one of the things wisdom is that we are health care to question how do we pay for health care? one of the arguments i'm making is that how we patronize the type of care we're getting. >> you can watch this and other programs online at opd.org. you are watching c-span2 with politics and public affairs. weekdays between live coverage of the u.s. senate. on weeknights watch key public policy defense. and every week in the latest nonfiction authors and books on booktv. you can see past programs and get our schedules at our website. you can join in the conversation on social media sites. >> here's a look at some books that are being published this week.

>> look for these titles and book stores this coming week and watch for the office in the near

future on booktv and on booktv.org. >> next, in a panel discussion hosted by the bar association of new york city, thane rosenbaum argues that revenge and justice are not mutually exclusive ideas and contends that our court system would better serve victims of crimes acknowledging their feelings of vengeance and take that into account in the adjudication of criminal cases. this is about an hour and 20 minutes. >> welcome all of you to the form of blog culture and societies spring conversation this year. and this one is very different because were being posted with the committee, and such an august setting come and, of course, we have c-span, how cool is that? so you are all part of this and we're very grateful that you were here. we have a very interesting

distinguished group of kids and i'll introduce them quickly and then set up the theme for the night and begin the conversation. starting off to my far right is one of america's best known criminal defense attorney and his most recent success and a case of course one of the classic ones celebrated benjamin brafman with the defensive straw scone. everyone please welcome benjamin brafman. [applause] >> this woman to my right, very lovely, kathleen hogan, may not look at but she is the toughest prosecutor in new york state. she was actually just recently selected as the best prosecutor in the state. to the district attorney up in lake george but it seemed like a mild area but they have crime and nobody messes with her. and so she is here to discuss this will come if you think about the theme of this book, the role of the prosecutor is a

huge part of what the vengeance story is about. so let's welcome kathleen hogan. [applause] >> a man who generally need to know introduction when it comes to legal affairs, the honorable denny chin, who is now on the federal appeals inched for the second circuit, and prior to that he was a federal district judge for the southern district of new york, also the first chinese-american who was appointed to the federal bench both trial court and appellate court to too many of you, you may remember him as the sentencing judge in the case of bernard made off. ladies and gentlemen, the honorable denny chin. [applause] >> last on our far left a good friend of ours here at the forum, daniel jonah goldhagen who is an internationally best

selling author and political scientist. you may remember his first book which was truly a national sensation to international sensation, hitler's willing executioners, and then he followed it up with more reckoning. follow that up with what is the definitive book on genocide, worst than war at which a also made into a pbs documentary of the same name, worse than war. and his next book is the devil that never dies. it comes out in the fall. please welcome daniel jonah kohlberg and -- daniel jonah goldhagen. [applause] >> i'm not seated but i'm in the middle. it's on what a few weeks away from easter, and it sort of looks like the last supper. i'm in the middle and i have

long hair, and i am a jew and i teach at chester university. i think you know where we're going. i fully expect to be betrayed tonight, if not worse than that. this will be a very challenging discussion and very provocative discussion. we are here today because -- sorry. because of this book with this provocative title, "payback: the case for revenge." it has a blood red cover, jacket no less. it was written by a source i could tell, a maniac an absolute sociopath, and i think that when this is over you should find him and subjecting to true mob vengeance. but the book does have a number of provocative themes, and the night it will really belong to our guests to challenge those

things. it's all received a fair amount of attention. a story on npr and other outlets. and it's partly because people feel that, even the discussion of revenge is unseemly. it's barbaric. it's primitive. you can't actually have an honest conversation about revenge in the united states. immediately it goes back to primitive past. when the world pre-enlightened before we became civilized. but the book's claim is that vengeance is a healthy emotion. it's biologically necessary. in fact, it's responsible for a much for the evolution of our species. and we are a people that are wired. the book is filled with neuroscience typical studies that remind us that we are hardwired, biologically, of brain circuitry for retaliation.

we simply cannot tolerate injustice. we cannot and tolerate the wrongdoers getting away with murder. that's one of the lures of the revenge film. revenge is supposed be filled with shame and condemnation the nobody ever walks out of the revenge films thing this is disgusting about vengeance. people actually settle in and they won't leave until justice is done. they won't go anywhere because they know a wrong must be righted. this is something that has sustained the human species for generations, that political people understood that the the ancient greeks understood this. aristotle. if you can't get mad from receiving moral injury and inquiring an appeal of measure for measure for payback, and that's a sign of deficient moral behavior. something wrong with you. if you experience moral injury

and if you walk away as if it doesn't bother you. the legal system pays special attention to in this book because vengeance really speaks to an emotional experience, of getting even, of knowing that you can find the person who has done harm and you judged him to say we have to settle the score. payback is due. it's so essential that we forfeited this one would join the world of enlightenment and the social contract, and we said that the government will take over the responsibility of prosecuting and punishing crime. the question in this book is, well, is the government doing that? why are people walking around saying that we live in a world of injustice if, in fact, the legal system is doing its job? why isn't that the legal system gives us an opportunity, gives victims and opportunity to

stimulate, given the emotional relief of having the satisfaction, the true sense of vengeful satisfaction that i stand confronting you and i need to my just desserts. there's a debt owed to the site and there's a dead that is easily owed to the victim. and that we only think to be concerned about the debt is our society and we drastically shortchanged the payment that is otherwise be. so that is the opening themes and i want to start off and have a full conversation here, so you'll see the cameras go back and forth. one claim in the book which is e expressed one of the most controversial on this that justice and vengeance are identical. that they mean the same thing but we have been duped into being told we want justice, we don't want vengeance. so the first chapter of the examples of what people say this

but it seems disingenuous but it seems like they mean both, that they are only sent one. let me just come to quick anecdotes is one right after 9/11 with president george w. bush announced in an address to the nation, this is just a century before the shock and awe that would eventually visit iraq and, of course, afghanistan. he said we are a nation that pursues and seeks justice and not vengeance. and the country applauded, as that's us, that's the way america roles. win of vengeful. then we bomb the hell out of another country. it seems vengeful. agency microsoft based on justice, or maybe the was the same. may be the justice was vengeance. just last week president obama in the immediate aftermath of the boston marathon bombing announced, he said when we locate these people, he had nothing careful to say about these people, and he said they will eventually feel the full

weight of our justice. and then when the first bomber was killed, there was dancing and jubilation in the streets of boston. and today, although we're still decide what kind of justice is our native -- dzhokhar tsarnaev will receive, it will also feel vengeful that we expensive notional satisfaction of getting even and digestive at the same time. solid start off by saying what about this idea that justice and vengeance are essentially the same but we spend so much time burble gymnastics, all the squid are very kind you say we're not vengeful, where only about justice. does anyone want to start? >> i will start spent i thought you would. spent as the only other long-haired jew on the panel, i think you are as always brilliant in your writing. and one my favorite authors but if you haven't read secondhand smoke, go out by today and read. brilliant.

