Wild Justice: The Evolution of Revenge
The general ethical drift of Western countries in dealing with criminals has been in the kindly direction desired by humanist intellectuals, away from capital punishment and flogging and the rack. This is so despite some horrifying setbacks, to be sure, and over the protests of fundamentalist theologians, fascists, bullies, and other representatives of the powers of darkness. We are sensible of the destructive power of vindictiveness and hate, on the character if not the soul, and of the satisfactions of benevolence, and of course we approve humane reforms that enable us to suppress any questionable impulses of satisfaction we may feel when the wicked are punished.
In such a context, we would be cautious in approaching Susan Jacoby’s observations, which together suggest that it is the duty of society to exact measured retribution from those who offend its rules; that there is a natural instinct or moral imperative which we repress or ignore to our cost, and by doing so we create confusion, discontent, and more crime. There are automatic defenses against being persuaded to such an illiberal view. We’ve been warned against the charm of simple imperatives—tools in the hands of demagogues, inadequate to the modern existential dilemma. And some may resist the fact that Jacoby writes rather glibly without the comfortable cloak of expertise in some germane theological, penological, jurisprudential, or psychological specialty. These contending claims to lead mankind out of its errors of cruelty and vindictiveness she dispatches with an even hand in the process of awarding, convincingly enough, much blame for the present situation.
The title, Wild Justice: The Evolution of Revenge, does a disservice to the seriousness of an argument that is at bottom about the punishment of crime in modern American society, not, as the word “revenge” suggests, outraged exhusbands, Sicilians, the Jacobean stage. Jacoby gives telling examples of how people in court, testifying against horrible criminals, have nonetheless to be careful to say they want “justice,” not “revenge,” lest they be discredited, but she herself lumps together as revenge a number of things for which we have words we carefully differentiate. This confounding of terms supports certain assumptions that are troubling, first that punishment really is legalized revenge (not, say, correction or restitution), and that justice and retribution are merely institutional or mythological expressions of it. And in tracing the evolution of the subject she tends to give more weight to sources in history that authorize punishment than to those that have contributed to liberalizing dialogues on the subject, as though Moses had somehow access to better information than Voltaire. One is asked to believe that history is binding and forefathers are right. And one is asked to agree that the state, in taking on the duties of protection and arranging material restitution, also has some expressive function, as if it were art.
But many readers will agree with Jacoby’s most persuasive conclusion that the disorder or what has come to be called the “failure” of our criminal justice system, and the rise in our society of violent crime, whatever the explanation for that, may, if not corrected, engender Draconian reactions. By failing to acknowledge the legitimacy, and the psychological necessity, of measured retribution, she argues, we are losing a tenable middle ground between the death penalty and “the acceptance of a system that allows too many killers to ‘pay’ with only a few years of their own lives—or to escape retribution altogether through legal and psychiatric loopholes—for a life they have taken from another.” Even after her lengthy exposition, what we really mean by “pay” remains vague. Yet we all recognize that we mean something by it.
Jacoby sees the evolution of revenge as a process by which the state has assumed the task of simultaneously avenging or punishing a crime and preventing a private citizen from doing so on his own behalf. She discusses rather lightly a paradox which has always preoccupied social philosophy: how to legitimize the state in doing what it forbids being done. But she sketches a general line, and the specific legacy of Maimonides, Christ, Machiavelli, Solon, Draco, John Stuart Mill, Cesare Beccaria, and various other thinkers (with the contributions of Marx, Hegel, and Rousseau, among others, left out).
Legal restraints on revenge have changed with our notions of guilt, from the days when you were blamed for the crimes of your relatives or forefathers to more modern notions of individual responsibility, and then, evidently, away from them again. To the issues raised by literature, religion, and the law are joined, in our time, the ideas of Freud, which in America are too often interpreted as meaning, in the words of one commentator Jacoby quotes, that “a man can no more be guilty of a crime than he can be guilty of an abcess.” This does seem to illustrate the extent to which misunderstandings of Freud have confused legal/moral matters. There is no lack of examples of instances where a general sense of justice has been affronted by courtroom outcomes influenced by psychiatrists; she mentions Richard Herrin, the murderer of Bonnie Garland, John Hinckley, Dan White, but one could add countless others.
Jacoby sees these miscarriages of justice as arising not only from courtroom testimony but because “pejorative psychiatric images of revenge—particularly as they are refracted in popular culture”—have encouraged a “reflexive modern disgust triggered by any suggestion that there are strong ties linking revenge, truth, and justice … [and have] portray[ed] human beings as less rational (and therefore less accountable for their actions) than they are in the eyes of the law and of traditional religion.” Modern religion has been affected by psychiatry too, as we saw in the intervention of Catholic priests for Richard Herrin.
