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June 3, 2009

Guest post: "The Uses of Revenge, Redux"

A colleague, W. David Ball, wrote me an interesting e-mail that I asked him to tweak into a guest post.  Here is what he sent my way:


The Uses of Revenge, Redux

Last week, the ALI voted to withdraw Section 210.6 of the Model Penal Code — the section which provides a framework for the imposition of the death penalty — because of the "current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."  This decision gave me occasion to revisit Anders Walker's excellent article (posted here a few months ago) about Herbert Wechsler, the Reporter of the first Model Penal Code: American Oresteia: Herbert Wechsler, the Model Penal Code, and the Uses of Revenge.  What I found particularly fascinating was the idea that Wechsler, himself a utilitarian, nevertheless saw some benefit in retributivism: it satisfied the public's nature for revenge in a way that prevented the "degredation of criminal codes."  Wechsler specifically thought that keeping the death penalty in a criminal code "had utilitarian value for criminal law, if for no other reason then as a prophylactic against legislative backlash."

After a particularly heinous crime, the availability of the death penalty created a kind of safety valve for popular outrage.  But

"[I]n an abolition situation, what you have is an outraged populace turning to the Legislature and denouncing the law and a very real danger that you may end up worse off than you started.”  Wechsler’s allusion to being “worse off” alluded to the corruption of criminal codes that occurred when elected representatives got votes by promising to boost sentences and invent new crimes. To him, this degradation of criminal codes had little to do with the inherent nature of the legislative process, but a great deal to do with popular desires for revenge stoked by liberal attempts to cabin popular will (internal citations omitted).

It is interesting, then, that yesterday the California Supreme Court affirmed Richard Allen Davis's death sentence.  Davis — better known as Polly Klaas's killer — was responsible for the crime that "became the catalyst for California's "three strikes" law."  Wechsler's theory, then, fails to account for perhaps the most punitive response to a sensational crime in the last 50 years: even though Davis got the death penalty, the public demanded — and got — a much more punitive criminal code.  And yet I can't help but think that there's something to Wechsler's theory (or perhaps just Walker's writing). 

So was Wechsler just wrong?  Have times changed?  Are we that much more manipulable — or bloodthirsty — now?   Please share your thoughts in the comments.

June 3, 2009 at 08:52 AM | Permalink


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I have never bought into the theory that any legislative act is done out of the motive of revenge. Anyone familiar with the legislative process at either the state or federal level knows that this simply doesn't happen. Revenge may be a personal psychological motive but I see no evidence that it is a motive for a legislature taken as a whole.

I have always subscribed to the theory of moral panics. As Carl Jung said, "you throw religion out the front door and it comes right back in through the window." Human being (most of them) have a religious/moral/ethical impulse. When that impulse is repressed politically (as it is in our legal system) then eventually you have these types of social eruptions that occur. All that is required is the right trigger of some egregious case and the volcano blows. American history is littered with such examples. Habitual criminals and child molesters are just the moral bogeymen of our time.

Posted by: Daniel | Jun 3, 2009 10:20:13 AM

Wechsler was onto something w/r/t the political dynamic creating a one-way legislative ratchet toward more punitive criminal statutes and sentences. But the Klaas case and general experience seems to show that his "safety valve" theory is no longer very viable (if it ever was).

(And, of course, there is no necessary end point to Wechsler's logic. If slicing up sex offenders' man-junk in the public square would *really, really* satisfy the public's thirst for revenge, should we do that, on the grounds that it will serve the greater good by quelling the public demand for harsher, counter-productive sex-offender-registration laws and the like?)

Posted by: Observer | Jun 3, 2009 11:04:54 AM

Interesting points. Part of me wants to say that the modes of transmission have changed--that the media landscape is different--and yet mass media in the middle of last century wasn't necessarily that much different than it is today. Sensationalism has always existed--every couple of years there's a new crime of the century. Those who do not remember the Maine are condemned to repeat it.

What I do think might be different is the notion of expertise. Wechsler was operating in a more technocratic era, where experts controlled policymaking in what was perhaps a more unabashed way. Walker's piece talks about the structure of public hearings in New York during the reformation of its penal code. Wechsler didn't want to have a lot of testimony from average citizens. Instead, the public hearings were, essentially, ways of controlling the discourse, keeping it away from demagoguery.

So the obvious response, then, is to say that in a plebiscite/proposition situation, the voters are the ultimate experts, and Wechsler's model doesn't work. What's bizarre about 3 Strikes, however, is that the legislature rushed to pass a 3 Strikes law in advance of the vote in November. Michael Huffington, who was running for senate at the time, nevertheless supported keeping the proposition on the ballot because it would be harder to overturn in the future (and because he thought 3 Strikes voters would be more likely to vote for him). So maybe it was just a question of the political calculus changing, or the simple fact that there is much more political calculating and far less leading going on these days.

