Revenge, Justice, and the Law

REVENGE, JUSTICE AND LAW: RECOGNIZING THE 

VICTIM’S DESIRE FOR VENGEANCE AS A JUSTIFICATION 

FOR PUNISHMENT 

STEVEN EISENSTAT † 

I. INTRODUCTION: THE RAPE OF DINAH .......................1 

II. DEFINITIONS ........................................5 

A. Revenge .........................................6 

B. Legal ...........................................7 

C. Morality .........................................8 

D. Justice ......................................... 10 

III. THE MORALITY AND JUSTICE OF STATE IMPOSED 

PUNISHMENTS WHICH CAUSE SUFFERING ................. 11 

A. The Justice of Punishments Which Cause Suffering .......... 12 

B. The Morality of Punishments Which Seek To Cause 

Suffering 

............................................. 18 

IV. THE MORALITY OF REVENGE ........................... 22 

V. RECOGNIZING THE VICTIM AS A WRONGED PARTY ........... 29 

VI. REVENGE AS A SOURCE OF VICTIM EMPOWERMENT .......... 34 

VII. THE LIMITATIONS OF ALTERNATIVES TO REVENGE .......... 43 

A. Forgiveness as Mode of Victim Healing .................. 43 

B. Tort Law as A Model for Victim Healing ................. 47 

VIII. PLACING REVENGE WITHIN THE UTILITARIAN AND 

RETRIBUTIVE MODELS ............................... 49 

† Professor of Law, Suffolk University Law School. B.A. 1972, State University of 

New York at Buffalo; M.Ed. 1974, State University of New York at Buffalo; J.D. 1980, 

Northeastern University Law School. 

I would like to express my gratitude to Dean Robert Smith, Suffolk University Law 

School, for his valued support of this Essay. I am also grateful to Dr. Vivien Perge, and 

Professors Russell Murphy, Marin Scordato, Ilene Seidman, and David Yamada, for their 

valued and insightful comments, which were often contrary to the conclusions which I have 

drawn in this Essay, and thus forced me to reconsider and clarify my own thoughts on these 

issues. Lastly, I would like to thank my research assistants, Jennifer Stam and Richard 

Buckingham, as well as a former student, Jason Bielagus, for their help in locating and 

identifying many of the source materials which I have relied upon in the writing of this 

Essay. 

1

2 THE WAYNE LAW REVIEW [Vol. 50:4 

IX. HOW TO INCORPORATE REVENGE INTO THE CRIMINAL JUSTICE 

SYSTEM .......................................... 52 

X. CONCLUSION ....................................... 57 

I. INTRODUCTION: THE RAPE OF DINAH 

In the Book of Genesis, the Bible relates the story of Jacob, one of the 

founders of Judaism, and his daughter Dinah. Dinah was raped by 

Shechem, the son of Hamor the Hivite, the ruler of a neighboring city. After 

raping Dinah, Shechem fell in love with her, and sought to marry her. He 

beseeched his father to help “Get me this damsel to wife.” 1 

Hamor visited Jacob and his sons, and conveyed to the Hebrews his 

son’s desire to wed Dinah. Further, he promised that if Jacob agreed to the 

marriage, that the Hebrews could intermarry with Hamor’s people, and thus 

the two tribes could be one. The Hebrews would be allowed to own land, 

and otherwise prosper. 2 Speaking on his own behalf, Shechem offered even 

more than his father, offering to pay any price so long as they permitted him 

to marry Dinah. 3 

Dinah’s brothers responded to Shechem’s offer by stating that they 

could never agree to their sister marrying a man who was not ‘one of 

them,’ and that under Jewish law, that meant that Shechem, as well as all 

the other males of Shechem’s tribe, would have to agree to be 

circumcised. 4 

Shechem, his father, and the males of the village agreed to the proposal. 

Accordingly all of the males were circumcised. 5 As one can imagine, given 

the ordeal of the circumcisions, the men were, to say the least, 

incapacitated. At that point, two of Jacob’s sons, Levi and Simeon entered 

the city. With weapons drawn, they killed every male. They then looted the 

city. Thus was Dinah’s rape revenged. 6 

Jacob was unaware of his sons’ plans. When he learned of their acts, 

1. Genesis 34:1-5 (King James). 

2. Id. at 34:6-10. 

3. Id. at 34:11-12. 

4. Id. at 34:13-17. Male circumcision represented among the Biblical Hebrews, as it 

does today among most traditional Jews, a ritual which must be preformed if the male is to 

be considered Jewish. 

5. Id. at 34:17-24. 

6. Id. at 34:25-29.

2005] VICTIM’S DESIRE FOR VENGEANCE 3 

the Bible says that he rebuked them, warning that they now needed to be 

wary that other neighboring tribes would attack the Hebrews in retaliation 

for the killing and looting of the Shechemites. 7 To this, Simeon and Levi 

merely responded: “Should he [Shechem] deal with our sister as with an 

harlot?” 8 

The rape of Dinah and her family’s reaction to it, graphically illustrates 

both the allures and dangers inherent within revenge. Certainly, one can 

sympathize, and perhaps even applaud the motivation behind Dinah’s 

brothers’ act of revenge. 9 Their desire to see that the man who raped their 

sister is punished is understandable, and arguably commendable as well. 

However, the consequences of their revenge raise very serious issues 

regarding both the justness of their punishment, and the repercussions of 

their acts. 

On a substantive level, the punishments were clearly unjust. The fact 

that the tribe’s entire male population was punished for the acts of their 

prince, while recognized under the principle of collective responsibility as 

justice under many earlier legal systems, 10 clearly no longer is an acceptable 

basis for imposing criminal punishment. 11 Moreover, in the United States, 

the punishment of death for the crime of rape of an adult woman is no 

longer recognized as proportional in severity. 12 Thus, at least in hindsight, 

one would question both the scope and degree of punishment . And on a 

procedural level, the sons’ actions violated every modern tenet and 

constitutional requirements of procedural due process. There was no arrest, 

7. Id. at 34:30. 

8. Id. at 34:31. Interestingly, the Bible appears to take no explicit position regarding 

Jacob’s sons’ actions. In contrast to Jacob, God neither scolds nor punishes Levi or Simeon. 

Perhaps one can even draw the conclusion that given God’s lack of any rebuke, such silence 

evinces God’s tacit, if not express, approval of Simeon’s and Levi’s acts. 

9. Apparently, the Bible is also silent regarding what measures of vengeance, if any, 

were desired by Dinah, the victim of the rape. 

10. WILLIAM IAN MILLER, BLOODTAKING AND PEACEMAKING: FEUD, LAW, AND 

SOCIETY IN SAGA ICELAND 180 (1990). 

11. SUSAN JACOBY, WILD JUSTICE: THE EVOLUTION OF REVENGE 139 (1983); Robert 

C. Solomon, Justice and the Passion for Vengeance, in WHAT IS JUSTICE? 253 (Robert C. 

Solomon & Mark C. Murphy eds., Oxford University Press 2d ed. 2000) (1990). 

12. See Coker v. Georgia, 433 U.S. 584, 592 (1977) (holding that a sentence of death 

was “grossly disproportionate and excessive punishment” for the crime of rape of an adult 

woman, and thus violated the Eight Amendment’s prohibition against cruel and unusual 

punishment).


trial, or right to counsel. 13 The sons served, in every sense of the term, as 

the judge, jury, and executioners of Shechem, his father and the men of their 

city. 

Moreover, the repercussions of the revenge act concern society today, 

much as it did Jacob thousands of years ago. Upon learning of the actions 

of his sons, Jacob responds “Ye have troubled me to make me to stink 

among the inhabitants of the land, among the Canaanites and Perizzites: and 

I being few in number, they shall gather themselves together against me, 

and slay me; and I shall be destroyed, I and my house.” 14 Thus, Jacob’s 

admonition reflects the concern that revenge simply creates an increasing 

cycle of violence. 15 

Such was actually the case in many early civilizations which premised 

their system of justice upon revenge. “Blood feuds” often resulted after one 

family, seeking justice for an alleged wrong, sought revenge upon the 

suspected wrong doer. 16 Even if the revenging tribe punished the actual 

wrong doer, and meted out a proportional punishment, the fact that these 

decisions were made by an interested party, and not by an impartial body, 

would often cast doubt upon the justness of the punishment. And with good 

reason. Given the emotional involvement of the revenger, it was entirely 

possible, if not likely, that the wrong person would be punished for the 

crime. 17 In addition, another concern would be that even if the correct 

person was identified by the revenger, that the punishment meted out by the 

revengers, due to their emotional involvement, would likely be 

disproportionately severe for the crime which was committed. 18 Certainly, 

both of these concerns presented themselves in Simeon’s and Levi’s 

revenge of their sister’s rape. Thus the revenge act, as was feared by 

Jacob, rather than ending the matter, would simply perpetuate and escalate 

the disputes. 

Primarily for these reasons, 19 we have come to realize that there are 

13. See, e.g., U.S. CONST. amends. V, XIV. 

14. Genesis 34:30 (King James). 

15. JACOBY, supra note 11, at 67; MARTHA MINOW, BETWEEN VENGEANCE AND 

FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE 11 (1998). 

16. Lynne N. Henderson, The Wrongs of Victim’s Rights, 37 STAN. L. REV. 937, 939 

(1984-85); MARVIN HENBERG, RETRIBUTION: EVIL FOR EVIL IN ETHICS, LAW, AND 

LITERATURE 60-61 (1990). 

17. JACOBY, supra note 11, at 118. 

18. MINOW, supra note 15, at 10; HENBURG, supra note 16, at 60. 

19. Solomon, supra note 11, at 253 (“It is because of the likelihood of escalation as well


compelling reasons for the law to prohibit victims from exacting revenge. 

As a consequence, we have moved away from revenge cultures to societies 

where the state, as an impartial body, adjudicates guilt or innocence and 

pronounces sentence. 20 Yet as a result of this evolution, the law has 

significantly, if not entirely, removed the victim from any involvement in 

adjudicating guilt and determining punishment. 21 Victims are not considered 

to be a party to the action. Indeed, with few exceptions, 22 the status of 

victims in the criminal justice system is indistinguishable from that of any 

other potential witness. 

This Essay will address whether revenge is immoral, per se. In so 

doing, it will differentiate between the morality and justice of revenge, 

suggesting that the former relates to the motivation of the revenger, while 

the latter deals with fairness of the punishment itself. 23 

I will next argue that it is not immoral for a victim to want to punish his 

offender so as to cause his offender to suffer; and that punishment which 

causes suffering is also just, so long as it is inflicted upon the party guilty of 

the offense, and is proportional to the level of harm suffered by the victim. 24 

I will next examine the reasons why revenge has been replaced by state 

controlled punishment. I will conclude that the shift was necessitated by the 

need to ensure justice, and to prevent bloody and endless vendettas, and not 

because of any inherent immorality of revenge. However, fueled by 

religious doctrine and the state’s desire to expand and centralize its power, 

as the possibilities of mistakes on a purely personal level...that the limitation of revenge 

through institutionalization becomes necessary.”). 

Other purposes were served by replacing revenge with public retribution. Having the 

State serve as the arbiter of criminal matters furthered the shifting of power from local lords 

to a centralized monarchy. Henderson, supra note 16, at 940, citing 2 F. POLLACK & F. 

MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I 460-461 

(2d. ed. 1899) (1895). It also provided victims, who were too weak to exact vengeance on 

their wrongdoers, with the means to enlist the assistance of the governing authority to 

compel the appearance of the alleged wrongdoers. HEINRICH OPPENHEIMER, T HE 

RATIONALE OF PUNISHMENT 12 (1975). 

20. William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The 

Return of the Victim, 13 AM. CRIM. L.REV. 649, 650 (1976). 

21. Id. 

22. See, e.g., infra notes 183, 241-43 and accompanying text (discussing victim impact 

statements). 

23. See infra notes 44-46, 50-51 and accompanying text. 

24. See infra notes 52-89 and accompanying text.


revenge has been deemed as an evil emotion, thus justifying the law’s 

marginalization of victims in the criminal justice system. 25 

I will then argue that because of their status, victims deserve the right 

to be actively involved in decisions regarding punishment, even if they are 

motivated by revenge, so long as their involvement does not jeopardize the 

accuracy of the adjudication of guilt, or the fairness of the punishment. Such 

involvement may aid some victims to heal emotionally, and in the process, 

perhaps help rehabilitate the offender, thus satisfying the societal goals of 

Utilitarian theory. Further, I will suggest that such involvement can be 

justified under an expanded theory of Retribution; one that recognizes the 

victim’s, as well as society’s, interest in ensuring that wrongdoers are 

punished. 26 I will also argue that alternatives to revenge, such as victim 

forgiveness of his offender, and the filing of tort law suits, are often 

inadequate to meet victim needs. 27 I will then conclude by offering a 

number of procedural mechanisms by which victim involvement in 

sentencing decisions can be enhanced. 28 

II. DEFINITIONS 

This Essay will evaluate whether revenge should be recognized as a 

legitimate reason for inflicting punishment by examining the legality, 

morality, and justice of a criminal justice system which countenances such 

a value system. Thus, I will begin by setting out how I will be defining these 

concepts. 

A. Revenge 

Webster’s Dictionary defines revenge as “to inflict damage, injury or 

punishment in return for (an injury, insult, etc.).” 29 In this Essay, I will refine 

that definition so that for act to be an act of revenge, the force used must 

25. See infra notes 90-126 and accompanying text. 

26. See infra notes 127-89, 218-28 and accompanying text. 



29. WEBSTER’S NEW WORLD DICTIONARY 1245 (Coll. ed. 1964) [hereinafter 

WEBSTER’S]. Interestingly, the word “revenge” is not defined in Black’s Law Dictionary, 

perhaps revealing the disfavor (or at least the perceived irrelevance) which even the word 

itself has under the law.


be exercised by the victim or a close family member, to punish another for 

his actions against the victim. 30 

A number of points should be noted about this definition. First, is the 

lack of any requirement that the revenge be justified, or that the level of 

force used is reasonable. 31 The word, in and of itself, will be value neutral. 

Thus, an act of minimal violence (for example, a slap in the face), taken by 

a person who has been raped against the actual rapist, and an act of 

extreme violence (shooting with a gun), taken by a driver against another 

driver who has cut in front of him without properly signaling, would both be 

acts of revenge. Distinctions, and thus value judgements, will naturally be 

drawn between the morality and justice of the two acts, but both will be 

considered as acts of revenge. All that is required is the state of mind that 

the act is “pay back” for the injury subjectively felt by the victim. 

Another point regarding state of mind. The revenger may be motivated 

primarily by hatred of the perceived wrong doer, a wish to see him suffer, 

or any other form of malice or ill will. 32 Indeed, such emotions may be the 

sole reason for the revenge act. The reasons which motivate the act of 

revenge will be relevant to the morality of the desire to seek revenge; not 

whether the act is an act of vengeance. Revenge need not be motivated by 

any other “higher” ideal such as acting because one believes that all wrong 

doers should be punished, or any of the Utilitarian reasons such as 

deterrence or rehabilitation. 

Also of note, is the personal nature of the revenge. The punishment 

must be meted out by the victim, or at least someone with a close familial 

or friendship bond to the victim. 33 If such acts are committed by others, 

whether condoned or prohibited under law, they will not be defined as 

revenge. Rather, I will refer to such acts by third parties, be they vigilante 

30. CHARLES K.B. BARTON, GETTING EVEN: REVENGE AS A FORM OF JUSTICE 52 

(1999); ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS 367 (1981). 

31. BARTON, supra note 30, at 32. 

32. Webster’s offers the further definition of ‘revenge’ by contrasting it with the word 

‘avenge’: “revenge implies the infliction of punishment as an act of retaliation, usually for 

an injury against oneself, and connotes personal malice, bitter resentment, etc. as the moving 

force,” whereas “avenge implies the infliction of deserved or just punishment for wrongs 

or oppressions.” WEBSTER’S, supra note 29, at 101, 1245 (emphases added). 

33. See BARTON, supra note 30, at 54. The term “avenge” has also been used to 

distinguish between the actual victim of the crime seeking vengeance against the wrongdoer 

(i.e. revenge), and the taking of vengeance on behalf of the wronged party (i.e. avenge). See, 

e.g., WEBSTER’S, supra note 29, at 101.


groups or legally constituted governmental bodies, as motivated by a desire 

to seek retribution. 34 

B. Legal 

Black’s Law Dictionary defines the term “legal” as “conforming to the 

law; according to law; required or permitted by law...” 35 My use of the term 

will comport with that definition. Notably absent from that definition is any 

judgement as to the morality or justice of the law. To answer whether a 

particular act is legal, I will simply refer to the positive, 36 written law of the 

34. See generally BARTON, supra note 30, at 52-69; NOZICK, supra note 30, at 366-68. 

Barton, however, does view revenge as a form of retribution. See BARTON, supra note 30, 

at 54 (“While it is true that historically revenge has been the most prevalent form of 

retribution, it has not been the only one.”) (emphasis added). He refers to acts of revenge 

taken by the victim or those in personal relationship to the victim as “personal retribution,” 

and acts taken by others such as vigilante groups or legally constituted governmental bodies 

as “non-personal retribution.” Id. at 79. In so doing, he attempts to illustrate the 

commonalities between revenge and retribution, (most notably the concept of punishment 

per se), and thus disabuse the notion that revenge is an inherently immoral motivation, while 

retribution is not. Id. at 56-69. Yet while acknowledging that the two terms have such 

commonalities, he also stresses the intrinsic difference between two; that is the sense of 

personal involvement which is at the very essence of the revenge act. Id. at 52-56. 

This distinction, however, is not universally accepted, as the two terms are often used 

synonymously. See, e.g., Furman v. Georgia, 408 U.S. 238, 343 (1972) (Marshall, J., 

concurring) (“Retaliation, vengeance, and retribution have been roundly condemned as 

intolerable aspirations for a government in a free society.”); JACOBY, supra note 11, at 4 

(“The very word ‘revenge’ has pejorative connotations. Advocates of draconian punishment 

for crime invariably prefer ‘retribution’—a word that affords the comfort of euphemism 

although it is virtually synonymous with ‘revenge.’”) (emphasis added). 

