Revenge, Justice, and the Law

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16 THE WAYNE LAW REVIEW [Vol. 50:4 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).
2005] VICTIM’S DESIRE FOR VENGEANCE 17 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).
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