Posted by: W. David Ball | Jun 3, 2009 11:43:18 AM

The death penalty and "tough on crime" obscures the big picture. It's all politics. Mike Reynolds was already trying to get Three Strikes passed. The crisis of the Polly Klass murder set the stage for passing it. The strategy is often to write a law and wait for a crisis. There is an even bigger picture. Conservative state legislature across the country signed a Grover Norquist pledge to never raise taxes for any reason. Anyone who violates the pledge is punished. Now California is about the collapse and all "big government" safety net programs are dead, including the meager rehabilitation and prevention programs California had in place. Norquist wants to make government so small he can "drown it in the bathtub." Small government means cut everything liberal. The death penalty keeps the people focused on retribution and diverts the debate from evidence-based programs that could actually prevent crime. It is all designed to give power to conservatives and keep it from the liberals. Conservatives are jumping for joy at the California crisis.

Posted by: George | Jun 3, 2009 11:49:53 AM

123D is utilitarian in its unemotional attrition of about 1% of the birth cohort that are repeat violent offenders. It works by the principle of the proven low recidivism rate of the deceased. It satisfies the above motives. It solves the problem of false convictions prevalent in the death penalty business. It gives notice to the criminal with cognitive impairment, since most can count to 3. It ends the problem of unequal treatment of both defendant and crime victim. The latter's unequal treatment is from the bias of the white racist lawyer hierarchy. It assumes a zero deterrence value. Its mechanical certainty, its preclusion of gaming should have some deterrence even among the most fearless criminals.

It's only problem? Lawyer employment goes into free fall. Crime may drop by 65% or more. If a repeat offender commits a felony a week from age 20 to 50, that is 1500 crimes prevented per person or around 15 million crimes a year, assuming 10,000 a year. There are 23 million a year now. If the murder rate drops by two thirds, that would even up 123D, with the salvage of murder victims. The lawyer makes no money from them, and throws them to the wolves year after dreary year. The lawyer, by his forbearance and immunization of the violent criminal intentional condemns 17,000 people to death every year. There is a six fold greater burden carried by black folks because the white lawyer hierarchy is racist.

One of the benefits besides the shrinkage of the cost of crime? Trust. Trust is very efficient, and should just expand the economy.

Posted by: Supremacy Claus | Jun 3, 2009 12:18:47 PM

George. I agree with part of what you are saying but I think you overlook an essential element. Namely, why do some crisises stoke the public anger and others do not. People write laws all the time and try to time them with a crisis and the people or the legislature just yawn in response.

This is where I disagree with Chomsky's notion of manufacturing consent. There is an underlying substrate or raw material that politics and the media use in manufacturing. You take away that raw material and the whole process freezes.

And by the way, I agree with you that conservatives are jumping for joy in CA right now. But it is my belief that this will be Pyhrric victory for them. It may take a several years for it to all work out, but the Republican party will be a minority party in CA for at least the next generation.

Posted by: Daniel | Jun 3, 2009 12:40:31 PM

I'm a criminal defense attorney. I don't know whether Wechsler was wrong empirically, judged by most recent trends, but his theory makes intrinsic sense. Specifically, we have to wonder whether focusing on deterrence, rehabilitation and incapacitation to the exclusion of retribution as a valid purpose of the criminal law has in fact led to harsher and less just consequences for defendants. In other words, retribution seems to have a built in limit (no more than an "eye for an eye") that the other purposes do not. How long of a sentence is sufficient to deter crime? How long of a sentence is sufficient to incapacitate a convict who has demonstrated his capacity for violence? It's not clear, and therefore the sky is potentially the limit. We have to be concerned that when the State denies just and proportionate retribution to the victims of crime, the populace through the legislature will even the score -- and more -- with harsher and longer sentences, even if it justifies such sentences under the rubrics of "deterrence" and "incapacitation."

I addressed this in a recent blog post, where I wrote:

The State has taken it upon itself to monopolize punishment for crimes. It would charge with a crime the parent who undertakes to take the law into his or her own hands and to punish with death the perp who raped and murdered his or her daughter. We have to recognize that we risk severe injustice if while denying the victim’s ability to avenge crime the State itself refuses to do so in his place.
It’s important to note that retribution is not inherently less humane than the other purposes of the criminal law when considered from the perspective of the defendant. After all, the best way to deter and incapacitate a thief presumably would be to execute thieves. Such a sentence, however, would go far beyond the proportionate “eye for an eye” contemplated by retributive justice. Many long prison terms (presumably motvated by the values of deterrence and incapacitation) are handed out by our supposedly modern and enlightened criminal justice system that seem to go far beyond what proportionate retribution for the actual criminal culpability of the accused would allow.

Posted by: John Kindley | Jun 3, 2009 1:06:12 PM

Daniel, probably part of what sells to the public is just timing, like a good movie. Westerns are dudes today. But the media and how it frames an issue can garner outrage, particularly when outrage is justified and an easy sell. The media could, if it wanted to, be more balanced, and like courts do, the media could narrow its coverage to the specifics of the story. Outrage and fear sells though and a balanced story could cut into their profit margin.

John Kindley, it is not that retribution is not a valid reason for punishment or that victims don't have a right to seek revenge (even if they could suppress that desire). The question is how far should it go? Compare Samuel H. Pillsbury's A Problem in Emotive Due Process: California’s Three Strikes Law, which argues that for justice to be done Emotive Due Process should be balanced with the defendant getting his/her fair say, but mandatory minimum sentencing laws preclude that possibility. No wonder the conservatives are worried about "empathy."

Posted by: George | Jun 3, 2009 3:39:25 PM

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