[music] Welcome to The Virtual Memories Show. I'm your host, Gil Roth, and you are listening to a podcast about books and life, not necessarily in that order. This is the second part of our 9/11 special, which is why it's coming out only a week after the previous episode. If you haven't given that one a listen yet, go check it out after this. It's a great conversation with Jonathan Hyman, a photographer who documented 9/11 memorials like barrels and tattoos for the first 10 years after the attacks. Our guest this time around is law professor and author, Thane Rosenbaum. Thane and I first encountered each other online years ago when I was doing this series of blog posts with Ron Rosenbaum about NFL and NBA betting. Those two Rosenbaum's aren't related, but I'm not related to Philip Roth either. Anyway, Thane and I stayed in touch, and when I saw that he had a new book out, I decided to see if he'd like to record a show. Since the book is called Payback, The Case for Revenge, I thought it might be apropos for a 9/11 episode. Thane agreed. It's a pretty intense book, and that it argues basically that the American legal system needs to incorporate the victim's need for revenge into the overall process of trial and sentencing, and absent that, we're sort of falling into this Kantian moral abyss. It's a pretty compelling argument, and Thane's a law professor at Fordham University, so he's not just speculating about the shortfalls of courts and judges. So neither of us are Christian, so I had a little more sympathy for the notion that turning the other cheek is kind of BS, but anyway, it's a very well argued book, and I advise you to give it a read if you enjoy the conversation we're about to have. There are a couple of notes I should make about the podcast ahead. When we talk about Thane's recent appearance on a panel on PBS, it was part of a roundtable discussion coming after a documentary called "The Law in These Parts," which was about Israel's imposition of a legal system in the occupied territories, and how mutable it was, how they didn't want to just impose Israel's own legal system for a number of reasons. It was a pretty engaged panel conversation. Also, I mention receiving a book as a bar mitzvah present from my cousins in Israel. That book is called Vengeance by Hans Jonas, and if you don't know what it is, it's the nonfiction book about the Israeli assassination team that went after the terrorists behind the 1972 massacre at the Munich Olympics, and it got made into that movie Munich by Stephen Spielberg. My point is, my Israeli cousins thought this would make for a great bar mitzvah present for me. Anyway, there's a little bio about Thane from his website, ThaneRosenbaum.com. I'll share that with you now. Thane Rosenbaum is an essayist, law professor, and the author of the novels The Stranger Within Sarah Stein, The Golems of Gotham, Second Hand Smoke, and Elijah Visible. His articles, reviews, and essays appear frequently in the New York Times, Wall Street Journal, Los Angeles Times, Washington Post, and The Huffington Post, among other national publications. He moderates an annual series of discussions on Jewish culture and politics at the 92nd Street Y in New York City. He is the John Wieland Distinguished Lecturer in Law at Fordham Law School, where he teaches courses in human rights, legal humanities, and law and literature, and also directs the Forum on Law, Culture, and Society. He is the author of The Myth of Moral Justice, why our legal system fails to do what's right, and he is the editor of the anthology Law Lit from Atticus Finch to the Practice, a collection of great writing about the law. His newest book is Payback, The Case for Revenge from University of Chicago Press. And now, Thane Rosenbaum on The Virtual Memories Show. My guest on The Virtual Memories Show is Thane Rosenbaum, author most recently of Payback, The Case for Revenge from University of Chicago. Kind of interesting book in terms of trying to bring the sense of revenge and vengeance back into the justice system. Can you tell me about the genesis of the book, where the idea came from? Well, I mean, we live in a culture that denounces and condemns the taking of revenge in all ways. In fact, you know, it's incredibly fashionable to say how much you're opposed to vengeance. And yet, I've always thought it's interesting that some of our biggest blockbuster films are revenge films, whether it's the searchers or gladiator or Braveheart. And so here's something that people are very clearly believe to be, you know, barbaric. And yet, at the same time, on some moral level, there's a sense of righteousness that the wrongdoers deserve. They're just desserts. The question then becomes, well, where does the legal system fit in? The legal system says, well, we believe in justice and not revenge. And I said, and I'm saying in this book, I think they're the same. I think we shouldn't split hairs. And I think we should just be more honest that when we come to the legal system, we expect the legal system to function as a surrogate, as a proxy. That's what our tax dollars are for. And that the emotional experience, the emotional catharsis of receiving your just desserts or receiving your payback is something that we shouldn't be ignoring. We should be embracing. Where do you think we went wrong in that respect? Where do you think we separated the ideas of justice and revenge? In the book, you seem to sort of lay the blame on the enlightenment period. But can you sort of expand on when you think we-- Well, Jesus Christ doesn't help. And that's my real question. Do you ultimately blame Christianity? I don't blame just Christianity. The book of Matthew is a disaster for people who believe in vengeance. It's something I don't really understand either, because it's not as if good Christians believe that the United States should not have killed assassinated Osama bin Laden. I've never heard that. I've never heard that good Christians say we should have never dropped atomic bombs, that we should never actually retaliate and seek vengeance against those who do harm. Why aren't people saying, well, we all should turn the other cheek in all instances? Look, I think that if you can forgive as part of your religious experience that that's a commendable idea, but I think it's a very hard choreography, it's not natural to forgive without some sense of evening the score. It's intolerable to know that someone gets away with something, and there's no sense of avenging the act. The enlightenment doesn't help either, because the enlightenment simply says, look, now we have a social contract. You all sign this invisible contract, and by doing so, you pay your tax dollars, and we'll serve for your justice. But our justice is supposed to be divorced of emotion, that it's really about the collective justice, that we're not there to give you an individually tailored remedy. And that, it's just a mistake. It's a ludicrous idea that we say to people in an earlier era, you could have taken a gun or a sword and engaged in self-help, a private resolution of disputes. But now, we really think that's too messy and uncivilized. So we'll do it, but we don't want you to