¹ The present essay builds on some ideas initially developed in ch.3 (“Hatred: A Qualified Defense”) of Forgiveness and Mercy, by Murphy, Jeffrie G. (Chapters 1, 3 and 5) and Hampton, Jean (Chapters 2 and 4), (Cambridge: Cambridge University Press, 1988).CrossRefGoogle Scholar

² The phrase “victims' rights movement” refers to those who advocate changes in criminal law and procedure that will (at least in their view) make crime victims more satisfied with the system. Rules of evidence that make it harder for defense attorneys to probe a claimed rape victim's sexual past, finding ways to allow claimed victims of child abuse to testify with less embarrassment or fear (e.g., on video or behind a screen), and allowing crime victims to influence criminal sentencing (e.g., by presenting victim impact statements to the sentencing judge) are examples of developments that may be viewed as victories for the victims' rights movement. The 1987 United States Supreme Court case of Booth v. Maryland, where victim impact statements were ruled unconstitutional in capital cases, may be viewed as a setback for the victims' rights movement. (This case will be discussed below.) It should be noted that the phrase “victims' rights” is importantly misleading as a characterization of some of the practices noted above. Since the use of a victim impact statement occurs after a criminal conviction (though prior to sentencing), the word “victim” here is appropriate. Prior to a conviction, however, we do not know for sure that we actually have a victim; all we know for sure is that we have an accuser. Thus it would be better if those who favor such things as shield laws to prevent unnecessary probing of an alleged rape victim's sexual past would refer to these practices as a matter of “accusers' rights.” Also, is it correct to refer to these practices as rights at all, or should they simply be characterized (by those who favor them) as good policy?

³ Although I tend to support the legitimacy of what I call retributive hatred, I am inclined to agree with Willard Gaylin's claim that much anger and hatred in contemporary culture is – though understandable – irrational and maladaptive. See his The Rage Within: Anger in Modern Life (New York: Penguin Books, 1989).

⁴ Those who have come out in support of some instances of hatred and revenge include God (“Vengeance is mine… etc.”), Aristotle (Nicomachean Ethics, 1125b ff.), Smith, Adam (The Theory of Moral Sentiments, Indianapolis: Liberty Press, 1982, p. 38)Google Scholar, James Fitzjames Stephen (A History of the Criminal Law of England, London, 1883, Vol. II, pp. 8 Iff.), Haag, Ernest van den (“In Defense of the Death Penalty,” Criminal Law Bulletin, Vol. 14, No. 1, Jan.-Feb. 1978)Google Scholar, Berns, Walter (For Capital Punishment, New York: Basic Books, 1979)Google Scholar, and Robert Axelrod (indirectly – as an endorsement of the strategy of “tit for tat” in iterated prisoner's dilemmas – in his The Evolution ofCooperation, New York: Basic Books, 1984). I also present a supportive case for these responses in Forgiveness and Mercy. In this book I suggest that, in addition to the social usefulness of these responses in some contexts, some considerations of vice and virtue also offer relevant support – namely, that a person's failure to resent wrongs done to him and to manifest retributive hatred toward the wrongdoer may be a sign that he has the vice of servility (a lack of proper self-respect and a lack of proper tendencies for self-defense). I would hate to have readers unfamiliar with the book conclude from the present paper that I see no moral and social problems with retributive hatred, however, so let me note that the book contains numerous qualifications and cautions with respect to my defense of this emotion – qualifications and cautions that considerably constrain the domain of its legitimacy. No doubt the reader will want to check this out, and I recommend that he do so by purchasing – preferably in the hardcever edition – a copy of the book.

⁵ Amendment VIII of the United States Constitution reads as follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This has been interpreted by the United States Supreme Court to rule out such inherently barbaric punishments as torture, punishments that are radically disproportionate to the gravity of the offense, and the punishment of death when administered in an arbitrary and capricious fashion.

⁶ Might not hatred and compassion stand or fall together with respect to criminal punishment? If it is wrong to increase a criminal sentence out of hatred, will it not also be wrong to decrease a criminal sentence out of compassion? Can one consistently be meticulous and strict about justice only in one direction? Perhaps we tend to be more lax about mercy because we think that the compassion on which it is based is, unlike hatred, an acceptable or even admirable emotion. But this, of course, needs to be shown. For Kant, discussion, see his The Metaphysical Elements of Justice (Indianapolis: Bobbs-Merrill, 1965), p. 107.Google Scholar

⁷ Ethics, Four, LXVII.

⁸ Heinrich von Kleist's 1810 story Michael Kohlhaas portrays a man who, when he fails to receive legal justice over a comparatively small injury done to him (theft and abuse of his horses), takes matters into his own hands. In his pursuit of revenge, he forms an army, kills large numbers of people, and nearly topples the government under which he lives. This story was retold by E. L. Doctorow in his 1975 novel Ragtime – wherein Michael Kohlhaas becomes Coalhouse Walker.