I believe Barton’s definition to be more precise and useful, regardless of whether he 

uses the term revenge or personal retribution, because it draws particular attention to the 

personal nature which motivates the revenge act. After all, it is that very characteristic—that 

it is the one who has been victimized who seeks to punish the wrong doer—which 

constitutes the underlying and compelling justification for the act. Moreover, it is clear that 

legal theory itself draws such a distinction, since it accepts retribution, that is public 

retribution, as a recognized motivation and goal for punishment, while it rejects revenge, or 

private retribution as a justification. See infra note 93 and accompanying text. 

35. BLACK’S LAW DICTIONARY 803 (5th ed. 1979) [hereinafter BLACK’S]. 

36. Id. at 1046 (“Positive law: Law actually and specifically enacted or adopted by 

proper authority for the government of an organized jural society.”).


relevant jurisdiction. Any discussion of notions of natural law 37 will be 

framed within the context of the morality and justice of what the positive 

law declares to be a legal act. 

In assessing the legality of a particular act, I will refer to both the 

procedural and substantive qualities of the act. For example, all procedural 

safeguards required by law must be complied with, such as the right to 

counsel and the right to a jury of one’s peers. Also, the adjudication of 

innocence or guilt must comport with the substantive elements of the crime, 

such as demonstrating intent and harm inflicted upon the victim. 

C. Morality 

The first two definitions of the term offered by Black’s are: 

1. Pertaining or relating to the conscience or moral sense or to 

the general principles of right conduct. 

2. Cognizable or enforceable only by the conscience or by the 

principles of right conduct, as distinguished from positive law. 38 

Thus, as compared to what is a legal act, which refers to written or 

positive law, an analysis of the morality of an act refers to natural law, or 

“general principles” of what is considered to be the “right” thing to do. 39 

Quite obviously, questions of morality raise many other issues, most notably 

whose standards of “right conduct” are to be used. As one of my students 

succinctly observed: “These questions of morality open up a whole can of 

worms.” Do we judge moral behavior society to society, so what may be 

acceptable as moral under one society’s moral code may be deemed as 

immoral under another’s code? Do we judge moral behavior within the 

context of the times, and thus excuse the institution of slavery if it was a 

commonly acceptable practice? Or are there certain universal moral truths, 

37. Id. at 925 (“Natural law: This expression. . . . was intended to denote a system of 

rules and principles for the guidance of human conduct which, independently of enacted law 

or of the systems peculiar to any one people, might be discovered by the rational intelligence 

of man, and would be found to grow out of and conform to . . . . his whole mental, moral, 

and physical constitution.”) (emphasis added). 

38. Id. at 909 (emphasis added). 

39. See supra note 37.


which apply regardless of society or historical period? 40 

It is certainly outside the scope of this Essay to even attempt to resolve 

these weighty issues. However, in examining the morality of revenge, I will 

be operating under certain assumptions regarding these issues. First, I will 

view revenge through the lens of contemporary times. That is not to state 

that what has occurred previously has no bearing. Quite the opposite, as the 

Essay will explore the his tory of revenge, from its acceptance as the 

governing rule of punishment under blood feud societies, to present day. 41 

Indeed, it is a premise of the Essay that such an historical analysis supports 

the proposition that revenge has a rightful place within contemporary 

criminal justice systems. 42 

Second, my analysis will focus on the morality of revenge within 

contemporary American society. It will thus draw predominantly upon 

Western religious and cultural norms which have formed the basis for our 

current sense of morality. 43 As such, it is not the intent of this Essay to 

engage in a comparative study of revenge. That is certainly not to suggest 

that such studies are without merit; but rather only to acknowledge the 

scope of this Essay. 

Third, and perhaps of greatest relevance, I will assess the morality of 

revenge in a very specific sense: I will focus on the reasons which motivate 

the desire for revenge, and then explore the morality of the motivation. 44 For 

example, individuals seeking revenge will likely be motivated by the desire 

to have the wrong doer suffer for her crime. 45 Motivation may also arise out 

of hatred for the victimizer, or a desire to set an example so as to deter 

future criminal acts. 46 Indeed, a revenger may be motivated by a number 

of these reasons. The task then will be to identify these motives, and then 

40. See Monroe H. Freedman, Atticus Finch - Right and Wrong, 45 ALA. L. REV. 473, 

477 (1994). In this article, Professor Freedman analyzes the moral character of Atticus 

Finch, the lawyer who, in Harper Lee’s Pulitzer Prize winning novel To Kill a Mockingbird, 

defends an African American accused of raping a white woman in the 1930's in Alabama. 

The question he raises is whether it is “unfair to hold someone in an earlier time to moral 

standards that we recognize today. . . .[or is] morality...equated with the notions of right and 

wrong that are recognized in the culture of a particular time and place.” Id. 


42. See infra note 126 and accompanying text. 

43. See supra notes 1-8, infra notes 70-89, and accompanying text. 



46. See infra notes 57, 64, and accompanying text.


by reference to historical, religious, and cultural norms, evaluate the morality 

of the motives. 

D. Justice 

Black’s defines “justice,” in a general sense, as the “[p]roper 

administration of law.” 47 In my discussion of justice, I will be differentiating 

between substantive and procedural justice. By substantive justice, I will be 

referring to what Professor K.B. Barton defines as “deserved punishment,” 

which will mean a punishment which is meted out to an individual who is, 

in fact, guilty of the accused crime, and a level of punishment which is 

proportional to the crime committed. 48 In some cases, to answer whether 

a punishment is just will lead to an examination of some of the same issues 

which will be examined when discussing the morality of the revenge wish. 

For instance, is justice a universal concept, or is it also relative to society 

and time. 

47. See BLACK’S, supra note 35, at 776. 

48. BARTON, supra note 30, at 45. “In this sense, the justice or injustice of punishment 

imposed on a wrongdoer consists essentially in the observance or non-violation of certain 

basic principles, such as not punishing the innocent and not overdoing the punishment - by 

keeping it in proportion to the moral and legal gravity of the offense.” Id. These dual justice 

concerns regarding the accuracy of the adjudication of guilt, and the fairness of sentences, are 

basic tenets of our criminal justice system. 

To minimize the risk of wrongful conviction, the criminal law requires that the state 

prove its case beyond a reasonable doubt. See, e.g., WAYNE LAFAVE, CRIMINAL LAW 18 

(4th ed. 2003) (“[T]he law has always been concerned with the risk of innocent persons 

being subjected to criminal proceedings, and thus certain evidentiary tests must be met at 

several points in the criminal process. The strictest test, that which requires evidence 

‘beyond a reasonable doubt’ for conviction clearly rests upon the notion that it is better to 

allow some of the guilty to escape conviction than to risk conviction of an innocent 

person.”). 

Similarly, the requirement of proportional sentences is recognized as basic to our sense 

of justice. See infra notes 69-76 and accompanying text; see also MODEL PENAL CODE 

§ 1.02(1)(e) (“The general purposes of the provisions governing the definition of offenses 

are . . . . to differentiate on reasonable grounds between serious and minor offenses.”); 

§ 1.02(2)(c) (“The general purposes of the provisions governing the sentencing and treatment 

of offenders are. . . . to safeguard offenders against excessive, disproportionate or arbitrary 

punishment.”); § 1.2(2)(e) (“The general purposes of the provisions governing the sentencing 

and treatment of offenders are . . . . to differentiate among offenders with a view to a just 

individualization in their treatment.”).


When I refer to procedural justice, I will mean those procedural rights 

guaranteed under the United States Constitution, which are intrinsic to our 

sense that a party has had a “fair day in court.” Such rights would include 

the right to counsel, to be tried by an impartial jury of one’s peers, and to 

confront one’s accusers. 49 

There will be a crucial distinction between how I will use the terms 

justice and morality in evaluating revenge. While morality will be the 

standard by which I will assess the motivation of those who wish to invoke 

revenge as a justification for punishment, 50 justice will be the standard by 

which I will measure the consequences or results of the revenge act. 51 

Thus, even if the victim acts out of a desire for revenge, were the 

consequences just? In other words, did she act upon the person who 

actually committed the crime, and was the level of punishment fair? If so, 

the punishment would be just. 

This is not to suggest that foreseeable consequences of an act are 

irrelevant to the morality of that act. For instance, inflicting a punishment 

upon a party who one knows to be innocent of the crime would certainly be 

relevant to the morality of the motivation behind such an act. Similarly, 

inflicting a punishment which clearly is in excess to a proportional response 

to the crime would also reflect upon the morality of the motivation. In both 

cases, purposefully intending such consequences would be relevant to 

judging the morality of wanting to impose such unjust consequences. 

III. THE MORALITY AND JUSTICE OF STATE IMPOSED PUNISHMENTS 

WHICH CAUSE SUFFERING 

An argument raised against victim involvement in sentencing decisions 

is the concern that given their position, victims will be primarily concerned 

with revenge, and that such concerns should not be recognized as a goal of 

the criminal justice system. 52 If indeed one accepts this underlying 

49. See, e.g., U.S. CONST. amends. V, XIV. 

50. See supra notes 44-46; infra notes 57, 62-69, 90-99; and accompanying text. 

51. See BARTON, supra note 30, at 44-46; infra notes 56-69 and accompanying text. 

52. See, e.g., Kent A. Wilson, Vengeance and Mercy: Implications of Psychoanalytical 

Theory for the Retributive Theory of Punishment, 60 NEB. L. REV. 276, 283 (1981) (“It is 

the duty of the state rather than the individual victim to seek retribution from the offender. 

The victim of a crime is felt to be too subjectively and emotionally involved to exact a fitting 

punishment. Were the victim to exact punishment, such would be an act of vengeance rather


assumption, (which for the purposes of argument, I will) that victims’ 

interests in sentencing are motivated primarily to see that their victimizers 

“pay for their crimes,” then we must determine whether such a goal is a 

legitimate reason for imposing criminal punishment. To resolve that issue, 

I suggest requires an examination of two propositions: 

1. That it is just and moral for society, through its criminal 

justice system, to seek retribution against those who violate its 

laws; and, if so, 

2. That it is also moral for society to permit its criminal justice 

system to be used as a means by which victims can satisfy their 

desire for revenge. 53 

A. The Justice of Punishments Which Cause Suffering 

In order to address this question, I will create a hypothetical based upon 

the actual recent crisis concerning the sexual abuse of minors by priests 

within the Catholic Church. 54 For purposes of this discussion, I will change 

the actual facts in the following manner: The Church announces that it has 

than an act of punishment.”) (emphasis added); Jon Elster, Norms of Revenge, 100 ETHICS 

862 (July 1990) (“Prima facie, this motivation [for rational behavior] is incompatible with 

revenge behavior. The very definition of revenge. . . . shows that it involves only costs and 

risks, no benefits.”) (emphasis added); C.S. LEWIS, THE PROBLEM OF PAIN 82 (1957) cited 

in BARTON, supra note 30, at 12 (“On yet a third level we get vindictive passion-the thirst 

for revenge. This, of course, is evil and expressly forbidden to Christians.”) (emphasis 

added). Of interest is that C.S. Lewis was a Retributivist, and thus believed that punishment 

per se, by the state was entirely justified. See infra note 63. 

53. See supra notes 33-34 and accompanying text (distinguishing between retribution 

and revenge). 

54. On February 27, 2004, the Archdiocese of Boston released the results of its report 

regarding the incidence of sexual abuse by priests within its archdiocese from 1950-2003. 

The report indicated that 162 priests, or roughly seven percent of the 2,324 priests in the 

archdiocese, were accused of abusing 815 minors over the 53 year period. Michael Paulson, 

Diocese Gives Abuse Data, BOSTON GLOBE, Feb. 27, 2004, at A1. These figures have been 

challenged by some as lower than the actual number of cases. Id. 

On a national level, a report commissioned by the Catholic Church concluded that over 

the same 53 year period, 4,392 priests allegedly sexually abused 10,667 minors. Since 2001, 

approximately 700 priests accused of sexual abusive have been removed. Michael Paulson, 

Church Hierarchy Faulted by Lay Panel on Abuse: 700 Priests Removed by Bishops in 2 

Years, BOSTON GLOBE, Feb. 28, 2004, at A1.


identified a number of its priests who have confessed to Church officials of 

their abuse. However, the Church refuses to publically identify the priests, 

but rather assures state officials that it has “punished” the priests by taking 

the following measures: removing them to a retreat where they will never 

come into contact with minors, until and unless, through religious and 

psychological counseling, they are“cured” of their pedophilia. Let us also 

assume, contrary to studies, 55 that such counseling would cure the disease. 

The Church also promises to inflict more draconian measures upon any 

priests who abuse minors in the future, including reporting such priests to 

state officials for criminal prosecution. 

Have these priests been punished? Certainly, in that their freedom (at 

least temporarily) has been curtailed, the priests would have been punished. 

But should the state, based upon that level of punishment, approve of this 

arrangement, and agree not to pursue any criminal action against the 

priests? 

To resolve that question, entails an examination of why we punish those 

who break our laws. Under the theory of Utilitarianism, 56 developed in the 

early 19th century, the purpose of criminal punishment is to effectuate 

positive social changes such as: 

1. Rehabilitating the criminal so that he will not commit the 

crime again, 

2. Deterring the criminal (specific deterrence) and others 

(general deterrence) from engaging in similar criminal behavior, and 

3. Incapacitating (imprisoning) the criminal so as to protect 

society from his future wrong doing. 57 

55. Pedophilia is considered to be a non-curable, chronic disorder. It is unclear whether, 

and to what extent it is a treatable disorder. See generally Peter J. Fagan et al., Pedophilia, 

288 JAMA 2458, 2462 (Nov. 20, 2002). 

56. The 19th century philosopher Jeremy Bentham is considered one of the principal 

founders of Utilitarianism. See, e.g., Jeremy Bentham, The Rationale of Punishment, in THE 

WORKS OF JEREMY BENTHAM (C.J. Browning ed., 1962) (1838-1843) [hereinafter 

Punishment]; JEREMY BENTHAM, THE THEORY OF LEGISLATION 55-59 (C.K. Ogden ed., 

Richard Hildreth trans., 1987) (1931) [hereinafter LEGISLATION]. 

57. See generally RICHARD J. BONNIE ET AL., CRIMINAL LAW 11-30 (1997); Michele 

Cotton, Back With a Vengeance: The Resilience of Retribution as an Articulated Purpose of 

Criminal Punishment, 37 AM. CRIM. L. REV. 1313, 1316-17 (2000); see also MODEL PENAL 

CODE §§ 1.02(1) & 1.02(2) (explicitly incorporating many of the Utilitarian goals of 

incapacitation and deterrence and rehabilitation, respectively).


Under the Utilitarian theory, only if punishment furthered such goals 

was it warranted. Accordingly, it would seem that the Church’s plan would 

effectuate these policies, and thus meet the requirements of Utilitarianism. 

The goal of rehabilitation would be met since it has been stipulated that the 

Church’s counseling efforts would be effective. Similarly, the goal of 

incapacitation would be met since the priests would be confined to the 

retreat and not be permitted to have contact with children, until through their 

treatment, they no longer posed a threat to children. Lastly, the deterrence 

goal would be addressed since, through its promise of harsher treatment of 

abusive priests in the future, the plan seeks to diminish the chances of future 

criminal behavior. 58 

But is this level of punishment just? Or, as a society, would we have the 

right to demand that the guilty parties’ punishment be greater? I suggest that 

the Church’s plan, even if it would satisfy all of the Utilitarian goals, would 

nonetheless, constitute an unjust punishment. Unjust, not as is usually 

assumed, because of its harshness; but rather due to its unjustified 

leniency. 59 In other words, the punishment would not be proportional to the 

offense. Admittedly, the utilitarian social goals would be met, but where 

would there be a sense that the victimizer has “paid” for his wrong doing? 

This concept of payment finds support under the Retributive theory of 

criminal punishment. 60 As espoused by the 18th century philosopher 

Immanuel Kant, under this doctrine, society has the right to demand that 

wrong doers must be punished, for no other reason than they are wrong 

doers, and thus deserve punishment. 61 Indeed, I would argue that inherent 

58. Id. 

59. See, e.g., JACOBY, supra note 11, at 295 (“[P]roportionality has no meaning as a 

barrier to cruelty if it does not also place some restrictions on compassion.”); see also 

H.L.A. HART, Punishment and the Elimination of Responsibility, in PUNISHMENT AND 

RESPONSIBILITY 162 (1968) (“Trivial offenses causing little harm must not be punished as 

severely as offenses causing great harm; causing harm intentionally must be punished more 

severely than causing the same harm unintentionally.”) (emphasis added). 

60. See generally GRAEME NEWMAN, THE PUNISHMENT RESPONSE 190-200 (1978). 

61. IMMANUEL KANT, THE PHILOSOPHY OF LAW 195 (August M. Kelly Publishers, 

1974) (W. Hastie trans., 1887) (“Juridical Punishment can never be administered merely as 

a means for promoting another Good either with regard to the Criminal himself or to Civil 

Society, but must in all cases be imposed only because the individual on whom it is inflicted 

has committed a Crime.”) (emphasis in original). 

The United States Supreme Court, in upholding the constitutionality of the death 

penalty, recognized a societal right to retribution:


under Retribution theory, for there to be just punishment, the victimizer must 

experience a sense of suffering, 62 and that such suffering must not be 

disproportionally less severe than the suffering which was experienced by 

the victim. 

Without requiring an adequate level of suffering, a wrongdoer would not 

pay for his wrongful act. 63 Suffering may take many forms. It may consist 

of loss of freedom through incarceration, loss of financial assets through 

fines, and perhaps even loss of life. Suffering need not be a distinct and 

separate element of punishment. For example, by imposing the punishment 

of incarceration, the dual goals of incapacity and suffering could be 

The instinct for retribution is part of the nature of man, and channeling that 

instinct in the administration of criminal justice serves an important purpose in 

promoting the stability of a society governed by law. When people begin to 

believe that organized society is unwilling or unable to impose upon criminal 

offenders the punishment they “deserve,” then there are sown the seeds of 

anarchy of self- help, vigilante justice, and lynch law. 

