No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
The New Revenge and the Old Retribution: Insights from Monte Cristo
Abstract
What do crime victims want? The answer suggested by Alexandre Dumas' iconic character Edmund Dantés in The Count of Monte Cristo suggests that victims may want retribution, not revenge. Victims may seek more than restored honor or personal restitution. They may long for justice to prevail as an affirmation that the world still makes sense. Yet, Dumas also reminds us through the novel that human justice is only human and cannot provide this kind of cosmic guarantee. From this perspective, it is revenge, not retribution that looks more measured and more humane.
Three theoretical perspectives examine the role of justice as a means of informal social control and as a reactionary process to dynamics of social strain and subcultural demands. This theoretical analysis is then applied to concepts of justice, including retributive, distributive, restorative, and procedural. The derived street justice paradigm incorporates these various forms of justice as they are linked with cultural imperatives associated with street culture and street crime. The linking of these concepts provides a clearer understanding of the motives and means of exacting justice in a state of heightened relative strain that is pronounced by a preference for revenge and violence. Implications for policy, future study, and theoretical expansion are discussed with particular emphasis on the application of the paradigm to non‐street crime and to policies directed toward involving community members in the justice process.
Hate crime legislation has sparked substantial political controversy and scholarly discussion. Existing justifications for hate crime legislation proceed on the premise that the rationale supporting such legislation must be found either in the greater gravity of the wrongdoing involved or in the perpetrator's greater degree of culpability. This premise stems from a fundamental theory that dominates criminal law scholarship: the wrongfulness-culpability hypothesis. The wrongfulness-culpability hypothesis posits that the only two grounds that may justify disparate treatment of offenses are the greater wrongfulness of the act or the greater culpability of the perpetrator. Yet, all attempts to demonstrate that hate crimes are more wrongful or morally reprehensible than other crimes have failed to carry the day. This Article challenges the dominance of the wrongfulness-culpability hypothesis and proffers an alternative paradigm that supports bias crime legislation: the fair protection paradigm. The fair protection paradigm conceptualizes protection against crime as a good produced by criminal law and thus requires that it be distributed in an equal manner. Specifically, it imparts a duty on the state to equalize individuals' vulnerability to crime. An individual's vulnerability to crime can be defined as her expected harm from crime--that is, the probability of harm multiplied by its magnitude. A state may address the problem of vulnerable victims in one of two ways. First, it may impose harsher sanctions on those who commit crimes against vulnerable victims. Second, it may devote more resources to the identification and prosecution of individuals who attack such victims. When the latter tactic is unfeasible for some reason, equalizing protection against crime through the imposition of harsher sanctions may be the only way by which the state can provide vulnerable victims with greater protection and thus equalize their vulnerability to that of other potential victims. The fair distribution of protection does not require absolute equality in expected costs of crime to the victim. Vulnerability to crime is a function of myriad factors such as wealth, age, and attitude towards risk, life experience, and physical and intellectual prowess. Moreover, disparities in vulnerability to crime often depend on the precautions taken by the victim herself. The state cannot be reasonably expected to annul all disparities in the vulnerability of different potential victims of crime. This Article argues, however, that at a minimum the state ought to annul disparities that stem from certain personal characteristics of victims, such as race, gender, religion, and sexual orientation. This Article also shows that the explanatory power of the "fair protection paradigm" ranges far beyond the context of hate crimes. The fair protection paradigm can explain, for instance, why crimes directed against particularly vulnerable victims, such as the elderly and the disabled, are often punished more severely than crimes directed against less vulnerable ones. Properly understood, therefore, hate crime legislation is part of a larger scheme of providing fair protection against crime. Recognizing the right of victims to equal protection from crime makes it clear that hate crime legislation is consonant with the goals of criminal law. Hate crime legislation is merely one essential step towards a more egalitarian provision of protection against crime--a step which is congruous with the broader goals of the criminal law system.
