed me. And now some reciprocity is due.
FISHERBut Inigo Montoya has a direct confrontation with the guy who killed his father.
FISHERIsn't the whole purpose or a purpose of the court to separate those two parties and to say, we're going to put a -- on behalf of the larger community -- on behalf of society we're going to create a separate institution that eliminates or suppresses some of the raw emotion that those two parties may have for one another. Isn't that a good and civilizing thing to have?
ROSENBAUMWell, there's one thing saying we prevent the Inigo Montoya moment of the sword going into the heart of the six-fingered man. It's quite another thing to say that he doesn't -- shouldn't be entitled to the moment to address and speak to the laws. There's a big difference between that and what we presently do. Most victims are consigned to the back of courtrooms. They are only given opportunity to speak when they testify on behalf of the state. And there's no sense or sensation that the legal system is avenging the crime on their behalf. It's always the people versus Jones, not the victim versus Jones.
ROSENBAUMAnd there's no reason to shut down the emotional release and the cathartic vindication that comes from being and feeling avenged. And that's really what this book is saying, that there's no reason why victims can't be full participants and that they can somehow participate with what I would call vicarious revenge, where they can simulate the revenge experience within the courtroom without ever shedding blood.
FISHERLet's hear from David in Snow Hill, Md. David, you're on the air.
DAVIDYes. I think your guest's supposition or logic is just terrible because, I mean, we already do have an opportunity for victims to address the court. It's called victim statements -- impact statements. Everybody knows that. A victim should not have any opportunity to inflict revenge. That's why we have courts. That's why it's called justice. It's not called revenge. It's called justice.
FISHEROkay. There does seem to be sort of a visceral response that a lot of people to this idea that somehow by embracing vengeance or saying that we're going to embrace vengeance, we are lowering ourselves.
ROSENBAUMWe lower ourselves when we under punish. We engage in moral cowardess when we smugly walk away and say that it's okay to shortchange victims of the vengeance that is due. There is nothing to be proud of in that case. In terms of victim impact statements, they're not offered in all cases. Not all victims get a chance to speak. They don't often get a chance to speak in an uninterrupted way. It only comes up at the end during not -- not during the sentencing phase, not at the guilt phase.
ROSENBAUMThey don't get a seat at the table during the trial. This is hardly a participatory level. They come in as an afterthought not as the centerpiece of the trial, but they only come in as witnesses to the crime, and later to essentially provide their statement, and many people report that it's not clear that the judges take account -- proper account of what they want. And if you're not taking -- again, that's -- Marc Fisher received a very different experience, but most victims walk away and said I don't feel like I was heard.
ROSENBAUMI don't feel like I had my day in court, and on top of that, I certainly don't feel like my opinion was accounted for. So I don't know what this gentleman's talking about.
FISHERWell, here's Lisa in Arlington. Lisa, you're on the air.
LISAYes, hello. I disagree. I really believe that there's a real difference between revenge and justice. I feel there's nothing wrong with the victim being heard and perhaps having a more participatory role, but I think that if you're talking about revenge, you're really becoming what you're fighting against rather than really just trying to keep the people safe and trying to have some sort of justice done in terms of having to, you know, this person obviously there's going to be a consequence for what they do, but we don't want to become them.
LISAWe want to be -- yes. We do want to be above that. I think that's important. And otherwise you just keep creating the same thing over and over again.
ROSENBAUMThey're not trying to become them, they're simply becoming even. That's what fairness means. There's no reason for victims to be shortchanged. It's not an attempt -- the victim is minding his own business, or her business. Why is it that in the aftermath of that we expect them to have a discounted remedy. Look, in every aspect of our...
LISAIt's not discounted. It's not discounted when they're in the courtroom, and perhaps they need to be given more of a voice, or more of a participatory role, but that doesn't mean revenge. That doesn't mean an eye for an eye.
ROSENBAUMNo. An eye for an eye...
LISAI mean, we're above -- we are above that. We are. We don't want that.
LISA(word?) a society that's better than that.
FISHEROkay. Let's let Thane respond.
ROSENBAUMThere's no virtue in being less than an eye for an eye. I never said -- you didn't hear me say, and it doesn't sound like you've read my book, to say that what you do in a courtroom is take out someone's eye. An eye for an eye is not about bloodthirstyness. It's not bloodlust. It's about accuracy and exactitude. You are entitled to no more than an eye, and you're entitled to no less than an eye. This woman speaks on the radio as if she's talking for victims in their experiences before the court.
ROSENBAUMFirst of all, there is no participation, and secondly, and most importantly, 96 percent of all crime cases are settled by way of plea bargains, and by definition, that means that the definition of what the criminal did is now going to be changed and altered to something less than what they did, and the punishment he or she receives will be less than what he or she received. So if vengeance essentially simply means evenness, and 96 percent of all cases are received by -- are settled by way of plea bargains, nobody ever gets even, nobody receives any fair outcome, nobody receives justice.