this book is brilliant but it's a brilliant exercise, an academic, intellectual exercise that's challenging but it's not practical. justice and vengeance are not the same. vengeance means a lot of different things to different people, and justice is supposed to be administered fairly, impartially, and uniquely set to the circumstances of the case. i just want to make one observation. vengeance isn't always going out and telling the person who killed her family. i recently appeared as a holocaust remembrance day ceremony where one of the survivors said her vengeance was she is great-grandchildren who are being raised as proud to smack him and the state of israel was an independent strong nation. so to her vengeance against the nazis was surviving and showing that they didn't kill everyone. so vengeance dan and your book is you to my child, i should be

able to give your child. >> that's likely not true. eisai vengeance is also a form of restorative justice but in the case of a holocaust survivor if that's what made her feel even, who is a for me to say that's not her sense of even its? it may not satisfy the state because the state to have its own duty or burden to achieve, but i don't have a problem with even apologetic discourse if, in fact, the victim feels unhinged. >> but the victim being the center controlling figure in the criminal justice system is the worst person as a particle matter because they are so emotionally wrapped up in what happened to them that there are times when what they are insisting on is just not appropriate in a civilized society. as the criminal defense lawyer who was a prosecutor, i've done this for 37 years. victims of a particular. they get a part to play but you cannot let someone whose family members was just hurt decide how

and when the case should be resolve. they can participate to some degree but that decisions have to be made by jurors and by judges and by district attorneys. >> districdistrict attorney. what do you say about that? >> i think we're making a mistake thinking that victims, all shapes and sizes and have all different reactions to being a victim of a crime. for instance, if i'm speaking to a child victim of sexual assault, sexual abuse, the child just wants it to stop if that child has no sense of revenge or anger. they just want it to stop. and the parent of the child feels remorse. how did i not see what was going on? how did i not are taken? so it's much more into was and they're much more hurt. they are at the level of wanting to get them from limb to limb and put them in state prison forever. they are morganton principally about their child to i think the difference between common you

were talking a lot in the book of revenge, and revenge and lies irrational anger. everyone was very careful that you decide to talk about justice. i think the reasons for that is what must it. will all be part of this system and do any of us want to be victim of revenge? serving out. it implies what we all seem to think it does which is irrational anger. but if it's a rational system as ben described where there are rules and regulations, newton's third law of physics, every action has an equal and opposite reaction. we will get our just desserts any rational system. >> well, i want to agree with professor rosenbaum and disagree with much of what he says, but he's always provocative and gets you to think. and i think that there is a role for vengeance, for revenge and vengeance in the justice system, although we may call it something more polite.

look, we called it recognition. there is a difference between revenge and vengeance and retribution. but they are similar in many ways and i think they serve similar functions. thane writes in his book that the law lacks passion, the law lacks motion emotion. justice is new to but i disagree with the. any trial lawyer will tell you that trials are great dramas filled with emotion and it very much is a role for emotion in the law. you can't decide what the law is based on feelings or emotions but you've got to look at the cases and the statutes that decide what the law is, but there certainly are areas of the law where it is important for emotion to come into play and sentencing is certainly one of those but i don't think, by the

way, that victims are relegated to the back role of the courtroom. it's true that they cannot be equal partners with the prosecutors but i think prosecutors give them great difference. they want their input on the federal side, we have the crime victims protection act. victims have a right to speak. not just at sentencing but at other parts of the case. and the byrne made a case and number of victims wanted to speak out the guilty plea. some of them objected to my accepting the guilty plea because they wanted everything aired out, and that is something we will hear victims of same from time to time. but they are given an opportunity to appear. they are given notice, and i think the judge, the courts, the prosecutors take very seriously what they have to say. >> from his own presentation and from the things being said here,

you might think this rather vengeful maniac in the center here, rather endearing though yes, has presented a book that is full with fire and brimstone and not very recent and nuanced. in fact, it is extremely recent and nuanced. he could've just, you may not agree with me here, but he could've dispensed with the word revenge or the were vengeance or a vengeance so on and made a plea for a victim center justice center. which is really what the book is. it's a plea for a victim center justice system, bringing the victim in and giving him or her, not the controlling interest, not necessarily equal interest or an equal say with the judge and others in the system, but a full set in the system. and he worked for the various reasons why this is a more appropriate way to think about the justice system and all that

is lost on not doing it. the fact come in the book is so reasonable, it's all in the last three pages where you might think he is arguing for something outside the bounds of the law but the book is so reasonable that when you read or least when i read it, it seems to me to be such a powerful challenge to the way the system is currently constructed which is not the victim centered and the victims often feel cheated or not satisfied or justice was not done, that i wouldn't be working within the system should feel themselves fro very much oe defensive and they're the ones who need to respond and justify what they do and not, and that's not the same percentage they are not seen. >> i want to respond to something you said before. , and 11 you said this, kate, vengeance employees a rational. but, in fact, in th a natural

history of our species that's exactly not true. revenge is a rational of all responses. we did not courtrooms throughout the natural history. tribes, families, handled it themselves and they did it with incredible exactitude, incredible measure for measure. i for a i, this is not a call for irrational blood thirsty as. on the contrary. this was a plea, a call for fairness and exactitude. let's get it right. you are not entitled to more than an eye, and you also not entitled to less than an eye. and that was an incredible deliberate rational enterprise, i know we may say that this implies crazy people run amok with machetes, but on the contrary tribes, families, individuals, if they go beyond

reason, if i settle the debt unfairly, if i pay back too much there will be recycled vengeance and it will start a blood feud. then we won't be able to exact a. so for the gnashes of our species we resolve it completely being rational because what would be irrational would be to take too much. >> and just at that point i think that currently we see it as irrational or only emotion motivated come and people really want to be cautious about saying they. in relationship to the application of the law. because as the judge said we want the law to have reason. we want to follow the law. but there is that bashing it is important. we were speaking beforehand. i think it's important for everyone to know what really happens in a criminal case because i don't know where the concept that victims are not included come from. in every prosecutors office we do not have the case if we don't

have a victim who can testify. they are critically important to us. we call them and we and the own before grand jury. we get all information we can from them and we stay in contact throughout the case to tell them what the next step is, to tell them how it's going, to tell them what the judges rulings are and to get their input on what they want to have happened. sometimes in the domestic violence arena you can have someone who is horribly victimized, who wants the maximum in the beginning of the case and changes their mind throughout the case. so we take that into consideration and are plea offers are not controlled by them but we certainly incorporate what they say in the way we handle the case. >> i'm not a prosecutor, i wonder whether it's more possible to engage in the kind of victim centered prosecution in your county, in warren

county, but that for instance, people like george, sitting in the front row was a longtime assistant district attorney, senior district attorney inadequate to that's just not the kind of thing we could do in a much larger setting in most counties. most victims do not report that they feel that their participant in the process. most victim groups feel the exact opposite, that they are marginalized, that there trivialized. kate is right when she says victims are brought in to testify but in sort of a creepy way, right? the case is called people versus jones, new york versus jones, commonwealth versus jones. jones is a bad guy by the way. you should know this. it's never victim versus jones to the victim is merely a witness on behalf of the state but the crime is committed against the state and the victim is the best evidence of that crime. that is hardly empowering. if anything that is marginalizing people. that's telling him you're here

to play a role for us. we are not here to represent you. kate may feel differently if she may practice generally, but most prosecutors do not feel that they are representing the victims. they are representing the people of the state. >> can i make an observation? as i was reading this book it was sort of like being using to me. because when i read it with my father, grandfather, private person had on, i said this is cool. this is how it should be, like the wild west. someone i love, i go up there and i shoot you. and many years ago, but many years ago i represent what is trying to learn how to be a cross examined, the only place you could do that was in massive organized crime trials that they made at the time, six-month trials to cross-examine 600 i was revisiting someone who was by his own admission to me and my accessions of the government a professional killer. and he was very eloquent and very elegant and very professional killer.

