Rosenbaum, a Fordham University law professor and a novelist, exaggerates only slightly when he writes that “it’s more acceptable to confess to having a kinky taste for porn than to acknowledge harboring feelings of revenge.” Anyone openly seeking vengeance is unfairly dismissed in the legal system as irrational, unreliable and somewhat unhinged. Rosenbaum convincingly argues for knocking down the false distinction between justice and revenge, for rescuing revenge from its taboo status.
It is a well-entrenched distinction, including on The Washington Post’s opinion page, where recently two writers, in the span of one week, argued that executing the mentally ill James Holmes, who is accused of shooting 12 people to death at a midnight showing of a Batman movie last year in Colorado, would amount to vengeance rather than justice.
Rosenbaum shows how justice is inextricably linked to revenge, which he argues is both “morally right” and a “deeply internalized” instinct “as innate to man as breathing, having sex, falling in love, and making war.” He writes: “There is no justice if wrongdoers go unpunished and victims do not feel avenged.” Lacking an outlet in the justice system, we look to popular culture for what Rosenbaum calls the “moral clarity” that vengeance provides. He sprinkles the book with references to films and television shows, from “The Godfather” and “The West Wing” to “I Know What You Did Last Summer” and “The Mentalist.” He proves he’s watched an impressive range of TV shows and movies in the decades since he left his job as a law firm associate to write fiction and study how popular culture depicts the legal system.
But his mixing of nonfictional and fictional examples can be jarring. On a single page, he jumps from Quentin Tarantino’s “Inglourious Basterds” to the case of an Iranian university student facing a state-imposed blinding for throwing acid into the eyes of a classmate who spurned his romantic advances. Real and fake perpetrators and victims commingle in a ripped-from-the-headlines world.
A recurring theme in Rosenbaum’s work is the legal system’s moral inadequacies, and he picks up here where he left off in his 2004 book, “The Myth of Moral Justice,” renewing his argument that the legal system needs to stop ignoring emotional grievances. He laments how the human dimension of disputes gets “shredded away” in courtrooms that he describes as “monasteries of lifeless, deadened emotion.” At best, vengeance sneaks into the courthouse through the back door in the form of victim impact statements or the death penalty.
But “Payback” has little of the emotional element that Rosenbaum finds lacking in the legal system. Revenge, after all, is personal, and this detached account relies mostly on movie plots and newspaper headlines. Readers might pair this book with “Revenge: A Story of Hope,” former Post reporter Laura Blumenfeld’s 2002 account of tracking down the terrorist who shot her father in the head in Jerusalem’s Old City.
Rosenbaum acknowledges the limits of revenge, which won’t necessarily bring closure, catharsis or happiness, and like other forms of pleasure or addiction, vengeance can harm those who seek it. Rosenbaum ably demonstrated that in his novel “Second Hand Smoke,” which tells the story of a concentration camp victim’s son turned Justice Department Nazi prosecutor whose all-consuming quest for revenge ruins his marriage and career.
Rosenbaum doesn’t want to go as far as the societies he catalogues in which citizens who couldn’t rely on the legal system turned to revenge to keep the peace. (A Sicilian technique called “goating” involved binding a wrongdoer’s feet to a rope before placing him in the trunk of a car. If the wrongdoer moved, he strangled himself.) Instead, the author would infuse criminal proceedings with the emotional experience of vengeance by giving victims ways to participate more fully rather than watch as passive bystanders. Victims, he says, might be allowed to veto plea bargains, conduct their own cross-examinations during trials or have an independent right to appeal sentences they think are too lenient. At the most extreme, Rosenbaum argues in favor of “revenge statutes” that would provide “the righteous avenger” the same kind of protection as people who engage in self-defense.
Rosenbaum acknowledges these changes aren’t “easily attainable,” given how they would undermine the power of prosecutors and defense attorneys. Judges would have to overcome their “near-pathological aversion” to emotion. Curbing plea bargains would mean more trials, a change that would require more judges and courthouses.
At a time when federal judges are warning that automatic spending cuts may require closing courts, delaying trials and furloughing public defenders, the likelihood of finding funding for any kind of expensive changes to the criminal justice system seems more unrealistic than the most far-fetched movies Rosenbaum likes to watch.
, an editor at Bloomberg BNA, is a co-author of “Justice Brennan: Liberal Champion.”