derive any satisfaction from it. This is supposed to be a purely clinical experience. We do punish, but for reasons apart from what you need. And this is very much a pro-victim's book, because it's really there to look it from the perspective of what do victims need in order to feel avenged, in order to feel that justice is operating with their need to vindicate the crime against them. In never having been a victim of any significant crime like that, it was struck by the way, well the way you break it down, that the victim is essentially simply a piece of evidence for the state's case against a criminal, the victim isn't a person, I suppose. The victim is a witness. This is something, one of those dirty little secrets of the legal system that no one really admits. Even people who are lawyers don't admit. There's something really weird about the criminal justice system. People versus Jones, state versus Jones, you know, Maryland versus Jones, you know, Jones is a bad guy, obviously. That's just the name of it. That's a bad guy. The victim's name is not in the caption. The victim, it's this very strange kind of fiction that the crime is committed against the people, the state, all of us, the populace. And the only really good witness to the crime is the person who is the victim of the crime. And so they are not parties to the action. They are the only parties that don't receive their own lawyers, they don't have lawyers in courtrooms, they don't get to sit at the table, the prosecution table. In fact, most judges insist that victims sit in the very back of the room because they don't want to see the victim crying up front because it might sway the jury. So you're talking about the victim for whom this is why we should be here who's totally marginalized and his or her experience is trivialized. And again, this really does come out of the enlightened, the idea that we punish for purely deterrence reasons. We don't really punish to vindicate you. We're here to make it safer for the streets. And that's just, look, there's an enlightened philosopher, Immanuel Kant, who doesn't agree with that to him, a Kantian understanding is there's a categorical imperative, which is you've done wrong and you now have to pay the price of that wrong. And this has nothing to do with us. It has to do something that you've done and this is what's deserved. To him, punishment is simply about dessert. What's deserved? It's about what it might produce a better outcome at the end of the experience. He doesn't care if there's a deterrent effect. He's saying, this is what you've done and now you must pay the price of that crime. Do you think ultimately that leaves us crippled in a sense emotionally that we don't have a vested personal take in? I do. I think it's one of the reasons people don't have faith in the legal system. I think one of the reasons is people don't actually experience a sense of vindication. They don't feel resolved, reconciled. I talk about this in some of my classes. When doctors refer to medical remedies or medical relief, no one ever says those words unless the patient feels better. You don't say, I've given you some medical relief. You wouldn't say it unless the person pay feels better. In the law, we're very casual about saying words like legal relief, legal resolutions, legal remedies. We don't really ask people whether they feel resolved or they feel reconciled. In fact, they go home and they kick the cat. They go home and they throw their arms into the air and they said, "There's no justice in the world." In the book I talk about the opening scene from "The Godfather," which is a really great explic- it's a great explication of this idea because, you know, Bana Sarah, the undertaker and the very opening sentences says, you know, after the two men who tried to rape his daughter are given a suspended sentence, one of them walks past him in the courtroom and snickers at him. And he just feels so burned and so betrayed by the legal system to have not punished the people that beat up his daughter and tried to rape her. And he says, it is at that point that I said to my wife, "If you want justice in America, you have to go to the Godfather." And it's a great indictment on the legal system. He said, "Look, you know, the legal system doesn't get it. It doesn't understand that this is essential, the sense that people feel avenged, that the scores get evened, that the moral universe doesn't tolerate this kind of indignity, this kind of disrespect for people to walk around feeling uneventful." But within that anecdote, you also point out that the Godfather shows, he shows some restraint to Bana Sarah. We're not going to kill the guys, we'll, you know. That's interesting too. You know, the idea that within vengeance you have to find limits, which... Well, but it's not just that they're limits, right? Well, because what's interesting about that is that, you know, the Godfather is a professional killer. What does he care? And the reason he cares is because it's about... An eye for an eye is about proportionality. And it means you get no more than an eye, but also no less than an eye. And that's the other part of our legal system that is deficient, which is we really focus on the upper limit, you know, but we don't focus on the lower limit, which is to be no less than an eye. We give less than an eye all the time. That's what a plea bargain is. People get plea. They negotiate downward the sentence that they should have otherwise received. The interesting thing about the Godfather is that it also deals in the question of rape, which is how do you punish the rapist? You rape the rapist. You know, what all the Godfather is saying is I can't kill the boys for attempted rape because your daughter's alive. And so he's just saying, look, I'm imposing a rule of proportionality, even though I'm a Godfather, I'm a killer. And this is my daughter's wedding day. And on a day like today, I can't refuse a favor, but I can't actually do what you want me to do because it isn't measure for measure. And how impossible would it be for our justice system to reform along those lines to take some sense? Well, not as difficult as the people who attack me think it is. You know, well, one thing is, you know, I would put victims right at the prosecution table. I would give them a sense that they are a party to the action. I would let them have their own lawyers, who also have the ability to take questions, take direct questioning as well as cross-examination, so that the interest of the party is always before the jury. It's the state and the victim against the prosecutor. And I-- You mentioned other systems that-- Yes, we're particularly unusual in this way. I mean, I actually thought the experience that the Norwegians just undertook with the Brevech trial, the mass murder of those children, I think it was 31 children or 51 children. I was really admiring of what they did. You know, they appointed an attorney for each one of the kids so that each one of them would be not a class action where one person spoke on behalf of own. They completely humanized each of the children. At one point, they post the kid's face on a projector and then someone reads