and he was a very interesting man, and the number one day he was telling an anecdote about someone who jihad not killed but beaten severely to the man had done something that warranted a severe beating. i will spare you the details but he looked at me and he said, some people just deserve a beating. and i remember thinking to myself, he's right. [laughter] and then i said, but the difference between him and me is i'm civilized. i'm a law abiding citizen. i use the system when i need to. i work in the system. and when i read thane's book, i admired the brilliance as i always do. everest -- i've read everything you've written. but as a citizen i like it and it was interesting and i would love to discuss it. but as a criminal justice expert, if i say so myself, 37

years doing this everyday, federal, state, prosecutor, defense lawyer, it's just impractical. it just doesn't work. and we are getting better on both the state and federal level in involving victims in the process. when i started out you never even spoke to victim. now there are statutes, rules. i've had 20 case in the last five years alone with the plea offer i was trying to get required the victim of proving it before the district attorney or the united states attorney would engage in those discussions. and in many cases when i came into court for sentencing, i was never afraid of what the governments prosecuto prosecutey i was petrified of what the victims would say when they stood up. and i that sentence is enhanced on the moment because of the drama of a victim impact statement that caused the judge to very frankly say, i was going to do this, but when i now realize how many people your client has hurt, i have to

increase the punishment because i think it would be appropriate. that's what judge chin meant by retribution. retribution is you counter in the damage that was sent into the question. you don't let it control the outcome but he certainly factored into the equation. equation. >> this is a great thing, sentencing is a really public a difficult process but it's the hardest thing judges do. a lot gets factored in. and if you're simply to let revenge control everything, it would not work. >> but let's do a judge chin gives them one ever knows about, talk about the birdie madoff case. -- the burning madoff case. judge chin is the only one who is in the book the key figures in the book are quite proud and very first have a talk about the bernard madoff case because i was fascinated, in fact is offended by the i got a front-row seat but with a pretty cool. i wrote about the i really got to see the whole process unfol

unfolds. and the lawyer representing bernard madoff made the following comment that all the newspapers picked up after judge chin had sentenced him to 150. this is a 73 year-old man, 71? >> seventy-one. >> seventy-one at the time and judge chin sense and one in 50 years, so you do the math. his attorney said, you know, this is ridiculous. mob vengeance. and judge chin respond, he said on the contrary, he said, this is the perfect example of justice, not vengeance because the victims came to the courtroom and they relied on us. they didn't seek vengeance. but the reason the defense attorney said it was then shall is because the guy can't stay in jail to the year, he's not going to live a hundred and 30 years. obviously, there was a complaint to this sentence that would, tee

mccabe in nature, and vengeful in nature. you listened to the pleas of the victims. you went beyond what the prosecution had even suggested. .. >> those words carried weight. but i think i did incorporate vengeance but, again, calling it

something else. >> but why call it something else? >> well, trying to be more polite, i don't know. [laughter] >> okay. >> court of appeals. now i have to be even more polite. but i think at least a couple of the concepts that are covered in your book, making victims feel better. >> yes. >> i explicitly said that. that's not one of the traditional goals of justice, but it's the ability, you know, you're reflecting their moral outrage, and you're helping them vent, to some extent, but doing that. the other concept is the punishment in proto portion to -- proportion to blameworthiness, the just desserts concept. i specifically had that in mind. in fact, that morning i had sent an intern out to go look up retribution x my intern came back with some case law about just desserts, and that was part of what i wanted to do. and i thought anything less than

150 years would show some mercy, and that was not the message that i wanted to send. i wanted to punish him. >> but when i hear this, judge chin, i think, okay, you had a clerk go off and write a -- inform you more about retribution. i hear this, and i say just desserts in that case is exactly what an eye for an eye is. you said i can't have -- i have to give you, i have to somehow approximate the damage that you caused. you didn't kill people, you ruined, you destroyed their financial lives. >> that's why i said a few minutes ago that i didn't really disagree with you. i think the concept is there. >> right. >> the purposes behind it are there. but there are differences between revenge and retribution. revenge, you're relating an individual inflict punishment. the individual retaliates, motivated by anger, by his own personal standards of morality

whereas with retribution it's the state, the government doing the punishment. and with, in accordance with standards that congress or the sentencing commission has established. so it's in some ways, it's a form of revenge, but it's a measured, logical form -- >> can i say something about the madoff case as well in and i don't want to lose my criminal defense lawyer stripes on c-span, so i'm going to say something which is inconsistent with my normal position. i have enormous respect for judge chin and appeared before him numerous times and every sentence he's ever imposed whether i agreed or disagreed was fact-specific, and he does his job, and he continues to do his job. in the madoff case many people, and my colleagues in the criminal defense bar good lawyers, seasoned veterans, we

talked about it. your honor, that was a statement. a public statement. and it was a statement not for general deterrence because i think that, you know, if you got 50 years, no one's going to go out there and do a crime that's going to get them 50 years. i think the madoff case was unique in its magnitude and the desperate, the desperate state it left hundreds and hundreds of people in, charitable institutions. a number of very prominent people lost everything. you know, it really killed a lot of people including, you know, his own son who took his own life as a result of the shame. and i think what the court did in that case, it didn't matter if it was 50 or 150 to madoff, but it mattered to the world. and the statement is not that we have revenge here, but what we have is a horrific crime, and the court is going to give you the maximum sentence i can under our law for the following reasons. and i think that speaks well of a civilized s the

right defendant, the right set of facts and the sentence is imposed for the right reasons. none of the victims in that case got their money back because madoff got 150 years. all they wanted was their money back and for him to be punished. and life in prison is a pretty serious punishment for a noncapital offense. >> but, again, i hear you're saying, okay, that judge chin's sentencing was a public outrage, and i think -- it's just so interesting to listen to at least three, and we're going to get to danny in a second, because it seems that still we back away from calling it revenge. we just so object to using the language. i hear public outrage, and i say, yes, the sentence is legally correct and also morally correct. >> no. the people wanted madoff killed. i mean, there were people who threatened his lawyer's life representing him. that would be revenge. people wanted to kill madoff. he had more security than obama had.