Gregg v. Georgia, 428 U.S. 153, 183 (1976), citing Furman v. Georgia, 408 U.S. 238, 308 

(1972) (Stewart, J., concurring). 

One criticism of Retribution is that its justification relies upon its own assertion that 

a “wrongful act must be punished.” See, e.g., Wilson, supra note 52, at 281 (“To justify 

punishment on the grounds that punishment is ‘just’ or ‘morally good’ is circular.”). In 

response to this criticism, Graeme Newman argues that it is possible for a statement to be 

inherently right, and so argues that “the statement ‘A wrongful act must be punished’ is not 

just an assertion, it is a statement of fact. There has never been a time in history when 

wrongful acts (that were perceived as wrongful acts) were rewarded. In fact, such a 

possibility is plainly ridiculous.” Id. at 191. 

62. See, e.g., HART, Prolegomenon to the Principles of Punishment, 4 (xxxx) (“It 

[Punishment] must involve pain or other consequences normally considered unpleasant.”); 

HART, Postscript: Responsibility and Retribution, supra note 59, at 231 (“The justification 

for punishing men under such conditions is that the return of suffering for moral evil 

voluntary done, is itself just or morally good.”). 

63. Barton also argues that retribution recognizes the wrongdoer as a mature and 

competent individual by holding him accountable for his wrongful acts. BARTON, supra note 

30, at 97. C.S. Lewis argued similarly, and in so doing criticized the Utilitarians: 

Their very kindness stings with intolerable insult. To be “cured” against one’s will 

. . . ..is to be put on a level with those who have not yet reached the age of reason or 

those who never will. . . ...But to be punished, however severely, because we have 

deserved it, because we “ought to have known better” is to be treated as a human 

person made in God’s image. 

C.S. Lewis, The Humanitarian Theory of Punishment, in 6 RES JUDICATAE 224, 228 (1953).


effectuated. 64 For the length of the sentence, society is protected by the 

incarceration, while at the same time, through the loss of personal liberty, 

the punishment contains the element of suffering. 

Failure to include suffering as an essential element of punishment, and 

relying solely upon the Utilitarian goals for justifying punishment, could lead 

to inordinately lenient, and I would argue, unjust punishments. For example, 

returning to the Church hypothetical discussed above, suppose that the 

abusive priests did not object, but rather welcomed their reassignments to 

the pastoral retreat. One could thus argue that they would experience no 

suffering at all from their “punishment” of temporary exile. And yet, since 

the Utilitarian goals of incapacity, deterrence, and rehabilitation would still 

be met, one could still characterize that plan as a just punishment. It is only 

when we include the requirement that the victimizer must pay for his 

wrongs through his suffering, that we give real meaning to the concept of 

punishment, and thus construct a standard by which we can weigh whether 

a plan such as proposed above for punishing the abusive priests is adequate 

and just. 

The need to include within punishment a sense of suffering can be 

illustrated by the following: Pedophilia is recognized by the medical 

profession as an incurable mental disease. 65 There is also disagreement 

within the medical community regarding whether treatment is effective in 

reducing the recidivism of sexual offenses. 66 Thus it is unclear whether the 

goal of rehabilitation can be furthered through punishment of the offender. 

Moreover, it is also unlikely that the threat of imprisonment or other criminal 

sanctions would be sufficient so as to deter future acts of sexual abuse. 67 

Therefore, due to these medical realities, two of the primary justifications 

for punishment under Utilitarianism, rehabilitation and deterrence, would 

probably not be met by imprisoning those found guilty of child sexual abuse. 

This leaves incapacity as the remaining Utilitarian justification for 

incarceration. Yet it is also questionable whether using incapacity as the 

64. BARTON, supra note 30, at 89 (“Retributivists need not deny, of course, that good 

consequences, such as deterrence . . . . and desirable functions . . . . are highly relevant to 

justifying punishment in instrumental and functional ways.”). 

65. See supra note 55. 

66. See, e.g., Linda S. Grossman et al., Are Sex Offenders Treatable? A Research 

Overview, 50 PSYCHIATRIC SERVICES 356-58 (Mar. 1999). 

67. See, e.g., Bhagwan A. Bahroo, Pedophilia: Psychiatric Insights, 41 FAM. CT. REV. 

497 (2003).


sole justification for imprisonment would suffice, since one could argue that 

if all we are concerned with is that society be protected, that end could be 

met by less drastic, and less costly sanctions. For instance, the offender 

could be fitted with an electronic bracelet which would monitor his travels, 

be placed in a secure half-way house, and prohibited any contact with 

minors. If such a plan, or any other one, would be found to adequately 

protect society, the goal of incapacity would be met. 

But would such a plan be an adequate, and thus just punishment? I 

would argue that it would not, because of the lack of proportionality 

between the crime and the punishment. Society, through its laws has 

recognized that for the crime of sexual abuse on a minor, a proportional 

punishment must include more than a relatively slight abridgement of one’s 

freedom of travel. 68 And yet, electronic monitoring would only fail the 

proportionality test if we include within the standard of measuring 

proportionality the requirement of suffering. 

Indeed, the whole concept of proportionality of punishment is based 

upon the assumption that punishment includes suffering. Proportionality 

weighs the seriousness of the crime to the severity of the punishment. 69 

68. See, e.g., TEX. PENAL CODE ANN. § 12.32 (Vernon 2005) (punishing first degree 

felonies, which includes aggravated assault of a child pursuant to section 22.021, with no less 

than five years and not more than life imprisonment); VA. CODE ANN. § 18.2-61(C) (Michie 

2005) (punishing rape with no less than five years and no more than life imprisonment); LA. 

REV. STAT. § 14:42(D)(2) (punishing aggravated rape of a victim under twelve years old 

with life imprisonment or death). 

69. See generally HART, supra note 59, at 160-70; Wilson, supra note 52, at 284-87. 

Some critics of Retribution fault the imprecision of proportionality as one of the theory’s 

flaws: 

Retributivists very commonly direct us to make punishments ‘proportional’ to 

crimes. . . . Unfortunately this prescription by itself cannot tell us what punishment 

any particular crime deserves even if we could rank every crime in a single scale from 

least to most serious. For the prescription requires only that we assign greater penalties 

as we ascend the scale of crimes, without either supplying a starting point (the penalty 

for the least serious offense) or telling us by how much to increase the penalty as we 

move from one crime to the next in the scale. 

David Dolinko, Three Mistakes of Retributivism, 39 UCLA L. REV. 1623, 1636 (1992) 

(emphasis added). See also Wilson, supra note 52, at 284 (“Although balancing the 

punishment and the injury is conceptually simple, determining the specific nature of the 

punishment to be inflicted presents a more difficult issue.”). 

Generally, I find such arguments against proportionality not to be very persuasive. 

Once a criminal justice system moves away from a strict “eye for an eye” approach to


Without requiring the wrong doer’s suffering as an essential element of 

punishment, what would the seriousness of the crime be balanced with? The 

level of rehabilitation, deterrence, incapacity? It is only when the guilty 

suffers through his punishment, can we engage in the calculus of 

proportionality. 

One could, I suppose, argue that suffering is irrelevant to punis hment; 

that any suffering caused by punishment is unintentional and merely 

incidental to the attainment of one or more of the Utilitarian goals. If so, 

then it would follow that any level of punishment would be permissible in 

order to achieve the goals. For example, why not inflict the death penalty 

for driving while intoxicated? Such a penalty would probably significantly 

reduce highway fatalities. But clearly, such a level of punishment would be 

unjust (and unconstitutional), because the severity of suffering would be 

deemed to be disproportionate to the crime. Thus, level of suffering is 

always relevant to the extent of punishment. In addition, one would have to 

question a legal system which would permit punishment to cause suffering, 

but would not accept the morality of allowing such suffering. 

B. The Morality of Punishments Which Seek To Cause Suffering 

A common response to the proposition that for a punishment to be just, 

punishment, and thus no longer requires the identical punishment for the wrong committed, 

it must, of necessity engage in relative comparisons, unless it opts for eliminating 

punishment altogether. Exact precision and uniformity are no longer possible. 

However, some seem to be too forgiving when they argue that the legitimacy of 

proportionality is only dependant upon what “society at that time considers proportional 

to the seriousness of the offense.” Stephen J. Morse, Justice, Mercy and Craziness, 36 

STAN. L. REV. 1485, 1493-94 (1984) (reviewing NORVAL MORRIS, MADNESS AND THE 

CRIMINAL LAW (1982)). (“This is then the deserved punishment at that time and in that 

place.”) Id. Such a blanket defense would appear to countenance any level of punishment, 

so long as society, at that time considers it to be proportional to the crime. Putting aside 

those instances where society has, with no moral basis, criminalized behavior, such as 

torturing and killing of individuals based purely upon their religious beliefs, affording such 

deference to societal standards could also result in unjust punishments for behavior which 

could morally be defined as criminal. For instance, what of a society, which through its legal 

system, permits extreme physical punishment for very slight offenses. Even while 

recognizing the problem of defining what is a “slight”offense, I question a definition of 

proportionality which rejects the setting of any limitation upon what any society, at any 

given time, may consider just punishment.


it must include proportional suffering for the wrong doer, is that such a 

requirement represents nothing more than seeking, in the words of the 

famous Biblical passage: “an eye for an eye,” 70 ( also referred to as lex 

talionis ) 71 and therefore, ipso facto, is immoral. 72 While I agree that 

requiring a measure of suffering by the wrong doer does include elements 

of an “eye for an eye” mentality, for a number of reasons, I do not agree 

with the resulting conclusion which would thus invalidate the requirement 

as immoral. 

First, it has been noted by numerous scholars that the passage actually 

imposed a proportionality requirement on the level of punishment; that it 

really was meant to limit the harshness of punishment. 73 In Biblical times, 

punishment could often far exceed the crime itself. Thus, the eye for eye 

70. Exodus 21:23-25 (King James) (“And if any mischief follow, then thou shalt give 

life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, 

wound for wound, stripe for stripe.”). Read in their entirety, Chapters 21 and 22 of the 

Book of Exodus, in fact set forth God’s pronouncements of justice regarding proportionality 

of punishment to offense. 

71. The term lex talionis denotes a system of justice “which requires the infliction upon 

a wrongdoer of the same injury which he has caused to another.” BLACK’S, supra note 35, 

at 822. See, e.g., OPPENHEIMER, supra note 19, at 9; NEWMAN, supra note 60, at 29. Of 

course, there are some problems with judging just what constitutes the “same punishment.” 

For example, Lord Blackstone posed the problem “what is the equivalent harm when a twoeye’d 

man knocks out the eye of a one-eye’d man?” Solomon, supra note 11, at 257. 

Perhaps the best that can be said for proportionality is that we recognize the lack of it, when 

the punishment clearly exceeds the crime. Id. 

72. For example, Utilitarians explicitly reject lex talionis as a basis for punishment, even 

if the concept is employed as a means to limit the level of punishment. For Utilitarians, 

punishment can only be justified if it serves to further one or more of the positive social 

goals set out earlier. See supra notes 56-57 and accompanying text. See also Punishment, 

supra note 56, at 397 (“If we consider an offense which has been committed as an isolated 

fact, the like of which would never recur, punishment would be useless. . . . .[A]ll 

punishment being in itself evil, upon the principle of utility, if it ought at all to be admitted, 

it ought only to be admitted in as far as it promises to exclude some greater evil.”). 

73. See, e.g., JACOBY, supra note 11, at 132 (“It [an eye for an eye] is a statement of 

legal proportionality as a limitation on rather than a blueprint for penalties so brutal in their 

reciprocity. . . . [as to] be regarded as criminal acts rather than instruments of just 

retribution.”); OPPENHEIMER, supra note 19, at 8-9 (“It is at this epoch, too, that vengeance, 

at first boundless, has its wings clipped and is reduced to the proportions prescribed by the 

ubiquitous lex talionis.”); see generally HEMBERG, supra note 16, at 59-76 (detailing the 

evolution of the doctrine of lex talionis as the standard for determining the level of just 

punishment).


requirement was set so as to limit punishments to a level that could be no 

greater than the level of the crime, and thus is a limitation regarding the 

justness of the punishment, not whether the desire for such a punishment 

is moral. Under that interpretation, I take no issue with the passage, sinc e 

it would only impose a proportionality requirement which, I would agree, is 

intrinsic to any concept of just punishment. 74 It would not, however, prohibit 

suffering as an essential requirement for punishment, so long as such 

suffering was proportional to the harm suffered by the victim. 

Second, it is difficult for me to comprehend the basis for arguments 

which maintain the moral unacceptability of punishment which causes 

suffering, when, at least under Western religions, we are taught of a God, 

who repeatedly metes out punishments which include a great deal of 

suffering. The Bible is replete with such examples. For instance, when God 

destroys the towns of Sodom and Gomorrah because of their inhabitants’ 

failure to adhere to God’s moral standards, 75 or when he visits the Ten 

Plagues upon the Egyptians for Pharaoh’s refusal to accede to his orders 

to let the Hebrew people leave Egypt, 76 he certainly causes a great deal of 

suffering. 

God when exacting these punishments is not doing so as an impartial, 

disinterested, third party, seeking only to remedy past human errors. He is 

angry because those whom he has punished have acted against him; they 

have violated his laws and commandments, they have defied his orders, and 

because of their insolence and hubris, God intentionally makes them suffer 

through his punishments of them. 77 He is acting in the role of the revenger, 

exacting punishment (and suffering) upon those who have wronged him. 78 

74. See supra note 69 and accompanying text. 

75. Genesis 19:24-25 (King James). 

76. Exodus 7-11 (King James). 

77. One could certainly argue that God, when destroying the cities of Sodom and 

Gomorrah, and visiting the plagues upon the Egyptians, was acting both as a Retributivist 

by punishing those who had dared to defy his laws, as well as a Utilitarian, by seeking to 

deter future disobedience. However, one would have to question whether the levels of 

punishments exacted by God comported with his own proportionality requirements . See 

supra note 70. 

78. See, e.g., JACOBY, supra note 11, at 82 (“Whatever restraints the Scriptures place 

on vengeance committed by God’s creatures, they accord the unlimited and unquestionable 

right of vengeance to the creator of the universe.”); see also DAN JACOBSON, THE STORY 

OF THE STORIES: THE CHOSEN PEOPLE AND ITS GOD 84 (1982) (“On her [Israel] he [God] 

had to take a boundless revenge for any infidelity or wrongdoing.”).


Is God acting immorally when he inflicts such suffering? I doubt that is the 

lesson which the Bible seeks to teach. 79 

Indeed, the Bible does not reserve only unto God the right to revenge. 

Dinah’s brothers’ revenge for the rape of their sister, 80 is but one example 

of where the act, if not expressly countenanced by God, is neither the 

subject of rebuke. Indeed, the Bible tells of God commanding the Hebrews 

to create three “cities of refuge” to which those accused of crimes could 

receive sanctuary from those seeking to avenge the alleged wrongful acts. 

If the accused was innocent of the crime, for example, if he killed another 

person by accident, he could remain, unscathed and protected in the cities. 81 

However, if the killing was without excuse, “then the elders of his city shall 

send and fetch him thence, and deliver him into the hands of the avenger of 

blood, that he may die.” 82 Thus, while the ancient Hebrews recognized the 

danger that a revenger who acted while his “heart [was] hot” 83 risked the 

shedding of innocent blood, they also recognized the legitimate right of the 

avenger to exact the punishment once cooler heads had determined the guilt 

of the accused. 84 

In response, one might argue that even if the Bible permits suffering as 

part of punishment, requiring it as part of punishment is nonetheless 

79. Admittedly, all of the Biblical references cited so far in this Essay have come from 

the Old Testament. In contrast, the New Testament, particularly when retelling the story 

of Jesus, is often cited for its emphasis on mercy and forgiveness. For instance, Jesus’s 

admonition in John 8:7 to those who wished to stone to death a suspected adulteress that 

“He that is without sin among you, let him first cast a stone at her” is often cited as 

representative of the New Testament’s turning away from the often harsh justice of the Old 

Testament, towards a more forgiving social order. See JACOBY, supra note 11, at 89. While 

such an absolute differentiation between the two Testaments is probably overly simplistic, 

there is some merit to the distinction. See generally JEFFRIE G. MURPHY, GETTING EVEN: 

FORGIVENESS AND ITS LIMITATIONS 87-93 (2003). Such an admission, however, does not 

invalidate the references to the Old Testament. Indeed, it is not the position of this Essay 

that vengeance should be the sole standard for determining justice. Rather, I would argue that 

just as the Bible, when read in its entirety, recognizes the virtues of vengeance and 

compassion, so too, should the law recognize the value of both desires when deciding levels 

of fair and just punishment. See infra notes 202-04 and accompanying text. 

80. See supra notes 1-8 and accompanying text. 

81. Deuteronomy 19:2-6 (King James). 

82. Id. at 19:11-12. 

83. Id. at 19:6. 

84. But see infra notes 112-14 and accompanying text (discussing the New Testament’s 

prohibition against mortal’s exacting revenge in Romans 12:19).


immoral, especially if the Utilitarian goals could be satisfied without 

imposing the additional, punitive requirement of suffering. Not surprisingly, 

this is the position of classical Utilitarianism. 85 To that, I offer the traditional 

Retributive response: that the very purpose of punishment is to punish the 

wrong doer for what he has done. 86 It matters not that other, non-punitive 

sanctions (such as placing the priests in retreats), could accomplish the 

goals of deterrence, rehabilitation, and incapacity. Rather, under the concept 

of “deserts,” 87 the wrong doer is forced to suffer under punishment simply 

“because [he] deserved it, because [he] ‘ought to have known better.’” 88 

His actions have caused pain and harm to another, and therefore, he must 

pay for it. Even if through the punishment, none of the Utilitarian goals were 

met; even then, punishment which causes the victimizer to suffer would be 

warranted and just as payment for his wrong. 

