Op-Ed: The Nonexistent Line Between Justice And Revenge

Law professor Thane Rosenbaum says it's time for Americans to be honest about the role revenge plays in our lives. "The distinction between justice and vengeance is false," he writes in The Chronicle of Higher Education. "A call for justice is always a cry for revenge."

NEAL CONAN, HOST:

And now The Opinion Page. We tend to think of justice as noble, revenge as unworthy - wrong, argues Thane Rosenbaum. In a piece for The Chronicle of Higher Education, he writes: A call for justice is always a call for revenge. Rosenbaum defends the policy of an eye for an eye and dismisses the policy of turning the other cheek as cowardly and antithetical to human nature. Vengeance, on the other hand, he calls healthy and human, even a biological necessity. We want your stories today. Tell us about a moment when you had to decide whether to take revenge or just let it go.

800-989-8255. Email: talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION. Thane Rosenbaum joins us now from our bureau in New York. He's a law professor, director of the Forum on Law, Culture and Society at Fordham University and the author most recently of "Payback: The Case for Revenge." Good to have you on TALK OF THE NATION today.

THANE ROSENBAUM: Thank you, Neal. I appreciate being asked to speak to you about this.

CONAN: An eye for an eye, Gandhi famously said. If you follow that policy, the world will be blind.

ROSENBAUM: Yes. But there's also a moral burden that comes from allowing people to get away with murder and for those who have committed wrongs to not be prosecuted and punished commensurate with their wrongs. And there's also - there's a moral failure to Gandhi's wise words, and people can't find that equally morally unbearable.

CONAN: You also say we must understand the expression, eye for an eye.

ROSENBAUM: Absolutely, Neal. Most people think that eye for an eye suggests bloodthirstiness. What it really means is exactness. What it essentially means - and we get this from the Old Testament and, of course, in Hammurabi's Code - that when a moral injury is created, a debt is created, and then payback is required, but it has to be specific. It has to be proportionate. And all an eye for an eye means is a way to prevent disproportionate revenge. Disproportionate revenge are blood feuds, recycling of vengeance, the Hatfields versus the McCoys.

Through the natural history of our species, we were able to manage revenge through tribes and individuals because people knew what enough - what was enough to be satisfied. And that means that when one loses an eye, they're entitled to receive no more than an eye, but also no less than an eye. And in our system, unfortunately, with plea bargains, we're very often shortchanged, and we're constantly paying back less than an eye.

CONAN: Your calculation would have been disputed by Jared Diamond or Steven Pinker, who say: No, those tit-for-tat feuds get out of control, and, in fact, tribal societies - where honor codes, like an eye for an eye, are the rule - well, the death rates in those societies is a great deal higher from violence than in ours. But your point is nevertheless that in our society, the state has taken on this role of seeking vengeance on behalf of those who are wronged.

ROSENBAUM: That's right. But if we can go back to a minute about tribal societies, I mean, I think it's oftentimes distorted that the society spend lifetimes of settling grudges for the same reason. It's rational to only take what's to get you even to settle the debt measure for measure. To go beyond - nobody wants the recycling of revenge throughout centuries and generations. That's exactly what the ancient Greeks understood with the "Oresteia" trilogy, Aeschylus' famous play.

So we've always known to just take enough. You remember "The Godfather," Neal, is very clear. In the opening scene of "The Godfather," he tells Bonasera: I can't take the lives of the people who tried to rape your daughter, because your daughter's still alive. Now, why would a professional killer care about exactness and exactitude? Because he knows there are rules about revenge. With respect to your earlier point about the legal system, yes, after the - at the Enlightenment, the governments and states took the position that you pay your tax dollars and we'll build roads and bridges and we'll erect courthouses and fill it with court personnel, and we'll be your designated avenger. We will be your proxy. But we've never really taken it on that way. We do it in a very dispassionate, impersonal way that we don't really take vengeance on behalf of victims. We simply only settle debts that are owed to society, not debts that are owed to individual victims.

CONAN: Well, because you understand this far better than I as a lawyer and a professor. The state says, we are not prosecuting the crime against this other individual. We're prosecuting a crime against the state. If you kill somebody else, it is a crime against the state.

ROSENBAUM: But it's absurd, right? We say that but it doesn't make sense, right? I mean, it's very...

CONAN: A lot of states has an interest in maintaining a system of justice where people don't go around revenging each other.

