Death Penalty

Victimful Crime

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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."

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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