It's All the Rage: Crime and Culture, by Wendy Kaminer, New York: Addison-Wesley, 285 pages, $22.00
What better time to publish a book on the state of American justice than in the midst of the most-watched criminal trial of our time, which caps a whole series of bizarre and sensational cases and coincides with a heightened national concern about the crime problem?
In her new book It's All the Rage: Crime and Culture, lawyer and author Wendy Kaminer notes that public outrage at crime and at excuses for criminals coexists with frequent sympathy for individual defendants. Some of the same Californians who lauded Gov. Pete Wilson's calls for tough-on-crime laws, Kaminer speculates, may have been in the crowd cheering O.J. Simpson--the prime suspect in a double murder--during that infamous slow-speed chase: "It was easy to imagine a demonstrator holding a sign saying 'Three strikes you're out' in one hand and 'Free the Juice' in the other."
To Kaminer, this dissonance epitomizes the irrationality of our approach to justice. Ordinarily, our revulsion at a brutal crime leads us to label the perpetrator inhuman and to demand his death. But since O.J. is someone many people "loved," the emotion was on his side.
Picking up on the theme of her acclaimed bestseller I'm Dysfunctional--You're Dysfunctional, Kaminer looks at how the basic motifs of the recovery movement--everyone's a victim of abuse, shame and guilt are "toxic"-- have influenced the legal process. Juries are now likely to "include people who watch talk shows and have been encouraged not to judge the self-proclaimed victims of addiction and abuse simply because they've engaged in bad behaviors"--the Oprahization of justice, as it were.
Both conservatives and anti-victimhood liberals such as Kaminer and Alan Dershowitz have deplored the tendency to bring the "personal development" mentality, with its scorn for individual accountability, its claims that we are all victims, and its emphasis on subjective feelings, into the legal process. But Kaminer argues that some of the same characteristics--the obsession with victimhood, the emotionalism, the blurring of lines between justice and therapy--are also evident in the law-and-order revolt and in the victims' rights movement: "From the victims' perspective, the trial is, in part, a therapeutic process. They seek 'healing' in the resolution of the case, which seems appropriate to the citizenry of a therapeutic culture." Conservatives, generally so contemptuous of the therapeutic culture, happen to approve.
This startling charge certainly deserves to be considered seriously. But is it fair? The "healing" element of righting wrongs has always been present in the concept of justice, and the victims' rights perspective demands precisely what the therapeutic culture denies: personal accountability.
What troubles Kaminer about the push for victims' rights is not the demand for better services for crime victims but the pressure to give them "power to help determine the disposition of cases." She is right, of course, to warn against "allowing feelings about the victim to displace facts about the defendant's culpability"; the parent of a murdered child may well be unable to appreciate the need to prove guilt beyond a reasonable doubt.
But despite a few extreme voices, such as the slain policeman's mother who dismisses fears about executing an innocent man by stressing that her son was also innocent, how many victims' advocates want to use the law for "healing" regardless of the defendant's culpability? A parent whose child is run over by a car while jaywalking feels the same loss as the parent whose child is killed by a mugger, but surely no one would call for the same punishment in both cases. The linkage of punishment to guilt is also the difference between vengeance and retribution.
To Kaminer, setting up victims' rights as a counterpart to defendants' rights is dangerously misguided: "Victims have moral claims to be treated fairly, with sympathy and respect, but they don't have rights, exactly, because they're not being prosecuted: the state isn't threatening their liberty." The distinction, she concedes, is likely to be lost on contemporary Americans who, unlike the framers of the Constitution, fear crime more than they fear the state.
Certainly, there is danger in this trend, which may also be related to the fact that Americans have been taught to fear all sorts of private wrongdoers--biased employers, greedy landlords--more than the state. The alarming authoritarian elements in the anti-crime backlash were evident in the response to the caning of Michael Fay in Singapore for spray-painting cars: As Kaminer observes, the pro-caning cheerleaders were remarkably unconcerned not only about the cruelty of the punishment but about the possibility that Fay was coerced into a false confession.
The rhetoric of victims' rights may, as Kaminer suggests, reflect the tendency to elevate everything people feel they deserve to the level of a "right." But it is worth noting that this rhetoric emerged in the context of a widespread sense that the state was defaulting on its obligation (recognized by the Founding Fathers as a key function of government) to protect citizens from crime, and of a dramatic expansion of defendants' rights. Traditionally, the collective interests of community and state are pitted against the individual rights of the defendant (and, as Kaminer reminds us, "communities don't have rights under our constitution"). The push for victims' rights is a reminder that there are individuals at the other end, too.
Much of It's All the Rage is devoted to the capital punishment debate. Kaminer's stated goal is to "rationalize" the discussion, and while her anti-death penalty sympathies are clear, she does not portray all death penalty proponents as vengeful racists or all abolitionists as thoroughly unblemished. Describing a group of murder victims' relatives opposed to capital punishment, she obviously admires their willingness to go against the grain but does not conceal her irritation with their lapses into sentimentalism about the "warm, tender human beings" on death row ("I found myself longing for less love and a little brimstone").
Many of Kaminer's arguments against the death penalty are familiar: It does not deter crime; it will result in the execution of innocent people. Above all else, it cannot be enforced fairly in a society riddled with racial and class inequalities: "Incompetent and untrained defense counsels are routinely assigned to represent indigent defendants on trial for their lives," she writes.
If most people knew how capriciously the death penalty is applied, and if life imprisonment were a reliable alternative, Kaminer suggests, public support for capital punishment might lose much of its steam. But she is far from confident on this point, citing polls in which, given a choice between capital punishment and life without parole, solid majorities continue to back executions. This holds even though most Americans agree that the death penalty is disproportionately applied to the disadvantaged. As Kaminer acknowledges, people may think that too few privileged killers are executed, not too many underprivileged ones. So why do Americans continue to support the death penalty? She returns to her theme of inadequate knowledge: "Assertions about the value of capital punishment or the fairness of the system aren't subjected to much reality testing by the public."