⁹ On the Genealogy of Morals, Essay I, Section 10.

¹⁰ A Theory of Justice (Cambridge: Harvard University Press, 1971, sees. 80 and 81).

¹¹ Matthew 5: 38–48. The older law is well represented in Psalms 58: 10–11: “The righteous shall rejoice when he seeth the vengeance: he shall wash his feet in the blood of the wicked. So that a man shall say, Verily there is a reward for the righteous.” In Aeschylus's Oresteia, the Furies represent sentiments of this kind. Athena refuses to banish them, however, because she respects the impulses they represent and believes that, by institutionalizing them under due process of law, she can make them such valuable forces in support of community morality that they will become known as “the kindly ones.”

¹² John 8:7.

¹³ Romans 12:19.

¹⁴ Matthew 18:21–35.

¹⁵ God seems to promise that the job of vengeance will get done. Is this to reassure His creatures that their hated enemies may not go eternally unpunished? But why should He pander to His creatures' desires for vengeance, unless these desires are in some sense both rationally and morally legitimate on their part? May these creatures not even look forward with delight to the coming divine retribution on their enemies? May they not even have pleasing fantasies of it? When it happens, may they not look down from heaven with delight at the torments of their enemies below? Is God here in some sense promising (like Athena) to “institutionalize” (in His divine law) these legitimate feelings and thereby make their personal expression unnecessary? I raise these questions not to be impious, but simply to make the point that the “Vengeance is mine” passage can be read simply as a command that humans not act on retributive hatred – leaving open the possibility that feeling retributive hatred is neither an evil nor a vice. I do not believe that the simple command to love and forgive one's enemies is comparably ambiguous, however, for here feelings themselves are clearly the object of the command.

¹⁶ For a discussion of those aspects of Kant's moral philosophy that appear to be in tension with his commitments to retributivism, see my “Does Kant Have a Theory of Punishment?” in Columbia Law Review, Volume 87, No.3 (April 1987).

¹⁷ Suppose I am willing to grant that hatred would properly be addressed toward me if I performed (with full responsibility) certain evil acts. Perhaps I would even resent it and regard it as an insult (because it would challenge my status as a responsible moral agent) if such hatred was not directed toward me in these circumstances. If I then address such hatred to others when they (with full responsibility) perform such acts, it is not clear that I violate any important equality demand. Saint Augustine tells us that we should “hate the sin but not the sinner.” But if it is permissible to hate the act because it is bad, why is it wrong to hate the actor because he is bad? Of course, if the wrongdoer sincerely repents, this may block the legitimacy of hating or even resenting him – a theme I pursue in Ch. 1 of Forgiveness and Mercy.

¹⁸ Revenge is not to be identified with vigilante activity, and indeed I will assume for purposes of this paper that anyone who seeks revenge in ways that are illegal acts wrongly (not to mention uncreatively). The issue that I mainly want to explore, of course, is if the law itself should find a way of institutionalizing some of this revenge and thereby perhaps eliminate some temptations to self-help. I will also be assuming throughout that we are dealing with cases where the victims are not fantasizing the wrongdoing but have accurate beliefs that they have been wronged, accurate beliefs about the nature and degree of the wrong done to them, and accurate beliefs that the wrongdoer is as fully responsible for that wrongdoing as any human being ever is for any wrongdoing.

¹⁹ Some people might also suggest virtue arguments, but I am suspicious of their use in this context. For example: it is often suggested, as an argument against capital punishment, that it is wrong because of what it does to the characters of those who favor and inflict it – namely, it degrades and debases and dehumanizes them. But this is by no means obvious. In my view, a person is debased by the doing of X only if X is wrong (unjust, say), and thus – absent an independent showing that X is wrong – the character debasement argument will not get off the ground. Similarly, engaging in revenge will debase people only if it can be shown, on independent grounds, that revenge is wrong. So too for the common “two wrongs do not make a right” cliché that is often trotted out here. Obviously, those who regard revenge as justified will not see it as a wrong; they will thus quite properly fail to see the relevance of the cliche to their claim.

²⁰ This, I take it, is the point of James Fitzjames Stephen's famous analogy between the criminal law and the law of marriage (see note 4). He argued that we deal in each case with a passion that is legitimate (the desire for revenge in the one case and sexual desire in the other), but we have also learned that the passion in question has high potential to provoke disruptive behavior. Thus, the way to honor the passion without risking serious social disruption is for the law to regulate that passion – to provide it with a proper channel for expression. Taking victim hatred seriously in this way (by building it into legal practice) may thus benefit both the community and the victims themselves, for the practice recognizes the validity of the hatred while placing important constraints on its excess. Such institutionalization might even help to educate persons on the legitimate bounds of hatred.

²¹ One might, of course, argue that such a deterrent system is unpredictable – an acceptable consequence from the point of view of deterrence, perhaps, but a disutilitarian consequence from many other points of view (e.g., liberty). I think that this is an important argument. However, since I think that unpredictability is an evil essentially because of its unfairness rather than because of its potentially disruptive social consequences, I will treat this as an objection of principle in the next section.

