The Forum on Law, Culture & Society held panel discussion at the NYC Bar Association, on the topic of Revenge. Central was Professor Thane Rosenbaum, author of "Payback: The Case For Revenge."
His panelists were
a. Defense attorney Benjamin Brafman
b. Prosecutor Kathleen Hogan
c. Federal appeals judge Denny Chin
d. Author and Harvard professor Daniel Goldhagen.
5. What is the difference between vengeance and justice...if there is one?
Perhaps we view vengeance as irrational and filled with anger, whereas justice is based on rules and regulations. But, throughout mankind's history, revenge was the case- and it was not irrational. In fact, it was carefully calculated to fit the crime, e.g., an eye for an eye...but not more than an eye! Over-response would require another round of equalization.
And it resulted in a sense of satisfaction often missing from our system.
a. In the opening scene of "The Godfather," the undertaker asks Don Corleone to exact justice on the men who raped his daughter. He apparently asks Don Corleone to have them killed, to which the Don replies :But that would not be justice, because your daughter is still alive. The undertaker leaves the room and the Don says to Tom: Give this to Clemenza We want good people, someone we can trust not to get carried away. After all, were not murderers here.
b. In the our legal system, if a rape is pled down to 'reckless endangerment,' with a sentence of 5 years, instead of 15 for rape....is that justice?
6. In our system, the victim tends to be marginalized, merely a witness: the victim is the only participant in the process not represented by their own council. The discussion looked at the 4th, 5th, and 6th amendments as protection for the accused, and the question arose, if the ubiquitous 'accused is presumed innocent,' doesn't that mean that the complainant is presumed to be lying? The value of living in a society where one doesn't have to prove their innocence was agreed.
a. And the 8th amendment, cruel and unusual punishment...is the criminal looked at for inflicting cruel and unusual acts on the victim? Actually, yes...at the sentencing phase it is taken into consideration.
b. The judge denied that the victim has a minor role, pointing out that in federal cases the victim has several opportunities to speak, at the level of the plea and at sentencing. The Crime Victim's Protection Act: "... right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding..... right to confer with the attorney for the Government ...: USDOJ: Office of the Victims' Rights Ombudsman
7. Yet most victim's groups report that victims are not included in the process.
a. Defense attorney Brafman disputes this, and states that plea offers require the approval of the victim before a DA or US attorney will engage discussion. 'In fact, at sentencing, I was afraid of what the victim would say...I've had sentences enhanced at that moment due to victim impact statements.'
b. Judge Chen gave Bernie Madoff 150 years...when the Probation Department had recommended 50. Defense council claimed capitulation to mob violence. Chen countered that it was a perfect example of justice over vengeance, because the victims 'came in and relied on us- they didn't look for vengeace.' 150 years is retributive, punitive, and vengeful, and incorporates the pleas of the victims.
c. Brafman pointed out that the NYC DA processes over 100, 000 cases, and time and opportunity restrict victim contacts.
8. The comparison was made between the national justice system, and the relationship to the behavior of nations. No one doubts the right of reprisal when one nation is attacked by another.
Revenge, or is this justice? Or....both.
a. And the Nuremberg trials of Nazis....most were put to death, or died in prison. But in France, Vichy collaborators were strangled in the street....no trial, and no one seemed to complain.
Is there an inconsistency?
The entire discussion, here:
Law and Legal - "Payback: The Case for Revenge" - Book TV
His panelists were
a. Defense attorney Benjamin Brafman
b. Prosecutor Kathleen Hogan
c. Federal appeals judge Denny Chin
d. Author and Harvard professor Daniel Goldhagen.
5. What is the difference between vengeance and justice...if there is one?
Perhaps we view vengeance as irrational and filled with anger, whereas justice is based on rules and regulations. But, throughout mankind's history, revenge was the case- and it was not irrational. In fact, it was carefully calculated to fit the crime, e.g., an eye for an eye...but not more than an eye! Over-response would require another round of equalization.
And it resulted in a sense of satisfaction often missing from our system.
a. In the opening scene of "The Godfather," the undertaker asks Don Corleone to exact justice on the men who raped his daughter. He apparently asks Don Corleone to have them killed, to which the Don replies :But that would not be justice, because your daughter is still alive. The undertaker leaves the room and the Don says to Tom: Give this to Clemenza We want good people, someone we can trust not to get carried away. After all, were not murderers here.
b. In the our legal system, if a rape is pled down to 'reckless endangerment,' with a sentence of 5 years, instead of 15 for rape....is that justice?
6. In our system, the victim tends to be marginalized, merely a witness: the victim is the only participant in the process not represented by their own council. The discussion looked at the 4th, 5th, and 6th amendments as protection for the accused, and the question arose, if the ubiquitous 'accused is presumed innocent,' doesn't that mean that the complainant is presumed to be lying? The value of living in a society where one doesn't have to prove their innocence was agreed.
a. And the 8th amendment, cruel and unusual punishment...is the criminal looked at for inflicting cruel and unusual acts on the victim? Actually, yes...at the sentencing phase it is taken into consideration.
b. The judge denied that the victim has a minor role, pointing out that in federal cases the victim has several opportunities to speak, at the level of the plea and at sentencing. The Crime Victim's Protection Act: "... right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding..... right to confer with the attorney for the Government ...: USDOJ: Office of the Victims' Rights Ombudsman
7. Yet most victim's groups report that victims are not included in the process.
a. Defense attorney Brafman disputes this, and states that plea offers require the approval of the victim before a DA or US attorney will engage discussion. 'In fact, at sentencing, I was afraid of what the victim would say...I've had sentences enhanced at that moment due to victim impact statements.'
b. Judge Chen gave Bernie Madoff 150 years...when the Probation Department had recommended 50. Defense council claimed capitulation to mob violence. Chen countered that it was a perfect example of justice over vengeance, because the victims 'came in and relied on us- they didn't look for vengeace.' 150 years is retributive, punitive, and vengeful, and incorporates the pleas of the victims.
c. Brafman pointed out that the NYC DA processes over 100, 000 cases, and time and opportunity restrict victim contacts.
8. The comparison was made between the national justice system, and the relationship to the behavior of nations. No one doubts the right of reprisal when one nation is attacked by another.
Revenge, or is this justice? Or....both.
a. And the Nuremberg trials of Nazis....most were put to death, or died in prison. But in France, Vichy collaborators were strangled in the street....no trial, and no one seemed to complain.
Is there an inconsistency?
The entire discussion, here:
Law and Legal - "Payback: The Case for Revenge" - Book TV