Victims of horrific crimes, or those who survive those victims, often describe themselves as seeking closure, a way to go on with their lives in the aftermath of unimaginable pain and loss. This article is an attempt to examine the notion of closure in this highly charged context. Looking at the statements of the parents of murdered children in two well known cases - the case of the California Freeway Killer and the Matthew Shephard case - the article notes that different victims (or survivors) may seek closure in different ways. Both forgiveness and the desire for vengeance may play a role in the quest for closure, for example. The question of what victims and survivors need and deserve has a number of components: psychological, philosophical and moral; theoretical and empirical. This article suggests, first, that the notion of closure is complex, and that the needs of victims vary, and that, therefore, we ought to proceed carefully when making assertions about what victims need in order to achieve closure. Second, the article argues that the question of what victims need must be distinguished from the question with which it is often conflated, of what role the state ought to play in assisting victims and survivors in achieving closure.
This paper examines the role of the audience in the process that transformed executions from public spectacles to hidden rituals, and makes visible the ambiguities and uncertainties that accompanied the transportation of capital punishment from its monarchical origins to a modern democratic setting. From this vantage point, the evolving responses to concerns associated with the execution audience share many characteristics with efforts to control other problematic audiences. And yet, the particular forms that audience manipulation in the context of executions took cannot be fully understood without considering the occasion that brought the audience into being. Viewed as a mirror held up to the execution, the audience, whether conceptualized as a rowdy crowd or a solemn group of witnesses, emerges as a constitutive element of the execution and, in this sense, carries the potential to grant, or deny, legitimacy to the event and, by extension, capital punishment itself.
But he also wondered about himself, that he cannot learn to forget but always remains attached to the past: however far and fast he runs, the chain runs with him. It is astonishing: the moment, here in a wink, gone in a wink, nothing before and nothing after, returns nevertheless as a specter to disturb the calm of a later moment. Again and again a page loosens in the scroll of time, drops out, and flutters away-and suddenly flutters back again into a man's lap. Then man says "I remember" and envies the animal which immediately forgets and sees each moment really die, sink back into deep night extinguished for ever.(1) To articulate the past historically does not mean to recognize it "the way it really was." It means to seize hold of memory as it flashes up at a moment of danger. ...Only that historian will have the gift of fanning the spark of hope in the past who is firmly convinced that even the dead will not be safe from the enemy if he wins.(2).
It has become common, over the last decade or so, to plead for more "civility" and "respect" in American daily life. Some of this has come from politicians. Mayor Giuliani of New York, in particular, has been pushing the idea that more everyday civility can lower the urban crime rate.' Newspapers and newsmagazines have suggested the same thing. At the same time, civility has become a favorite subject for academics, with books and articles written by philosophers, sociologists, historians, linguists, and lawyers.' Two special topics have particularly engaged the attention of law professors: hate speech and sexual harassment. More "civility" and "respect" have been proposed as a solution to the problems of both. All in all, ideas that used to seem a little schoolmarmish in the wake of the 1960s-ideas about the enforcement of decent behavior-have come to seem respectable again, both politically and intellectually.
The currently received wisdom is that forgiveness is appropriate only in personal settings, between victims and wrongdoers, and that forgiveness is not only inappropriate in the public realm but usurps victims' rights and creates inequalities. This article denies these propositions and argues that community members can and ought to forgive wrongdoers, even if the victims do not. Forgiveness means risking a continuing relationship, and that is the aspect of forgiveness that must be public, not private. Nor does forgiveness undermine justice, if punishment is properly understood. Crime is a breaking of trust and an attempt to humiliate and degrade a victim. To give a criminal her due would be to humiliate and degrade the criminal and to break her trust. Yet even the most hard-nosed retributivists acknowledge that punishment must temper the crime in its rebound on the criminal. That temperance recognizes the communal ties to the criminal and is a form of forgiveness.