²² 482 U.S. 496 (1987). A victim impact statement is a statement from the crime victim or some representative of the victim that seeks to influence sentencing by stressing the impact of the crime on the victim and the victim's desires (or perhaps the survivor's desires in a murder case) with respect to the sentence.

²³ Expressions of hatred might, of course, be evidence that something of assumed relevance to criminal liability – e.g., the existence of a certain level of harm – is present. I will explore this idea a bit later in the paper. As Ellen Paul has pointed out to me, one could argue that if criminals knew that they would face varying degrees of punishment based on the degree of hatred felt by their victims, they would factor this into their calculations of advantage/disadvantage before committing the crime. A rational criminal might then presume that his victim might be one with great capacity for hatred, and this might augment the deterrent value of the law. The criminal, by committing an illegal act, puts himself willingly and knowingly (but within limits, of course) in a kind of punishment lottery with respect to the harm that actually results from what he does. So why not a comparable lottery (again within limits) with respect to hatred and desires for revenge that might be felt by his victim?

²⁴ Had the United States Supreme Court held that capital punishment is, like torture, inherently cruel and unusual punishment, consideration of the procedural problems surrounding the administration of that punishment would never have achieved their current prominence. The reason why Furman v. Georgia (408 U.S. 238 (1972)) and most later death penalty cases have dealt primarily with procedural matters – the desire to avoid arbitrary and capricious capital sentences – is that the Court has held that the penalty of death is not inherently cruel and unusual – at least with respect to some crimes of murder. Thus, it is not surprising that, in America, most principled legal objections to the death penalty now take a procedural form.

²⁵ The Court did not clearly indicate what it will rule on VISs in non-capital cases. In capital cases, of course, the VISs are not primary victim impact statements (the primary victim being dead) but rather statements from concerned survivors – e.g., family members considered as secondary victims.

²⁶ It is not made clear why this poses any greater problem than that posed when the same victim appears as a witness during trial. Freedom from cross-examination, perhaps? Might it not be possible to allow such cross-examination at a sentencing hearing?

²⁷ United States v. Bergman, United States District Court, S.D.N.Y., 416 F. Supp. 496 (1976). Rabbi Bergman, owner of several nursing homes, had been part of a scheme to defraud the United States government with respect to Medicaid payments. In his sentencing opinion, Judge Frankel explores a variety of punitive purposes that he believes must be weighed: retribution, community outrage, community support for the Rabbi because of his many philanthropic ventures, special and general deterrence, etc.

²⁸ Nagel, Thomas, “Moral Luck,” in his Mortal Questions (Cambridge: Cambridge University Press, 1979).Google Scholar

²⁹ The problem being noted here is that of the inconsistency of insisting on a blameworthiness basis for punishment in a system that gives the same weight to harm that most systems of criminal law currently do. This does not entail abandonment of a blameworthiness basis, of course, for one might instead avoid the inconsistency by arguing on retributivist grounds for the abandonment (or considerable qualification) of the relevance of harm. For an exploration of this issue, see Schulhofer, Stephen J., “Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law,” 122 University of Pennsylvania Law Review 1497 (1974).Google Scholar

³⁰ See my “Retributivism, Moral Education, and the Liberal State” in Criminal Justice Ethics, Vol. 4, no.l (Winter/Spring, 1985). For a skeptical attack on the common idea that there is a sharp distinction in principle between criminal law (with the state as injured party) and tort law (with individual victims as injured parties), see my “Why Have the Criminal Law at All?” in ch. 3 of The Philosophy of Law: An Introduction to Jurisprudence, by Jeffrie G. Murphy (Chapters 1, 2 and 3) and Jules L. Coleman (Chapters 4 and 5) (Totowa: Rowman and Allanheld, 1984). (A revised edition of this book will appear from Westview Press in late 1989.)

³¹ Even Herbert Morris's very abstract notion of criminal punishment as annulment of wrongful gains or unfair advantages (in his “Persons and Punishment,” The Monist, Volume 52, Number 4, October 1968) may ultimately depend not upon some abstract sense of justice (the desire to see justice done for its own sake) but on something very like victim revenge. What, on Morris's theory, motivates me to want the criminal (as free-rider) punished? That he has taken an unfair advantage of those who have been law-abiding. But that means, given that I am one of those who has been law-abiding, he has taken unfair advantage of me – he has derived a wrongful gain at my expense. If this is what is most vivid in my mind (as it surely will be), then in what sense is my desire to see him punished impersonal and not a kind of victim revenge?

³² Most philosophical defenses of retributivism (including some of my own previous essays) take great pains to distinguish retribution (which is taken to be just) from vengeance (which is taken to be unjust or evil in some other way). Perhaps such attempts at drawing a sharp distinction have been misdirected.