>> to be clear for the c-span audience and most of the people sitting here, our guests are talking about as if revenge means individuals get to take justice into their own hands. the book never says that. the book never says that. i never, i never, i never encourage vigilante behavior. what i say is the legal system has to do a better job of not shortchanging us on measure-for-measure justice. 96% of all criminal cases are plea bargained. that means all the vast, vast, vast majority of criminals are being underpunnished, and they're actually receiving less than they deserve in the words of judge chin, less than just desserts. and if individuals are forfeiting that right to self-help which they had in other generation ands if they're paying their tax dollars in good conscience to say you function, you, legal system, with your courtrooms, your judges and prosecutors, you serve our

surrogate proxy avengers, then the legal system needs to do it. and there are things which i say in the last several pages that will give prosecutors a heart attack. but up until that point i'm saying, no, vigilante justice is not what i am proposing. i am simply saying that we don't need to run away from vengeance. we don't have to treat it as shameful because it really, in many ways, is -- even listening to judge chin i thought, yeah, he is saying both, but it's very difficult to say one and not the other. he wants to appear as if, you know, i'm a judge and so, therefore, justice is what i provide, not vengeance. >> when judge chin said polite -- >> yeah. >> i think the real issue is proportionality. it's the fact that the revenge isn't -- it is -- and you have indicated that, saying that it would be proportional -- >> well, vengeance is not justified if it's not, if it's disproportionate. >> who makes the decision of what's proportional? >> exactly.

>> a judge has to make that decision. >> i never said judges shouldn't. >> you say they should. >> they should do a better job of it. >> so if you're saying there should be more proportional punishment -- >> yeah. >> then i'm all with you. i'm with you completely. and let me give you an example of where we do fall short of the mark, and it's a statutory problem. right now in new york law if you are a drunk driver and you run into a car full of five teenagers, the maximum you can get on that, taking those five young lives, is 5-15 years in state prison. if you possess child pornography, the maximum you can get on a count of child pornography in new york state is -- [inaudible] those are statutory limitations. in my mind they're not proportional to the conduct, so i completely concur with you that there's a wide swath of people who walk into the court and say, are you kidding me? five lives the 5-15?

why? and we are advocating to make changes. but there are statutory limitations that are not proportional. >> and the most famous case in the united states about what happened in the aftermath of that was the case of ellie nessler a number of years ago. it's in the book. it was a woman whose son was sexually abused, and she didn't realize until the opening arguments that the abuser had already been in prison for sexual molestation. but he had been let out of prison because of because a psychiatrist deemed him to be fit. and then he went back out on the street, and he went back to work with her son and some other person. and she came into is courtroom the next -- the courtroom the next day, and she took out a gun and shot him five times and killed him. and she was immediately indictmented for first-degree capital murder. and immediately there were from

spaghetti dinners raising money, oprah, everybody was raising money for her defense. not really a murderer, she just simply couldn't live and couldn't trust the legal system to do the thing she said. and she actually was sentenced to 20 years in prison. she was with great humility said, look, i did what i did, and this is what i have to do, this is what i did, and i'll go to prison for it. >> that's not a good story. >> a just result. it's a just result in the sense that she was found guilty, but her reasons for committing the crime were factored into her sentence. and she received a sentence of only 20 years for taking a life. >> and that's not a good story. because while the book doesn't encourage vigilantism, that's exactly what happened in that case. she was not satisfied with the system. she took the law into her own hands, and she ended up going to prison. how does that help any of us? i think what was just discussed is really interesting because in the state system child pornography can get you one on a

third to four, and in the federal system child pornography depending on the number of images, depending on the age of the children can get you a mandatory ten-year sentence -- >> or guidelines to life. >> or guidelines to life in the federal court. so i think what we need to understand is that each of us here who work in this system could come up with horror stories and cases that are the exception and not the rule. but on balance, on balance i think the system works. doesn't work perfectly because it's run and operated by human beings, not machines. but on balance it works. prosecutors throughout the country have between an 85-90% conviction rate. so people who are committing crimes, despite my best efforts, are basically getting convicted when the evidence is there to support the conviction. so i think the system works pretty well. >> there aren't a lot of people getting away with murder. >> okay. let's go to danny goldberg, and then we'll come back to judge chin. >> it sounds to me there are

different underlying conceptions of justice at work here. and so it would be interesting to talk about particularly, thane, for you to talk about, first, your underlying conception of justice. because the word revenge throws people off, and it elicits the kinds of motions and responses that you've had here. and you have a much less, a much less vengeful in the conventional sense of it notion of what it means. so what, what does a justice system, what does justice look like in the legal system. and the second question then is whatever any of us thinks it looks like, what are the practical ways, what are the best practical ways to get to that result? and there there are also differences. and i found it interesting earlier that you seemed to say both what thane is proposing is is impractical and that we're already doing a good job of it. >> no. what i think is impractical is allowing victims to control the

outcome of the system. we're trying best to involve them, but involving them is different that be allowing them to control. you don't need a prosecutor, a judge, you don't need me, let them work it out. >> but he doesn't say that. anyway -- >> well, i mean, just briefly, and then i want to move on. just briefly, my conception of justice is one that is ultimately fair be, that people deserve what they deserve to be paid back what they're owed. and that's the whole notion of proportionality, that there is a measure for her- measure-for-measure exactness. >> but -- >> no. i also think the dignity of the victims, the redignify case of the victims is part of the fairness of the process. that before the law the victims should be central, should be primary. and instead we have a system that is very trivializing of victims, very patronizing. i know kate probably so fended

by that, but it's patronizing. come in and testify for us. victims are the only party in a criminal case not represented by their own counsel. >> but, you know -- >> they are. they're represented by me. >> well -- >> i represent the people of the state of new york, and that in an adversarial relationship, and the victim is who i'm advocating for on behalf of all of us. so there is -- they are represented in the courtroom, and their voice is heard. and the amount of resources that we want to get to these victims right away to try to make them whole, to help them psychologically, financially, we start right from the beginning. this is a pamphlet from my county, and this is the state crime victim board pamphlet. and it's not that they're being demeaned in the least, just the opposite. as has said -- >> why are there so many victims' groups, and there's so many out there, and they will be watching c-span, tear going to

say, oh, come on, that's just not my experience. >> volume. volume. it's sheer resources and volume. the manhattan district attorney's office processes over 100,000 cases a year, maybe much more than that. that was this my day as an assistant district attorney. so you have 100,000 cases. you have an assistant district attorney who's handling sometimes 50, 60 open, live cases. there's a limited amount of time and effort. when when you say you want a criminal justice system that is proportional and fair, it is. what a plea bargain is at the end of the day most cases is a reasoned judgment of what a proportional sentence should be for that person who committed that crime under those circumstances. you can't have a flat rule that applies to everybody, because every case is different. and when you look at the people who do this work, it's not just, okay, we'll give you two years. there's generally a reason. and if maximum sentence is

yearand the person gets two years, the victim in that case whether they're involved in the process or not, ultimately, is going to get the same result; the person is going to go to jail for hurting them. and if they go to jail for hurting them without having to testify at a trial, without having to go through the uncertainty in the trial, there are many victims. there are many victims who would prefer that. so i think the victims' groups who are out there who tell you differently and that you cite, they are? in jurisdictions, in my judgment, that have massive criminal justice systems where many times kate is lucky. she is in a reasonably small community where you can do this. in manhattan, in brooklyn, in our city, in the bronx, it's almost impossible. >> i should point out, also, that in the federal system when it comes to plea bargaining, the parties do not come up with a sentence. the sentencing decision is still left up to the judge.