out at length who they were and what their loves were and what their lives might have been, putting the victim's experience at front and center in the courtroom. I forgot whatever the number. I think it was 71 kids, 71 autopsy reports to say each one, each murder mattered. So again, we don't do that. We don't elevate the experience of the individual before the law. What do you think America's system developed like that? I think there's a few reasons. I mean, one of the things is our legal system really has a real problem with emotion. It's creepy. We don't allow-- you've heard the obligatory, it's in TV, you're like, you know, there's a defendant or a plaintiff is crying and the judge is banging the gavel, I'm asking you to stop with that and restrain yourself. I will not have this in my courtroom, the idea of the decorum of the courtroom. People come to courtrooms at their most vulnerable. Why do we insist that they function as robots? But we're even trained to watch TV shows to say, oh, you can't cry, you can't laugh in a courtroom, you have to dress pretty ordinary, don't stand out, don't laugh, don't cry, don't let the jury see you in any of those ways, you know. And that says a certain sense of a clinical way of thinking about what happens. It's like lawyers functioning as scientists. We're really not permitting the emotions to interfere. We're just trying to get to the facts. We're not interested in the human experience. And so we never humanize the experience. But that I think is really part of fundamentally part of the problem, that we treat it like a lab experiment instead of a human experiment where people come fully loaded with their greatest sources of anguish. People don't come to courtrooms at their happiest, they come at their most broken. And they should be given an opportunity to express those feelings. And as we do it in very perfunctory ways, victim impact statements, which in my mind come too late, it's not clear whether judges even evaluate them. Most judges say that they're bored by them and they don't influence at all. They try not to be influenced by it. Again, why? Because they don't want a motion to influence my decision. And the answer is, why, why, you're human being, why shouldn't your emotions be part of this? Is there a fear of, I don't say malpractice, but that sort of culpability or some sort of... No, I think that there's some, no, I think that they just simply want to create the illusion that this is like a scientific lab and that we don't let these outside interferences affect our judgment. Or that the books and the precedents are the totality of it. And that we don't offer that kind of discretion that deals in purely human terms. But I have to tell you, if you think back to the 19th century in the United States, when you think about cowboy westerns, this is an interesting, I talk about this later in the book, you think about one of the things, the idea of the Posse comatatus, the rounding up a posse, we've seen these movies so we all know what these things look like. But in those times, the whole point was, when anyone is in the frontier, there aren't really any cops, and there really aren't any judges, and the community has to do something. They each, one crime, they all have to rally together, they just go all through each other's ranches or farms, and they round up a posse, and then they bring the person in, they throw them in the local jail, and they wait for the judge to come through the circuit. That's why they're actually called circuit judges, because in those days they rode on horses from circuits, people who go, "Why is it called the circuit judges?" Well, in the 19th century, there were judges that literally went on horse, and then they get to, it's like, "Okay, what business do you have?" "Well, we got that guy, and that guy committed a murder, and he is all right, I'll hang out here for a while until you dispose of these cases, I'll get on my horse and I'll go to another circuit." But they would even have parties themselves take the function as lawyers, because there weren't prosecutors, and so what we've done is we've turned it into something technical and legalistic, and so that individuals, you know, it's like the bar association saying- I was going to ask, because it's essentially a way of professionalizing laws, so that- Yes, professionalizing and making it impossible for other people to actually enter into the legal business, and to say, "Look, you need a lawyer, you can't just do this," and by doing that we've created a wall of separation between the parties, you know, because there's a very powerful idea, Gil and Thane get in a dispute, and in an earlier age, and one of my earlier books, The Myth of Moral Justice, talks about restorative justice, that there's really no justice unless Gil and Thane can really work this thing out, and that face-to-face, Thane can communicate his sense of betrayal, but if the lawyers are talking to each other, Gil won't get it. Now, how does that influence the way you teach? You're a law professor, right, so- I am, but I'm off the rails. I teach courses in legal humanities. I teach courses in moral justice, law and literature. What the legal system lacks is mostly what I focus on, and the payback is another one of those examples, right, because the legal system lacks the emotional experience of indication that you get from revenge but you don't get when you go before the court as merely a witness to a crime. Most of the writings that I've done on my non-fiction side and the teachings are really very much opposed to the convention of how we dispense justice in America. And does a law students pick up on that as- Yeah, no, no, they know that if you take a Thane Rosenbaum class, you're taking a class that isn't on the bar. It's not what a conventional lawyer needs to know, but it may make you a more righteous lawyer. It may make you a more moral lawyer. It may make you a better person, but it may not have that much to do with the way most people practice law, where in my sense is, you know, you can't practice law, can't represent people unless you give them a day in court, unless you give them an opportunity to speak to their grief, to speak to their heartache. We don't do that. We're not trained to do that. What we do is can we get a settlement check and give you the check and tell you to shut up and never talk about it again? Or on the flip side, plea bargain down to- Plea bargain down, right. So we save time and don't have to do court court? That's not, yeah. I mean, let's just get disposed of it and move to the next case. I have a personal story, which is, well, doesn't imply anything to a legal, nothing illegal happened. A friend of mine was queer bashed many years ago, not many years ago, about 12 years ago in Ireland, and survived and brain damaged and wrecked. He lives back in America now, and I'm a trustee for his well-being for the rest of his days. And the two guys who attacked him got eight years each. The judge was irate because there's apparently no attempted murder charges, so all they could get was aggravated assault, and they went in, they've served their time, they're out. But when they were in, I had