Justice isn’t impulse regardless of whose family is victimized
By James Alan Fox
August 4, 2010

In debates about punishment, whether focused on the death penalty or adult sentences for juvenile offenders, I am often asked how I’d feel if it were my child who was murdered. Sometimes the question even comes with a threatening undertone, accompanied by the suggestion that liberals like me are what’s wrong with the criminal justice system.

I can say with certainty that my response to such a “God forbid” event would be emotional, irrational and extreme. My impulse, although a controllable one, would be to want vengeance - and in my ultimate fantasy, to have the satisfaction of getting it on my own.

In fact, in a less civilized era, punishments were determined and administered by the injured victims and their families. Under this system of family revenge, not surprisingly, punishments were typically harsh and out of proportion with the transgression. Because of such abuse, the state eventually took over the role of arbiter and punisher.

For much too long, however, the victim was largely excluded from the judicial process, except for the opportunity to testify at trial about the facts. Not until the 1970s emergence of the victim-rights movement did the victim-impact statement become a routine part of sentencing.

Although the victim’s perspective is unquestionably important, it is far from the only or even the primary factor in sentencing decisions. Although punishments should fit the crime in terms of the pain and suffering caused, they should also fit the criminal, including intent, maturity and state of mind, regardless of the victim’s preference.

To the argument that John Odgren’s murder sentence should be ratcheted down to life with parole eligibility because of his age, mental state and contrition, many people point out that there is no parole for the victim, James Alenson, from the death sentence meted out by Odgren. While the permanence of death is incontrovertible, that would hold true had Alenson been the victim of second-degree murder, manslaughter or vehicular homicide - that is, all other degrees of homicide in which the perpetrator sooner or later gets to taste freedom.

By contrast, Jeremy Prince is willing to advocate for leniency for the youngsters who allegedly bullied his daughter Phoebe to the point of suicide. Many of the same folks who side with the Alensons’ insistence for the maximum penalty are perplexed by Prince’s magnanimous gesture. Regardless, as with the Alensons, Prince’s wishes should be considered, but the ultimate decision is not his to make.

Those who consistently clamor for stiffer penalties are rarely asked if they would feel any differently were it their child who was accused of murder. Fortunately, few of us ever have to experience being the parent of either a murder victim or a murderer. Although different, both are nightmares.

It would obviously be absurd to allow the relative of a victim or defendant to serve as the judge or jury member. It is equally inappropriate to base sentences on what either family wants. There is nothing wrong with considering opposing perspectives, but at the end of the day - or the end of the trial - the courts must remain objective and dispassionate. Sanctions should be based on what is appropriate, proportional and just.

For me, as a criminologist, questions of crime and punishment are based on policy, not personal agenda. So please don’t ask how I would feel if . . . It really shouldn’t matter.

James Alan Fox is the Lipman Family Professor of Criminology, Law, and Public Policy at Northeastern University.