Lastly, if, as I have argued above, in order for a punishment to be just, 

it must contain an element of suffering, how can we characterize society’s 

desire for such suffering as immoral? Would not such a motivation simply 

reflect a desire for justice? As one commentator notes, “Punishment may 

or may not teach right and wrong. The important fact is that it supports the 

morality of social order.” 89 Certainly, the actual punishment would have to 

be proportional, but once again, that relates to the justness of the 

punishment, not whether it is moral or not to desire suffering as an element 

of punishment. 

IV. THE MORALITY OF REVENGE 

“To the dangers of vengeance unlimited, it must be countered that if 

punishment no longer satisfies vengeance, if it ignores not only the rights but 

85. See, e.g., Punishment, supra note 56. 

86. See generally KANT, supra note 61. 

87. Lewis, supra note 63, at 225. 

88. Id. at 228. Lewis’ contempt for utilitarianism is even more profound, specifically 

when it is used as a justification for supposedly imposing punishment for the benefit of the 

wrongdoer. “To be ‘cured’ against one’s will. . . . is to be put on a level with those who have 

not yet reached the age of reason or those who never will . . . .” Id. It is a “kindness [which] 

stings with intolerable insult.” Id. 

89. NEWMAN, supra note 61, at 290 n9. See also BARTON, supra note 30, at 19 

(“. . .[E]ven if. . . the emotional tone accompanying most cases of revenge was in fact 

pleasure in the suffering of those who have harmed and wronged one, it is not so obvious 

that these cases of revenge would be morally reprehensible on that account.”).


the emotional needs of the victims of crime, then punishment no longer 

serves its primary purpose.” Professor Robert Solomon. 90 

So far in this Essay, I have concluded that punishments which include 

an element of suffering are just, and that it is also moral for a society to 

mete out criminal punishment for the purpose of causing the wrong doer to 

experience suffering. The remainder of this Essay extends that argument 

from society to the victim, and examines whether it is moral for society, 

through its legal system, to allow its punishment of the criminal to be 

influenced by the victim’s desire for revenge. 

To address this issue, first requires an examination of the morality of a 

victim’s desire for revenge, for if the desire for revenge is itself immoral, 

any legal system which recognizes such a desire as a basis for punishment, 

would be acting immorally as well. 

Many 20 th century philosophers characterize the desire for revenge as 

immoral per se, because they view the desire as motivated by hatred. 

Representative of this belief, Robert Nozick notes that “revenge involves a 

particular emotional tone, pleasure in the suffering of another.” 91 Similarly, 

Jonathan Glover rejects revenge because “[H]atred and pleasure . . . 

combine . . . unpleasantly in revenge.” 92 

90. Solomon, supra note 11, at 253. 

91. Nozick, supra note 30, at 367. 

92. Jonathan Glover, Responsibility 145 (1970). Not surprisingly, most of these 

criticisms have come Utilitarians. But even classical and contemporary Retributivits have 

warned against punishments which are motivated by revenge. See, e.g., Lewis, supra note 

52, at 82; Michael Moore, The Moral Worth of Retribution, in Responsibility, Character and 

the Emotions 212 (Ferdinand Schoeman ed., 1987); Solomon, supra note 11, at 256 

(“Virtually all retributivits in fact, insist on separating retribution from vengeance.”) 

Solomon however seems to differ with the almost universal condemnation of revenge, as he 

acknowledges that “[v]engeance is our natural sense of retribution”, and that “even if it 

requires careful correction and containment under the auspices of reason and tradition, and 

through the machinery of law- [it] already gives us good grounds for punishment. . . .” Id. 

This is not to suggest that victims might not be motivated by other emotions as well. 

For example, some victims may wish to see their victimizers punished through lengthy 

incarceration in order to allay their fear of future criminal attacks from their offender. See, 

e.g., Lynne Henderson, Co-opting Compassion: The Federal Victim’s Right Amendment, 10 

ST. THOMAS L. REV. 579, 591 (1998). Interestingly, Professor Henderson, while 

acknowledging that victims may experience terror and fear of their offender, seemingly 

discounts those emotions as valid reasons to justify a victim’s desire to want their attacker 

incapacitated through preventive detention and continued custody. Id. at 591 n.95. Instead 

she asserts, seemingly without any substantiation, that such proposals for incarceration are


Yet, there are those who defend the morality of the desire for revenge, 

despite its roots in hatred. For example, Professor Solomon notes that “[T]o 

seek vengeance for a grievous wrong, to revenge oneself against evil- that 

seems to lie at the very foundation of our sense of justice, indeed, of our 

very sense of ourselves, our dignity, and our sense of right and wrong”. 93 

In a similar vein, Professor Minow writes “Vengeance is also the wellspring 

of a notion that animates justice. Recompense, getting satisfaction, matching 

like with like, giving what’s coming to the wrongdoer, equalizing crime and 

punishment, an eye for an eye; each of these synonyms for revenge implies 

the proportionality of the scales of justice.” 94 

Three assumptions seem to underscore the position of those who 

dismiss, out of hand, the morality of the revenge desire, and thus reject the 

notion that it can serve as a legitimate basis for the state to impose 

punishment. The first, is the assumption that whenever a victim is motivated 

by revenge, that motive will necessarily result in the victim demanding the 

harshest possible penalty for his offender. However, often that is often not 

the case. 95 For example, in a number of recent murder cases, families of the 

murdered victims have argued against sentencing the convic ted killers to 

death. 96 

motivated only “in terms of revenge and an image of offenders as monsters who will commit 

horrible crimes if released”. Id. 


94. MINOW, supra note 15, at 10. One can also argue that revenge can be moral if it 

serves to help some victims heal from the emotional traumas associated with their attacks. 

See infra notes 167-177 and accompanying text. 

95. See, e.g., Barton, supra note 30, at xvi (“While victims are by no means 

disinterested in the outcome of their cases, the notion that therefore they can not maintain 

their own impartiality and fairness vis a vis their offenders is a myth. Empirical evidence 

consistently shows victims not to be more punitive than others...”); Id. at 125 n.9 (citing to 

studies which demonstrate that victims are not more punitive than the general public). 

96. See, e.g., Julie Cart, Killer of Gay Student Spared Death Penalty, L.A. TIMES, 

Nov. 5, 1999, at A1 (noting that parents of Mathew Sheppard opposed death penalty for 

son’s killer); Brian MacQuarrie, US Mulls Seeking of Death of Convict, BOSTON GLOBE, 

Sept. 23, 2003, at A1 (reporting that father of murdered 10 year old son opposed federal 

prosecutors seeking death penalty for one of son’s murderers); Stephen Dove, Byrd Son 

Fighting for Life of Killer, HOUSTON CHRONICLE, July 4, 2002, at A1 (writing that the man 

whose African American father was killed by three white men who had chained and dragged 

him behind a pickup truck until he was dismembered and decapitated opposed death penalty 

for father’s killers).


The next assumption is that there is something intrinsically immoral 

when a crime victim, motivated by hate and revenge, does seek the harshest 

allowable sentence. But why is that an immoral response? This is the 

person who has, after all, actually suffered the greatest harm. 97 Moreover, 

even if the victim is seeking the harshest penalty allowable under the law, 

she is only asking for a level of punishment which we, as a society, have 

already judged to be within the parameters of proportionality, 98 and thus, if 

rendered, would constitute justice. 99 

The third, and most basic assumption which seems to underlie the 

argument that revenge is inherently immoral, is that any desire so grounded 

in hatred, must be evil, and thus immoral. While I do not question the 

genuineness of those who share that belief, I do question their assumption 

that their beliefs should set the moral standard upon which we all should be 

judged. The desire for revenge, more than simply being an “understandable” 

reaction to wrong doing, is grounded upon a rational and legitimate set of 

beliefs : That those who perform good deeds deserve gratitude and 

kindness; while those who perform evil ones deserve enmity and 

punishment. 

Perhaps this sentiment was best captured by the English jurist and 

historian Sir James Fitzjames Stephens, who, in 1883 wrote: 

The criminal law thus proceeds upon the principle that it is 

morally right to hate criminals, and it confirms and justifies 

that sentiment by inflicting upon criminal punishments which 

express it. . . . These views are regarded by many persons as 

being wicked, because it is supposed that we never ought to hate, 

or wish to be revenged upon, any one. The doctrine that hatred 

and vengeance are wicked in themselves appears to me to 

contradict plain facts, and to be unsupported by any 

arguments deserving of attention. Love and hatred, gratitude for 

benefits, and the desire of vengeance for injuries, imply each other 

as much as convex and concave. 100 

97. See infra notes 127-156 and accompanying text (recognizing the victim as the 

wronged party). 

98. See supra notes 69-76 ( defining proportionality of punishment to crime). 

99. See supra note 48 (discussing proportionality within the definition of justice). 

100. 2 SIR JAMES FITZJAMES STEPHENS, A HISTORY OF THE CRIMINAL LAW OF 

ENGLAND 81-82 (1883) (emphasis added). See also BARTON, supra note 30, at 13 (“[I]t is


Stephens’s observations also point out a recurring flaw in many 

commentators’ analyses of the reasons for society’s evolution from revenge 

to State imposed punishment. As discussed previously, the reasons for this 

evolution relate not to the inherent immorality of a victim’s desire to revenge 

a wrongful act, but rather to the great probability that the consequences of 

acting upon the desire would either result in an injustice, or at least in an 

endless and increasing cycle of violence. 101 For example, there was nothing 

immoral about Jacob and his sons wishing to see Dinah’s rapist punished. 

It was just that by acting upon their desire for revenge, unjust punishments 

and the possibility of further bloodshed resulted. 102 

The Ancient Greeks shared this concern. They feared revenge, and 

with good reason. As one 20th century historian noted when describing the 

revenge culture in Ancient Greece, “a single deed of blood provokes an 

endless series of retaliations: a hideous orgy of revenge... an orgy which no 

one may escape; for old men and women and children perish, whether one 

by one, or in a general massacre.” 103 

We see these very same fears of revenger justice appearing in the 

Ancient Greek myths, which often featured a blood feud which resulted in 

the innocent descendants of those who may have wronged another, being 

punished for their ancestor’s act. For instance, in the myth of Orestes, the 

Greek king, Agamemnon, is murdered by his wife, Clytemnestra, for 

sacrificing their daughter’s life to the Gods. Clytemnestra, in turn, is slain by 

their son, Orestes, to avenge his father’s death. The cause for this family’s 

tragedy is traced back to a curse placed upon the descendant’s of 

Agamemnon’s father’s, Atreus, by his brother Thyestes, because Atreus 

murdered Thyestes’s children. 104 

Similarly, the myth of Medea concerns a princess, Medea, who saves 

the life of Jason, and enables him to gain the Golden Fleece, thus ensuring 

Jason great fame and wealth. To achieve these ends for Jason, she betrays 

questionable whether there is anything wrong with hating an unjust act, or even an unjust 

person who, on top of the wrongdoing, refuses to make amends and remains defiant and 

unapologetic.”); Id. at 19 (“[I]f. . . . the emotional tone accompanying most cases of revenge 

was in fact pleasure in the suffering of those who have harmed and wronged one, it is not so 

obvious that these cases of revenge would be morally reprehensible on that account.”). 


102. See supra notes 1- 8 and accompanying text. 

103. HUBERT J. TRESTON, POINE: A STUDY IN GREEK BLOOD REVENGE 1 (1923). 

104. EDITH HAMILTON, MYTHOLOGY 250-59 (Penguin Books 1969) (1942).


her family and country, and is forced to live the remainder of her life in 

exile. Jason has two sons with Medea, but then abandons her in order to 

marry the daughter of the king of his native land. In revenge, Medea kills 

Jason’s bride, and their two sons. 105 

Of note, is that these myths do not raise an issue of whether the 

revengers’ desire for revenge is justified. Rather, it is the consequences of 

the revenge with which the Ancient Greeks were concerned. For example, 

in Orestes, would we fault Thyestes for wishing to slay his brother, Atreus, 

for killing his children, particularly since Atreus serves the slain children to 

their unsuspecting father at a banquet! 106 It is certainly not Thyestes’ desire 

for revenge with which we take exception, but rather with the justness of 

his decision to avenge their deaths, not by punishing Arteus directly, but 

rather by cursing his brother’s descendants. 

So too do we, and one would assume the Greeks as well, sympathize 

with Medea’s plight. She has sacrificed everything for Jason, and he 

rewards her by leaving her for a younger woman, who can further his 

career plans. (Not an uncommon theme even today). Do we question the 

morality of her desire for revenge? If she would have concocted a plan 

which would have caused Jason to suffer a loss equivalent to which she 

105. Id. at 128-35. 

106. Id. at 250. For his crime of matricide, Orestes is pursued by The Furies, who in 

Greek myths, represent Revenge. The god Apollo intervenes on Orestes’ behalf, and 

convinces Orestes to seek the counsel of the goddess Athena. Athena convenes a court of 

law, which stands in contrast to the sui generis justice represented by the blood feud. The 

trial is public, the decision maker is an impartial, disinterested party; and the process is 

orderly, fact finding and rule rendering. Id. at 251-59. 

In analyzing the Oresteia, and how it reflects the legal world of the Ancient Greeks, 

Professor Paul Gewirtz notes how the play illuminates the need which the Greeks had to 

introduce “both a court and trial process to replace the endless cycle of blood feuds and 

revenge.” Paul Gerwitz, Aeschylus’ Law, 101 HARV. L. REV. 1043, 1045 (1987-1988). Also 

of note is the role which Athena grants to the Furies under her new system of law. Rather 

than rejecting them altogether, Athena understands that the passions which motivate revenge 

have a place in her new legal system. As Gewirtz notes, “the Furies will be 

‘honored’...because they actually contribute to the system Athena is establishing. What the 

Furies most clearly represent– call it fear, conscience, vengeance– is not a threat to law in 

the Oresteia’s scheme. Rather Fury is law’s partner. It reinforces a respect for legal rights.” 

Id. at 1047 (emphasis added). Gewirtsz then concludes: “[T]hus the Oresteia stands behind 

those in contemporary debates who insist that retribution must play a central role in a 

system of criminal justice and who warn that if retributive emotions are ignored, they will 

be unleashed in less acceptable ways. Id. at 1047-48.


suffered, would we condemn Medea? But once again, revenge is not sought 

against the guilty party directly, but rather against Jason’s innocent sons and 

bride. Thus, while Medea’s punishment was unjust, her desire to get back 

at Jason was not immoral. 

As a means to curtail these excesses of revenge, the state interceded 

into what had heretofore been essentially private matters. 107 Tribal leaders 

and other heads of state interjected themselves into the disputes, and 

pronounced guilt or innocence and punishment. But what gave them the 

right to do so? As a practical matter, the survival of their state required it. 108 

As a corollary to that fact, what evolved was a sense that murder was not 

a private matter, but rather affected everyone; the crime “polluted” the 

entire social fabric, and thus, society, through the state, had the right to 

intercede. 109 

Religion played a major role in justifying the evolution from revenge to 

state regulated justice. As Susan Jacoby notes, “ in the long transition from 

tribal vendetta to measured legal retribution, it is impossible to overestimate 

the importance of the religious concept of murder as a stain upon a land and 

its entire people and an offense against its gods.” 110 Thus the pollution 

doctrine was afforded a religious justification. 

Religion served another important function. It provided a basis to equate 

public retribution with divine vengeance, and revenge with sinful 

behavior. 111 The Bible, particularly in the New Testament, prohibits mortals 

from exacting revenge. In Romans 12:19, God declares “Dearly beloved, 

avenge not yourselves, but rather give place unto wrath: for it is written, 

Vengeance is mine; I will repay, saith the Lord.” 112 Thus, only God, (and 

those state officials such as priests and kings, acting on his behalf), was 

authorized to exact punishment. All others would be acting in contravention 

of the Lord’s prohibition. Thus revenge became a sin. 


108. See JACOBY, supra note 11, at 67 (“Because bloodshed posed such a grave threat 

to social order, neither the state nor its religious arbiters could continue to treat murder as 

a family affair.”). But see Solomon, supra note 11, at 255 (“Moral objections against 

vengeance and the desire for public order seem to me to have far less to do with this [state 

involvement in punishment of wrongdoers] than the usual arrogance of the state in abrogating 

individual rights and its desire for control.”). 

109. JACOBY, supra note 11, at 71-76. 

110. Id at 67. 

111. Id. at 68. 

112. Romans 12:19 (King James) (emphasis added).


Yet, even the New Testament, I would submit, does not condemn 

revenge, per se, for after all, its admonition is only that mortals should not 

exact revenge. God, it is clear, will continue to avenge, and thus “repay” the 

wrong doer. Thus the idea of repayment and deserts is not forbidden, it is 

only reserved for God, alone. 113 I would further submit that in this way, 

Romans 12:19 merely echoes the concerns of those civilizations which 

predated Christianity; that victims, unregulated in their quest for revenge, 

were ill suited to be dispensers of justice. 114 

It was not until the Post-Enlightenment Period, 115 that the legitimacy of 

state imposed punishment required more than simply a claim to be acting as 

God’s agent. Instead, the secular concepts of proportionality of punishment, 

and individual, rather than collective responsibility for criminal acts, arose 

as the basic concepts of criminal law. 116 Underlying these changes was a 

shift away from viewing the criminal justice system as a vehicle for 

enforcing religion- based morality, replacing it with the belief that the 

criminal law should operate to further the good of a more secular society. 

These beliefs were exemplified by the writings of the 18th century 

philosopher, Cesare Beccaria, particularly his work entitled Essay on 

Crimes and Punishment. 117 Beccaria, a member of the Enlightenment, 

believed in the social contract theory of society, under which citizens agreed 

to forego certain individual liberties and rights, in exchange for the 

government’s promise to act on their behalf to safeguard their lives and well 

being. 118 Becarria also challenged the notion that the criminal law was an 

113. See MURPHY, supra note 79, at 88. 

114. However, if by equating revenge with sin, the goal was to eradicate revenge, one 

can only conclude that the attempt was not very successful. Indeed, as Jacoby notes, what 

may in fact be the longest revenge cycle in history, the persecution of the Jews for the 

crucifixion of Jesus, remained a fixed and countenanced policy of the Church for almost 2000 

years. JACOBY, supra note 11, at 68. Furthermore, having religion as the justification for 

imposing criminal punishment, led to a system of proportionality that based punishment 

upon the level of deviance from the teachings of the Church, rather than upon the level of 

harm. McDonald, supra note 20, at 655. 