to consider whether something should happen to them while they were in. Friends of my pal were connected enough in Ireland that if we had wanted to pursue that sort of justice that could have been done, my pal is a Quaker. So to him, everything was un-thinkable, but he was also brain damaged and has no short-term memory, so he wouldn't have really known if we'd done something. But that was a real difficult thing for me to both to decide on and to realize that you could decide on something like that. Well, it's a little like what happened with Godfather, you had the same experience, right? You had a way to provide for extra-judicial relief, and so what happened? Chose not to. I don't know how involved it would have gotten and how bad my own Jewish anxieties and neuroses would have gotten. My conscience would have treated me, but yeah, reading your book, that was one of the things I kept hashing out was whether, I mean, Drake's attackers seriously did not get the severity of what they did. The state of Ireland settled with him, and they provided some funds to take care of him, but the cop who found Drake in his apartment just thought he was taking down a dying man's statements when he found him there, they were astonished that he survived the beating, but he'll never be the same and he's broken and it was that sense of they took this guy's life from him. Yes. Do you take their lives from them and who gets to decide on something like that? Well, you know, one of the things I talk about in the book is that when we have situations that happen with your friend Drake, there's always this sense of not just irresolution, but unfinished business. That there's a piece of business that's unfinished and it needs to somehow have a kind of a true sense of resolution. There are a lot of actually really interesting movies about that, you know. There's a film, very good film, I think it's Todd Payne Hane's did film In the Bedroom. Yeah, I've heard about that, but I think you cited the book also. Yeah, it's based on Andre Dubuis story, but you know, the parents of a kid who's murdered and there's no real witness for the crime, although it's clear who committed it because it was based on a jealous husband. The kid was sleeping with the jealous husband's house and he was in the house at the time. But the prosecution and he also, the wrongdoer is the wealthiest family in this town. So they don't. And the parents, you know, wind up seeing him in the grocery store and there's something just unimaginable that this kid who killed our son is in the grocery store and he's wandering around. Unpunished, you know, un-prosecuted. And at one point it says he's basically who plays the mother says, you know, are we supposed to move? Right? I mean, we live here too, are we supposed to move? You know, look, one of the things I say in the book is that, and there's also interesting neuroscience that's come out over the past ten years that shows that we are hardwired for revenge, that retaliation, the need to even the score is something that is essential to us. The anticipation of revenge is it lights up, triggers the same neuro energy that lights up when you're anticipating eating chocolate, which is hence revenge is sweet. And so that we've learned that if we hook up people's brains to pet scans and MRIs, we see certain sectors of the brain light up with neural activity. But one of the things that's also important to remember, which is that that doesn't mean that there will be joy after, you know, revenge in the case of Drake. You know, you were sort of struck with the Jewish anxieties, can I be involved in something like this? Not quite the crimes of misdemeanors, Woody Allen levels. That's right. But something similar, right, exactly. It's a good question. It's a good way, a good analogy. But it's not like these things would ever go away. It's not a full sense of completion. It doesn't mean that there won't be ambivalence, there won't be regret. The point, the Kantian point is, but it still has to happen, right? And that's a different point, right, to say, I don't know whether Gil Roth can feel good about this after. But there were those who would say, but it's in order to balance out the moral universe. Still has to happen. There's that really great line in the Princess Bride, the Mandy Potomkin film, or the end, he says, you know, I was in the revenge business my whole life, now that I've taken my revenge, I don't know what to do with myself. That's a great insight. I just did an event with Mandy a few years ago at the 92nd Street Wine. I made him do the line, so he did it better than me, I can assure you. But it's an interesting insight. People think that that means that the line means one shouldn't take revenge. I don't read it that way. It just means the joy, the anticipation of it, the sweetness of revenge, that has the potential of the after-taste, that it doesn't necessarily mean that it'll be carried out, and when it's carried out there's happiness, but that it doesn't mean that it still shouldn't be carried out. Just means that now that I really don't know what to do with myself, I would gear it up just for one assignment. So in that sense, how does vengeance teach us responsibility, I guess? How does it lead us to live, I guess, better lives? Well, I think it does. I mean, I think that Aristotle had some very interesting things to say about this. You ask me, "What isn't helpful to revenge?" Jesus' Christ is Sermon on the Mount, Book of Matthew. But Aristotle said, "If you can't get up to experience and express anger, justified anger, when you've been treated with indignity and disrespect and loss, then that is a deficiency of your moral character. What kind of a person is a doormat?" And that's a very sort of Aristotelian idea, that anger, you know, it's not about anger management, it's a deficiency of moral character, if you can't get up, be motivated to even the score. You know, one of the great anecdotes in the book is why Michaels could do caucus, lost the 1988 election to the first George Bush, who was at that debate when they asked him, you know, if your wife Kitty was raped by somebody who, you know, has just been furloughed or paroled, what would you say about that he was then caught, raped and killed? And he very lawyerly, liberal state governor, said, "Oh, well, everyone knows that I have a position against the death penalty." And you know, his ratings plummeted, why? Because that's not what a husband says. That's not what a husband says. He could say, "I would want to strangle him with my bare hands. I would love to get someone else to do it, but I'm also someone who also recognizes the law of the land, applies to all of us, and I would recognize that that's a crime. But I'm not sitting here and pretending that I'm not a human being, I'm not a robot. I'm telling you that, yes, as individuals, I think the point that what we're learning to live with is it's not a matter of the restraint. I think it should be about the entitlement that we are entitled to feel a deficit that needs to be addressed somehow. That we're entitled to have that feeling that we personalize loss, and that's one of the things that I want pay back