Rosenbaum gives philosophical, theological basis for revenge

Dick Seaton

By A Contributor

The case for revenge is a hard one to make. Our religious principles condemn it. We tend to associate it with crime, not justice. The recent murders of two prosecutors in Texas by a man they convicted is a good example. In law school, we learned that the principal justifications for punishment are deterrence, rehabilitation, incapacitation and retribution, with the last mostly frowned on.

In the book “Payback: The Case for Revenge,” Thane Rosenbaum thinks otherwise. Taking the long view, he points out that in the Old Testament, the Koran and even Hammurabi’s Code, “ancient people treated revenge not as an expression of irrational madness but, rather, as a quite rational, self-regulating necessity.”

He says resentment and anger are hard-wired in our brains. Thus, retribution is an essential element of justice, in the sense that the public only accepts the punishment meted out to a criminal if it feels, morally and emotionally, the defendant got what he or she deserved. He cites Immanuel Kant, who believed that the sole reason for punishment was retribution. “The wrongdoer is culpable and therefore he deserves to be punished. Moral blame creates an obligation of just deserts.”

Rosenbaum is a law professor at Fordham. He believes that modern American criminal justice is seriously off course because it seeks public order rather than moral restitution for the victim. He points to movies and novels about revenge where the wrongdoer gets his just deserts, which are far more satisfying to the public than is our system of criminal justice. Many of the movies are westerns, such as “True Grit.”

Of course, the debate over capital punishment brings this issue to center stage. It is also inherent in the argument about President Obama’s drone assassinations. Are we right to retaliate for the taking of a life by taking another life? Rosenbaum quotes Justice Potter Stewart, who wrote for the Supreme Court, in upholding the right of states to oppose capital punishment, that it “is an expression of society’s moral outrage at particularly offensive conduct.”

Summarizing the latest findings, he says the human brain “is wired for justice and short circuits when exposed to injustice.”

He believes that this vindicates the Old Testament principal of “an eye for an eye,” which he refers to as the “talionic law.” He also recognizes that this is at odds with the Christian teachings of the New Testament, to turn the other cheek and to love one’s enemy. In his view, the victim of a crime is shamed and reduced by the crime and should be, and needs to be, restored through retribution against the perpetrator.

Rosenbaum has good things to say about the use of victim impact statements in criminal cases. These are written statements provided by the victim to the court at the time of sentencing. In Kansas, they are part of the victims’ rights amendment to our constitution adopted in 1992. It provides that victims of crime are entitled to be informed of and be present at public hearings and to be heard at sentencing or other times deemed appropriate by the court.

Rosenbaum condemns the modern practice of plea-bargaining, in which the victim is excluded from the process. In fact, he advocates for allowing victims to participate in plea-bargaining, pretrial hearings, trials and appeals. Interestingly, this is similar to the way it is done in Iran. Most lawyers would think he is way over the top here.

Nevertheless, he has coaxed retribution out of the closet and made a strong case that it is a necessary and justified aspect of criminal punishment.

Dick Seaton is a lawyer and a Manhattan resident.

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