all that the government and the defendant can agree on are the charges to which the defendant will plead guilty. in most cases. there's a limited exception. so in the end there's sentencing advocacy. the judge is not bound by the plea agreement. >> you know, in the book one of the interesting anecdotes is the case of iran which, you know, is neither a friend of america, nor a model of human rights. but their legal systems interesting because they, the victim actually sits with the judge. and when the case is over and a punishment is to be administered, the judge will routinely turn to the victim and say what would you like, what would you like me to do? tell me what you think. here are my parameters, what do you think? now, ben was saying, he's right, you know, there may be an overly emotional person, and he's going to offer something up, and the judge will listen and say i'm not doing that, and i can't do that. i won't do that. i'll tell you what i will do. so the victim has a full level of participation. you know, the andres breivik

case, the norwegian killer of the 77 children a number of years ago, to me, was a model of what i'm talking about. 77 kids, 77 lawyers representing each of the kids paid for by the state -- not just the prosecutors. 77 autopsy reports for each of the kids. 77 opportunities for those private attorneys to address the jury, to address the judge. a true opportunity to put those victims on center stage. photographs and projected images of the children during the guilty phase of trial not just sentencing. i know that would seem like a nightmare to three of you at least. and seems to a defense attorney -- >> yeah, i don't think a defendant could get a fair trial if the victim were sitting next to we at the bench. >> right. >> what would the jury think about that? >> i'm just saying just to give you a sense -- >> the same sentence in that

case with the 77, that guy was not walking out -- >> but you don't see the difference? you don't see the difference between -- >> the mere fact that they get the same outcome? you don't see the difference of giving 77 people an opportunity to confront in a direct way the lives that were taken because of this brutal act? >> yes. and be i think it's emotionally helpful for them to have that moment, and your book points out that many victims each after they have that moment -- even after they have that moment still feel helpless and don't feel as if they have been avenged. but that's a terrorist case. that's an individual case. you can't do that on a mass scale. and to be honest with you, you know, talking about a woman having the right to sit next to the judge in iran, i said, you know, i take our criminal justice system over their criminal justice system despite its flaws, because the chances are the woman is probably the niece of the judge in that, in that country.

>> and when i mean sitting, judge chin, i'm sorry, i think i said that wrong. i meant when it comes to, actually, the sentencing there is a consultation in which tell me what will make you feel avenged. tell me what you think is measure for measure. there is -- i talk about it in the book -- >> what does that mean? you know, an eye for an eye, a life for a life, what if it's a rape case? what is appropriate for rape -- >> exactly. >> rape cases are fascinating. >> castration. that's what most women would say. >> we've had this trouble even from the book of genesis, literally, from the very first book of the bible. the rape of dena. the rape of dena is played out in the opening scene of the godfather which is just fascinating, right? because the godfather, you know, there's that opening scene where the undertaker comes to him on the date of his father's -- of his daughter's wedding, and any goodie sill yang can't refuse a favor on such a day. and he tells this story about how his daughter went out on a

date with two guys. today beat her up, they tried to take advantage of her, so they beat her up. the police captured the two guys, and they were given a suspended sentence. and he then says famously, i said -- i turned to my wife at that moment, and i said if you want justice in the america, one must go to the godfather which, by the way, is the worst indictment of the legal system ever. america's finest movie -- >> what he says? >> and then he says, ben knows this line, he says -- the godfather says tell me what you want me to do, and he's so embarrassed, he whispers, i want you to kill the boys. and the godfather says this i cannot do because your daughter's alive. so this question has always been there. by the way, i'm not so sure taking the life of the rapist isn't the appropriate measure-for-measure punment. but be i do know this, ben. i do known when i say some rapists go to jail, they were

supposed to go for 15 years but instead for 5, no victim is happy with that. >> no victim is happy with that, but it may well be the appropriate verdict in that case for reasons that are unknown to us because every case is fact specific. >> and there's the presumption of innocence, and we have to prove a defendant guilty beyond a reasonable doubt. so as ben is saying, the victim may not be happy with the outcome, but if you can insure a conviction by a plea bargain with a lower number, then you've at least taken the predator out of the community and incapacitated them for a period of time. >> but you haven't necessarily punished them commensurate to what the victim would do. it's interesting, kate, when you say presumption of innocence, this is another area that i wanted the four of you to discuss. part of our problem is the system is accused sensitive. the constitution there, especially the fourth, fifth and sixth amendments, are designed

to protect the accused. this is one of the things i speak about in my classes, and it's in "payback." we offer presumption of innocence for all people who are accused of a crime. now, we don't actually follow what its logical line means. if the accused is presumed innocent, then the complaining witness is presumed to be lying. that's how we start off. if there's a presumption of innocence for the accused, i mean, this is one of the reasons we're not a victim-centered system, one presumption must be canceled out by another presumption. we presume that the complaining party, the victim, is actually lying. that's how we begin, and i'm wondering -- >> i don't think that's true. >> neither -- >> -- start off presuming the victim is lying. you start off not presuming that just because he's sit trg and has been arrested -- sitting there and has been arrested and has been charged that he has done something wrong. >> but that's a presumption that we make in this country that not all countries do. >> but if we presumed the

defendant was lying, there'd be nobody sitting in a courtroom. they've been indicted because the grand jury believed the victim -- >> and then when we commence the trial, we say you're presumed innocent and, therefore, the reason that you're here, presumptively, means you are here under some false reason. >> no. >> thane, you and no one else in this room would like to live in a system where the accused had to prove they're innocent because that's impossible. >> at least of the three lawyers here, nobody thinks the system -- it's interesting that you're saying this because you're the one defense attorney here, and i would have thought you'd say the system is really rigged against my clients. >> oh, the system is. [laughter] it's not rigged. rigged is a bad word. i want to be careful not just because we're on tape, because i'm generally careful. rigged mean somethings -- >> not rigged. >> it's stacked against the accused. you know why? because my adversary is not a person, the state of new york, or it's the united states of america. and while we have the presumption of innocence, most