to teach, that you're entitled to feel burned, betrayed, breached, and that you're entitled to feel that there is a loss that needs to be addressed vindicated in some way. How that happens is different, right? Because I'm not, I don't advocate for people to go and seek their own self-help. But I am advocating the legal system has to do a better job to do it on our behalf as Surrogates As Proxies, but I think that one thing is that when people walk around and feel beaten up, put upon, deficient in the way that people have treated them. So there are true deficits in their deficits in our lives. That leads to a kind of moral corroseness of all of us walking around feeling there's no justice in the world. And ancient peoples knew it better. They understood how important it was. And that brings the question from Aristotle to Dukakis to Ascolis, and the role of the humanities. I took a break while I was reading the book after the first two chapters right before the neurobiology section to go back and read the Orestiah, and I just had a feeling it was going to become kind of pivotal to the book. I didn't actually look in the index to see if I was cheating. I just had an insight. I had that notion that, you know, I think I need to understand what the ancient Greeks earlier, this ancient Greek thought about justice and how justice is reconciled with reason as it is at the end of that trilogy of plays. What role does that play in your idea of the formation of justice? If you want to explain how Athena kind of brings in the furious. I'm amazed at how law students are not taught this. I think that there was one thing they needed to, every law student should be reading the humanities because you have the granddaddy, the mother of all recycled blood feuds, you know, the house of Atreus, you know, everyone's getting whacked at one point. There's daughters are getting whacked and husbands are getting whacked and wives are getting whacked. Everyone's getting in this family. Of course, oh, it starts off right with the two nephew, nephew in a niece, get served up his dinner with their hands coming out, you know, that's how it starts. And you know, you know, you start off with, you know, if you start cooking your nephew and niece and serve them up as dinner to your brother, their father, that's going to set upon a family feud that's going to be very difficult to reconcile. So when you get to humanities, you have this, you know, you have the goddess Athena being told by Apollo, let's have a trial. This endless blood feud, this is much worse than the hatfeels in the McCoy's, is only destructive and poisonous. And so when arrestees is sort of being tormented by the furies and they said stop, stop, let's just conduct a trial. And it's pretty amazing because there's essentially a deadlock jury and Athena casts the final vote and she rules him to be innocent or not guilty so that he is acquitted of the crime of killing his mother. The furies go nuts and they say that's it, we are going to unleash a poison on, this is not just, this is this boy killed his mother. And here's the part that's the, again, no law student, here's this, Athena says no, don't do that. This is what we want you to do. The furies represent all of what human emotion amounts to, including revenge. And she says, we want you to be included in all future trials, come to our courtrooms, come be a part of the dispensation of justice, bring in all the emotion, bring in the grief, bring in the anger, bring in the rage, bring in the revenge component, bring it here, let's not do it outside. Outside is messy, it's bloody, it's messy, we may get the wrong guy, it's sometimes people go too far, that's disproportionate revenge, come here. And if I'm reading humanities right, that means that we are trying to simulate revenge in courtrooms. We're trying to put it in a controlled environment, but we really want all of that emotion to be expressed and we want victims to feel vindicated. How far we have come from seeing the wisdom of escalists that we now say, I'll have no emotion in my courtroom. If you don't restrain your client, I'll have him taken out saying clearly that judge didn't read escalists, because escalists said, no, no, what are you talking about? That's why they're there. Give them an opportunity to express that sadness, that grief, that sense of loss. And I just think that it's amazing to me how little people have benefited the profession from the literature about the law. And when you think about the arrest, high, a trilogy, ending up in amenities, this is all what, five, six hundred years before Christ, they understood, the Greeks understood it in a way that we have lost. It's a remarkable piece of work. It's incredible. I hadn't read it in 20 years and going back, I said, yeah, I should probably have revisited this in the intervening. Yeah, it's an amazing thing. It's the granddaddy of all revenge sagas and its final beat is bring it all inside and let's get it out inside and let's take care. Will not be as messy. It won't be as ugly and how we lost that I don't know. So what do we do about suicide bombers? Well, you know, I, this book came out fortunately and unfortunately at the time of the Boston Marathon. So I was quoted repeatedly in a number of newspapers magazines on it, Reuters, on radio, public television, in part because of this book, immediately Salon bought an excerpt of the book because they said, well, this is really topical. One of the things that's a problematic, but look, if anyone who reads this book will know, I am not opposed to the death penalty in cases what you're called the worst of the worst, like the Chesire murders in Connecticut, you know, I think when there's no question that there is guilt and lies were taken and there is no DNA evidence that's going to a surface at a future date where we got the wrong guy. In cases of the worst and the worst, I don't see why we sweat this one, especially in situations where this is what the victims want and it's what justice demands. And so why we resist this is just, just smug, you know, feelings of moral superiority that oh, we don't believe the state should be in the business of murder. Well, they're not. It's not murder. It's killing someone because of a crime that they've committed and that that is a decision that they made, that they put us up to this. It's their fault. It's not our fault. We're not trying to kill anybody. This is what they deserve. One of the things I said about the Boston Marathon case is that, you know, how do you get, how do you get measure for measure, eye for an eye, justice? How does the law of the Italian work in a case like this? In the most strict sense, you go to the Sarnia family and say, we need to kill three of you and we need to basically cut off the limbs of another 50. We couldn't do that. We couldn't get away with that. But it may be true. That's what the moral universe is expecting. The problem with the suicide bomber is that he, unlike biblical times, he's able to take more people out in the most gruesome way. So it's very hard to get proportionate eye for an eye justice when you're dealing with suicide bombing because how do you punish them? They