SubscribeAn intriguing dissent from the standard anti-death penalty view is offered by Susan Jacoby, author of a thought-provoking book called Wild Justice: The Evolution of Revenge (1983). Both in the book and in a recent article on the McVeigh execution in Newsday, Jacoby argues that although the death penalty is beneath a civilized society, revenge or retribution -- the desire to make the offender "pay" for his crime and to "express society’s outrage at serious violations of its norms" -- is inherent in all forms of punishment and is an important purpose of the justice system.
Jacoby treats revenge and retribution as synonymous, but perhaps there is a subtle difference. The targets of McVeigh’s "revenge" had the most tenuous connection to the perpetrators of the Waco raid. In other cases, private vengeance may be directed at the wrongdoer’s relatives or loved ones. (Imagine the reaction if someone were to suggest exterminating McVeigh’s family as "payback.") Vengeance may also be disproportionate to the offense and unconcerned with intent. If a child is killed in a car accident, the parents in their grief and rage may well want to see the driver dead, even if he was blameless or at worst negligent; in a few cases, they may even act on that wish. Yet we can hardly imagine official authority carrying out such revenge.
Retribution, on the other hand, addresses moral culpability. This is perhaps most forcefully revealed by the reaction to executions of people with diminished mental capacity. In 1992, the execution of Ricky Ray Rector in Arkansas sparked a controversy not only because then-Gov. Bill Clinton took time off from the presidential campaign to fly back to his home state and sign the death warrant, but also because Rector was severely brain-damaged following a suicide attempt. One detail repeatedly cited as evidence of the barbarism of his execution was that on his way to the death chamber, Rector asked his lawyers to save the dessert from his last meal for later.
The story is cringe-inducing, but why? Not because of the suffering inflicted on the condemned; surely, it’s far more cruel to send a man to his death when he is fully aware that there will be no "later." Rather, the issue is the defendant’s perceived lack of moral agency, his inability to feel responsible for his act and to connect it to his punishment.
In Violence Unveiled, Bailie makes accessible to a wide audience the ground-breaking work of the French cultural critic and theorist, René Girard. At the heart of Girard's theory is the contention that violence undergirds the foundations of culture. According to Girard, human beings are mimetic by nature, that is, we imitate those we most love by desiring what the beloved desires, and now possesses. That is to say, human beings are deeply driven by the desire to possess what belongs to the beloved. Desire turns to envy; envy to rivalry; and rivalry creates an untenable conflict at the heart of our most intimate relationships, namely, the conflict generated by feelings of intense anger and rage directed at those we most love for possessing what we most desire. Such deep conflict, if left unresolved, undermines the stability of society and threatens its very preservation. Girard maintains that society attends to this conflict, and the destructive, violent impulses it generates, by creating the cultural myth of the scapegoatAnd what the hell, also mentioned in these essays and reviews is Wndy Kaminer's It's All the Rage: Crime and Culture--reviewed here, again, in Reason. And again, I quote:
-- the witch, the heretic, the outsider, the disease-bearer, the Jew -- who is arbitrarily identified and selected as the source of the conflict. Ridiculed, tortured, expelled, murdered, or sacrificed, the scapegoat both satisfies and discharges the violence embedded deeply in our psyches while simultaneously keeping safe society's most important relationships. Scapegoating thus prevents the chaos and disintegration
that would otherwise follow when imitative violence is left unchecked, and spirals out of control.
For Girard, religion plays an essential role in the cultural myth of the scapegoat. Its societal function is to create, maintain, and mediate a sacrificial system that ritually and symbolically reenacts the violence done to the scapegoat. Religion successfully mediates the cultural myth of the scapegoat by veiling the violence, which is integral to the myth, under the mantle of the sacred. With the violence thus concealed, the scapegoat undergoes a curious transformation. By delivering society from its most destructive impulses, the scapegoat is transformed from the "despised and rejected" of the people
to the "savior" of the people. The sacrificial system that is at the heart of religion is thus structured around rituals that symbolically reenact the necessary violence that saves society from itself. Participation in these rituals satisfies, sustains, and, perhaps most importantly, contains both the individual desire and the cultural necessity of imitative violence. In so doing, religion legitimates violence by veiling it with the status of "sacred."
Picking up on the theme of her acclaimed bestseller I'm Dysfunctional--You're Dysfunctional, Kaminer looks at how the basic motifs of the recovery movement--everyone's a victim of abuse, shame and guilt are "toxic"-- have influenced the legal process. Juries are now likely to "include people who watch talk shows and have been encouraged not to judge the self-proclaimed victims of addiction and abuse simply because they've engaged in bad behaviors"--the Oprahization of justice, as it were.Sorry for the length, but there are questions raised and food for thought in all of these links and quotes.
Both conservatives and anti-victimhood liberals such as Kaminer and Alan Dershowitz have deplored the tendency to bring the "personal development" mentality, with its scorn for individual accountability, its claims that we are all victims, and its emphasis on subjective feelings, into the legal process. But Kaminer argues that some of the same characteristics--the obsession with victimhood, the emotionalism, the blurring of lines between justice and therapy--are also evident in the law-and-order revolt and in the victims' rights movement: "From the victims' perspective, the trial is, in part, a therapeutic process. They seek 'healing' in the resolution of the case, which seems appropriate to the citizenry of a therapeutic culture." Conservatives, generally so contemptuous of the therapeutic culture, happen to approve.
This startling charge certainly deserves to be considered seriously. But is it fair? The "healing" element of righting wrongs has always been present in the concept of justice, and the victims' rights perspective demands precisely what the therapeutic culture denies: personal accountability.
What troubles Kaminer about the push for victims' rights is not the demand for better services for crime victims but the pressure to give them "power to help determine the disposition of cases." She is right, of course, to warn against "allowing feelings about the victim to displace facts about the defendant's culpability"; the parent of a murdered child may well be unable to appreciate the need to prove guilt beyond a reasonable doubt.
But despite a few extreme voices, such as the slain policeman's mother who dismisses fears about executing an innocent man by stressing that her son was also innocent, how many victims' advocates want to use the law for "healing" regardless of the defendant's culpability? A parent whose child is run over by a car while jaywalking feels the same loss as the parent whose child is killed by a mugger, but surely no one would call for the same punishment in both cases. The linkage of punishment to guilt is also the difference between vengeance and retribution.
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Opposition to the death penalty is not based solely on the belief it is immoral for a government to kill its citizens. By definition, the penalty offers no chance of judicial review, no chance to right the inevitable mistakes of the criminal justice system. In other words, to support the death penalty is to support killing innocent people. Add to that the unequal burden of punishment born by the poor and minorities and you have a practice with no place in any modern, democratic system of self-government.
posted by lupus_yonderboy at 10:16 AM on June 12, 2002