people who come into a courtroom as prospective jurors look at the person sitting there, and they don't think they were picked out of the yellow pages for the distinction of being named defendant in a criminal trial. most people talk about the presumption of innocence, but i've got to tell you, once the person is in the well of the courtroom, it's very hard to convince a jury that the person is not guilty. you work really hard in cases to try and accomplish that. so i don't think the system is necessarily fair because the police are on the other side and the fbi with extraordinary resources. and then you're standing there, and there's nothing more frightening than to suddenly have the united states of america against john doe. and the whole country is against you. and what if you're really not guilt? we just had a man in solitary confinement for seven days accused of sending ricin to a united states senator and the president of the united states, and seven days later they threw out the charges and released him. you know why? because his defense lawyer, god bless her, for seven days believed him, and she ran around

the country trying to prove that this was a terrible mistake. it's good that that happens on occasion. if he were presumed guilty, they would just hang him for what he did or allegedly did. >> judge chin? the system? >> well, i -- >> too hard, too harsh in the sense that it provides protections for the accused and, therefore, the victim feels left out of the process? >> i don't, i don't think it's correct to look at it as providing protections for the accused. i do think it's providing protections for everyone. that's the beauty of our system. mistakes do happen. but as i was saying earlier, it works most of the time. i think these are dramatic cases that you've discussed in your book, and there are awful mistakes that are made along the way. but for the most part it works pretty well. >> i was thinking, as you know, the eighth amendment prohibits cruel and unusual punishment. you can't torture someone, you

can't inflict a cruel and unusual punishment. no one ever says did the conduct of the wrongdoer, was his or her actions against the accused in any way cruel or unusual? we don't is ask that same question in the same way. we protect -- obviously, it becomes part of the case -- >> but we do. we do at sentencing. at sentencing much is made of how much the defendant made -- >> absolutely. >> -- the victim suffer. >> absolutely. how heinous the -- [inaudible conversations] >> that's the reference where we get the judge so convinced of the defendant's conduct that the sentence is higher than what the judge initially anticipated. >> danny, do you have anything to add to it? because i have a question for you. so let's look at, let's go beyond -- oh, sorry -- an american courtroom, and let's look at the world. you know, you're a political scientist. you've written books about the holocaust and genocide, definitive books about both.

what does genocide -- what does revenge look like among nations? you know, nations are permitted under international law to retaliate, a reprisal. you know, i mean, i find, again, it's the same levels of confusion. after the holocaust we had the nuremberg trials. winston churchill and henry morgan thaw both said why are we having a trial? the what a waste of time, what a waste of everything. why not just see a nazi, kill a nazi. that would be the most efficient, morally-correct thing to do. the united states and russia, by the way, we're going to have an international tribunal, and we will judge the nazis that way. on the streets of power simultaneously, collaborators were being strangled in the street. nobody said, oh, my god, how come we don't have a trial for the collaborators? both ideas seemed like they were justice, also revenge. you know, what most of the nazi war criminals who were prosecuted in nuremberg ended up

dying or spending their lives in jail. they essentially were pun bished, but we conducted a trial. but in the same regard, the same way that we treated, you know, say, osama bin laden, right? could have easily been kidnapped. he was shot in the head, and everyone said that's justice. but isn't it also revenge? doesn't justice look like courtrooms? why is khalid sheikh mohammed sitting in guantanamo bay, and he still hasn't had his military commission concluded? and then you have osama bin laden was shot in the head? these are disparate treatments, but in both cases they both seem vengeful. >> oh, boy. what was that? please turn that off. danny? >> i'll put it in a provocative way. the discussion we're having of the justice system here is highlighted in international relations that much more which

is when a crime is committed whether it's against an individual or by one country against a group, against another country, there's no way to make it right unless, of course, someone steals $5, then you can give the $5 back. there's just no way to make it right. so we're all in the business or the game or arena of trying our to do the best we can and figure out how to make it as right as one can while acknowledging at least to ourselves that it's never going to be right. and be you have a lot of trade-offs, and you have a lot of things to consider. and i'm really quite surprised by my colleagues on the panel that they speak about the system as if it's imperfect. everybody knows that, but it's pretty good, and we do a great job of walking that tight rope with the winds blowing and the seas coming up underneath us s and we don't fall off. and we sort of end up at the right point despite all of this. now, this is highlighted, the problems are highlighted in international affairs with crimes -- if you want to call

them crimes -- of genocide and other mass atrocities because how do you make it right when there are victims of such large number, and there are perpetrators of such large number, and then you deal with the problem of punishing collectivity, and then you start getting the issue of whether there should be collective guilt and really who's responsible, is it just the state or the people and so on? the peoples of victims' groups, that is the people who have been attacked in these incidences, have taken a variety of paths forward to try to do their best to negotiate in this impossible task of making things right. sometimes today put people on trial, you know, very formal, western, proceed yawlly-oriented system. sometimes they have truth commissions such as in south africa where peopling to get the perpetrators to speak about what they did and the victims of having their satisfaction of having their stories being told

publicly. in rwanda they had a process, hundreds of thousands of perp raters -- perpetrators with virtually no legal system where the village, essentially, serves as prosecutor, judge and jury of the people in the village who have committed the harm. and that includes the victims being part of this. so there are a variety of ways. they're all imperfect, and they're all woefully imperfect when you start talking about crimes and transgressions and horrors of this vast scale. but i submit that that only, that only brings to light the many imperfections that are less glaring perhaps, less grand if scope when you look at what goes on in our legal system in this country. >> can i say something in response to what thane said a moment ago? as, you know, someone who has grown up in the home of survivors and whose grandparents were murdered in auschwitz, i

was very happy that they had a trial at nuremberg. i wanted the world to see what had happened. i didn't want to go out in the street and just start shooting nazis because they were nazis even though i would have felt good if i'd had a chance to do it. i wanted the world to see what they did. the trial of adolf eichmann, everybody wanted just to kill him. but the fact that victims had the right to come in and confront him and he was ultimately found guilty and hanged, did they get their vengeance? yes. but was it done in a justifiable way through a reel system that worked -- legal system that worked? yes. you get your rocks off by going out and shooting someone who tried to hurt a member of your family. but then what have you accomplished, and what are you saying to your children and to their children which are all going to become like just vigilantes? because that's what it is. >> so are you saying that what we did with osama bin laden was wrong? >> no. >> he should have been brought back to do, to serve trial just

like adolf eichmann? >> no. >> why is that not getting our rocks off? >> i'll tell you one premise that you cannot dismiss. we have no idea what happened in that room. you have a navy seal in the space of three seconds in enemier the tore making a decision whether it's reaching for a weapon and someone shoots him in the head, i'm not going to second guess that guy because i didn't have the guts to put on that armor and go into that room and try and kill him. that's a different case. if osama bin laden had been handcuffed and brought to the united states, it would have been a big, colossal, horrific spectacle that would have just glorified him. but if that's how they captured him, that's what should have happened, and then they should have shot him. >> the israelis had the same experience with eichmann. they put him on trial, he had his opportunity to have a soap box -- >> but they grabbed him without resistance, they kidnapped him, they brought him back. they weren't going into a darkroom where they didn't know

what to expect, and they weren't armed to the teeth. these were trained agents who brought him back and put him on trial specifically so holocaust survivors could have their day in court. >> okay. >> to have their moment. >> -- >> and 9/11 victims' families didn't have their day in court with osama bin laden. >> who knows. seth -- thane, do you know whether the person who put the bullet in osama bin laden's head had a minute to react? >> my understanding from the very beginning was there's no point in bringing him back. >> i've read so much about that that, i tell you, if the order was just go in and kill the son of a bitch, then, you know, okay. but under the circumstances in which he was killed based on everything i've read, and i've read everything that's been written, i'm not certain you could second guess or fault the kids who were in that room who had to decide whether or not he was going to kill them or they had to kill him. >> okay. let's take some questions from the audience. i assume at this point you're just going insane. can we get a microphone?