only have but one life to give. But what I do think is important is that when we're faced with the atrocious, the world of the suicide bomber, that we shouldn't be so hesitant. I think that, you know, it's interesting. I don't know whether there's been any fallout now with the death sentence for the major. >> Hassan? >> Hassan, right. I don't know, you know, I know that I think the New York Times took a position that there's no deterrence. There's no reason to do it. And I think-- >> Which you bash pretty well in my back. >> Yeah, I think it's nutty. It sounds nutty to me. With all due respect to the editorial board of the New York Times, it seems nutty. It seems smug. It feels to me like people that have never been outside the building. They've never been victimized in any way. >> And you point out deterrence obviously isn't a factor in these things because the crimes keep occurring. >> Yeah, they-- >> People keep making these choices. >> There's no-- right, you know, there isn't any sense if in fact-- well, you know, there is no deterrent effect. So they're saying, well, if there's no deterrent effect, why should we kill anybody? And the answer is because they deserve it. You know? Forget the-- what is it that you don't see about this? >> And that was that same notion I had with Drake, that question, whether it was up to me to make that decision, to make that assertion as to whether somebody deserves life or death. >> Well, you know, in this book, people played the Gilroth role. I forgot which I think was in Oklahoma where it was just an incredible story. It was a home invasion like Cheshire. Guys come in, kill the parents, rape the daughter, and then tie up the boy, hog tie up the boy and the girl. They've already raped the girl, and they've killed the parents. And then they sit down the two guys and eat the meal that was prepared, the dinner meal, and then they steal whatever money they get. And they leave, and of course, they're both convicted of this crime. They receive the death penalty. It takes 20 years until they finally are actually executed. And I think it's this anecdote. The kid says, you have no idea. I was subjected to such ridicule that I really wanted to see this carried out. Like people thought that I was some barbarian instead of saying, no, of course we can see that this is something that would be important to you, that they would ultimately carry it out. And it's part of this idea to say, well, you know, I don't want to be in the position, the one that I have to make that decision, instead of saying, the best story about that is the Cheshire murders, because I don't know if you remember one of the great anecdotes, which is in the book, is the governor of Connecticut. >> At the time. >> At the time, there was an attempt immediately by the Democratic legislature of Connecticut to ram through a new bill to prohibit the death penalty, because these guys were going to get it. And so, therefore, we have to stop this senseless murder of two murderers. And they pass the bill, and they hand it to the governor to sign his law, and she looks at them and go, are you crazy? Are you on crack? I'm not signing this. Those guys got to die. What part of the story did you not understand? And to me, it was interesting. I don't know if she lost her election in Connecticut, because that, I think her name was Jody Rehl. Not familiar enough with Connecticut politics. >> I just know that the wrestling woman keeps running for -- >> Right, exactly. >> -- with Connecticut. >> But it's interesting that she was very honest, I can't sign this, because I actually do believe this is a case where these guys need to be punished into the maximum extent of the law. >> How's the book been received so far? You mentioned a number of interviews and such. What's the -- >> You know, most of my books, they're certainly on the monfiction side, are always very mixed reviewed. >> Yeah. >> I say very unpleasant things in books. I mean, I say very unpopular, very unpleasant, very uncomfortable themes, and this book is a really good example of saying, you know, let's stop pretending that we don't believe in vengeance. If you believe in justice, you do believe in vengeance. And stop making these distinctions, because they're false distinctions. You know, look at the way we've dealt with, you know, three different terrorists. It's like a three-card Monty game, Osama bin Laden was shot in the head, colleague Sheikh Mohammed still sits in Guantanamo Bay or somewhere else. I think it's still in Guantanamo Bay. We just recently prosecuted the guy in Brooklyn, I forgot what he was responsible before, and, you know, if colleague Sheikh Mohammed is the mastermind of 9/11, how many doesn't get shot in the head? Nobody seems to be upset that Osama bin Laden. Most people aren't running around saying, well, it's barbaric of us, why didn't we just turn the other cheek? >> What about that notion of national vengeance, the idea of not only invading Afghanistan, but apparently having to stay there for years and years on end in response to 9/11? What's the -- >> Well, I mean, one response is to say you fight the fight until the Taliban and the Al Qaeda is defeated, and they're people who believe in the war on terror. That's what they believe, right? They just say, look, you know, President Obama, you know, this terror cells exist still around the world. That's why you shut down the embassies last week, because you got some chatter that there might be an attack against American embassies. The threats haven't gone away. And until they go away, this crime will still not be avenged. But the larger question about, you know, the concept of collective punishment, to me, is even more interesting -- you know, bombing Japan with two atomic bombs, the bombings of Dresden, you know, these ways of getting even, those -- that's what they are. They're not done for military purposes. People don't like to acknowledge -- and I talk about this in one of my human rights classes -- you know, after World War II, before the end of the war, we bombed the hell out of Dresden. But something else happens, Soviet soldiers who enter Germany -- this is like a dirty little secret. Very few women of a certain age, now they're probably all in their 70s, who were not raped by Russian soldiers in 1944, '45 and '46. I mean, it's almost everyone knows. >> It's just a systematic -- >> Yeah. Everyone knows. My grandma -- oh, yeah. She wrote brutal rape several men different times, continued. Gunter Grass, you know, who was always tough on his people, toward the end of his life wanted to bring up the Dresden issue. Some people -- some people shouted him down, because the ideas in Germany can't be seen as a victim. >> Seabald writes about that also in the natural history of destruction. >> Right, exactly. It's an interesting question. Like, it's very unpopular. Was it really -- Vonnegut was the first of them to raise this question about them? By the way, he never lived that down. That was considered like a cardinal sin, that he invoked the idea of the bombing of Dresden, as if these were war crimes. But on a larger sense, it's getting even. And that's why no one objects to it. They actually