62 Pages Posted: 9 Feb 2007
In this article I examine the legitimacy of allowing crime victims' desires for revenge to serve as a factor when imposing criminal punishment upon wrongdoers. I argue that revenge is in and of itself a value neutral emotion; an emotion which simply describes a victim's desire to get back at his victimizer. For example, if the victim wishes to mete out punishment upon a person who actually committed a criminal wrong upon him, such a desire for revenge, I suggest, is moral. Furthermore, if the punishment inflicted by the wronged party is proportional to the harm suffered, I argue that such a punishment represents a just resolution of the criminal matter. In other words, I disagree with the notion that revenge is, per se, immoral or unjust.
My article then examines the historical and religious reasons why revenge justice was supplanted by State imposed justice, and concludes that it was not because of a belief in the inherent immorality of the desire for revenge, but rather, was due to the very practical concerns that revenge justice often punished the innocent, and permitted disproportionate and inequitable levels of punishment. Revenge justice also frequently created an endless and escalating level of violence which threatened, and in some cases, actually destroyed early civilizations.
Based upon the above analyses, the article critically examines the traditional theories of Retribution and Utilitarianism as justifications for imposing criminal punishment, and concludes that both theories are deficient in that they fail to recognize and address the victim's interest in assuring just punishment. Similarly, the article also criticizes the notions that traditional tort remedies and restorative justice models, provide adequate venues for victim involvement and redress.
The article thus concludes that victims' desires for revenge deserve to be recognized as a legitimate factor when deciding what the level of punishment should be, so long as the ultimate sentencing authority remains with the State. I then offer a number of procedural mechanisms which would enhance the level of victim participation at the sentencing phase of criminal justice proceedings, including granting victims party status at all proceedings where sentencing decisions are rendered.
Keywords: revenge, retribution, victims' rights
Suggested Citation: Suggested Citation
Eisenstat, Steven M., Revenge, Justice, and Law: Recognizing the Victim's Desire for Vengeance as a Justification for Punishment. Wayne Law Review, Vol. 50, p. 1115, 2004. Available at SSRN: https://ssrn.com/abstract=962175