That may be true. But Kaminer's analysis is hampered by the virtual omission of the concept of retribution. Occasionally, she even refers to the desire to see criminals punished severely as "vengeance." (The excellent book Wild Justice: The Evolution of Revenge by Susan Jacoby, an anti-death penalty liberal who sees retribution as an essential element of justice which we deny at our peril, is cited in the notes to It's All the Rage. But it is not at all clear whether Jacoby's argument for the legitimacy of the retributive impulse is incorporated into Kaminer's thinking.)
Kaminer is clearly impressed by former prosecutor Bob Wilson, who reluctantly supports the death penalty not as a solution to crime but as "an occasional affirmation of the moral order." Yet she finds his argument--like Walter Berns's evocation of "the poetic justice handed out to Macbeth" as an example of the morality of capital punishment--utterly divorced from the reality of executions. The justice system, she says, is bureaucratic more than poetic; the inmates are no Macbeths but "damaged and crazy" or "inexplicably cruel" people. The image she dwells on is Ricky Ray Rector, left brain-damaged by a suicide attempt, saving his dessert for later as he shuffles off to execution. But isn't that stacking the deck a bit? Typical death row inmates are no Macbeths, but no Ricky Ray Rectors, either.
Kaminer is equally and often deservedly critical of other get-tough responses to crime such as mandatory minimum sentences in drug cases, the rush to federalize every "crime of the week," and the application of "three-strikes-you're-out" laws. She is similarly skeptical about the liberals' favorite symbolic solutions such as gun control.
Seeking to place the crime debate into a broader cultural context, Kaminer looks at "virtue talk"--the discussion of crime and character. In an acutely felt moral vacuum, she finds, many start looking to the justice system to "restore an uncomplicated moral order." At the core of this expectation she sees a paradox: Virtue implies moderation, yet our society has "immoderate, immodest notions of criminal justice," insisting on absolutes of innocence and guilt. The much-talked-about crisis in accountability is not simply that we refuse to judge people but that we "alternate between judging too harshly"--in cases of obscure defendants whose punishment is not mitigated by backgrounds of dreadful abuse--"and not judging at all," as in famous recent abuse-excuse cases: "We want people to be either victims or victimizers, without recognizing that many of us are both, without knowing how to punish guilty victims."
To Kaminer, a Lorena Bobbitt can be a victim and yet be guilty; a history of abuse can be invoked to modify the sentence, not to exonerate the accused. "This," she writes, "is not moral relativism but moral modesty; it assumes the existence of right and wrong but questions our capacity to choose with unerring accuracy between the two."
The idea is provocative though open to challenge. For instance, the deadlocked Menendez jurors might have argued that they were striving precisely for "moral modesty," using the putative history of abuse not to acquit but to convict on lesser charges. Unfortunately, we get little indication of how such a stance would be applied in actual cases. Would absolute judgments ever be appropriate? If the Menendez brothers did suffer physical, psychological, and sexual torture at their parents' hands, that abuse might shade, though not negate, their accountability. But suppose they just killed for the money. Then what?
In the spirit of moral modesty, Kaminer is more interested in questions than in answers. There's nothing wrong with that. But in this case, it gives the book a tentative quality that can become frustrating. It's All the Rage lacks the verve of I'm Dysfunctional, You're Dysfunctional, perhaps because in the earlier book Kaminer had a subject she didn't feel ambivalent about. It's All the Rage is fascinating at times, particularly when dealing with people personally involved in the legal system. It offers many fresh insights (e.g., that fear of criminals is a far stronger reason for people's attachment to the right to bear arms than fear of a tyrannical government) but often seems to lack a unifying thread. In the end, one is left with the feeling that the debate about crime, justice, and culture is much where it was before.
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