believed, you know, even the Nazis, I mean, the Germans after the war, you know, they didn't raise the rape of their women. It's as if to say, you know, what do you think was going to happen? You know, you kill 20 million people, you know, over a six-year period, you're the most, you know, the most murderous nation on Earth. And you know, wives that write love letters to their husbands in concentration camps, or send big strudel over, and you know, you know, the Soviets are saying, what did you think was going to happen, sweetheart? You know, you are an accomplice, a complicit to mass murder. And you know, I think, what is it that the Soviets lost 25, 30 million people? Yeah, they're their numbers always kind of vanish and we don't really realize that. Massive numbers and say what it was in their mind, you know, two world wars in which they got the snot kicked out of them until they finally got the upper advantage. The Germany started at twice, and they're saying, these women are, they're a fair game. You know, we're not supposed to because it's barbaric to think about it, but it is the idea of collective punishment. We're not supposed to think in that. We always think about individual punish, punish the individuals, don't punish the post-9/11. Martin Amos brought up themes along those lines, which he subsequently backtracked on, I suppose, that idea that, you know, all Muslims have to suffer for the actions of what went on. And now he lives in Brooklyn and has a, I guess, a different mindset about this stuff. I don't know how it was in England. Yeah. I don't know, Amos. Well, I think the one, I don't know, I wish he didn't retract from that, frankly, because I thought it was really righteous of him. One of the things that I don't know if he's made clear, some of this has to do and you have to love this. It's sort of an interesting literary story. You have to love that Christopher Hitchens, Martin Amos and Julian Barnes and McEwen, all rallied for Salman Rushdie. That they took this personally. Well, that was a hidden root, I think, of everything leading up to that 11, goes back 12 or that's in 1989. Exactly. These guys looked at this and said, "There's something wrong with Islam and we're not going to be pretending. We're not going to sit around and pretend that Islam is fine. There's something not right and this is something that's where the pressure needs to be. Put the pressure on the people that believe these creepy, jihadist thoughts and I'm not going to be made to feel weird about it. I'm going to actually feel righteous about it." I don't know what Amos Hitchens is now dead, Rushdie gets to walk around fine. He can walk around and make appearances at bookstores, but I think it's origins come to that. It's an interesting story. It's almost like a play. I've always wondered. It's a very dramatic possibility. Three great British writers rally for their friend. Maybe Stoppard can write it also. Exactly. Another historical drama. When we're on the notion of national vengeance, I do need to point out, I had my bar mitzvah in Israel. I'm a first generation American. My mother was born in 1940 in London. Dad was 38 in Romania, so we have some history. At my bar mitzvah, one of my cousins, the family, gave me a copy of Vengeance by Hans Jonas as a bar mitzvah gift. I come from a certain mindset. To that end, it was extraordinarily difficult for me two years ago to make my first trip to Germany for business. I worked through that with one of my advertisers who's based there. We sort of talked through things. Has that been, have you visited Germany, is that a, okay, I don't know what your family history is. Did you find it particularly difficult or do you have, you know, I wrote a novel, one of my novels, Second Hand Smoke, actually takes on this question. And one of the things that people are always surprised in some of my fiction is, why are you so easy on Germany and you're hard on Poland? Because I'm hard on Poland, and I'm easy on Germany, purportedly easy on Germany. And it's relatively easy, although there's a character in Second Hand Smoke who arrives at the airport in Berlin and goes to rent a rental car. And they keep, he's trying to get cars, he's trying to get something else other than a German car. Because he doesn't want to rent a German car. So then they offer him a Ford, which as you know, is no better, and he's just going, you know, is don't you have a car that was not made by a Jew killer? So you know, that was jokey in that, but there, but one of the things that I've said in fiction and in nonfiction is, you know, the Germans have really acknowledged their crimes. Yeah. You know, yes, there's some denial, yes, they're sort of, you know, really wish they could people stop raising the Holocaust perspective. Don't mention the war. Right. Don't mention the war. But I feel, you know, I'm tougher on the countries that just, you know, were complicit or involved in some way and really suffer from some amnesia and they don't want to acknowledge their own role and own complicity. So I, you know, look, the one thing you have to say about the Germans, no nation on earth, and we have to include the United States, has spent more time, more energy, more books, more movies, more documentaries, engaged in a true moral inquiry about the crimes of its past. It's not true here. Our treatment of the Native Indian Americans has received minimal, you know, of a sense of a national atonement, a national expression of remorse and regret. And even our history with racism and slavery, you know, I mean, we don't really want to talk about, you know, can't even have a conversation about restitution. Nobody can even get shouted down and now that there's an American president, you can't even say there's racism. No, black president. Right. I'm sorry, what'd I say? American. Oh, I'm sorry. Right. I mean, you know, neither is an African American president. You know, you can't even talk this way anymore. So what do you mean we're a racist country? So, you know, you've got to credit the Germans because really, to some degree, no other nation has ever been that honest, not everybody, but overall, there's an enormous amount of honesty. And it wasn't always true and it's less true now because now they're tiring of it. But you know, decades went by where, you know, endless books, endless discussions and endless sense of moral scrutiny and moral inquiry about their, you know, about their murderous past. So I know I don't, I have problems with nations that pretend that Jews never live there, you know, where people now live for generations on someone's house for a Jewish family that was killed and slaughtered and that everyone was thrilled and happy that that happened and moved in and does, oh, no, were there Jews here before? I don't, I never saw them taking them as though off the door, eating on their plates, you know, using their furniture. That is a, you know, a real serious, you know, you can't, you know, in Germany has been involved in many, many restitution efforts. You don't hear other countries do this. Have you read a Rutu Moden's new comic or graphic novel, My Most Hated Turn in the World in the Property? Yeah. Yeah. Yeah. It's, it's, I