The victims and the furies in American courts.

DURING THE POINT in the jury selection process called voir dire, prosecutors and defense attorneys question prospective jurors and, everyone hopes, have their questions answered truthfully. This provides an opportunity for both sides to size up those who will decide the case. The following are the questions I heard while waiting to learn whether I would be empanelled on a jury in a recent capital murder case before the Sixth U.S. District Court (I wasn't selected):

"Have you or any of those close to you ever been the victim of a violent crime?" Yes, my father was shot to death when I was a young child.

"Do you have any religious or moral beliefs or convictions that would prevent you from imposing a death sentence?" No.

"Do you feel that society has a right to impose the death penalty for especially heinous crimes?" Yes.

My answers may puzzle some readers. If I'm not morally opposed to the death penalty--if in fact I would be willing under certain circumstances to impose it--why do I take a position against it?

I oppose the death penalty not because it is morally wrong but because it is ineffective and dangerous. Furthermore, it doesn't deter criminal behavior, it's more expensive than life imprisonment, it's unsure, and it's sold politically and implemented widely in ways that pander to racial bigotry. Worst of all, it threatens through another sort of pandering--this time in the name of "victims' rights"--to undermine the very basis of justice.

It is this latter that I wish to discuss in detail.

Twentieth century journalist and social critic H. L. Mencken pointed out that the shocking or degrading nature of the death penalty is as irrelevant to most people as is the fact that it doesn't deter others from heinous crimes. The most important aim of capital punishment in Mencken's opinion is revenge. The immediate victims of the crime and society as a whole, he says, want "the satisfaction of seeing the criminal actually before them suffer as he made them suffer. What they want is the peace of mind that goes with the feeling that accounts are squared." As usual, Mencken is useful in getting us to admit what really motivates us, regardless of what we claim the justification for our acts might be. Revenge--the ancient spirit embodied for the Greeks in the form of the furies--is the real justification for killing people judicially, and we wont think clearly about the whole process until we admit this to ourselves.

Vengeance seems to be society's strongest reason for embracing the death penalty, regardless of what name we give it. And it doesn't bother most people that it might actually be in conflict with other justifications, such as deterrence. As Gary Wills points out in a June 2001 article in the New York Review of Books, juries that impose the death penalty for horrendous crimes "reflect more the anger of society" while they "fail to make the calculations that we are told future murderers will make."

Perhaps the awakening of the furies--this "anger of society," without coolness or reflection--is justified by heinous criminal acts. Perhaps the egregiously cruel, the wantonly violent (Timothy McVeigh once referred to the nineteen young children who died in the Murrah daycare center as "collateral damage"), and the sadistically homicidal acts of murderers justify society's thirst for retribution and reprisal. Never mind that the New Testament revises the so-called biblical injunction of taking an eye for an eye. "When the injury is serious," writes Mencken, "Christianity is adjourned, and even saints reach for their sidearms."

Well, if society is making the judgment on the basis of the wrong done to it as a whole, then it would be futile to cry out against the judgment. But if, as seems more likely, what is increasingly happening is a failure to distinguish between the interests of society and those of the immediate victims, then the whole purpose of a judicial system is being subverted. We need to remind ourselves exactly what justice is and what it replaces, lest we revert to a pattern where vengeance drives all reaction to crime.

Unfortunately, we can't review the origins of law and courts directly because they are lost in prehistory. We can, however, pay attention to what literature and myth tell us about courts of law replacing the rule of revenge.

The Oresteia is a group of three plays written by the first great Greek tragic dramatist, Aeschylus, in 458 BCE, when Athens was at the height of its civic and artistic glory. The plays move from a world where violence is answered by violence toward a newer, more civilized world in which Athenian society votes as a jury on guilt and penalties for crimes; law replaces vengeance.

In these plays, Aeschylus gives us a myth about the origin of the justice system, the very system the West later inherited. In the process he shows how society has to absorb and neutralize the force of individual vengeance and the desire for revenge if there is ever to be justice. It's a lesson that has been forgotten in the current furor over victims' rights. We cannot isolate the victims of crimes as somehow being more entitled to retribution; justice means that society as a whole enacts punishment for a crime against society.

In Aeschylus's narrative, which runs through the three plays, the returning Greek king, Agamemnon, is murdered by his wife, Clytemnestra, out of revenge for his sacrifice of their daughter, Iphigenia. Clytemnestra is later killed by their son, Orestes. But when Orestes is pursued by the furies, who wish to avenge his murder of Clytemnestra, Apollo and Athena enter the action to invent the Athenian court system. They try Orestes and eventually acquit him.

The Athenian justice system offers a way out of the cycle of revenge. For Agamemnon and his house--as for any society ruled by blood vengeance--the past has captured the future. Aeschylus expresses this brutal constraint in Agamemnon, the first play of the trilogy, with imagery that confounds past, present, and future.