ROSENBAUMJust because you put something in a courtroom, doesn't make it justice. It doesn't make it just, it just means that people got paid to open up the doors of the courtroom. What we really need to be talking about is the quality control. In all aspects of our lives, people don't want discounts. Landlords want to be paid what they get paid for the rent, and people who are in business want their invoices paid. Stores don't want to discount items. Why is it only when it comes to courtroom justice that we immediately smugly casually accept being given less than what one is deserved?
FISHERWe will get into more on that question of plea bargains and what could replace it and what impact that could have after a short break. We'll continue our conversation about the book "Payback: The Case for Revenge," by Thane Rosenbaum after this break. I'm Marc Fisher. You're listening to "The Kojo Nnamdi Show."
FISHERWelcome back. I'm Marc Fisher of the Washington Post sitting in for Kojo, and we are talking about revenge and justice and Thane Rosenbaum and his new book "Payback: The Case for Revenge." And we have a lot of people who want to talk about this, but here's Nicholas in Montrose, Va. Nicholas, you're on the air.
NICHOLASThank you, Marc. You know, I was listening to you earlier that you had -- your house had been broken into, you'd been a violent crime victim yourself. I have been a violent crime victim myself, and I can tell you that they never arrested the people that did it to me, and I actually probably have more catharsis in forgiving and letting live, but, you know, letting it go than in seeking some sort of revenge. But I'm also an attorney, and I think in our legal system the point is not revenge, but restitution.
NICHOLASWe don't make a victim whole by giving them the opportunity to somehow settle the score, But by restoring them to the position they were in, as much as possible, before they were the victim of the crime.
ROSENBAUMHow would do that by simply putting people in jail or not putting people in jail? If you're a victim of a violent crime, how is one to be restituted, how are they in any possible way being restored to the place that they were before, especially if the person isn't even penalized for it?
NICHOLASWell, if the person, for instance, if you're talking about plea bargains and things such as that, if a person is given the opportunity to be informed of all proceedings in the trial, and they're given some sort of monetary restitution for whatever they -- it cost them, and they have the opportunity to be heard on trial day, which is all things that we hear -- I'm not sure about in the District, but in Virginia they're required to have each of those things, then I think there's a good amount of restitution in that instance.
ROSENBAUMThere's -- first of all, I know of no case where criminal cases provide actual restitution. You're talking about civil cases. Secondly, I know of no case in the United States where victims get to speak, you said at the trial. On the contrary. No victim ever gets to speak at the trial unless they are called as a witness. You may be talking about the post-trial sentencing phase, but that's simply -- what you said is simply not true.
NICHOLASIt is true. It's a statute -- it's statutory that there must be restitution in any criminal case in the commonwealth of Virginia. And you can't have a trial -- in 99 percent of cases, you can't have a trial without a victim, you know. There's got to be somebody who's going to come in and say this happened to me, or you're not going to -- you're not going to be able to get a conviction.
NICHOLASBut we were talking about plea agreements. And in a plea agreement, there's always a conviction and there's a always a sentence.
FISHERWell, let's talk about those plea agreements. As you say, 96 percent of cases are settlement in pleas. Pleas, almost by definition, leave the victim unhappy because what happened to them has been defined down, and yet the court system says it's impossible to operate in any other way. Tell us how practically your system would work in a way that -- would every single case go to trial?
ROSENBAUMWell, I mean, look, you know. One of the things I say in the book is that the legal system is broken. I can't imagine that anybody can disagree with that. We need more judges and we need better judges, and we need sensitive judges and more humanizing judges. And, you know, you know, people simply do not have the experience of having a day in court, a real day in court, a legitimate day in court where they really aren't used as witnesses, but they actually address as people who have been aggrieved.
ROSENBAUMSo, you know, I mean, yes. I think even during plea bargains, one of the positions I take in the book is that there ought to be a victim veto and that prosecutors are not permitted to actually settle the case on reduced discounted terms unless the victim consents.
FISHERIn your book you use a lot of examples from fiction, from pop culture, where justice is much more like what you've been describing where, I mean, why is that we embrace that in the fiction and fantasy that we have in our lives, and yet in reality we don't go there.
ROSENBAUMMarc, it's fascinating to me. I mean, we've heard from six or seven of your callers, and they seem upset, you know, they seem angry. I'm not angry. They're just angry just hearing the word revenge. Just the mere mention of it. The book says at the very beginning, I say, you know, it's very -- it's nearly impossible to have an honest conversation about revenge in this country, and your last six callers prove that. They are not able to just step aside for a moment and calmly say well, you know, I can understand why people need to feel avenged. It's important for them to be made even. Fairness matters.
ROSENBAUMWith respect to art and fiction, well, it's interesting. For all of the condemnation of revenge, revenge films, revenge novels are our most popular, biggest box office appeal. I wonder whether your six callers walk out of these revenge movies stamping their feet wanting to know whether they should have their money back. My guess is no. I think they're quite comfortable sitting and knowing that when an injustice happens, it's morally unbearable and they're not leaving, they're not going anywhere until a wrong gets righted.