115. The Enlightenment was an 18th century philosophical movement characterized by 

rationalism, skepticism, and empiricism in social and political thought. WEBSTER’S, supra 

note 29, at 482. 


117. CESARE BECCARRIA, ESSAY ON CRIMES AND PUNISHMENTS (Edward D. 

Ingraham trans., 1819) (1764). 

118. Id. at 20.


extension of God’s laws on earth, administered by those serving as God’s 

agents. 119 Instead, he posited that the purpose of law was to serve as a 

means to ensure the safety and harmony of society. 120 As a corollary to that 

position, he rebuked the notion that the level of punishment should be based 

upon the level which the wrong constituted an offense to God. Rather, he 

argued that the extent of criminal punishment should be determined in 

reference to the level of the harm which the wrongful act posed to 

society. 121 

Becarria’s theories, as well as those of other Enlightenment 

philosophers, ultimately supplanted the religious underpinnings of the 

criminal justice system in Western Europe and the United States. 122 

However Enlightenment theories retained its predecessors’ prohibition 

against revenge. As Beccarria noted: “The right of punishing belongs not to 

any individual in particular, but to society in general, or the sovereign.” 123 

While the philosophical basis for that conclusion differed between the 

religious and secular theories, 124 both were driven by the same practical 

concerns; that being to establish a system of laws which would 

“counterbalance the effects of the passions of the individual which oppose 

the general good. 125 

Indeed, I would argue, the practical reasons for rejecting revenge have 

remained constant since Jacob rebuked his sons for exacting revenge upon 

the inhabitants of Hamor’s city. These reasons have not concerned the 

morality of the desire to exact revenge, nor even with the morality of the act 

itself. 126 Rather, our fears have always been with the consequences which 

119. Id. at 19. 

120. Id. 

121. Id. at 28. 


123. BECCARRIA, supra note 117, at 159. 

124. For the religious based theory, allowing only state sanctioned punishment rested 

upon the sinfulness of acting in contravention of God’s prohibition against mortal revenge. 

See supra note 111 and accompanying text. For the secularized enlightenment theory, it 

rested upon the belief that the individual, through his social contract with his sovereign, 

relinquished his right to revenge. See supra note 118 and accompanying text. 

125. BECCARRIA, supra note 117, at 16. 

126. This is not to suggest that the desire for revenge is always justified, and thus 

moral. People are motivated to exact revenge upon others for countless reasons. While it is 

true that the desire is almost always motivated by hate, often there is no justified basis for 

the hatred, and thus in those cases, I would argue, even the desire to revenge is immoral.


the desire, if acted upon, would have upon society. Based upon that 

proposition, it is my contention that history does not condemn as immoral 

society’s recognition of revenge as a justification for state imposed 

punishment. It merely cautions against permitting the revenger himself, to 

serve as judge, jury, and executioner. 

V. RECOGNIZING THE VICTIM AS A WRONGED PARTY 

Because the offense was committed . . . against the community as 

a whole. . . . only the community, speaking through the jury, has the right 

to determine what punishment should be administered. 127 Robison v. 

Maynard (10th Cir.) 

“[T]o hell with people saying society is the victim: it was me, not 

society, that got hurt.” 128 Statement of crime victim. 

The above statement by the Tenth Circuit clearly reflects the 

predominant theory regarding criminal punishment: that it is the community, 

not the victim, against whom the wrongful act was committed. In the 

previous section, I discussed why the “pollution” theory evolved. 129 

However, putting aside legal rhetoric and rationalizations, let us examine just 

who has truly been wronged when one inflicts a criminal act upon another. 

Of course one can argue that under the pollution theory, society at large is 

contaminated when one of us is harmed . But specifically, how so? On an 

existential level, it can be argued that we all suffer when one of us is 

injured. 130 And, on a practical level, we do have a right, if not a 

responsibility, to be alert to the possibility of a society where criminals 

realize they can act with impunity, thus exposing ourselves, our families, and 

others to the potential of rampant criminal mayhem. 131 

Yet, who could reasonably argue that the person who has actually been 

mugged, robbed, raped, or beaten, has not suffered at least as great, if not 

a greater harm. He is suffering now. His injury is not purely philosophical, 

127. Robison v. Maynard, 829 F.2d 1501, 1505 (10th Cir. 1987) (emphasis added). 

128. BARTON, supra note 30 at 103, citing J. CONSEDINE, RESTORATIVE JUSTICE: 

HEALING THE EFFECTS OF CRIME 82 (1995). 



131. This reason, of course, is dependant upon accepting the Utilitarian belief that 

punishment of wrongdoers has a deterrent effect upon the commission of future criminal 

acts. See supra note 57 and accompanying text.


nor is it a matter of conjecture. It has happened, and in many cases, the 

victim and those close to him must live with the repercussions of the act for 

years, if not for the remainder of their lives. 132 The rest of us, on the other 

hand, will likely continue to go about our business, relatively, if not 

completely unaffected within a day or two after reading or hearing about 

the victim of another crime. 

It is that acknowledgment; that the wronged party in a criminal matter 

is first and foremost the actual victim of the crime, which, I believe, 

mandates that the law recognize the right of the victim to seek redress. The 

fact that the victim is not a party to the criminal suit, and thus has no 

standing to question rulings of law, or pronouncements of sentences, has far 

reaching implications for the victim. Decisions made by the district 

attorney’s office in trying the case, which may result in acquittals or 

dismissal of charges, are binding upon the victim. Errors made by law 

enforcement officers which cause incriminating evidence to be excluded 

from trial, and which also may lead to a subsequent acquittal of a wrong 

doer, are similarly binding upon the victim. Thus, actions taken by parties 

over whom the victim has no control, bind the victim, 133 leaving him without 

any legal recourse, other than seeking tort remedies. 134 

Victims are thus placed in a unique legal status. In one sense, the state, 

serves as an agent of the victim, in that its actions are binding upon its 

“principal,” the victim. 135 If unhappy with the result of the criminal matter, 

victims have no standing to dispute it. They can not appeal the decision, nor 

can they file their own criminal suit. 

132. See generally Fran H. Norris & Krzysztof Kaniasty, Psychological Distress 

Following Criminal Victimization in the General Population: Cross-Sectional, Longitudanal, 

and Prospective Analyses, 62 J. CONSULTING & CLINICAL PSYCH. 111-23 (1994). 

There are also “victimless” crimes; those where the state imposes criminal penalty for 

an act which has caused no actual harm to anyone. For example, a driver of a motor vehicle 

is convicted of driving while intoxicated. Prior to his arrest, he did not cause any property 

or personal injury to anyone due to his intoxication. Thus, since no one has actually been 

victimized by the driver’s illegal behavior, the issue of revenge is irrelevant. In such cases, 

the criminal punishment is imposed primarily for the utilitarian purposes of deterrence, 

rehabilitation and incapacity. 

133. U.S. CONST. amend V (barring the State, under the Double Jeopardy Clause, from 

re-trying the defendant for the same crime). 

134. See infra notes 206-17 and accompanying text (discussing the viability of tort 

remedies for most victims of violent crimes). 

135. See generally W. EDWARD SELL, SELL ON AGENCY 1-6 (1975).


However, the victim shares none of the benefits which the principals in 

an agency relationship ordinarily possess. They have no control over 

choosing who their agent will be, nor do they have any power to control 

how their “agent” pursues “their” case. 136 This is of course due to the fact 

that the state is not really acting as their agent at all, but rather is 

representing the interests of the community. 

This conflict can be illustrated by visiting the case of Salvatore (Sammy 

The Bull) Gravano. Gravano was a hitman for the Mafia, and was 

responsible for the killing of at least 19 people. 137 In prosecuting Gravano 

for the murders, the government decided to offer him a significantly reduced 

sentence, and subsequent placement in the Federal Witness Protection 

Program, in exchange for his cooperation with the government’s case 

against his boss, John Gotti, and other members of Gotti’s crime family. 138 

Federal District Court Judge I. Leo Glasser sentenced Gravano to five 

years in prison, which after deducting the nearly four years Gravano had 

already served in detention, required him to serve only one additional 

year. 139 In support of his sentence, the judge held that for the greater good 

of society, it was less important that Gravano be proportionally punished for 

his crimes than it was to incarcerate Gotti and his criminal associates. 140 

Given the list of those crime members who either were convicted largely on 

the basis of Gravano’s testimony, or agreed to plead guilty when faced with 

the prospect of Gravano’s testimony, 141 one can certainly find a credible 

basis for Judge Glasser’s reasoning. 

And yet, throughout the entire proceedings, no one spoke on behalf of 

the families of the nineteen men “whacked” by Gravano. As might have 

been expected, many of the families of the murdered victims wished to see 

their sons,’ fathers’ and husbands’ murderer receive a much harsher 

sentence. 142 Also, given that many of the victims’ family members had 

personal, first hand knowledge of Gravano’s proclivity for crime and 

136. Id. 

137. SENTENCING MEMORANDUM OF JUDGE I. LEO GLASSER 3-6. 

138. Andy Newman, Mafia Turncoat Gets 20 Years For Running Ecstasy Ring, N.Y. 

TIMES, Sept. 7, 2002, at B3. 

139. Dorothy Weiss, One Tough Judge, in BROOKLYN STATE OF MIND 110 (Michael 

Robbins ed., 2001). 

140. SENTENCING MEMORANDUM, supra note 137, at 16-17. 

141. Id. at 8-9. 

142. Dennis Wagner, Give The Bull ‘ Life’ 4 Say: His Victims’ Kin Press for Justice, 

THE ARIZONA REPUBLIC/GAZETTE, Mar. 9, 2000, at B1.


violence, one can surely argue that they had relevant testimony to offer 

Judge Glasser before he handed down his sentence. 

But the judge never heard those voices. Instead, the judge found 

Gravano to have made “the seemingly impossible decision to become a 

different person and to live by a different set of values from those that 

ordered his life until then.” 143 He believed the prosecutors and federal 

agents, who, having spent “hundreds and hundreds of hours with him 

[Gravano] over the past three years [were] unanimous in their belief that 

he no longer poses a threat to this or any other community” and that 

Gravano had “irrevocably broken with his past.” 144 Judge Glasser also 

believed the characterization “by a very sophisticated and experienced law 

enforcement officer” that Gravano’s decision to cooperate with the 

government was “the bravest thing he had ever seen.” 145 Based on these 

representations by federal prosecutors and law enforcement officers, Judge 

Glasser’s sentence of five years 146 for 19 murders perhaps becomes a bit 

more comprehensible. But one must question whether the same sentence 

would have been handed down had the victims of Gravano’s crimes not 

been so completely ignored and marginalized while the fate of the murderer 

of their sons, fathers and brothers was being decided. 

The absence of victim involvement in Gravano’s sentencing takes on 

additional significance when examining Gravano’s behavior subsequent to 

his sentencing. After serving his additional one year prison sentence, 

Gravano was placed in the Federal Witness Protection Program. He and his 

family were moved to Arizona, where he set up a construction company. In 

February 2000, Gravano, as well as his wife, son and daughter were 

arrested, and subsequently pled guilty to having operated a multi-million 

dollar drug ring. He is currently serving a sentence of twenty years. 147 

Again, one can not help but wonder whether victim testimony would have 

alerted Judge Glasser to question the plausibility of the government’s 

assurances that Gravano had “irrevocably broken with his past.” 

Another case illustrative of how victims of crime and their families are 

143. Weiss, supra note 139, at 110. 

144. SENTENCING MEMORANDUM, supra note 137, at 17. 

145. Id. at 15. 

146. Pursuant to his deal with the federal prosecutors, Gravano could have been 

sentenced to up to 20 years for the 19 murders. Larry McShane, Salvatore Gravano Is 

FBI’s Favorite Songbird, L.A. TIMES, June 5, 1994, at ___. 

147. Newman, supra note 138.


marginalized by the criminal justice system is the Massachusetts case of 

Hagen v. Commonwealth. 148 In October 1987, James Kelley was 

convicted of two counts of rape and one charge of indecent assault and 

battery of Debra Hagen. In April 1988, he was sentenced to two concurrent 

ten year sentences on the rape convictions, and one concurrent five year 

sentence on the indecent assault and battery conviction. On April 26, 1988, 

Kelley filed a motion to stay execution of his sentence, and a motion for a 

new trial, alleging ineffective assistance of trial counsel. The motion for stay 

of execution was granted in July 1988. 149 

Four years later, in May 1992, Kelley’s motion for a new trial was 

denied. Kelley then appealed the judgments of conviction and the denial of 

his motion for a new trial. Eight years later, due to administrative mishaps 

and oversights, Kelley’s appeal was still pending. 150 Thus thirteen years 

after his conviction for rape and assault, Mr. Kelley had still not served any 

time for his commission of those crimes. 

In May 2001, Ms. Hagen filed a motion requesting the court to revoke 

the stay of execution of sentence. 151 In upholding the lower court’s 

dismissal of her motion, the Supreme Judicial Court held that as victim of 

the crime, she did not have standing to seek the revocation of Kelley’s 

stay. 152 In so holding, the court cited a litany of cases, each of which clearly 

illustrate the extent to which the law has rendered the victim impotent in 

seeking to ensure that her wrongdoer is punished. 153 

Reviewing these two cases, one is led to question how our law has 

[d]evolved from the laudable purpose of seeking to eliminate the ravages of 

revenge, to where today, the law denies victims standing to even petition 

courts to enforce punishments which have been lawfully imposed upon their 

convicted wrong doers. Certainly such a result is neither morally compelled, 

148. Hagen v. Commonwealth, 772 N.E.2d 32 (Mass. 2002). 

149. Id. at 34. 

150. Id. at 35. 

151. Id. 

152. Id. at 37. 

153. Id., citing Taylor v. Newton Div. of the Dist. Court Dep’t, 622 N.E.2d 261, 262 

(Mass. 1993) (“The rights which the victim seeks to enforce criminally are not private but 

in fact are lodged in the Commonwealth.”); see Hagen, 772 N.E.2d at 37 (“A prosecution 

is conducted in the interests of the Commonwealth, not on behalf of the victim.”); Tarabolski 

v. Williams, 642 N.E.2d 574, 575 (Mass. 1994), quoting Linda R.S. v. Richard D., 410 U.S. 

614, 619 (1973) (“[I]n American jurisprudence . . . . a private citizen lacks a judicially 

cognizable interest in the prosecution or nonprosecution of another.”).


nor required as a matter of fundamental justice. In fact, the Massachusetts 

Supreme Judicial Court in Hagen admitted as much, when it held that the 

state legislature, if it wished, could enact legislation whic h would extend 

party status to victims seeking remedies like those requested by Ms. 

Hagen. 154 Indeed, historically, victims of crimes in America and England 

actually had such standing, since they had the responsibility of capturing 

their suspected offenders, and prosecuting them in court. The state’s 

function was to serve only as judge and sentencing body. 155 It was not until 

the 19th century, that the police and prosecutorial systems assumed the 

roles which they currently hold; changes which were necessitated by the 

practical difficulties which victims encountered in attempting to apprehend 

and convict their alleged wrongdoers. 156 

In sum, I believe the statement that the community at large, and not the 

victim of the crime, is the wronged party of a criminal act, is intellectually 

disingenuous, factually mistaken, and emotionally demeaning to victims. It 

is an example of legal formalism distorting reality, and ought to be 

recognized as such. 

VI. REVENGE AS A SOURCE OF VICTIM EMPOWERMENT 

Revenge–the attempt at some cost or risk to ourselves, to impose 

suffering upon those who have made one suffer, because they have 

made one suffer—is a universal phenomenon. . . . [This] very 

definition of revenge shows that it involves only costs and 

risks, no benefits. 157 Jon Elster 

To seek vengeance for a grievous wrong, to revenge oneself 

against evil–that seems to lie at the very foundation of our sense of 

justice, indeed, of our very sense of ourselves, our dignity and our 

sense of right and wrong. 158 Professor Robert Solomon 

In his novel The Amateur, 159 Robert Littell, writes of a young man, 

Heller, whose fiancee is murdered by terrorists. At his fiancee’s burial, 

154. Hagen, supra note 153, at 37. 

155. McDonald, supra note 20, at 651-52. 

156. Id. at 653-54. 

157. Elster, supra note 52, at 362. 


159. ROBERT LITTELL, THE AMATEUR (1981).


Heller meets her father, who he discovers is a survivor of the Holocaust. 

The father tells Heller that the Nazis killed his first wife and their two 

daughters. To avenge their deaths, he spent three years after the war, 

searching for the doctor who had ordered their deaths, and when he found 

him, he tells Heller, “with these hands, I strangled him.” Heller, struggling 

with his own desire for revenge, points out to the father that the killing of 

the doctor had not brought back to life his dead wife and children. The 

father, upset that the young man had not understood the point of his story, 

responds that “it brought me back.” 160 

In that brief exchange, Littell captures the essence of revenge. The 

Nazis had done more than enslave, torture and kill the father’s family. They 

also robbed him of his dignity, forcing him to accept the reality of his 

powerlessness to do anything to protect his family from their fate. By 

tracking down and personally punishing at least one of the individuals 

responsible for these atrocities, the father was able to reclaim some of what 

had been taken from him. True, he could not recover his dead family, but 

he was able to reclaim his human dignity and power, and thus return to the 

world of the living. 

In that sense, revenge can be an ennobling, as well as an enabling, 

concept. While the dangers of revenge systems of justice have been 

extensively discussed in this Essay, 161 revenge cultures also contained 

positive elements; elements which are missing in our current system of 

justice. Most notably, revenge cultures provided a mechanism by which 

victims could regain their sense of power and honor. Revengers could 

personally “get even” with their victimizers, and thus reassert their status 

within their society. Revenge cultures encompassed a sense of self worth; 

that is, the recognition that no one had the right to inflict unprovoked harm 

upon another, and that when another did so, it was the victim, and not the 

community at large, who had primarily been wronged. As such, the victim 

had the right (or in some cultures the duty), to personally recapture his 

respect and honor. In effect, cultures which permitted revenge, allowed 

160. Id. at 49-50. At the end of the novel, Heller avenges his fiancé’s murder by killing 

Schiller, her murderer. He is assisted in his quest by a Professor Lako, who, unbeknownst 

to Heller, also had a revenge motive to kill Schiller. Heller asks the Professor whether the 

revenge was worth it, to which the Professor responds “It was . . . . very satisfying. And 

you?” Heller confesses that he would not do it again but “it was just as advertised. It 

brought me back from the dead.” Id. at 246-47. 