aaron, where do we -- do we want them to come up front? can we start lining some people up? would you be the first one to do this, and then people will fall in we hind you -- behind you, i'm quite sure. >> by the way, ben, i have to take issue with one other thing you said. the book i would recommend of thane's is the gull lombs of gotham. >> i've read that, and i think it's as good but not quite as good -- >> oh, well, we'll have to have this out afterwards. >> okay. >> thank you, guys. yes, sir. your question. >> i'm, i do civil litigation -- >> could you come closer to the microphone, please? >> civil litigation in new york city is a method by which i seek proportional justice for people who have been victimized, and i represent the victims directly. so i hear some things about the criminal justice system that are very different and some that are similar in concept. what i am uncomfortable with is the idea that if you go to a shoot 'em up movie and the hero

shoots up the wad guys -- bad guys, then you feel good. i've always felt disgusted by that. and i think that part of the reason came out with regard to the discussion of revenge in the case of genocides. i read the hatfields v. the mccoys section in huckleberry finn, i cringed. there's no closure like in the movies in real life. and i think mark twain told it better than the movies do. so my question is, can we learn something by the truth commissions or the forgiveness processes or the village reconciliations or even the christian model of simply forgiving people that you confront and bring that into the criminal justice system? i'm not sure if there's any hope for bringing any of those principles into criminal justice. >> anyone?

>> i think he said it better than i could. >> okay. we'll take another question. thank you. >> okay. [laughter] >> here's an actual longtime assistant district attorney in manhattan, joel. >> i just wanted -- i have my question for my good friend thane, but i wanted to preface it by saying to kate that i agree with you 100%. as a prosecutor in excess of 30 years, i have always felt that i do represent the victims. the difference between me and ben is that ben gets paid a little more. [laughter] but that being said, my question is to thane and the victim-centric system and the practicalities of it. and the questions are threefold. as a prosecutor, you have a responsibility to the victim, but your responsibility goes beyond that of the victim. so here are three scenarios that i'd like you to address. the victim's relative is murdered, and the victim is willing to forgive the murderer and wants the case dismissed. that would be one scenario. or the other scenario, the

victim's been pickpocketted and wants the pickpocket's hand cut off. or the third scenario which i think kate alluded to and so did ben was the very fact that in a jury system with human beings and imperfection, one often sees half a loaf as being better than none. and the victim may insist on going to trial on a case which is very weak and will result in an acquittal and putting the person out into the community. so those three scenarios are things that i, and i'm sure kate, has had to deal with on a daily basis. how does your system factor in those three realities? >> as i said, the book is very clear about when it comes to feeling avenged, it also has restorative dimensions. when ben earlier said, you know, you go off and shoot someone, i've never said that. people can define vengeance in their own terms. if a person feels they've been avenged by accepting forgiveness, that's tremendous. if they think they can get -- if that does, actually, ultimately

restore them. on the other hand, of course, i think kate would say that's not enough for me, okay? kate's saying i'm very happy for you, victim, but the people of warren county have elected me to do a job, and i have to do that. with respect to number two, absolutely, in order for vengeance to be justified, it has to be proportionate. and, no, cutting off the hands of someone who's a pickpocket is not proportionate. >> in some societies it is. >> yeah, but again, it's not justified revenge. you can call it whatever you can call it, justified revenge, and we judge it and say that's clearly disproportionate. in fact, a whole chapter in the book about the way in which under sharia law there are lots of penalties under color of law that we would not accept in any way of being proportionate. beheadings, dismemberments, lashings, stonings. so just because someone wants to call it measure for measure doesn't mean we have to accept measure for measure. we should be able to know what

measure for measure looks like. and your third point is, you know, i just don't, i don't -- i think it's patronizing to tell a victim, oh, you don't know. you don't know, you'll feel a lot better with half a loaf later. i think this is the kind of thing that this book is responding to, you know, very well-intentioned, joel, you know you're one of my heroes. incredibly well intentioned but, ultimately, patronizing. and i don't know how many prosecutors have ever been victimized. you know, people speak so smellly about what we should -- smugly about what we're doing, and very few say, look, i can totally understand why someone needs to feel satisfied by the remedy. >> you know, you want measure for measure, and i think we try and provide that in the criminal justice system. and i'm a criminal defense lawyer who represents a lot of bad people on occasion. and when my home was burglarized and everything of value that we had was taken, i was so angry if i could have caught the person, i would have probably tried to have beat him to death with my

baseball bat which was the only weapon i owned. but the police came, and you know what i was told? in i am a big shot lawyer, thought i was going to get royal treatment, he said to me, mr. brafman, we have 20,000 burglary, and the hope of you recovering any of your items is a ridiculous thought, so forget it and buy new stuff. so did i feel good? no. do i understand that i live in a city that that is 20,000 burglaries a year? yes. >> question -- by the way, this gentleman over here is dan purvin -- david, who was my editor on this book, so you can blame him if there's anything you don't like. thank you, david. >> i found interesting the distinction being made between individual, state and law. retribution is a role of the state, revenge is the role of the individual. last time i checked, i thought it was individuals who make up the state and make the law. coming to a particular case, we were talking about bin laden,

perhaps a more relevant case here has to do with targeted assassination, drone attacks including against american citizens who are not brought to american courts in ways that may or may not be questionable. i just was wondering in terms of how those distinctions follow through in a case like targeted assassinations in yemen of an american citizen. >> anyone want that? or i can see the reasons to duck those. there's many. you know, i don't want to -- i don't want to take it on for so many reasons. and i have other questions. all i would say is i'm interested in that question because, you know, i was just interviewed the other day about the tsarnaev case. and i said, well, you know, now all of a sudden tsarnaev is going to be in federal court, and he should be receiving the full complement of constitutional protections. but the more you give him constitutional protections, the more al-awlaki's father is

going to be saying, you have to be kidding. you shot my kid in a car in yemen with a drone, and this kid in boston gets the full panoply of constitutional connections. >> you know what the problem with that is? we're live anything a really different world than the world all of us grew up in. and what made sense for the last, maybe for the first 20, 30 years of our lives just doesn't make any sense. if you read "the new york times" today, you will see that there are bombings and suicides and terrorist acts in almost every country that you can mention, and these crimes are of a different dimension, and i think we're trying to figure out how to deal with them. and sometimes we get it right, and sometimes we don't, but it's an evolving process, and i think we're trying our best under very, very difficult circumstances. >> right. but we might at the same time even in both of those remedies be achieving both justice and vengeance even though they look very different. that's all i'm saying throughout the book, that we should just be honest that the drone strike

against -- just say that we think that's justice, and we think that that's vengeance, and whatever trial tsarnaev gets in federal court in boston, he will probably receive the death penalty. and when that happens, it'll look a lot like what happened in yemen. yes, question. >> i agree with you, thane. i think the reason that we don't want to admit it is simple. you said we're human. so human trait -- psychology is cognitive dissonance. so it makes us feel better to rationalize it and not call it revenge. i think there is an element of revenge in everything we do factored in. i respectfully disagree with you in two respects. one is -- and you managed to avoid it beautifully yourself. you say measure for measure, but there has to be an upper limit. i would like their professional opinion. like, when it comes to torture, are you allowed to torture? just torture in a small manner?

