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.
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.
February 16, 1984
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.” ↩