ROSENBAUM: Yes, but people will go around avenging each other unless the state does its job. I mean, the idea is that if you're taking - if you're not allowing me to engage in self-help - and there are very good reasons why you shouldn't allow me to do that. But if you think that revenge causes a mess, then I'm prepared to allow you take it for me in return for my tax dollars. But my expectation is that you, too, will represent me as well as representing the interests of the state, that you won't treat me merely as a trivialized player.

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.

CONAN: Well, isn't that then a case where blood money or, in this case, what we call in a modern society civil court?

ROSENBAUM: Well, I mean, civil court - first of all, many people commit crimes that are judgment proof, so it doesn't really mean anything. Secondly, civil court essentially says that we're seeking merely money from you as opposed to saying, no, you need to be punished on my behalf. That's how I get even. I don't get even if you're writing me a check, especially a check that will bounce.

CONAN: Well, all right. So you're talking - how should victims then be represented in court? They are present at sentencing hearings and their words are heard. And more and more, we have some new forms of - and again, you know this better than I do.

ROSENBAUM: Yes, Neal. But they come too late, right? I mean, you know, they're not - part witnesses - parties are not - victims are not participants during the guilty phase of a trial, the underlying case. They're really hidden in the back, only reduced to, again, playing the role of witnesses. And for plea bargain purposes, victims aren't participating at all, largely. In most cases, over 95 percent of all cases are settled by way of plea bargains. And so that is a bargain-down exchanged in which a crime that's committed has now been trivialized and reduced to something less than what the wrongdoer did, and they're ultimately going to be punished less than what they ultimately deserve.

With respect to the victim impact statements, no - look, not all crimes allow for victim impact statements, not all parties, not all victims are allowed to speak. They're only allowed to speak for a certain period of time. And it's not clear how much judges weigh that voice, as opposed to saying, we make victims a partner in these criminal proceedings, and we want them to be true partners, which means that they have a voice in how one is to be punished. And our role here is to stop them from being excessive, but we're certainly not going to punish - under-punish someone without making sure that the victim is - will be able to tolerate and live with that.

CONAN: Again, under the principle of an eye for an eye, the only penalty for murder is the death penalty.

ROSENBAUM: Yes. Well, let's say this. 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?

CONAN: We've asked for people to call and tell us about moments where they considered revenge. This is an email that we have from - I'm not sure the name here. Any case: I consider myself level-headed and calm. Others might agree. I have an outlet. I secretly sign up an old colleague with as many magazine subscriptions that is possible. Well, that's one form of revenge.

(LAUGHTER)

CONAN: Some people - this is from Peter in Boise, Idaho. Some people turned themselves in if they commit crimes, others forced themselves to suffer through guilt and self-penance. Could your guest comment on the phenomenon of people punishing themselves for their own wrongdoing, presumably on matters less - of less import than murder?

ROSENBAUM: I am - I fear that it doesn't happen often enough. And also, I'm not sure that the wrongdoer has the right to punish himself without the victim actually feeling avenged by that. It can't be something suffering in silence. The whole concept of vengeance is that there's a direct meeting, eye to eye. Remember in the famous movie, "The Princess Bride," the Inigo Montoya character, you know, you killed my father, prepare to die. The idea that it's a face-to-face encounter, and that it's a visceral experience, and the victim should not be deprived of that experience. And that means that when there - when we have courtrooms, we invite them into courtroom and so that we can simulate or give them the feeling of a vicarious vengeance.

CONAN: We're talking with Thane Rosenbaum. He's a law professor and director of the Forum on Law, Culture and Society at Fordham University, the author of a most recently of "Payback: The Case for Revenge." You can find a link to his op-ed in The Chronicle of Higher Education at our website. Go to npr.org and click on TALK OF THE NATION. And this is TALK OF THE NATION from NPR News. Let's go Eric, and Eric on the line with us from Clarkesville in Tennessee.

ERIC: Yes, sir. I just wanted to comment on the situation I had in the military, where we - I had been blown - the enemy combatant had put an IE into the ground and it had blown up and almost killed us. We chased them down to - once we got there, we try - we went to detain them and he threw his - or as you were - we went there with the express thought on reducing him as an enemy combatant. Once we got to the house, he threw his weapon down, which meant that he was now a prisoner of war. He was no longer an enemy combatant. And that's in accordance with the Army's rule of engagement.