161. See supra notes 10-18, 100-26 and accompanying text.


those victims strong enough (or from families with sufficient strength) to 

erase the psychological stigma of their victimhood. 162 

And yet, as illustrated by the excerpt by Jon Elster cited at the 

beginning of this section, many philosophers believe that revenge serves no 

benefit, to either society as a whole, or to individual members of society 

who have been victimized by violent crime. Elster regards revenge as 

irrational, since “Rational individuals follow the principles of letting bygones 

be bygones, cutting their losses and ignoring sunk costs, whereas the 

avenger typically refuses to forget an affront or harm to which he has been 

exposed.” 163 

Others go even further in decrying revenge, for while conceding that 

such emotions are “understandable” and “entirely human,” 164 they believe 

that revenge is per se immoral because it is motivated by the victim’ s 

taking “pleasure in the suffering of another.” 165 One reads that revenge is 

considered to be evil because “[H]atred and pleasure. . . . combine so 

unpleasantly,” 166 or hears, as I did at a recent faculty colloquium, that 

desires to punish for retributive purposes are simply “craven,” and thus 

should be dismissed out of hand. 

162. BARTON, supra note 30, at 39-40. 

163. Elster, supra note 52, at 362. 

164. Seymour Halleck, Vengeance and Victimization, 5 VICTIMOLOGY: AN 

INTERNATIONAL JOURNAL 99 (1980) [AUTHOR PROVIDE SOURCE]. Admittedly, 

Professor Halleck does recognize the need for victims to “get in touch with their feelings of 

rage,” in order to avoid “excessive psychological suffering.” However, he implicitly rejects 

any acting out of the revenge desire, since “just deserts is responsive to limited social needs 

and it directly and indirectly leads to neglect of the victim.” Id. at 99. More recent 

commentators have expressed the same concern. For example, Professor Lynne Henderson, 

in her article Co-opting Compassion: The Federal Victim’s Rights Amendment, expresses her 

concern that the victim rights movement, in general, and the Amendment in specific, have 

stressed retribution as the sole remedy for victims, at the cost of further emotionally 

damaging the victim. Henderson, supra note 92, at 606. 

To some degree, I concur with both Professors’ reservations. This Essay does not argue 

that the acting out of revenge is the only, best, or even appropriate response for all victims. 

What it does suggest, however, is that state regulated revenge- where the victim is 

empowered, under law, to partake in the punishment rendering decision- may, for some 

victims, be the only, best, or at least a helpful means to effectuate their recovery. It is just 

with the supposition that revenge can never perform such a service that I take exception. 

165. NOZICK, supra note 30, at 367. See also MURPHY, supra note 79, at 89 (equating 

vengeance with “a hatred that seems to take delight in their [wrongdoers] suffering.”). 

166. GLOVER, supra note 93, at 145.


While seemingly separate criticisms, the two are really dependant upon 

the validity of one another, since under this argument, what makes revenge 

immoral on its face, is that it affords no true benefit to society or the victim. 

If, on the other hand, one could point to actual benefits which could arise 

from vengeance seeking, one could consequently argue the efficacy and 

thus argue, on balance, the morality of the act. Charles Barton, in his book 

Getting Even: Revenge as a Form of Justice, 167 attempts to do just that. 

He takes issue with both assertions, maintaining that there are positive 

emotional benefits which may accrue to the victim who exacts revenge, and 

that as such, revenge when it furthers the attainment of those benefits, is a 

moral response. 

For instance, Barton notes that some victims may experience a sense 

of relief after exacting their vengeance. 168 This relief may manifest itself in 

a number of ways. First, noting that victims often experience feelings of 

humiliation, resentment, and anger, he postulates that upon meting out 

vengeance, victims can experience a diminution of these “intense and taxing 

emotions,” and thus experience relief since they are no longer burdened by 

them. 169 Also, he suggests that a successful act of revenge can offer the 

victim a sense of security; a belief that he will be able to cope , if, sometime 

in the future, he is once again the victim of a crime. Thus one may 

experience relief in realizing that he will be able to defend himself, and thus 

survive, further victimization. 170 

Another emotion which Barton suggests that a revenger may 

experience is the sense of satisfaction; not in a sadistic sense of 

experiencing pleasure from his victimizer’s suffering, 171 but rather as 

experienced by the avengers in Littell’s novel, 172 in the sense of regaining 

one’s sense of self-worth and identity. 173 In a similar vein, Professor Robert 

167. BARTON, supra note 30. 

168. Id. at 17-18. 

169. Id. 

170. Id. 

171. Id. at 18. 

172. See supra notes 159-60 and accompanying text; see also BARTON, supra note 30, 

at 106 (“A very important aspect of this empowerment would be that they [victims] would 

be able to establish a relationship of equality vis a vis their wrongdoers, which would spare 

them from the role of being helpless victims.”). 

173. BARTON, supra note 30, at 18; see also Tamar Frankel, Lessons From the Past: 

Revenge Yesterday and Today, 76 B.U. L. REV. 89, 100 (1996) (“Crimes can be viewed as 

inflicting a ‘moral injury’ that devalues the victims. Revenge-like remedies can restore the


Solomon suggests that victims can also experience a sense of satisfaction 

by realizing that through their act of vengeance they have helped to achieve 

a sense of justice, and thus put “the world back in balance.” 174 

A related psychological benefit of revenge is that it permits the victim 

to express, not only in word, but in deed, the sense of outrage and 

resentment which she experiences as a result of the offender’s actions. As 

a result of expressing such resentment, the victim acknowledges one’s own 

self-respect. 175 This relationship between vengeance, resentment and selfesteem 

is set out by the philosopher Jean Hampton, who writes that “the 

ability to feel resentment following a wrongdoing depends upon one’s having 

enough sense of one’s own worth to believe that the treatment is 

inappropriate and worthy of protest.” 176 Indeed, as Solomon writes, “the 

wholesale denial of vengeance as a legitimate motive may be a 

psychological disaster.” 177 

Yet, even if one agrees that vengeance can provide a measure of 

solace and comfort to victims, does not necessarily lead to the conclusion 

that it is the function of the law to provide such comfort. Apart from arguing 

that any victim satisfaction which comes from the suffering of her offender 

is per se, immoral, (an argument which has been rejected earlier), 178 one 

can still legitimately raise the question whether the law should be concerned 

with the well being of the victim. For instance, Professor Susan Bandes 

calls upon. “. . . us [to] be careful to distinguish the question of what victims 

need from the question of what the legal system ought to provide.” 179 She 

notes that some of the emotional benefits which victims need are available 

through other, and one could argue, more appropriate, sources, such as 

religion, psychological counseling, and family. 180 

There is certainly merit to Professor Bandes’ position. Obviously, the 

law cannot provide to every victim, all that they need to recover. In fact, 

it is doubtful whether any one source is capable of fulfilling such an 

victims’ value in their own eyes and in the eyes of others. . . .[T]hus, revenge-like 

punishment can in some sense repair the violation of personal integrity that crime creates.”). 

174. Solomon, supra note 11, at 252-53. 

175. BARTON, supra note 30, at 28. 

176. JEFFRIE G. MURPHY & JEAN HAMPTON, FORGIVENESS AND MERCY 55 (1988). 


178. See generally supra notes 70-125 and accompanying text. 

179. Susan Bandes, When Victims Seek Closure: Forgiveness, Vengeance and the Role 

of Government, 27 FORDHAM URB. L.J. 1599, 1605 (2000). 

180. Id. at 1605-06.


enormous undertaking. However, the law is the only venue which can 

provide victims with one source of their recovery; that is, the knowledge 

that their offender has been adequately punished. If the law fails to perform 

that function, then society faces the very perils which forced the state to 

first interject itself into resolving disputes between its citizens; that 

individuals will seek revenge on their own, thus leading us back to the days 

of the blood feud. 

What I believe is Professor Bandes’ underlying premise is that the law 

cannot simply base the harshness of punishment upon the level which 

victims believe they need for closure. 181 For example, assuming that a 

victim of an assault could demonstrate that her emotional healing depended 

upon the execution of her assailant, such a level of punishment could not be 

justified since the penalty would clearly be disproportionate to the crime. 

However, as argued earlier, the calculations of proportionality are not 

capable of exactitude. 182 There are ranges of punishments which could be 

deemed to be proportional and just. All that I am suggesting is that given the 

emotional healing which vengeance may provide to victims, 183 it is a 

181. Id. at 1606 (“Sometimes the legal system may be able to provide a punishment, 

or a result, that meets the individual’s needs for vengeance, forgiveness, closure . . . . But the 

legal system cannot and ought not meet such needs on a case by case basis.”). 

182. See supra note 69. 

183. Professor Bandes, in her article, Reply to Paul Cassell, What We Know About 

Victim Impact Statements, 1999 UTAH L. REV. 545, 551 (1999) [hereinafter Reply to Paul 

Cassell], notes that the empirical evidence is inconclusive regarding whether victim impact 

statements increase victim satisfaction with the criminal justice system. This argument has 

been raised by other commentators when arguing against victim involvement. See, e.g., 

Henderson, supra note 16, at 964-66. 

I would respond to these comments with the following points. First, I must confess a 

certain skepticism regarding such studies, or at least the way they are used by some to argue 

against victim involvement based upon revenge. For instance, it would appear that those 

studies cited by Professors Bandes and Henderson deal primarily with the efficacy of victim 

impact statements to assist in the healing process. See, e.g., Edna Erez, Who’s Afraid of the 

Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement of 

Justice, 1999 CRIM. L. REV. 545, cited in Reply to Paul Cassell, supra note 183, at 552 n.31. 

It might well be that the reason victim impact statements do not significantly help victims 

is because they do not give victims enough of a voice in the decision making process. In that 

event, I would suggest that the remedy would be to provide greater victim participation, 

rather than less. See infra note 244 and accompanying text (discussing possible alternatives 

to victim impact statements). 

Next, while the studies may be inconclusive, they do not prove the ineffectiveness of


legitimate function of the law to permit victims’ desire for revenge to 

influence what are, by their very nature, discretionary judgments regarding 

punishment. 

If then, vengeance can have an ameliorative effect for some victims, 184 

victim impact statements. While some studies showed a decrease in victim satisfaction, 

others demonstrated some increase in satisfaction. See, e.g., Edna Erez, Victim Participation 

in Sentencing: And the Debate Goes On. . . . , 3 INT’L REV. VICTIMOLOGY 17, 24 (1994), 

cited in Reply to Paul Cassell, supra note 183, at 552 n.33. In fact, such findings should not 

be unexpected, for as Professor Bandes herself notes, it is “the intuitively obvious view that 

different victims have different needs.” Bandes, supra note 179, at 1602. Consistent with 

that observation, one would expect such studies to be “inconclusive,” in the sense that they 

would indicate that while victim involvement may not be ameliorative in all cases, such 

participation does provide benefits for some victims. 

Moreover, Professors Bandes and Henderson do not consider the reasons why victim 

impact statements have not proven to be as effective as one may wish. One article, authored 

by Edna Erez, who also authored the two studies cited above by Professor Bandes, suggests 

that the reason why victim statements have had such little effect on criminal justice 

proceedings is “the legal professionals’ strong resistance against accepting victims as a 

legitimate party in the proceedings and practitioners’ reluctance to recognize any value in 

victim input.” Edna Erez, Integrating A Victim Perspective Through Victim Impact 

Statements, in INTEGRATING A VICTIM PERSPECTIVE WITHIN CRIMINAL JUSTICE 178-79 

(Adam Crawford & Jo Goodey eds., 2000). In fact, she believes that affording victims such 

rights can empower them by increasing their sense of control over the process, and thus 

concludes “that there is every reason to include, and no reason to fear, integrating a victim 

voice through victim impact statements.” Id. 

Lastly, even if no emotional benefits accrue to victims as a result of increasing their 

opportunity for involvement, I would still argue in favor of affording victims such options, 

simply based on the fact that as victims, they have earned that right, regardless of any 

Utilitarian benefits which might or might not result. I would base this right under an 

expanded theory of classical Retribution, which is discussed in Section VIII. See infra note 

228 and accompanying text. 

184. A victim need not actually choose to become involved in the criminal law process 

in order to experience a sense of empowerment. Rather, simply being given the option of 

participation, and knowing that should she desire, she could have an influence upon 

punishment, could satisfy the need for revenge. See, e.g., MURPHY, supra note 79, at 25 

(“Just getting the person in a position where one has the power to inflict harm may be 

satisfying enough, and that may itself be the revenge.”) (emphasis in original). 

Indeed, perhaps in part, the Biblical story of Joseph, another son of Jacob, who was 

sold by his brothers into slavery, can be explained under such reasoning. See supra notes 1-8 

and accompanying text (providing additional background). As a slave, Joseph impresses the 

Pharaoh, and is subsequently granted great power and wealth. Years later, his brothers are 

brought before him. Clearly he holds the power to severely punish his brothers. Yet, he


and if it is agreed that within the bounds of proportionality, it is a function of 

the law to effectuate that effect, the next task is to determine whether our 

criminal justice system, in fact, performs that function. I would argue, that 

it does not. Under our current criminal justice system, the state decides 

whether to bring criminal charges, what those charges will be, whether to 

accept a plea bargain, whether to go to trial, and what the strategy at trial 

will be, including whether the victim will even testify against the accused. 

The state, through the judge, decides matters of law. And only those 

disinterested citizens, who, by definition, can not qualify as a revenger, 

decide the innocence or guilt of the accused. If convicted, the state decides 

what penalty it will seek, and either the jury or judge decides sentence. 

Notably absent from any prescribed role in these proceedings is the 

victim. He has no power to regain by himself, that which his victimizer has 

taken from him, but rather must rely on someone else to do it for him. 

Consequently, under our current system, the victim is once again 

disempowered. He can not demand punishment, he may only request it; he 

cannot demand restitution, he may only plea for it; he cannot demand 

atonement, he can only hope for it. The potential for a victim to regain his 

loss of honor and respect under our current system, is thus far less likely 

than under a system which allows revenge. Indeed, while a revenge system 

is designed precisely to create that possibility; our system, whether by 

design or merely effect, is not. 

Our justice system devalues victims of crime in another way. By 

marginalizing victims and their desires for justice, the system validates the 

victimizers’ perceptions of their victims. Most criminals, particularly those 

convicted of violent crimes, devalue their victims as a predicate to their 

activity. 185 It is, after all, much easier to abuse a person for whom you have 

little or no regard, than one for whom you respect and honor. 

A worthy goal of the criminal justice system (at least under a utilitarian 

theory) should be to reverse that perception; that as a means of his 

rehabilitation, the criminal needs to acknowledge and accept responsibility 

for the harm which he has caused to another. Recognizing the humanity of 

forgives them. Genesis 39-45 (King James). 

185. See, e.g., Jo-Ann Tsang, Moral Rationalization and the Integration of Situational 

Factors and Psychological Processes in Immoral Behavior, in 6 REV. OF GEN. 

PSYCHOLOGY 25, 41 (Mar. 1, 2002) (“Another way to preserve one’s sense of morality 

while still behaving immorally is by dehumanizing victims.”).


his victim is often a step in that direction. 186 This rehabilitation could lead to 

remorse, apology, and a plea for forgiveness from the victim. Such 

expressions have also been found to help victims recover from the trauma 

of the crimes. 187 

But instead, our criminal justice system reinforces the invisibility and 

powerlessness of the victim, and thus perpetuates the criminal’s perception 

of the victim. Just as when they were originally victimized, victims at trial 

are once again prevented from standing up for themselves. Their needs and 

desires are largely irrelevant. They are bystanders in the process; 188 the 

criminal need not address nor even acknowledge the victim, since it is the 

district attorney’s office, the judge and the jury, who hold all the power. 

Once again, the process has little or nothing to do with who the victim is, or 

186. See, e.g., Albert W. Dzur & Alan Wertheimer, Forgiveness and Public 

Deliberation: The Practice of Restorative Justice, 21 CRIM. JUST. ETHICS 3, 3-4 (2002) 

(noting that for offenders to successfully be reintegrated back into society, requires them to 

“start to take responsibility for what they did and erode whatever stereotypes and 

rationalizations [regarding their victims] they have constructed. . . . [and] admit their 

wrongful degradation of their victims.”). 

Dzur and Werheimer support the use of restorative justice to achieve these goals, and 

in their article, describe how restorative justice operates to the benefit of victim, wrongdoer, 

and society. See generally id. at 1-15. Of note is that similar to this Essay, the premise of 

restorative justice is that it is the individual harmed by the wrongdoer, and not the state, who 

is the true victim of the crime. See Mark S. Umbreit, Crime Victims Seeking Fairness, Not 

Revenge: Towards Restorative Justice, in FEDERAL PROBATION 52 (Sept. 1989). While 

there is much to recommend about restorative justice, it has at least one inherent limitation; 

that being its inability to fashion punishments which entail incarceration of the wrong doer, 

since only the state can authorize such punishments. Thus, restorative programs stress 

restitution and repentance by the wrong doer to the victim, as the means to redress the 

harms suffered by the victim. Id. Such a remedy may suffice in property crime cases, but 

would seem to fall short when dealing with crimes of violence. See infra notes 206-17 and 

accompanying text (discussing the inadequacies of financial payments to victims under tort 

law). 

187. See, e.g., Cheryl Regehr & Thomas Gutheil, Apology, Justice, and Trauma 

Recovery, 30 J. AM. ACAD. PSYCHIATRY LAW 425, 430 (2002) (acknowledging that 

apologies may aid in victim recovery but cautions against viewing such acts of contrition as 

“a panacea leading to the healing of trauma under all circumstances”). 