An example comes in the opening, as the old men who make up the chorus recall an event that took place before the Greeks sailed to Troy to avenge the kidnapping of Helen. The priest Calchas, summoned by Agamemnon to figure out why the lack of winds is keeping the avenging Greek fleet from sailing to Troy, reads a sign: two eagles devour the unborn babies of a rabbit. Calchas says the child-protecting goddess Artemis, angered at the coming slaughter of Troy's children, retards the inevitable progress of the Greeks toward their Trojan conquest until the Greek leader serves up his own child as a sacrifice. In the verses of the chorus, the eagles' feast of unborn young is mixed up with the sacrifice of Iphigenia, the slaughter of Trojan Queen Hecuba's children and all the young innocents at Troy, and the outrages that began the curse on Agamemnon's house--namely, the murder and cannibalism of children perpetrated by Agamemnon's father Atreus and his great-grandfather Tantalus.

Tantalus served his son Pelops to the gods for a meal and was punished by being unable to grasp the grapes he continually reaches for in Hades. Atreus killed the children of his brother Thyestes and then served them to Thyestes for a meal, calling down Thyestes' curse on the family. Agamemnon sacrificed his own child to appease Artemis and eventually was murdered by Clytemnestra in revenge. Orestes, the son of Clytemnestra and Agamemnon, then killed Clytemnestra in revenge for his father. In the imagery of the plays, the present and the future are both controlled by the past. Time is a prison where the deeds of the past are continually recommitted with different victims.

The myth of the cursed house of Atreus illustrates two important truths that must be grasped before any society can achieve even the beginnings of justice. The first truth is that murder is always a family affair in the broadest sense: all of society is implicated and diminished by the killing of one of its members. The Hebrew culture conveys this truth by having the first murder that of brother by brother. But the Greek myth contains another truth not seen in the Genesis tale of Cain and Abel. Though in both stories the first murder is divinely punished and the punishment is continued torment, in the Greek story the human reaction to murder is to answer it with another murder.

This mortal vengeance seems a natural response but, as the myth makes clear, it invites further vengeance. The second truth, therefore, is that murder answered by revenge inspires revenge in its turn. To this cycle of retributive vengeance there is no end. In the words of Mohandas Gandhi, "An eye for an eye makes the whole world blind."

Aeschylus' subject is the problem of vengeance and the origin of the justice system to answer it. When Clytemnestra kills Agamemnon she invokes "the three gods to whom I sacrificed this man," which she names as "the child's Rights ... Ruin ... and Fury." She also says she is moved by "our savage ancient spirit of revenge." In fact Aeschylus darkens her motivation by having her glory in her adulterous affair with her lover, Aegisthus, and in the power the two of them wield over the city-state of Argos.

Because in Aeschylus' story Clytemnestra's son and killer, Orestes, will eventually escape the cycle of vengeance, the tragedian depicts Orestes not as driven by the furies, the primitive spirits who are the essence of revenge, but as the instrument of Apollo. The god not only threatens Orestes with consequences if he fails to act--ostracism, physical pain, and psychological torture--but he promises his own protection. As Orestes kills his mother offstage, the chorus says that the son is guided by the goddess of justice, Athena, and that "Apollo wills it so!"

Though Orestes is pursued by the furies after he kills his mother, Athena and Apollo arrange it so he is put on trial and acquitted. This requires Apollo to claim that Orestes' act was Zeus' justice, and the jury comes in at half for conviction and half for acquittal. By breaking the tie and casting her vote for acquittal, Athena symbolically inaugurates the practice that tie votes will result in acquittal. Finally Athena, who knows the furies aren't just going to go away, promises them a place in the depths of the earth and renames them as kindly spirits, the Eumenides.

Though this allegory isn't, itself, an argument against capital punishment or against the belief that a death should be justified with a death, the message is that the wrong done in crime is felt by the whole community. But in this it is felt more impersonally and coolly, objectively and rationally, than how the victims and their immediate families feel it. And when the punishment is removed from the hands of those immediately wronged it is made a less personal matter. The crime is punished rather than the victim avenged. And the punishment isn't designed to make the victims feel better or experience "closure." It is society that is wronged and thus society moves to punish the crime. Until it does so--coolly, not in the heat of vengeance, deliberately rather than swiftly--there will be no justice, only an endless cycle of crime following crime.