We had him dead to rights and we could have done - we could've killed him right there. But we knew that that would be the wrong thing. And what it comes to - and we had been in that situation before - and what it comes down to is I compare it to the hero in a cartoon that says, we can't be like them because that would make us just as bad. And I've seen many a situation where I would honestly not change what we did. We probably could have gotten away with killing him and it would've been OK and no one would've looked at us wrong for doing it. But we knew that we'd have to live with that for the rest of our lives and no one wanted to live with that. So I just wanted to comment on that as something that I had been through.

CONAN: Eric, thanks very much for the phone call. And he raises a point, Thane Rosenbaum, that a lot of people say, aren't we more civilized than that?

ROSENBAUM: Well, there's nothing - again, there's nothing civilized by allowing people who've committed wrongs to go unpunished. Also, with all dues respect to our last caller, who, please, I truly honor his service. We're not actually saying that the person who put down his gun was allowed to go home and was free. I'm assuming he's saying that something happened to him.

CONAN: Oh, we was arrested and charged.

ROSENBAUM: He was arrested and must have been charged and punished to some degree. I'm not suggesting that it has to be an immediate killing. In fact, I'm not suggesting a killing it all. I'm just saying that people going unpunished is morally unbearable. But speaking of the military, Neal, we had the same opportunity with Osama bin Laden. He was unarmed. He was unguarded. We didn't - he didn't have a machine gun to drop, and we shot him in the head. And most people didn't actually feel that there was something unjust about that.

In fact, most Americans were cheering in the streets. They thought that punishment was deserved and just desserts had taken place. And there was no trial. I remember trial for Osama bin Laden, and yet we always say, well, you know, these are rules of war. Well, in that case, justice and vengeance were identical. And we were no less civilized a society because he wasn't kidnapped and returned to the United States to stand trial for 9/11.

CONAN: Yet, you point out that the express desire for justice you described as hypocritical. We really mean revenge and there should be nothing wrong with that.

ROSENBAUM: They are the same. All calls for justice require that victims feel avenged and revenge is never just if it's disproportionate. Where the book is filled with sort of sadly comedic stories of people twisting themselves in knots in clearly suggesting they have no interest at all in vengeance. All they want is justice. But, in fact, it's so clear. What they want is both. It means the same. It always meant the same. We've been duped into thinking that they're separate and distinct.

CONAN: Here's an email from Anne in Palo Alto: Njal's Saga - I hope I'm not mispronouncing that too badly - from medieval Icelandic traces the change from blood feuds to a centralized, we would call it a government system of adjudicating wrongs after people realized that each time a person was killed, that prompted a revenge killing, which prompted another revenge killing, ad infinitum.

ROSENBAUM: I just - I know we say this. I know you cited two writers on this subject. We would not be a species if every single nation on Earth for millennia had done nothing other than continued a tit-for-tat until they wiped each other out.

CONAN: Nobody said until they wiped each other out. The various clans and tribes may have revenge killings that make their death totals from violence a great deal higher than our death total from violence is now. But that doesn't mean they wipe each other out.

ROSENBAUM: What means is they can't live their lives. They can't go outside. Everybody is held prisoner because my cousin committed a crime and therefore, I'm the next one in line. I mean, even, you know, there have been stories, of course, of tribes that have been engaged in blood feuds and honor killings that have no end. But it's a nasty business, and that's why most nations, most tribes, manage to be able to settle their scores privately and do so with finality.

CONAN: Most nations these days don't have the death penalty.

ROSENBAUM: That's true. But most people around the world live in nations that do have the death penalty. Of course, that's the United States, China and India, and most people around the world support the death penalty.

CONAN: So you don't see it as a march of progress, but rather a retrogression.

ROSENBAUM: I'll say it again. I think that the idea of under-punishing people who commit the worst of the worst crimes is not a mark of advanced civilization. It's a mark of moral cowardice.

CONAN: Thane Rosenbaum, a law professor, director of Forum on the Law, Culture and Society at Fordham University. His most recent book, "Payback: The Case for Revenge." Thanks very much for being with us today.

ROSENBAUM: Thank you, Neal. Very much enjoyed it. Appreciate it.

CONAN: Thane Rosenbaum joined us from our bureau in New York. Tomorrow, prison gangs, specifically the Aryan Brotherhood, where it came from, how it's grown and what it's capable of. Join us for that. It's the TALK OF THE NATION from NPR News. I'm Neal Conan in Washington.

Copyright © 2013 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.