188. See, e.g., Steve Baker, Justice Not Revenge: A Crime Victim’s Perspective on 

Capital Punishment, 40 UCLA L. REV. 339 (1992). Detective Baker, the father of murdered 

teenage son, noted that “A good deal of my frustration stemmed from the feeling that, as a 

crime victim, I was an outsider to the criminal justice system.” Id. at 340.


what he wants. 

By recognizing the empowering features of revenge, I do not mean to 

suggest that we should revert back to the revenge cultures of thousands of 

years ago. The dangers of such a legal system are just too profound and 

enormous to even seriously consider such an option. But I do maintain that 

we need to recognize the sense of empowerment which revenge offered to 

victims, and also acknowledge that our current system fails to offer victims 

such opportunities to regain their self respect. For as Professor Solomon 

notes: 

When current criminal law reduces the victim of such crimes to a 

mere bystander, . . . . the problem is not that in vengeance we take 

the law “into our own hands” but rather that without vengeance 

justice seems not only to be taken out of our hands but eliminated 

as a consideration all together. 189 

VII. THE LIMITATIONS OF ALTERNATIVES TO REVENGE 

A. Forgiveness as Mode of Victim Healing 

Then came Peter to him and said, Lord, how oft shall my brother sin 

against me, and I forgive him? Till seven times? Jesus saith unto him, I say 

not unto thee, Until seven times: but until seventy times seven. Book of 

Matthew 190 

What do you say concerning the principle that injury should be 

recompensed with kindness?” 

The Master said, “With what then will you recompense kindness? 

Recompense injury with justice, and recompense kindness with 

kindness. Confucius 191 

In response to the argument that victims deserve a greater voice in 

deciding the punishment of their victimizers, some have argued that such 


190. Matthew 18:21-22 (King James). 

191. BARTON, supra note 30, at 99, citing 1 H. SPENCER, THE PRINCIPLES OF ETHICS 

366 (1966).


measures are not really in the victims’ best interests. 192 Instead, as 

expressed by Professor Martha Minow in her book, Between Vengeance 

and Forgiveness, it is posited that the interests of victims, as well as the 

interests of victimizers and society, are better served through processes 

which encourage victims to forgive their assailants because: 

Through forgiveness, we can renounce resentment, and avoid the 

self destructive effects of holding on to pain, grudges and 

victimhood. The act of forgiving can reconnect the offender and 

the victim and establish or renew a relationship; it can heal grief; 

forge new, constructive alliances; and break cycles of violence. 193 

Programs which attempt to facilitate forgiveness vary in scope and 

design. In some cases, nations, attempting to deal with a former regime’s 

use of torture and other forms of mass atrocities, have established programs 

such as Truth Commissions, which encourage wrongdoers to come forth 

and confess their crimes, in exc hange for partial or complete amnesty. 194 

192. See generally Henderson, supra note 16, at 968-1021. Another argument against 

vengeance, and the role it would play in allowing greater victim involvement, is based upon 

Jesus’ admonition that “He that is without sin among you, let him first cast a stone at her.” 

John 8:7 (King James). It is posited by some that this requires those who would punish 

another, to first look into their own souls and at their own behavior before judging and 

punishing another; the assump tion being that all mortals have sinned, and thus none are 

qualified to judge the behavior of others. See MURPHY, supra note 79, at 89. I am more 

persuaded by Michael Moore, who, in his essay, The Moral Worth of Retribution, writes: 

It is true that all of us are guilty of some immoralities, probably on a daily basis. 

Yet for most people reading this essay, the immoralities in question are for things 

like manipulating others unfairly; not caring deeply enough about another’s 

suffering. . . . .and so forth. Few of us have raped and murdered a woman, 

drowned her three small children, and felt no remorse about it. 

MICHAEL MOORE, THE MORAL WORTH OF RETRIBUTION, cited in MURPHY, supra note 

79, at 90. 

193. MINOW, supra note 15, at 14. 

194. For example, soon after apartheid was abolished in South Africa, that nation’s first 

democratically elected Parliament created the Truth and Reconciliation Committee (TRC). 

See generally MINOW, supra note 15, at 52- 90. Generally, the purposes of such 

commissions are more to bring about national reconciliation than to address the individual 

needs of the victims of the earlier government’s atrocities. Indicative of that distinction is 

that under the South African TRC, abusers are granted amnesty merely for their truthful 

confessions of wrong doing. MURPHY, supra note 79, at 37. There is no requirement that


In cases of individual acts of violence, programs set up under restorative 

justice models, seek to bring victim and victimizer together, where, with the 

aid of facilitators, an attempt is made to help heal the victim and reform the 

wrongdoer. 195 

In practice, however, the salutary effects of forgiveness are dependant 

upon a number of variables. First, the victim should not be made to feel that 

he must forgive, for “to expect survivors to forgive is to heap yet another 

burden on them.” 196 Thus, a victim’s participation in the process must be 

voluntary . Compelling participation usurps the victim’s right to determine 

what is in his best interests, and in a sense, once again forces the victim to 

be subject to the will of another; albeit in this case, under the paternalistic 

guise of forcing the victim to do so for his “own good.” 

Indeed, forgiveness may not, in fact, serve the interests of all victims, 

or society, for that matter. 197 For whatever reason, victims may not want to 

forgive, and may need, or merely choose, to resolve their psychological 

difficulties through other venues, such as victim rights support groups and 

individual therapy. Or, victims may choose to channel their anger into 

actions which are aimed at preventing future acts of similar violence. For 

instance, one can argue that Simeon Wiesenthal, a Holocaust survivor who 

has dedicated his life to bringing ex-Nazis to justice, and John Walsh, father 

of a kidnaped and murdered son, who has helped increase public awareness 

regarding the plight of missing children, have both chosen to direct their 

anger as victims towards positive social goals. As Professor Minow writes: 

Learning to manage or extinguish pain and resentment, becoming 

the abusers exhibit a sincere sense of repentance; a characteristic which is recognized as 

intrinsic to individual victim healing. Id. at 35. 

195. See generally Dzur & Wertheimer, supra note 186, at 2-4. Given the scope of this 

Essay, forgiveness will be examined within the context of individual victims of crime, rather 

than groups who are victimized due to governmental sponsored atrocities. 

Though sometimes viewed as such, the concepts of retribution and restorative justice 

are not inherently inconsistent with one another. Indeed, a victim may, as a condition of, or 

a prerequisite to “restoration,” need to know that his victimizer will be punished for his acts. 

BARTON, supra note 30, at 7. See also infra notes 199-201. 

196. MINOW, supra note 15, at 17. 

197. For instance, a victim of rape may wish to forgive her rapist, and impose no 

criminal punishment. However, forgiveness in this context would likely run contrary to 

society’s retributive and utilitarian interests in demanding the rapist’s punishment. See 

BARTON, supra note 30, at 99.


able to sleep and get on with life, to co-exist with former enemies 

are valuable goals; but they do not require, entail, nor 

necessarily accompany grants of forgiveness. 

Fundamentally, forgiveness cannot be commanded. [I]ndividual 

human beings are just that, individual human beings, both before 

and after anyone is victimized and then labeled as a victim. 

Individuals respond uniquely and differently to horror. At least the 

responses are their own. To demand different ones may yet be 

another form of degradation and denial of their very being. 198 

A second reservation concerns the victimizer’s motivation for agreeing 

to participate in the process. Participation can not primarily be motivated by 

an expectation of leniency of punishment, for if that be the case, one would 

certainly have to question the sincerity of the victimizer’s acceptance of 

responsibility and remorse. The criminal must engage in the process not 

merely because it might reduce his sentence, but also with a sincere desire 

and willingness to acknowledge his fault. 199 Without such an honest 

approach by the victimizer, any realistic hope for victim healing and 

victimizer rehabilitation is lost. 

Thus, both victim and victimizer must enter the process willingly, and 

with a sincerity of purpose. In light of these prerequisites to participation, 

one can readily conclude that forgiveness is not a viable option for all 

victims and victimizers. 

A third caveat to forgiveness is the recognition that forgiveness should 

not be seen as an alternative to punishment. As I have argued previously, 

victims and society have the moral right to demand that wrongdoers be 

punished, and suffer for their wrongful acts. To allow victimizers to demand 

complete amnesty in return for their participation in the process would 

unduly reward them for their cooperation, as well as cast doubt upon the 

sincerity of their participation. 200 While victimizer participation could be 

acknowledged through some reduction in sentence, it should not be allowed 

to be used as a substitute to punishment. 201 

198. MINOW, supra note 15, at 20 (emphasis added). 

199. See MINOW, supra note 15, at 18; see also MURPHY, supra note 79, at 39 (arguing 

that sincere repentance should be made a condition for forgiveness). 

200. In this manner, individual forgiveness models differ from the national forgiveness 

models such as the TRC in South Africa. See supra note 194 and accompanying text. 

201. Under such a scenario, victimizer participation would permit the sentencing body


With these reservations, a criminal justice system which in some 

manner encourages forgiveness certainly can further worthwhile societal 

goals. For the purposes of this Essay, however, another issue must be 

discussed: Is a criminal justice system which recognizes forgiveness 

compatible with one that also recognizes the victim’s desire for revenge? 

In other words, can a system offer victims both the right to have a 

meaningful role in deciding punishment, and also provide the same victims 

the opportunity to engage in processes which may lead to forgiveness? 

I believe both goals, revenge and forgiveness, can co-exist within the 

same legal system. Indeed our cultural and religious norms reflect our 

acceptance of both values. For example, the concepts of justice and 

retribution are recognized in the Old Testament of the Bible, while in the 

New Testament, the virtues of redemption and forgiveness are extolled. 202 

I would argue that such duality of purposes is as much at place in the law 

as in religion. 203 

I recognize this duality, despite the fact that the two emotions are, in a 

very real sense, inapposite to one another; for while “forgiveness is to let go 

of vengeance, to avenge is to resist forgiving.” 204 Thus, it is probably true 

to demonstrate mercy, but not forgiveness. It is in this context where the related concepts 

of mercy and forgiveness are sometimes confused. The act of mercy is demonstrated by 

choosing to punish a wrongdoer less than what the law would allow, and while perhaps 

influenced by the victim’s forgiveness, is granted by someone other than the victim, such as 

the sentencing judge or jury. Forgiveness of a wrongdoer, on the other hand, is an internal 

process which is felt by the victim, and can only be granted by the victim. Forgiveness can 

also exist even without any outward demonstration of forgiveness by the victim. See 

MURPHY, supra note 79, at 13-14. 

202. See supra notes 75-82, 112-114 and accompanying text. 

203. See, e.g., Solomon, supra note 11, at 256 (“A creature endowed only with 

compassion, who would ‘understand’ the motives of the criminal in every case, would be 

just as much an evolutionary failure as a creature who did nothing but watch out for his or 

her own advantage and cheated every time.”). 

204. MINOW, supra note 11, at 21. But see JACOBY, supra note 11, at 79 (“The phrase 

‘Old Testament vengeance’ has frequently been used as pejorative by Christian 

proselytizers to emphasis what they regard as the fundamental distinction between Judaism 

and Christianity; i.e. Christ’s emphasis on forgiveness as opposed to strict Mosaic 

retribution. This mistaken view of Judaic revenge is partly attributable to the conviction that 

Christianity is the fulfilment of Hebrew prophesy, and is, as such, the divinely ordained 

successor to Judaism.”). 

An illuminating example of this perception is portrayed in the movie Dead Man 

Walking. In the film, Susan Sarandon plays Sister Helen Prejean, a nun who is counseling


that one cannot forgive while at the same time, seek revenge. However, this 

conflict presupposes that both emotions must be acted upon simultaneously. 

I would propose, instead, that in many cases, victims may be capable of 

forgiveness, only after they have experienced a sense of empowerment by 

having a meaningful role in the punishment of their victimizers. Under that 

scenario, forgiveness may not become an option until the criminal has been 

imprisoned for years. Indeed, one can argue that until after the victimizer 

has been punished for his wrong, he has not earned the right to even seek 

the forgiveness of his victim. 205 

B. Tort Law as A Model for Victim Healing 

A tort is not the same thing as a crime. . . .So far as the criminal law is 

concerned, the victim will leave the courtroom empty-handed. The civil 

action for a tort, on the other hand, is commenced and maintained by the 

injured person, and its primary purpose is to compensate for the damage 

suffered, at the expense of the wrongdoer. 206 Prosser and Keaton on Torts. 

Her disdain for blood money was not unusual. Some Holocaust 

survivors refused to accept German reparations. So did some Korean 

women who were offered compensation by the Japanese for being forced 

into prostitution during World War II. They claimed that blood money 

commodicized their pain. Rather than restoring honor, it humiliated them 

further. Not only were they hurt, but that hurt could be bought. The 

infinity of anguish could be measured; owned. 207 Laura Blumenfeld. 

Sean Penn’s character, a convicted rapist and murderer, who is soon to be executed for his 

crimes. She engages in a debate with the minister of the prison regarding the morality of 

capital punishment. The Sister, who is opposed to capital punishment, continually cites to 

the New Testament to support her argument for mercy and forgiveness. The prison minister, 

in favor of the execution, continually cites to the Old Testament, to support his argument 

for retribution. DEAD MAN WALKING (Metro-Goldwyn-Mayer 1995). 

205. In this respect, I would expand upon a point raised by Professor Murphy. He 

writes that it would be inconsistent for a victim who claims that she has forgiven her 

offender, to nonetheless favor punishing the offender out of a sense of vengeance. MURPHY, 

supra note 79, at 14. Yet, a victim could choose to punish out of vengeance, and subsequent 

to the wrongdoer’s punishment, still forgive. Only when one presumes that both forgiveness 

and punishment must occur simultaneously, are the two necessarily inconsistent with one 

another. 

206. PROSSER AND KEATON ON TORTS 7 (5th ed. 1984). 

207. LAURA BLUMENFELD, REVENGE: A STORY OF HOPE 87 (2002) (emphasis added).


Another argument raised against affording victims a greater opportunity 

for involvement in the criminal justice system is that they are already 

afforded their day in court under civil tort law. Tort law provides victims 

with the opportunity to file their own law suits, hire their own lawyers, 

decide trial strategy, and appeal decisions. If successful, they can recover 

monetary damages from the defendant designed to “make them whole,” 208 

and in most states, if the defendant’s act is particularly egregious, they can 

receive punitive monetary damages as well. 209 For physical attacks they can 

recover under the torts of assault and battery. 210 For theft they can recover 

under the tort of conversion. 211 They can also recover for their emotional 212 

as well as their physical injuries. Thus, in theory, victims as plaintiffs in civil 

tort law suits can seek and receive their individual justice. 213 

However, in practice, this is frequently an illusory option. The 

availability of monetary damages is only as real as the defendant’s financial 

resources. For example, almost 90% of all inmates in state prisons 

convicted of violent crimes have only a high school education or less, and 

almost 40% have less than a high school education. 214 Such defendants are 

thus unlikely to be able to satisfy judgments which award substantial 

monetary damages to the victim-plaintiff . Consequently, if a victim is 

unfortunate enough to have been assaulted by a poor defendant, there is 

little chance that she will ever recover monetary damages. 

On a more profound level, one must question the level of satisfaction 

which tort suits can bring to victims, even if they do result in monetary 

awards which are recoverable. The primary purpose of a civil law suit is not 

to punish the victimizer or to make him suffer. There is no incarceration of 

the defendant who is found liable in tort. At the end of the trial, the 

defendant, regardless of the outcome, is free to go home. All the defendant 

is required to do is to pay the victim money. 

And what does that money represent? Under tort law, payment by the 

208. See generally PROSSER, supra note 206, at 7. 

209. Id. at 9-10. 

210. See generally id. at 39-46. 

211. See generally id. at 88-107. 

212. Id. at 57. 

213. See OPPENHEIMER, supra note 19, 24-35 (providing a historical analysis of the 

intersection of tort and criminal law). 

214. CAROLINE W. HARLOW, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF 

JUSTICE, EDUCATION AND CORRECTIONAL POPULATIONS 10 (Jan. 2003, rev’d April 15, 

2003).


defendant (wrongdoer) to the plaintiff (victim) represents “satisfaction” 215 

of the plaintiff’s claim. Thus, in a very real sense, the victim’s acceptance 

of the payment is her acknowledgment that the harm she suffered was 

reducible to a monetary figure. Such acceptance also represents her 

acknowledgment that the monetary award constitutes all that is owed to her 

by the wrongdoer for the harms he inflicted upon her. 

No wonder, not all victims are willing to accept such “blood money,” 

and thereby let their victimizers off so easily. Be it survivors of the 

Holocaust, Korean women forced into prostitution by the Japanese during 

World War II, 216 or children who were sexually abused by Catholic 

priests, 217 some victims view financial restitution as a derogation, rather than 

as a recognition of the harms which they were forced to suffer, and thus 

refuse to accept such money. 

VIII. PLACING REVENGE WITHIN THE UTILITARIAN AND RETRIBUTIVE 

MODELS 

How does accepting that revenge has a place in deciding punishment 

fit within the traditional theories which support punishing those found guilty 

of committing a crime? As discussed earlier, two theories have generally 

been advanced for justifying the state’s imposing of punishment. One 

theory, Utilitarianism, proposes that punishment is justified only if other 

societal interests are furthered, such as the deterring of future criminal 

behavior, the rehabilitation of the criminal, and the incapacitation of the 

criminal so as to protect society from his future criminal acts. 218 The second 

theory, Retribution, rejects the rationale that punishment is only justified if 

those societal goals are furthered. Rather, it is deontological in nature; its 

underlying justification is that a wrongful act must be repaid simply because 

the act is wrong. 219 

Both theories denounce revenge as a justification for punishment. 

215. BLACK’S, supra note 35, at 1204. (“Satisfaction: The discharge of an obligation 

by paying a party what is due to him. . . . or what is awarded to him, by the judgment of a 

court or otherwise.”). 

216. BLUMENFIELD, supra note 207, at___. 

217. Ralph Ranalli, Victims Agonize Over Church Deal; Struggle With Moral, Legal 

Questions About Accepting Settlement, BOSTON GLOBE, Oct. 8, 2003, at B1. 


