Elsewhere she may be right that “the powerful appeal of the revenge theme in mass entertainment is simply one manifestation of the gap between private feelings about revenge and the public pretense that justice and vengeance have nothing, perish the uncivilized thought, to do with each other.” But revenge has always been a favorite theme of literature; writers are expert at private resentments. One could make a case that retribution is the secret subject of all literature, its whole function to help each of us with the psychic burden of the injustices we must each feel ourselves to suffer in life. It is hard to say that modern revenge dramas are so directly a reflection of modern penal codes.
One might easily argue that the cheering audience is happy to see the hoodlums gunned down because that will keep them from committing other crimes. Jacoby believes (with, she points out, Albert Camus and The New York Times) “that vindictiveness, not deterrence, is the most important factor in the unslaked public demand for executions.” But this seems to suggest that people are incapable of disinterested concern for the welfare of others. One theory of deterrence, argued by proponents of the death penalty, holds that executions have an exemplary function, to show you what will happen to you if you kill someone, a form of theater, as Foucault might say, which presupposes an idealistic view of human nature.
But you also deter crime by keeping criminals out of the way. Jacoby reveals a rather low opinion of human nature when she suggests that we can only operate from instinct or history or authority. If I am concerned that Archie Fain, the murderer from Stanislaus County, has been let out, it is not so much because I am afraid he’ll come to my door in San Francisco as from my belief in the likelihood that he will come to someone else’s. No one in America believes any more that today’s killer won’t be out tomorrow. Increasing evidence on recidivism, the unlikeliness of “correction” or “rehabilitation,” the effectiveness of prisons in training criminals, and the inability of psychiatrists and parole boards to predict behavior have greatly intensified public anxiety about whether violent criminals are locked up. But this concern is not the same as vengefulness at all.
It is certain that public anxiety does not at the moment include much concern for the rights of the offender himself. One feels at first reluctant to concede that there is such a thing as a common sense of justice, or if there is that it should be attended to. Jacoby quotes Cesare Beccaria: “The history of mankind appears a vast sea of errors, among which there float a few confused truths, each far from the next.” Too many innocent people have been hanged, usually to great collective enthusiasm, though if we are ourselves at a geographical or chronological remove from a crime or an execution, we would prefer that events err on the side of leniency and mercy. “I would have saved them if I could,” said Byron at the beheading.
Nevertheless, most people do feel similarly about crimes which are agreed by their society to be horrible, and though notions of what is horrible change, they don’t change that much. Indignation in situations where people escape the ordained consequences of their deeds has never changed. Wherever it comes from, people do seem to have an irreducible sense that an offender must pay and that when he does not, the law itself is diminished. (It is, historically, the law itself, not the victim, that must be paid.) The riots in San Francisco when Dan White received a seven-year manslaughter sentence for the apparently premeditated murder of the mayor and supervisor by no means reflected only the sentiments of Harvey Milk’s gay constituents. Jurors interviewed recently, nearly five years after the crime, said their lives had been a hell of threats of reprisal, criticism, ostracism. And one often heard the opinion that someone would “get” White when he got out. When it was announced that he planned to go and live in Ireland, the Irish consul indignantly protested people’s low opinion of Ireland. Efforts were made to find a means to try White in a federal or civil court—another of a number of recent instances where criminals have been prosecuted by their victims in civil courts because there was no redress in criminal courts.
A number of recent books present similar, and similarly convincing, arguments for firm and fair punishment for crime. Psychiatrist Willard Gaylin’s book about the murder of Bonnie Garland (1982) anticipates many of Jacoby’s views. He observes succinctly that society must return to making a distinction between good and right. Steven Englund’s new book Man Slaughter—“A True Story of Love, Death, and Justice in America”—gives one an intimation of how hard this is to do when it comes to particulars.
Englund writes of the case of Jennifer Patri, convicted of manslaughter in Waupaca, Wisconsin, for the shotgun killing of her husband. Patri was presented as a “classic” battered wife and so became the object of feminist concern. She had been the victim of neglect and incest in her childhood, was either mentally ill or not, depending on which set of psychiatrists you believed, and was mistreated or not by her husband, who was either a monster of redneck brutality or normal, depending on how you felt about his little ways. Englund seems inclined to fellow feeling:
Then there was the issue of Bob’s sexual needs. To Cherie [the mistress], Bob’s enjoyment of frequent and experimental intercourse seemed natural, virile, and creative. To Jen, it was an incubus that haunted her nights and many of her days. John Mellberg and Bob Penny, to whom Jen complained of Bob’s “demands,” did not find them at all abnormal. The frustration of Bob’s needs, however, may have sometimes led him, in anger, to force sex on Jen—unquestionably an act of violence, though not seen as such by the partners at the time. But the degree of frequency and violence, and even some of the horror connected with such moments, were, I feel certain, ex post facto re-creations for the benefit of the jury, which may likely, in time, have become genuine confabulations in Jennifer’s mind.