thought it really interesting approach to that. Right, right. I'm hoping to interview her in a few months, although I forget if her English is good enough. That would be a really great interview. Yeah. I can make a pair of you guys. Well, me. We'll see. What sort of law did you practice? I was at a court, large corporate law firm here in New York City and did corporate law, whatever that means, you know, when you're a young associate at those firms, you know, you're just, you know, you're cannon fodder, you know, you're working on very large cases. You do very small, very small pieces of large cases. But I did that for a number of years, I clerked for a federal judge and then I went off to write my first novel. It was actually a novel in stories and then I started teaching in Fordham and I've had this sort of eclectic writing life of, you know, writing nonfiction books that have moral themes, oftentimes critiquing the legal system through a moral lens. And writing fiction that also deals with human rights issues and post Holocaust themes. And who are you reading? You know, the thing is, this is a problem with this kind of a writing life. I read the people that I'm reviewing books of and it's really, it's really, I always say I don't really have, you know, one book I'm reading that I think you should do a podcast on and I'm going to write about this for an outlet, Danny Goldhagen's, Daniel Jonah Goldhagen. The willing executioner? Yes. You know, international best-selling writer Goldhagen. I'm writing about his new book on anti-Semitism with this really great title. The devil never dies but it's an incredible book and, you know, as far as I know, it's the best book about anti-Semitism I've ever read and it's in very much a real contemporary context. You know, he would say, "Empty-Semitism has been at its worst, global anti-Semitism." And he raises all these incredible things that you might not have made connections about. You might not have thought about it and go, "Wow." You know, it's really shocking to, it's very disturbing. I'm all down with the dog whistle. I mean, there are things my wife doesn't get and I have that moment of, "Oh, that's the Jewish character that they're impugning." Yeah, yeah, yeah. You know, but she has the same thing for the Cajun Mennonite character. How's he going to say? You know, they all are, they're in problems. Yeah. That's interesting. What sort of connections does he draw? What does he see? Because I need to have more-- Yeah, well, one of the things that's interesting is the attacks on Israel. You know, the incredibly distorted, unbalanced, he calls it hyperventilated hysteria about the one tiny democracy in the Middle East, surrounded by hostile enemies that avowadly seek its destruction and deny its existence and commit human rights abuses all the time, bonings, beheadings, dismemberments, poisonous gas. And nobody's boycotting Syria. I did. Right. And you see you on a panel very recently on PBS discussing this. Yeah. Yeah, I was, you know, it's actually a crazy make. I was in that role of, like, what are we talking about? This movie would have never been made in any Arab country. And we're speaking about Israel, and I can't believe the worst country on the planet. So I think he says sort of, it's very interesting. He basically draws an enormous amount of parallels, but he doesn't think it's one of the most interesting things that he says in the book, as he says, when you think about the sum total of destruction that Germany produced in World War II, you would be shocked to think about how no one actually has hostile feelings towards the Germans anymore. When you think about what the enormity of the crime and over so many nations, like everyone was affected and there's blood everywhere, and, you know, in a mere 60 years, 70 years, it's over. And the idea that, you know, he's saying the depth with which anti-Semitism existed from its religious era, you know, Christians killing Jews, killing Jesus, Jews using Christian blood to make matzah, Hitler's racist racial theories, right, the inferior parasitic dimension, saying this is how deeply ingrained it is so that it doesn't take much to get it inflamed. And I also, I never thought about this idea about Germany, about how is it possible that no one attributes any evil to them? And nobody actually holds them responsible for anything. And it's not a neurotic Jew who's got four guys that won't rent a rental car. My awful moment there, when I got to Germany, I visited one of my pharmaceutical manufacturing advertisers, took me to a facility, we were going to leave by this turn style, by a big fenced in area, but my guide realized that if she went through the turn style, she wouldn't be able to use her badge to send me through because it's heavy security. And I was about to say, don't worry, I can go over the fence, and then I looked up at the fence and realized it was 12 feet tall, with three tears of barbed wire. And I thought, oh my God, the rabbis told me this was going to happen if I came to Germany. I didn't think it would be the first day. Where's the watchtower? Yeah, lo and behold, I was trapped behind the barbed wire one day they got me trapped there. So yeah, it was an experience going there the first time. I go back in October, so I hope have a little less anxiety than the first time. Yeah, no. And in secondhand, Smokey, the main character has this problem in trying to cross the border into Poland. And as each car gets closer to the border, he just starts to get in a panic. Is that going to check his paper? Yes, exactly. You know, actually pull him aside. You know. Well, we'll see. If I make it back from Germany, I'll be sure to have you on again as a guest. Thane Rosenbaum, thank you so much for your time. Payback, the case for revenge is from University of Chicago and is a heck of a good read. Thank you, Gil. Appreciate being on your show. And that was Thane Rosenbaum. You can find his book, Payback, the case for revenge, from University of Chicago Press on Amazon and in bookstores. I really enjoyed it, so you ought to give it a read and let me know what you think. And the virtual memories show will be back in two weeks if I have anything to say about it. It's a wonderful conversation with personal essayist Philip Lopate. You don't want to miss that one. You can subscribe to the virtual memories show on iTunes by searching for virtual memories and clicking through to the show's page. If you go to iTunes, please post a rating and review of the show there so I can find out what you think about it. In the full archives of the virtual memories show are available at our website, chimeraobscura.com/vm. If you visit the site, you can make a donation to the virtual memory show via PayPal to help offset my web hosting and travel costs and other little expenses. And if you do, you'll get a shout out on the next episode and I'll send you a copy of a short story I've written. We're also on Twitter at vmspod.com on Facebook at facebook.com/virtualmemoriesshow and Tumblr at virtualmemoriespodcast.tumbler.com. Until next time, I'm Gil Roth and you are awesome. Keep it that way. [Music] [Music] [BLANK_AUDIO]
