Getting Even: The Role of the Victim By Jeffrie G. Murphy

1. Getting Even: The Role of the Victim By Jeffrie G. Murphy • The article discussed the victim rights movement and if it is proper for people to seek justice in this fashion or if it is just an extension of revenge acted out against the criminal. The author seeks to explore two areas: • The burden of proof should be placed on those who in principle oppose hatred, vindictiveness and revenge • This burden of proof might not be as easy to bear as some might initially think. He explores these two ideas as he seems them intermixed and inseparable.

2. Getting Even: The Role of the Victim By Jeffrie G. Murphy • Who Has the Burden of Proof? • We should not have to defend our ordinary views, but require those who desire to change them to provide the proof • In the democratic United States we rely on the constitution to lead us through the criminal justice process even when the strong emotion of the victims are involved. • He used the analogy of popular movies that depict revenge scenes and how they are acceptable by the general public but if someone were to make a movie glorifying hatred there would be public outcry. This is his rational that normal people have a normal tolerance for revenge and as such it is justifiable • He then examines fundamental rights to show that protection from revenge is not a fundamental right and there fore not protected. He lays the burden of proof that it is a fundamental right onto the those who support it being a fundamental right rather than those who believe it is not.

3. Getting Even: The Role of the Victim By Jeffrie G. Murphy • Making the Case Against Hatred and Revenge • He believes that there are two strategies that condemn hatred and revenge: • The emotions involved in these responses are inherently irrational or evil • Emotions themselves are unwise or wrong to have any effect on the administration of criminal punishment • That allowing emotions into the criminal punishment system could undermine justice as it could be too influential on those

4. Getting Even: The Role of the Victim By Jeffrie G. Murphy The Rational Case Against Hatred He tries to show that emotions are more than mere sensations, linking how we can speak sensibly of irrational emotions but not of irrational sensations. He uses the analogy of how the character Michael Kohlhaas was viewed to have been overcome, or dominated by, or in the thrall of vindictiveness; however they would not say Mother Teresa had been overcome, or dominated by, or in the thrall of compassion. He argues that rather than emotions being pathological extreme, they are all capable of being carried to pathological extremes. From this link he states that not all who act out of revenge are crazed. Pathological extensions of this emotion will not be present in a rational person Thus for a case to be made against the emotion of revenge then the case must be moral.

5. Getting Even: The Role of the Victim By Jeffrie G. Murphy The Moral Case Against Hatred Revenge is sinful, based upon faith, but can a secular case be made to prove the same thing? God does not condemn vengeance but rather reserve it for himself, for to condemn it he would be condemning himself Only God knows and is good enough to seek vengeance Human beings always manifest vices – presumption and hypocrisy Being without sin is a relevant sense of the word All humans have a moral worth and are to be equally loved is a intrinsic implausibility and as such the feeling of revenge or vengeance is sometimes acceptable, even laudable It is not permissible to act on the feelings of revenge or vengeance

6. Getting Even: The Role of the Victim By Jeffrie G. Murphy • The General Case Against Revenge and Its Roll in Criminal Law • Revenge – any injury inflicted on a wrongdoer that satisfies the retributive hatred felt by that wrongdoer’s victim and that is justified because of that satisfaction • Private revenge is socially disruptive The state should take on the personae of the victim to exact revenge in the victim’s name • The satisfaction given to the victims • To defuse the potentiality for private revenge and social turmoil • Can public revenge have an impact on deterrence? • Institutionalized revenge is wrong in principle • All criminals have a fundamental right not to be punished in excess of their just deserts • All criminals have a fundamental right to be protected against sentencing procedures that are inherently arbitrary and capricious

7. Getting Even: The Role of the Victim By Jeffrie G. Murphy The Argument from Equal Protection and Due Process Retributive hatred is essentially a subjective response to being wronged If fairness requires that criminals receive accurate notice of the exact nature of the punishment for the crime then a system that is influenced by subjective variation would not be fair to the criminal If it can be shown that criminals have a fundamental right to be sentenced in proportion to personal blameworthiness and revenge is inconsistent with such right then there is grounds for an absolute ban on revenge

8. Getting Even: The Role of the Victim By Jeffrie G. Murphy • The Argument from Retributive Justice • Booth v. Maryland 1987 – victim impact statements are constitutionally impermissible in capital sentencing as they are likely to inflict cruel and unusual punishments, this was reversed by Payne v. Tennessee 1994 • Emotional appeals from attractive and articulate victims are likely to change focus away from legally relevant issues and produce arbitrary and capricious sentencing • Sentencing should be based solely on a criminals personal blameworthiness, character, circumstances, responsibility or guilt Sentencing should be based on what is morally blameworthy (things that are under the control of the criminal) As the feelings of the victim are not under the control of the criminal it would be wrong to let them have any impact on sentencing of the criminal Following this concept those who attempt a crime would be punished to the same degree as those who succeed based upon their blameworthiness

9. Getting Even: The Role of the Victim By Jeffrie G. Murphy Conclusion If it is impossible to draw a sharp distinction between the desire for retributive justice and the desire for revenge, then revenge is in a better philosophical company That until it can be demonstrated that victim impact statements produces deep harm to our criminal justice system they should be allowed as a voice of those our system failed to protect