In court, as in the book, there was much discussion of the personality of the forlorn murderess and her forlorn victim and his “needs.” People took sides. There were personal contests between prosecution and defense lawyers, the judge seemed biased, there were maneuvers and tricks. The result—Patri was sentenced to ten years, transferred for a while to a mental institution, and paroled after three years—seems just what, at this remove, humanity and common sense would dictate, but it is a result that Jacoby, like Englund, would have to disapprove, would argue that she should have got what she “deserved.”
What are the interests of society in the Garland case, the Patri case? It depends on which part of society you are. In Buffalo recently, Willie Williams was arrested for stabbing a man said to have raped Williams’s little daughter. The victim, out on bail awaiting trial in another sex offense, remained free. Everyone got behind Williams, including the mayor, who said, “It’s a human thing. I feel it. I’ve got two daughters,” but excluding the DA who said, “The reason we have a whole system of laws is to prevent vigilante-style justice.” This presumes that laws will actually provide justice, which is Jacoby’s hope. But some item or other in the paper every day prompts one to wonder whether she is not optimistic when she says, “It is ridiculous to suppose that the general public will embark on blood vendettas if murderers are not put to death by the state.” We seem to have a number of vigilante-style operations already in place, of which recourse to the civil courts is a sedate version; there are also “guardian angel” citizens, private cops, individual vendettas like that of the man a few weeks ago who killed the bank manager and loan officer who had foreclosed his property. How far away are Latin American-style hit squads?
We have all been forced by twentieth-century ideas of the mind to recognize our own potentiality for evil. A judge, a juror, knowing himself to be a criminal under the skin, must naturally desire a good conscience. It is only an affluent and educated society that can afford the luxury of an expanded imagination, that can comprehend the feelings of others, something often absent in more straitened and stricter societies. With the ability to understand others and ourselves comes a reluctance to judge them, and the hope that criminals can be reformed (a hope that is losing ground), and that conditions which cause crime can be remedied. While all this is to human credit, Jacoby is persuasive that it may not be to human good. How can we escape the consequences of our good nature, our religious traditions, our imaginations, our affluence?
If matters of justice and retribution were simple, society would have settled them as easily as it has settled on the advantages of paved roads. Evidently societies that have agreed on a moral code, any moral code, enforce it with a self-confidence that our society has lost. If our responses to crime are arbitrary and inadequate, it is because we are not really agreed on the nature of culpability, have lost confidence that we can really decide what is “right.” It is hard to suggest, in a pluralistic society, one ethical tradition in which we can all regain confidence. Even that which we share, the “American,” seems hopelessly tarnished in the minds of many.
The nature of punishment is another subject entirely; it is our ideas of extenuation that have got out of hand, tangled up with our imaginations, our better understanding of ourselves, and our trustful American way of taking things literally—in particular psychiatric ideas—which in more sophisticated as well as in more rudimentary societies are not allowed to confuse the issue of individual responsibility. Add in the curious ethics of the legal profession,* add in the overcrowded prisons and courts, add in television, even, and the habits of empathy inculcated by the thousands of half-hours of sitcoms during which children imagine being someone else. There are a number of explanations for our failure to deal with violent crime; Jacoby’s book is at least a reminder that we should not accept the rather smugly romantic view of ourselves as somehow innately violent, proud of our heritage of guns. Perhaps it is preferable to believe, with her, that it is our law-abiding sense of fairness that has been thwarted. On the whole she is convincing in establishing the claims of a collective social entity (us, society, the public) to a right to approve of, feel satisfied and protected by, the way criminals are dealt with.
Englund quotes Alan Dershowitz, professor of criminal law at Harvard: "It is the job of the defense attorney—especially when representing the guilty—to prevent, by all lawful means, the 'whole truth' from coming out."↩
Englund quotes Alan Dershowitz, professor of criminal law at Harvard: “It is the job of the defense attorney—especially when representing the guilty—to prevent, by all lawful means, the ‘whole truth’ from coming out.”↩