219. See supra notes 60-64 and accompanying text.


Retributivists acknowledge punishment per se, but view the source of the 

retribution as societal in nature. They justify punishment upon society’s right 

to demand that wrongdoers be punished, not because of an inherent right of 

victims to see their victimizers punished. Thus, most advocates of retributive 

theory are careful to distinguish their beliefs from the “wicked” emotion of 

revenge. 220 

Utilitarian theory, on the other hand, denounces punishment if it does not 

advance socially acceptable goals. Utilitarians are forward looking; they 

countenance punishment only if a social good will come from it. Since 

revenge is not invoked in order to deter future crimes, rehabilitate the 

criminal, or incapacitate the wrongdoer ( though it might indeed have such 

an effect), under classical Utilitarian theory, it can never be an acceptable 

reason to punish. 221 

Yet, with some tweaking, both theories could support allowing revenge 

to justify punishment. For instance, it is interesting, though not surprising , 

that none of the goals of Utilitarianism directly address the needs of the 

victim. They deal instead with how society can benefit from punishing the 

wrong doer. I would argue that in addition to the goals of deterrence, 

rehabilitation and incapacitation, a valid and morally acceptable goal of 

punishing wrong is to facilitate the victim’s recovery from the trauma of the 

crime. I would further argue that such a goal would not only further the 

interests of the victim, but by doing so, would also benefit society as well. 

This Essay has previously discussed the emotional and psychological 

benefits which victims may gain when, under a right of revenge, they are 

afforded a meaningful voice in the setting of punishment. 222 These benefits 

include a sense of empowerment; that after having their honor and dignity 

stolen from them, they are given the opportunity to demand, by themselves, 

satisfaction, for themselves. 223 Another benefit may also include an 

increased likelihood that the wrongdoer, upon being forced to directly 

address his victim, will come to recognize the humanity of the victim, 

assume responsibility for his actions, and as a result, express remorse to his 

victim for his acts. 224 

These benefits are not limited to the victim. Surely on an existential as 

220. See supra notes 52 and 93. 

221. Id. 



224. See supra notes 185-89.


well as a practical level, society benefits when victims of crime are not left 

at the end of the process broken, tormented, and vengeful, but rather 

emerge from their ordeals with some satisfaction and closure. Moreover, 

to the extent that the wrongdoer accepts responsibility for his acts, so too 

are the chances increased for his rehabilitation, thus lessening the chances 

that he will commit future criminal acts. 225 

Thus, simply by expanding the list of Utilitarian goals to include a desire 

to assist in victim recovery; a goal which is entirely consistent with the 

underlying premise of Utilitarianism to further the good of society, one can 

argue that allowing revenge to motivate punishment can be justified under 

Utilitarian principles. 

However, I would be wary of relying solely upon Utilitarianism as the 

theoretical underpinning for justifying revenge, because it relies upon the 

actual attainment of its goals for its justification. If punishment does not (or 

at least, does not sufficiently) deter, rehabilitate, incapacitate, (or under my 

analysis, empower), then the punishment is unwarranted. Indeed, many 

contemporary critics of Utilitarianism have raised that very argument: that 

since there is no evidence that incarceration rehabilitates or deters, and in 

fact, may indeed have an opposite effect, such punishment cannot be 

justified, even if it does result in incapacitation. 226 Under a pure Utilitarian 

approach, if these underlying assumptions are correct, such conclusions are 

valid. Similarly, Utilitarianism would warrant accepting revenge as a 

justification, only if the nexus between revenge and empowerment could be 

proven. Given the admittedly difficult task of empirically proving such a 

relationship, 227 traditional Utilitarianism would provide an uncertain 

foundation upon which to secure a justification for revenge. 

Further, it can be argued that Utilitarianism allows only that level of 

punishment which is necessary to effectuate the realization of the goals. 228 

For instance, if in a given case, deterrence could be achieved through a 

suspended sentence, actually incarcerating the wrong doer would be 

unjustified. Similarly, if it could be demonstrated that victim empowerment 

also could be achieved without permitting revenge, for instance, through a 


226. See, e.g., Marie Ashe, Prison-House of Prison-Houses: Incarceration in Theory 

and in Practice, 53 RUTGERS L. REV. 437, 449 (2001). 

227. For example, witness the difficulty in empirically proving whether victim impact 

statements enhance the empowerment of victims. See supra note 183. 

228. See supra note 56 and accompanying text.


restorative justice model, one could argue that the justification for 

punishment based upon revenge would disappear. 

These reservations underlie the basic flaw with Utilitarianism, in that 

punishment is dependent upon the attainment of external goals. Retributive 

theory, on the other hand, avoids that flaw, since it justifies punishment 

simply as a rational response to wrongful harm. The underlying theory 

which supports Retribution is almost a tautology: Punishment is justified 

simply because a wrong was committed. One flows from the other. No 

other reason is necessary. 

In this way, Retribution offers a safer harbor than does Utilitarianism. 

However, classic Retribution theory does not allow for retribution as a 

means to avenge a wrong to the victim; it only permits the state to exact 

punishment as a payment for the wrong visited upon society. It is in this 

manner that I would argue Retribution theory is overly restrictive, and thus 

should be expanded so as to include not only society’s, but also the victim’s 

interest in securing the punishment of wrongdoers. After all, the state’s right 

to exact retribution derives its justification from the wrong initially, and more 

grievously, exacted upon the victim. If society has the right to exact 

retribution for the indirect harm caused to it, certainly the victim should have 

no less of a right to do so. And that right should not depend upon any 

external benefit which may accrue. Rather, under Retributive theory, it 

would exist simply because punishment is the just deserts for the wrong 

done. 

IX. HOW TO INCORPORATE REVENGE INTO THE CRIMINAL JUSTICE 

229. BARTON, supra note 30, at 85-86. 

SYSTEM 

Taking victim rights and victim justice seriously requires, among 

other things, . . . legal institutionalized forums where victims can 

express their legitimate feelings of resentment and anger, forums 

where they can demand satisfaction in terms of adequate 

restoration, apologies, or retributive justice in a controlled and 

civilized manner for the wrongs committed against them, without 

their being trivialized, moralized, or patronized on account of suc h 

needs and feelings. . . .Without according such substantial rights 

and powers to victims, notions of victim justice and victim 

empowerment ring hollow. 229 Professor Barton.


It is one thing to propose new theoretical principles of law. It is quite 

another to attempt to adapt them into actual practice. The challenge thus 

becomes how to incorporate into the criminal justice system the concept 

that victims have rights which extend to having their desires for revenge 

recognized as a legitimate basis for punishment, without exposing ourselves 

to the dangerous consequences which revenge can have upon a society. 

In order to accomplish both of these goals, first requires distinguishing 

between the guilt phase and sentencing phase of a criminal trial. The guilt 

phase of a trial is where the guilt or innocence of the accused is 

determined. 230 Typically, this decision is made by the jury unless the 

defendant waives a jury trial. 231 

It is here where the interests of the state and the defendant are the 

greatest. The state’s interests are to ensure to the extent that is reasonably 

possible, that the defendant receives a fair trial, and that only those who are 

actually guilty of the crime are so convicted. 232 The state has the interest of 

ensuring this result not only on behalf of the accused, but also for society, 

since if the wrong person is convicted, the actual perpetrator is still free to 

commit further crimes. Whatever merit attaches to the principles of 

Utilitarianism and Retribution are completely defeated when the innocent 

is convicted, and the guilty remain free. 

It is thus of paramount importance that a legal system be devised so that 

chances of error are minimized, in order for the system’s verdicts to 

achieve credibility and finality. Without this credibility, trust in the verdicts 

would disappear, and society would face the prospect of a return to 

vendettas and blood feuds. 233 As such, any measure which would increase 

the possibility of incorrect verdicts and thus cast doubt upon the accuracy 

of findings of guilt needs to be avoided. 

230. See ANDRE MOENSSENS ET AL., CRIMINAL LAW CASES AND COMMENTS 9 (7th 

ed. 2003). 

231. Id. In fact, according to the Bureau of Justice Statistics, over 90% of all criminal 

convictions in state courts in 1996 were attained pursuant to a plea agreement between the 

prosecutor and defendant, without the case ever going to trial. OFFICE FOR VICTIMS OF 

CRIME, U.S. DEP’T OF JUSTICE, VICTIM INPUT INTO PLEA AGREEMENTS, LEGAL SERIES 

BULLETIN #7, 1 (Nov. 2002). This statistic obviously relates to the issue of victim 

participation, since any program which seeks to enhance victim participation would need 

to ensure that such participation was available not only at trial, but also during the plea 

agreement process. See infra notes 242-44 and accompanying text. 


233. See supra notes 16-18 and 101-10.


To that end, there can be no victim involvement in the guilt phase other 

than as a witness with relevant testimony regarding the innocence or guilt 

of the accused. Findings of guilt or innocence must be a completely 

impartial and dispassionate process. Weighing of evidence and the 

credibility of witnesses are functions which can only be permitted by 

citizens who have no direct involvement with any of the individuals involved 

in the suit. It is difficult to conceive of a just criminal justice system which 

does not insist upon this level of impartiality at the guilt phase of the trial. 

Once this phase of the trial has been completed, and if it has resulted 

in a finding of guilt, the system must then decide what sentence to place 

upon the defendant. At this stage, the sentencing body (usually the judge 

unless a capital murder case) is permitted to exercise some discretion when 

deciding what level of punishment to set. 234 Accordingly, there no longer 

exists the need for the same level of dispassionate analysis which existed 

during the adjudication of guilt. I would therefore suggest that it is here, in 

the sentencing phase, where the victim’s desire for revenge (or leniency) 

has a right to be heard. 

The question thus becomes just how loud should the victim’s voice be? 

Given the victim’s status as the individual who has suffered the greatest 

wrong, and the fact that the criminal trial may very well afford the victim 

the only opportunity to see his victimizer punished, 235 that voice should be 

as loud as possible, so long as it does not impermissibly defeat legitimate 

countervailing state interests. 

However, before exploring the possible mechanisms by which to 

increase victim participation in the setting of punishment, it must be asked 

whether any measure, short of having the victim actually decide and render 

punishment, can actually satisfy the desire for revenge. In other words, to 

qualify as revenge, and more importantly, to bring the type of relief which 

it has been argued revenge can bestow upon some victims, must such 

victims be personally involved in delivering the punishment? Or can victims 

retain the benefits of revenge even if the state serves as their proxy in 

deciding and meting out the actual punishment? 

234. See 21A AM. JUR. 2D Criminal Law § 794 (“It is the sentencing judge alone who 

determines the appropriate sentence or other disposition of a case, and who does so by 

exercising his or her best judgment, common sense, and judicial discretion after considering 

all of the reports, the defendant’s background, the facts of the case, and public safety.”). 

235. See supra notes 206-17 and accompanying text (discussing the limitations victims 

face when bringing their own civil law suits based on tort law).


Under a perfect revenge system, (one which would maximize victim 

benefits), the victim would serve as prosecutor, judge, jury, and sentencer. 

The revenger would only punish those who actually committed the wrongful 

act, and would only inflict proportional punishments. However, history and 

human nature renders such a possibility as pure fantasy. Thus, we are 

“stuck” with a system that requires state intervention; thus negating the 

potential maximization of personal revenge. 

As such, “revenge by proxy”—having the state exact the revenge on 

behalf of the victim- is the only realistic alternative. But I still return to the 

question of whether such a system can provide revenge-like benefits to the 

victim. Berel Lang questions whether revenge by proxy can satisfy such 

needs, noting “ [I]t is rather the fact that I or someone (or some group) with 

whom I associate myself has been the victim of the offense. In this respect, 

even if a legally constituted court should punish a malefactor, the person 

who has been harmed might still feel that he did not have his revenge.” 236 

Professor Solomon seems to believe otherwise, arguing that vengeance 

does not have to be violent, at least in the sense that the victim must 

personally physically assault his offender. Rather he focuses on the 

requirement that the punishment must simply “harm” the offender, (similar 

to my earlier point that just punishment must include a measure of suffering 

for the offender) 237 and notes that it would be difficult to “[I]nsist for long 

that sending a man to prison is not in fact actually harming him.” He thus 

concludes that “there is much that counts as punishment and consequently 

s atisfies the desire for revenge which need not be violence.” 238 Professor 

Barton similarly writes that “if the victims and their relatives retained their 

involvement, if they had a say or a hand in the punishment of their 

wrongdoers, the imposed punishment would quite appropriately be called 

institutionalized or sanitized revenge.” 239 

I agree with Professors Solomon and Barton, so long as the victim can 

sincerely believe that through her participation she will, at least in part, be 

responsible for the punishment and harm which her offender will suffer. To 

that end, I will propose a number of procedural mechanisms which could 

possibly offer such a sense of participation. First, is the use of Victim 

236. See Berel Lang, Holocaust, Memory and Revenge: The Presence of the Past, 2 

Jewish Social Studies 2, 14 (1966). 



239. BARTON, supra note 30, at 54.


Impact Statements (VIS), where victims are afforded the opportunity to 

express themselves regarding the sentencing of the defendant after the 

defendant has been found or has pled guilty. 240 Currently, all 50 states allow 

victims to speak at sentencing, in some form or another. 241 VIS testimony 

typically concerns three different subjects: the effect of the crime on the 

victim (and her family), the character of the victim (usually allowed when 

victim is deceased), and recommendations regarding sentencing. Most 

jurisdictions permit the first two forms of VIS; a few permit the third. 242 

Another option could be to permit victims, after an adjudication of guilt, 

to intervene as a party regarding the sentencing phase of the trial. Victims, 

along with the state and the defendant, would thus have party status, and 

would enjoy the same rights as the other parties. The actual sentencing 

decisions would still be rendered by the judge or jury. 

A third option could be to allow the victim to actually serve as the 

sentencing body, once the defendant was adjudicated as guilty. Here, the 

victim would decide the actual sentence. Clearly, this alternative would be 

the most radical. However, given the rather narrow level of discretion 

which many judges currently possess under the federal 243 , and many state, 

sentencing guidelines, if similar restraints were placed upon the 

victim/sentencer, the dangers of wide disparity in sentences would be 

greatly obviated. 

These are but a few of the possible procedural mechanisms for 

increasing victim participation. Admittedly, they all present varying degrees 

of practical and theoretical concerns, which will be dealt with in a future 

piece. 244 For now, I am simply suggesting that given the current 

240. See generally DOUGLAS E. BELOOF, VICTIMS IN CRIMINAL PROCEDURE 621-22 

(1999). 

241. Douglas E. Beloof, Constitutional Implications of Crime Victims as Participants, 

88 CORNELL L. REV. 282, 286 (2003); Id. at 299-305 (analyzing state by state the extent of 

victims’ rights to speak at sentencing). 

242. Beloof, supra note 241, at 621; see Payne v. Tennessee, 501 U.S. 808, 827, 830 

n.2 (1991) (upholding the constitutionality of VIS for the first two categories in capital 

murder cases, but seemingly let stand its earlier rulings which found victim testimony 

regarding recommendation of sentences to violate the 8th Amendment’s prohibition against 

cruel and unusual punishment). 

243. See, e.g., ROGER HAINES, JR., FRANK BOWMAN III, & JENNIFER C. WOLL, 

FEDERAL SENTENCING GUIDELINES HANDBOOK (2003). 

244. For instance, if victims were granted party status, would they also have the right 

to have an attorney represent their interests if they could not afford one on their own; would


marginalization of victims, these and other options need to be actively 

considered. 

X. CONCLUSION 

This Essay has attempted to rehabilitate the concept of revenge, by 

demonstrating that a victim’s desire to revenge the wrong done to him, is 

not inherently immoral. To prove this point, I have attempted to distinguish 

between the morality and justice of revenge; focusing on the motivation of 

the victim when discussing morality, and the consequences of the revenge 

act when discussing justice. Next, I have argued that when society seeks 

to punish wrongdoers under its retribution powers, such punishment requires 

an element of suffering for it to be a just punishment, and moreover, that 

when society purposely intends that the punishment cause suffering, that it 

is acting morally as well. 

I have then suggested that society would be acting morally were it to 

allow the victim’s desire for revenge to be considered as a factor when 

deciding level of punishment. While recognizing the legitimate concerns 

which society has with revenge, I have sought to differentiate between 

those concerns having to do with the justness and the repercussions of the 

revenge act itself, and those having to do with the desire for revenge. 

The societal concerns with victims exacting revenge upon their 

victimizers stem from a well founded, historically supported belief that the 

underlying emotions (primarily hatred of the victimizer) which motivate 

revenge, while justified and moral, would nonetheless have an unacceptable 

effect upon the consequences of the act. Specifically, such strong emotional 

involvement could impair the victim’s judgment regarding whether the 

accused is actually guilty; and if guilty, what should be the fair and 

proportional judgment for the crime. Further, without having an impartial 

third party involved in deciding these issues, the credibility and impartiality 

of such decisions would be open to question, and thus impact on the societal 

acceptance of the verdict and sentence. 

To meet these concerns, ancient civilizations moved away from revenge 

party status be given to victims of all crimes, only felonies, or only violent and serious 

crimes; would any of the proposed measures violate constitutional protections to due 

process or cruel and unusual punishment; would party status be afforded at sentencing 

hearings for plea agreements and probation and parole hearings, as well as at the sentencing 

phase subsequent to a guilty verdict?


based, blood feud systems to one where the state became increasingly 

involved in the adjudication and sentencing of the wrong doer. At first, 

merely acting as arbiter and enforcer of the law, the role of the state has 

now come to eclipse that of the victim. All of the justifications for imposing 

criminal punishment under traditional Utilitarian and Retributive theory rely 

not upon the victim’s interests, but instead upon furthering the goals of 

society. 

By prohibiting victim involvement in any of the decision making 

functions, the state has usurped the rights of victims to have a meaningful 

voice in determining punishment of their victimizers, even if that voice is 

laced with a desire for revenge and hate. We must recognize and remember 

that it is the victim of the crime who has primarily been harmed, and thus, 

that his wrong must also be redressed. Accordingly, his interests deserve 

to be honored and legitimized under our criminal justice system.

Revenge, Justice, and the Law

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