Revenge, Justice, and the Law

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44 THE WAYNE LAW REVIEW [Vol. 50:4 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.”).
2005] VICTIM’S DESIRE FOR VENGEANCE 45 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.
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