Reviewed by J. Daryl Charles
Although the penetration of Freudian and sub-Freudian psychotherapy into our culture's moral mindset was carefully observed three decades ago by Philip Rieff, only now are we witnessing the full fury of its effects on the criminal justice system. For better or worse, the distinction between law and therapy-or the collapse of the distinction-profoundly affects our notions of criminal justice. How do the $300 billion spent annually on mental health services and the $150 billion spent on litigation insurance affect our cultural understanding of law and justice? Should society distinguish between justice and therapy? What is the relationship between guilt and a defendant's personal history of victimization, particularly in homicide cases? Should justice and punishment always, sometimes, or never be proportional? And who can be trusted to answer these questions?
Historically, religious faith and theological conviction have undergirded our understanding of justice and law. Notions of justice have been traditionally rooted in divine law (revelation) working in concert with natural law theory (reason). Such norms, however, can no longer be invoked, as America's public philosophy of choice has shifted from moral-theological to political-pragmatic. The author of It's All the Rage: Crime and Culture does not claim to be a person of faith. Yet much of the penetrating insight, biting wit, and much-needed common sense on display in Wendy Kaminer's recent bestseller I'm Dysfunctional, You're Dysfunctional spills over to Rage. Engaging the reader at every point along the way, Kaminer has a knack for asking the right questions in her critique of contemporary legal culture. Indeed, she poses the sort of questions that should be raised by people who profess faith yet who are all too often reticent to plumb the theological implications of their belief systems.
Kaminer's book comes at a time when Americans are discovering themselves to be one big (un)happy family of adult children. The author began writing Rage at the time we were being entertained by court jesters Lorena Bobbitt ("Let the healing begin") and the Brothers Menendez ("It was only a preemptive strike"), both of which cases illustrated the degree to which claims to victimization and therapeutic defense have transformed "criminal justice." The question of Tonya Harding's complicity in the Nancy Kerrigan mugging ("I know I've let you down, but I've also let myself down")-a tale generously laden with glimpses of Harding's childhood and marital abuse-was also front-page news at the time. And yes, notes Kaminer, the "Free the Juice" campaign was already up and running, following the heart-rending confession by O. J. in his pseudo-suicide note, "At times I've felt like a battered husband." (Although there is no mention of it in the book, it was also about this time that double felon Kathleen Powers, a fugitive of the law for twenty-plus years, stunned the nation by turning herself over to the authorities with the announcement that "I have finally learned to forgive myself." Powers, it will be remembered, was an accomplice in a bank robbery and fatal shooting of a Boston policeman in the early seventies-but more significantly by her account, a victim of "revolutionary idealism."
Motivation for writing this book stems from the author's own attempts at wrestling with objective legal standards, which she thinks are inconsistently applied throughout the legal system. Her own brief tenure as a public defender in the Brooklyn criminal courts tended to confirm her suspicion that the system can't even prosecute larcenies sensibly, much less adjudicate capital felonies.
Kaminer was most struck by the contradictions between lenient standards of personal responsibility fueled in no small measure by the recovery movement (which has taught us that everyone is a hapless victim of a dysfunctional family) on the one hand, and the reputed harshness of punishment advocated for certain categories of crime on the other. While people are increasingly frustrated with Twinkie defenses and bleeding- heart liberals who argue for leniency based on childhood trauma, millions of Americans meanwhile are refusing to take responsibility for their own bad behavior, caught up in the collective whine of addictive and abusive culture. Something's indeed wrong with this picture.
Kaminer's own confession is refreshingly honest, if not very optimistic:
I have no faith in metasolutions to crime or the crisis in criminal justice and have not attempted to offer any. . . . My own goal is not to solve problems but to rationalize our discussion of them. . . . Debates about crime are rarely sensible. They're ruled by politics and fear and the mindless exchange of attitudes that dominates the worst talk shows. . . . I expect that we'll proudly become even less rational as the millennium approaches: more people will report being visited by aliens or abused by Satanic cults in childhood or graced by their guardian angels. In my worst moments, I imagine that this book would be taken more seriously by a broader audience if I claimed to be channeling the spirit of a two-thousand-year-old shaman or an extraterrestrial. . . . But God doesn't talk to me. This is not a book of revelation.In some respects, Rage is a logical extension of I'm Dysfunctional, You're Dysfunctional, in which late-twentieth- century "psychological man" is both clearly and comically scrutinized. Kaminer possesses that rare combination of wit, candor, and common sense that makes her a pleasure to read regardless of one's political disposition. She confronts rather than evades the tough issues, while handling statistics judiciously (in stark contrast to many criminologists, whose cardinal sin is their often feckless and blatantly ideological use of numbers). Moreover, Kaminer's own assessment of the justice system's bankruptcy, while not comic, is more than academic, born out of her personal experience with the system.
Yet, the very strength of this book is the place of its greatest weakness. Despite her ability to raise disturbing questions, in the end Kaminer leaves them tantalizingly unanswered. What is a society's measure of justice? Is punishment moral? Is justice rehabilitative rather than retributive? Should justice be proportional? By whose standards will justice be defined-and then implemented? And why are almost all moral issues lawyerly issues?
Kaminer's inability to address the philosophical basis for justice is reflected in the book's treatment of the role of religion in criminal justice theory and practice, to which a total of seven pages is devoted. Here, Kaminer opts for less than satisfying stereotypes rather than acknowledging that one's approach to criminal justice is a reflection of one's view of human nature, and thus, one's worldview.
For example, the position that capital punishment (in cases of premeditated murder) is a moral necessity and obligation of the civil authorities based on their divine commission to preserve the social order-a position affirmed by the Church throughout its history until the mid-twentieth century-is treated by the author as only the stuff of redneck demagoguery. Unhappily, transcendent norms for justice do not find their way into Kaminer's discussion of law and morality.
The concluding chapter of the book, "Virtue Talk," simultaneously illustrates Kaminer's deftness at critiquing the inconsistencies of contemporary moral discourse on the one hand and her inattention to the foundations of moral judgment on the other. Kaminer is rightly entitled to a bit of skepticism regarding the "new national pastime" of virtue- talk. After all, conservatives and liberals alike have learned to play the game-from the more serious-minded, such as William Bennett and Stephen Carter, to the less so, for example, Bill and Hillary Clinton. Indeed "virtue ethics," as Russell Hittinger has cautioned, should be approached with a certain reserve, since it can be used as a substitute for making moral choices.
While Kaminer is well aware that American society lacks a consensus as to the nature and origin of virtue, her disinclination toward religion prevents her from discovering where a consensus-rooted in intergenerational wisdom-might reside. Which brings us back to our fundamental dilemma of defining and implementing justice. At the present there exists no consensual understanding of justice in our body politic- of guilt and innocence, good and evil. Defining that point at which innocence is outweighed by guilt is the burden of the criminal justice system. For the system to be able to function in a way that preserves the social order, a transcendent norm for justice must be affirmed.
The alternative is to subject justice to the private whims and fancies that propel the therapeutic state. As a means of social control, the therapeutic state functions separately from law and criminal justice in that no binding laws, precepts, or standards can be invoked. Like the former treasurer of the Episcopal Church who embezzled $2.2 million and blamed her actions on a psychiatric "breakdown" caused by "workplace stress" and "the pain, abuse, and powerlessness I have felt," no one bears moral responsibility. Whether for speeding or strangulation, blame falls not on sin or evil, but on cultural psychosis. At that point, justice means whoever screams the loudest.