Justice? Vengeance? You Need Both

Thane Rosenbaum in The New York Times, July 27, 2011

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By THANE ROSENBAUM
Published: July 27, 2011

Norway, a nation far removed from the wickedness of the world, is now facing one of its greatest moral challenges: What to do with Anders Behring Breivik, the man who has confessed to massacring 76 people, many of them children. Norway does not allow for capital punishment, and the longest prison sentence a killer can usually receive there is 21 years. A country of such otherwise good fortune and peaceful intention is now unprepared — legally and morally —to deal with such a monstrous atrocity.

The United States, unfortunately, is much more familiar with this problem. Americans have spent several recent weeks in a vengeful fury over the acquittal of Casey Anthony, who partied for an entire month while her 2-year-old daughter, Caylee, was supposedly missing but might have actually been murdered — by Ms. Anthony. Many believe that Caylee was denied justice; her mother, meanwhile, has been released from prison and remains hidden in an undisclosed location, largely to protect her from vigilante justice.

The inadequacy of legal justice is one thing, its outright failure is quite another. But in both cases the attraction of a nonlegal alternative is a powerful one. Are these vengeful feelings morally appropriate? The answer is yes — because the actual difference between vengeance and justice is not as great as people think.

It’s difficult to have honest conversations about revenge. Seeing someone receive his just deserts often feels righteous and richly deserved, and yet society regards vengeance as primitive and barbaric. Governments warn citizens not to take justice into their own hands, insisting that the state alone has the duty and right to punish wrongdoers — pursuant to the social contract.

As a result, most people hesitate to frame their anguish in terms of revenge. Some, however, are more forthright, proclaiming a moral duty to avenge, especially when the law fails and breaches its part of the social contract.

Next month, Michael Woodmansee, who in 1975 gruesomely murdered Jason Foreman, a 5-year-old, is scheduled to be released from prison after serving only 28 years of a 40-year sentence.  Rhode Island, where he was convicted and sentenced, has an “earned time” law, which shortens prison sentences for criminals like Mr. Woodmansee who work prison jobs while incarcerated. 

John Foreman, the boy’s father, now faces the prospect of bumping into his son’s murderer in their small town. On learning of Mr. Woodmansee’s impending parole, Mr. Foreman said, “If this man is released anywhere in my vicinity, or if I can find him after the fact, I do intend to kill this man.”

Such statements of unvarnished revenge make many uncomfortable. But how different is revenge from justice, really? Every legal system, however dispassionate and procedural, must still pass the gut test of seeming morally just; and revenge must always be just and proportionate. That is what the biblical phrase “eye for an eye” means. Justice requires that no less than an eye can be taken in retaliation for a lost eye, but no more than an eye either.

Despite the stigma of vengeance, it’s as natural to the human species as love and sex. In art and culture, everyone roots for the avenger, and audiences will settle for nothing less than a proper payback — whether it comes from Hamlet, or from the emotionally wounded avengers in “Gladiator,” “Braveheart” or “Unforgiven.” Recent studies in neuroscience and evolutionary psychology have claimed that human beings are hard-wired for vengeance.

In threatening the man who slaughtered his son, Mr. Foreman is saying that he doesn’t believe that the debt Mr. Woodmansee owes to society, and to him personally, has been satisfied. The wrongdoer has grossly underpaid for his crime and the score remains unsettled.

There are cases, of course, when a parent’s grief is, though not assuaged, more satisfyingly addressed. A doctor in Connecticut, William A. Petit Jr., experienced this when one of the men who raped and strangled his wife, and then sexually assaulted one of his daughters before setting fire to the house with Dr. Petit’s two daughters tied to their beds, was sentenced to death. After the jury’s verdict, Dr. Petit said, “I’m glad for the girls that there was justice.” Make no mistake: when he speaks of justice here, he means that his daughters have been avenged.

Many believe that in such cases, capital punishment is appropriate because it comes closest to avenging victims. Norwegians may be contemplating this very idea. Polls suggest that most people around the world support the death penalty, especially for wrongdoers deemed the “worst of the worst.” Certainly Mr. Breivik qualifies for that distinction.

Legal systems should punish the guilty commensurate with their crimes and recognize a moral duty to satisfy the needs of victims to feel avenged. Plea bargains invariably shortchange this settling of scores — which is why, practical difficulties aside, they should be used only sparingly (and always with the victim’s participation). And allowing the guilty to walk free because of procedural errors — or because of the ambiguities of “reasonable doubt,” as in the case of Casey Anthony — invites vigilante justice. Neither justice nor revenge is negotiable.

Getting even is not complicated arithmetic. A just outcome in Norway, however, given the number of young lives taken, will doubtless be unsatisfying. Casey Anthony watchers will resign themselves to accepting the jury’s verdict and await the next celebrity trial. And John Foreman, the aggrieved father with the anguish of a debt still unpaid, is left to count the days.

Thane Rosenbaum, a novelist and law professor at Fordham University, is the author of “The Myth of Moral Justice.” His forthcoming book is on revenge.