In this paper, Markus Dubber provides an overview of the victim's role in American penal law, from the general and special part of substantive criminal law to the imposition of penal norms in the criminal process and, eventually, to the actual enforcement of norms upon suspects and convicts.
This Article, a contribution to the Symposium Meting Out Justice: Fairness and Finality in the Death Penalty (Spring 2001) argues that in the United States, debates over capital punishment are increasingly influenced by victim's rights movements seeking to reshape the criminal justice system in ways that individual victims may experience closure. While legislation, policies, and a proposed Constitutional Amendment broadly confirm the internalization of victim-centered notions of closure, the impact on death penalty debates has been ambivalent. This is because victim's rights movements are themselves divided between those proposing vengeance or mercy as routes to "closure." This Article criticizes the former group and cautions to the latter, urging skepticism toward any expectation that meaningful closure might be achieved through the limited means of the criminal justice system.
American jurisdictions have traditionally resisted fines and community service as alternatives to imprisonment, notwithstanding strong support for these sanctions among academics and reformers. Why? The answer, this article contends, is that these forms of punishment are expressively inferior to incarceration. The public expects punishment not only to deter crime and to impose deserved suffering, but also to make accurate statements about what the community values. Imprisonment has been and continues to be Americans' punishment of choice for serious offenses because of the resonance of liberty deprivation as a symbol of condemnation in our culture. Fines and community service either don't express condemnation as unambiguously as imprisonment, or express other valuations that Americans reject as false. The article also uses expressive theory to explain why the American public has consistently rejected proposals to restore corporal punishment, a form of discipline that offends egalitarian moral sensibilities; and why the public is now growing increasingly receptive to shaming punishments, which unlike conventional alternative sanctions signal condemnation unambiguously.
This Article considers whether courts should regard enmity between litigants as a transaction cost and thus as a justification for awarding damages when a property right would otherwise be available as a remedy. It begins by examining the phenomenon of enmity generally, and concludes that enmities can be both ethically justified and instrumentally useful depending on their origins. The normative status of enmity also depends on the consequences of how it is expressed. The law understandably tends to punish enmity when it motivates out-of-pocket expenditures to make someone else worse off, but generally not when it motivates the absorption of opportunity costs for that purpose. It is very difficult for courts to distinguish between "good" and "bad" enmities, however, and the Article argues that in most cases the best way for courts to cope with this uncertainty is to disregard enmity when fashioning remedies. Exceptions to the rule may be warranted in cases where particular enmities readily can be identified as offensive to public policy or where they will create significant costs for courts or innocent third parties. The Article defends these views against the claim that enmity is best understood as a variety of emotion that justifies damages remedies in cases where it is likely to be pervasive.
Criminal acts stemming from prejudice based on race, religion, sexual orientation, or ethnicity--frequently referred to as "hate violence"--have increased during recent years. This study explored the nature of hate attacks and victims' responses to them. The sample consisted of 59 victims and included black, white, and Southeast Asian people. Data were obtained through focus group meetings, individual interviews, and questionnaires. More than half of the victims reported experiencing a series of attacks rather than a single attack. Anger, fear, and sadness were the emotional responses most frequently reported by victims. About one-third of the victims reported behavioral responses such as moving from the neighborhood or purchasing a gun. The responses of hate violence victims were similar to those of victims of other types of personal crime. Implications for social work intervention are discussed.
Death, resurrection and fall in Dumas’ Conte de Monte Cristo
- A. Marinetti
Correcting harms vs. righting wrongs: The goal of retribution
- J. Hampton
Allowing victim’s families to view executions: The eighth amendment and society’s justification for punishment
- D. Janicik
Legal meaning in the age of images: Television, melodrama and the rise of the victim’s rights movement
- E. Rapping
A paternalistic theory of punishment
- H. Morris
Victims and the death penalty: Inside and outside the courtroom: What they say at the end: Capital victims’ families and the press
- D.J. Matheson S.R. Gross
Of claiming the law: The distress of the wanderer
- T. Olson
- W. Farnsworth