ROSENBAUMBy the way, Marc, there's a whole chapter in the book on science, and it's an important section because neuroscientists all over the world, Switzerland, Austria, Germany, Princeton, New Jersey, have done studies with -- using MRI machines and PET scans, and have discovered that we are hardwired for retaliation. We are hardwired for justice and fairness. We cannot tolerate watching someone getting away with murder and the other side not receiving any receiving any reciprocal punishment.
ROSENBAUMYou know, the brain responds that way. It's part of our DNA. It's part of our evolutionary history. But again, if you invoke the word revenge, you get these callers.
FISHERHere's one of them. Here's Megan in Silver Spring.
MEGANHi, thanks. First of all, I guess I'm offended by your tone. We are not these callers, we are just as much entitled to our opinion as you are, and we're not on the radio trying to sell a book. But my point here is what does revenge, as you call it, justice, I guess you're calling what I call injustice, what does that really look like in real life? If you were raped, would you then want to rape the rapist or have them raped in front of you or, you know, what does your justice look like?
ROSENBAUMWell, that's actually an interesting question, you know, from the book of -- from the rape of Dinah in the Old Testament, right in the beginning of Genesis from even the opening scene of "The Godfather," it's never really clear -- we've never really understood how to punish the rapist because the rapist is always still alive. There have been people who have made arguments that his -- his or her -- his life should also be taken because spiritually, emotionally, the victim has been scarred.
ROSENBAUMAll I know is that the -- what you can't do is call a rapist a reckless endangerer. Very often rape cases are plea bargained down to something less than rape, and victims are treated in such an abominable way in courtrooms that there's a reason why rape victims don't even want to come forward. So again, your callers are very focused on the physical punishment, and I'm focused on avenging the crime for the victim. The victim needs to feel better at the end of this experience.
FISHERWell, here's --
FISHERLet's give somebody else a try -- a chance here. Here's Carson in the District who asks about another aspect of punishment. Carson?
CARSONHi. Thanks for taking my call. I'm just shocked a little by Professor Rosenbaum's comments in that we learn as first-year law students that there's three parts to justice. There's three parts. That's punishment, that's incapacitation, and that's rehabilitation. It struck me that throughout his comments there's been no mention at all about rehabilitation with this focus on justice, which of course is very important. But what does this focus have to do at all with rehabilitating people that may have some value and contribution to society after their crimes have been committed, and what would this policy look like given the fact that we overcriminalize and institutionalize hundreds of thousands of people a year.
ROSENBAUMWait, when you say overcriminalize you're saying innocent people are being punished, or are you saying, I look at we -- I completely think that we underpunish people through a plea bargain system where they're not punished commensurate with their moral blameworthiness. As to other aspects of punishment, look, you know, I don't know where you went to law school, and I know that we have all of these utilitarian visions of what we want to achieve in punishing, and those things are valuable, but in the end, the most important thing is the person is punished because they deserve it. That's what just desserts means.
ROSENBAUMAnd that the focus ought to be on dessert. With respect to rehabilitation, look, I think that to the extent to which people have meaningful contributions to make upon their reentry into society, that's great, but the first order of business is making sure that people are punished for what they've done, not for...
CARSONBut what I'm saying is that you see no connection whatsoever between a more active role of victims and the potential for people to be rehabilitated.
ROSENBAUMOh, I think that that -- look, as I said, I think revenge is yet another piece of restorative justice, and I think it's very possible that victims can actually over time play a role in actually wanting to see the offender, the wrongdoer restored and returned to the society. All of that is potentially possible as I said before. Apologies can serve some victims as feeling the sensation of feeling avenged. Vengeance of feeling even can look like many things. Unfortunately, most of the callers are suggesting that vengeance can only mean tearing somebody apart. That's not something I've said. It's not something I believe.
FISHERThanks for the call, Carson. So Thane Rosenbaum, have you ever been the victim of a violent crime?
ROSENBAUMNo. Not at all.
FISHEROr any crime?
ROSENBAUMNo. No. I mean, I think that what's interesting to me is that I, you know, I -- I'll say it again. We are not able to have an honest conversation about revenge in this country. We haven't had many victims call in. Victims' groups support these ideas because they know they've been marginalized and trivialized in the system, and that's really all this book is about, a sense of fairness and justice for those who have been wronged.
FISHERWe have just a moment left, but can you give me a sense of what practical change you think could really come out of -- if you and victims' rights movement people were able to create some actual change.
ROSENBAUMLook, let's just leave with this last anecdote, Marc, and I think maybe it will help your callers, hopefully. The last -- the Andres Breivik trial in Norway, you remember, he was the many who went on a shooting rampage and killed 77 kids. The trial against Breivik was conducted a number of months ago. Norway I think has only 17 years I think is their maximum penalty, so clearly -- so clearly that would not have been enough. But in that trial, 77 autopsy reports were introduced, 77 lawyers, so...
FISHERGotta go. Sorry. Thane Rosenbaum the author of "Payback: The Case for Revenge" has been our guest. He's a lecturer in law at Fordham Law School. I'm Marc Fisher sitting in for Kojo Nnamdi. Thanks so much for joining us.
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