A routine practice in sentencing hearings in U.S. courts these days is the hearing of "impact states"--testimony from the relatives of a murder victim. Their voices cry out because the victims' voices can't. And their emotional pain claims our attention. The burden of those voices is almost always the same: the parents, siblings, and spouses of victims won't achieve peace or, in today's jargon, "find closure" until the murderer is dead and as absent from his or her family as is the victim. Victims' rights organizations have sprung up all over the country, loudly complaining that the courts protect the rights of the accused and even the convicted at the cost of those of victims and the families of victims. It is hardly possible to exaggerate how important and widespread the victims' rights movement has become. According to Scott Turow, whose experience as a member of Illinois Governor Jim Ryan's taskforce to reform the state's capital punishment system changed him from an advocate to an opponent of the death penalty, "The national victims' rights movement is so powerful that victims have become virtual proprietors of the capital system."

It hasn't always been thus. Within the last fifteen years the U.S. Supreme Court reversed its earlier decisions that argued that victims and their families had no role in the process of deciding guilt and passing sentence. As recently as 1987 the Court said that statements by victims and relatives weren't constitutionally admissible at a capital sentencing proceeding.

During the 1988 presidential debates CNN's Bernard Shaw asked Michael Dukakis, who was perceived and promoted by Republicans as soft on the death penalty, what he would do if his wife Kitty were raped and murdered. Dukakis fumbled his response, replying:

   I think you know that I've opposed the
   death penalty during all of my life. I don't see
   any evidence that it's a deterrent, and I think
   there are better and more effective ways to
   deal with violent crime. We've done so in my
   own state.

What he should have said was:

   I would want to kill the people responsible,
   of course. But what does that have to do with
   the question of how society should act responsibly
   on the question of assigning penalties
   for crimes? We don't give guns and police
   cars to people whose family members have
   just been killed, open the fingerprint database
   to them, and tell them to find the killers and
   do to them what they would like to do.

Aeschylus's fable points us to the real relation that ought to exist between society and victim. We need to tell victims that revenge is not one of their rights. In the rule of law, society steps back at least a couple of paces from the victim's position. Society doesn't say to the victim, "Go and take revenge yourself." Neither does society say, "You have been wronged and we will act as your substitute in exacting revenge." Under the law, society measures the extent of harm done to it--to the whole body of the people--and imposes punishment based on that wrong. This degree of abstraction is precisely the measure of your safety and mine from reversion to the rule of the furies.

Abstraction, of course, makes an unsatisfactory meal for victims. My family choked on the verdict of manslaughter rather than murder that enabled my father's killer to get out of prison after merely a year. For victims, a life is "worth" a life, which means taking one demands taking another. The furies, too, argued at the Athenian court that their rule--older than the law, older than the gods--demanded a life for a life, and if their rule weren't honored, they further warned, the center wouldn't hold.

Society has always felt that killings in some circumstances weigh less than they do in others. When it comes to prescribing punishment to the perpetrator, a life taken after its owner puts him- or herself in harm's way--starting a bar fight, for example--doesn't carry the same judicial weight as an innocent life wantonly taken. These are simple, hard facts of society's judgments. A classic case is the crime of passion. The irate husband who kills the adulterer isn't treated in the same way as the serial killer. But if we succumb to the appeal of victims' rights, we can no longer justify the distinction.

The widow and the three children of the adulterer--I am one of those three, for this is my father's killing we are looking at here, not an abstract example--suffer his loss as acutely as any mother of one of Jeffrey Dahmer's victims suffers the death of her boy, or any husband or wife of a spouse blown up by Timothy McVeigh. Turow, looking at the issue from a lawyer's point of view, points out that "it violates the fundamental notion that like crimes be punished alike to allow life or death to hinge on the emotional needs of the survivors."

The sudden absence of the murder victim from the lives of family and friends means that no one can say "I love you" one more time or make up a quarrel or, in my mother's case, ask, "Why did you betray me?" The anger and perhaps guilt that goes with these cruelly truncated relations generates its own desire for revenge.

But not in my case: I am free from the anger and the guilt. When I think about what should have happened to the man who killed my father, I have a luxury other victims lack: I am emotionally insulated from the event of my father's killing because it happened when I was too young to know what was going on. Such emotional insulation is precisely what society has and needs in order to pursue justice. It isn't the business of juries to feel the victims' pain but to decide what harm has been done to society. It isn't their business to give satisfaction or closure to victims but, rather, to render swift, reliable, unbiased punishment for the harm done to society as a whole. As a victim, I would like juries and the society from which they are chosen to think not as victims do but as members of a responsible body that measures wrong by a different yardstick from emotional pain.

And, as an added benefit, taking the heat of revenge out of the sentencing process means that sentences will be fairer across lines of gender, race, and class because bias is more likely to sneak into the process the more passionately it is conducted. Therefore, we need to restore to our courts the social objectivity the Greeks attained, after so many generations of murder and revenge.

Michael Cohen is professor emeritus of English at Murray State University in Kentucky. His most recent book is Murder Most Fair: The Appeal of Mystery Fiction, published in 2000 by Fairleigh Dickinson University Press.