It is never clear from Jacoby’s arguments which ties except historical ones do link revenge, truth, and justice, or whether she thinks that revenge should be considered an instinct, a sort of extension of the instinct of self-defense. In one psychiatric view, vindictiveness in an individual or a society is an expression of narcissistic rage which, however, we should attend to: Jacoby quotes Heinz Kohut, “So long as we turn away from these phenomena in terror and disgust and indignantly declare them to be a reversal to barbarism, a regression to the primitive and animal-like, so long do we deprive ourselves of the chance of increasing our understanding of human aggressivity and of our mastery of it.” In any case, we often forgive a vengeful impulse in an individual even while we suppress our collective vengefulness. But could it be that pity and mercy are instincts, and retribution a matter of elementary morality we should not ignore? Jacoby doesn’t explain, and perhaps no one can, the origins of elementary morality, except by implying some notion of natural law.
Even supposing revenge to be natural, do we want to authorize it or to “master” it? Even if it is legitimate, is it fair and desirable? Jacoby is surely right that questions of legitimate punishment are confused by the issue of the death penalty, which she does not favor and which, because of its extremeness, has helped to generate the modifications, qualifications, and loopholes that so often frustrate common sense. Jacoby feels that the renewed popular support for the death penalty, which survives or has been reinstated in thirty-eight states, “is largely attributable to the increase in violent crime during the past twenty years and the public perception that the criminal justice system has failed to impose lesser punishments with any degree of predictability or consistency.”
All this seems inarguable: yet that is the point that defenders of the present penal system, and those who would make it more lenient, fail to grasp. Several times in recent months the governor of California has had to deal with public petitions and organized legal attempts by citizens trying to delay the scheduled release of killers serving grotesquely short sentences (Archie Fain, a rapist and murderer, and Dan White, the killer of Harvey Milk and George Moscone). Jacoby suggests that the inconsistency of state laws frustrates a general sense of justice, and she also might have suggested, perhaps, that a national overhaul is impeded by American regional differences, which incline us to dismiss another state’s judicial caprices as evidence of its craziness or backwardness. Petitions for the continued imprisonment of Archie Fain came from the people of his county, not from people in New York.
Jacoby believes that racism is a red-herring issue which has also impeded reasonable thinking on the subject of violent crime. It is often claimed that revulsion against violence and demands for the severe punishment of violent offenders are really revulsion against blacks or the poor, but there is “the undeniable fact that the poor (and blacks and Hispanics are disproportionately represented among the poor) are responsible for a disproportionate share of violent crime.” Her point is that revulsion against violence is revulsion against violence, and that we would prefer having our signatures forged to being beaten and mugged, not out of class loyalty to white-collar crime but because you would have to be crazy to prefer being beaten.
She also points out that the poor—more often than the rich victims of violent crime—are as vigorous as anyone else in their wish to prevent and punish it, though more blacks than whites, for obvious historical reasons, oppose the death penalty. “In black communities, anger at the police and the courts stems not only from the feeling that some black criminals are treated too harshly, but from the conviction that crimes against black victims are treated too lightly.”
Jacoby writes perceptively about the fear of violent crime—fear that is so often derided and reproved—pointing out that when fears reach a high level, they become inseparable from the reality of crime. More willingness to recognize how fearful people are, and why, without trying to shame them out of it with cries of racism, might have enhanced our sad little experiments with busing, integrated housing, and the control of crime. Violence focuses like no other issue a shaky area between “ought” and “will,” with public officials and media, from the “ought” position, training their cameras on frightened, shouting people, often in some other town, as in the recent Chicago mayoral election. An orthodox view is that violence is a product of social conditions and will vanish when they are remedied. But what are people supposed to do in the meantime? Jacoby might have invoked one of Marx’s more plausible theories, about whose interests are really served by crime; her work in effect suggests the possibility that by the pretense of liberal respect for individual rights the state or ruling class in fact sustains violence as a terrorist technique of social control.
The reader will have objections and reservations at many points in Jacoby’s argument. The motive seems sounder than the method. The historical account seems too cursory and selective to make a point. No doubt she has missed some fine points of the law. The effect is marred by the high indignant tone. The problem remains of the terms—revenge, justice, deterrence, atonement, “paying”—which we use to discuss the moral issues involved. That we have so many attests that we do distinguish a number of degrees, extenuating circumstances, motives, and differing concepts of authority. Jacoby tends to use them interchangeably—thus failing to establish a clear idea of legitimate revenge—and to see examples of human vengefulness in situations where the reader may not, for instance watching a movie audience watch Death Wish, a Charles Bronson film about a man who avenges the murder of his wife and rape of his daughter. The audience cheers when he guns down the teen-aged hoodlums responsible, and one man is heard to remark to his wife that they are going to buy and learn to use guns. Surely this is not so much an expression of vengefulness as of fear, animated by the failure of the movie police to arrest the wrongdoers. The viewers know the real streets outside are also full of scary punks.