Revenge, Justice, and the Law

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42 THE WAYNE LAW REVIEW [Vol. 50:4 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
2005] VICTIM’S DESIRE FOR VENGEANCE 43 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
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