there has to be an upper limit. and the last thing is you talk about being hard wired. i think that synonymous with natural instincts. but the purpose of a civilized society is to be able to control those. the whole purpose is either because you're afraid of the law or because you're enlightened, whatever you want to call it, but that's the purpose of a civilized society. >> i've never said you have the right to act like a maniac. >> yeah, but when you say hard wired -- >> what is hard wires is that we as a species, unlike the animal kingdom, we insist on fairness and retribution and punishment commensurate with the crime. we cannot tolerate watching people get away with murder or watching people get away with highway robbery, and that's essentially, um, what i'm talking about when i'm talking about that idea. danny, did you want to -- it looks like you -- with respect to the first thing, i don't want to talk about torture because it's not torture for torture.

but be i think, you know, there are questions in terms of, yes, there are upper limits and lower limits, and in many cases the same experience we all feel. when something is underpunnished, we feel morally revolted. and when something is overpunnished, we feel overly revolted. why is it we can't trust that sense of moral revulsion? to some degree that is the standard. that's how the threshold is met. let's take a few more questions. thank you. >> i just wanted -- >> louder. >> i wanted to thank the panel for coming today and giving us the benefit of their experience. and i wanted to ask judge chin, um, in a civil context when a plaintiff comes and brings a case that has an issue that seems fairly relevant but is probably bringing the case in order to punish the defendant either monetarily by dragging them through a trial or if it's

an enterprising law firm that is fishing for a class action suit, how do you deal with an individual trying to use the system to get revenge? >> well, litigants use the system all the time to try to get revenge. in the civil context, there are frivolous lawsuits that are brought, and you have to deal with them on a case-by-case basis. if something is patently frivolous and brought simply to annoy, hopefully, the court will step in and do something about it. bringing a lawsuit to punish someone is not necessarily improper. i mean, you can seek punitive damages. if someone does something really, really bad, it's appropriate to bring a civil suit the punish in the way that you can, and that's to make the person pay punitive damages. so sometimes it is appropriate. it's when litigants try to abuse the system that the lawyers

should ask for help, and then the judge should try to step in and deal with it. >> all right. let's take one more question, and then we have a reception outside and a book signing for those to see this seditious book. you might actually read it and enjoy it or not. >> i did read it. i did read it and enjoy it. i think it's your best book, thane. i have one thing that i really like about your writing in general is that you talk about popular culture, and you mix it in with all kinds of other references. and when i was reading the book, i thought about the movie "42" which i saw last weekend. and it's a little bit out of the legal context, but it's really in the moral context. i wanted to ask you what your feelings are about the jackie robinson story which you don't have to see the movie to know is someone who went through the worst possible treatment you could possibly imagine and stood there and took it. and, essentially, he's known as a hero for that. do you see that as a good thing,

bad thing, cowardice, power -- >> it's just a great example and a great challenge to the payback theme, right? remember, he said to him this is why we're going to do this. so he had to have -- the hardest thing you're ever going to have to do is you're not going to be able to respond, because this is the way we're going to send this message. look, those ideas are as equally compelling, right? passive nonviolence. you have no idea just on how many radio shows i've appeared in the last two weeks where either christ is being quoted to me or gandhi is being quoted to me. it's endless. [laughter] yes, i've heard that before. yes, oh, really? i've heard gandhi. the whole world will be blind. there's no virtue in -- there's moral cowardness in not punishing people who deserve to be punished. there's nothing moral about it. everyone so comfortable talking about what christ would do. we don't have a clue. people are so smug.

i say in the book, you know, we shouldn't speak for jesus. we don't know. he never had a daughter raped and murdered, he's never been through genocide. we don't know what he would say. and by the way, good christians in this country believed that we should retaliate against the taliban. i don't know good christians who said, oh, no, we turn the other cheek. no, no, no, 9/11, hopefully they won't do it again. we're turning the cheek. and that's christ's sermon on the mount. and i don't remember christians saying as a nation, as a christian nation we can't respond. because that's morally unbearable. that's just impossible to do. that's the kind of, that's the kind of facial gymnastics that you can't ask anyone to do, to just simply turn the other cheek. so in response to your really great question, look, those other stories are equally heroic because they show restraint, and they show that through restraint something else gets

accomplished. but they're not models for how we treat wrongs. they can't possibly be the templates for how we deal with wrong doers. all right. i, before we say good night, there's a few things. first of all, this night was produced by the forum on law, culture and society by our executive producer, erin. she's somewhere around here. [applause] if you're, if you're watching on c-span or if you didn't know before, forum on law, culture and society.org can. we have an annual film festival from october 18-25th, we have a short film competition. we do the conversation series. this was our second for this year. the earlier one in the fall was on same-sex marriage. so check us out online, check our programming, take a look at our highlights, forum on law, culture and society.org. a few people to thank. i thanked my editor, david p,, and i had four research assistants who wanted their name

acknowledged. megyn rockwell and kate moore and erin ritter. thank them all because they were incredibly invaluable. the forum on law, culture and society, we produce great stuff, but it's not cheap. we have a board of directors, and we have donors, and i want to acknowledge them. we have bob, and we had hugo, and we had joanne throughing and pete rossi is here. i hope i didn't miss anyone. erin, did i? okay. i want to lastly thank this incredible panel, a true conversation for the ages. thank god that c-span was here to archive it forever for posterity. ben brafman, kathleen hogan, judge denny chin and danny goldhagen. thank you all. [applause] there's a reception after. please stick around, have a drink, have some food. there's a book signing. [inaudible conversations] where was that?

[inaudible conversations] >> for more information visit the author's web site, thanerosenbaum.com. >> mr. moss, what happened in minneapolis in april of 1999? >> you know, i start the book with that meeting, because it's so informative of the industry's attitude and strategies. 1999 the obesity epidemic was just beginning to emerge and raise concern not only among consumer activists and nutritionists, but among people inside the processed food industry. they gathered together, um, for a very rare meeting. ceos of some of the top manufacturers or in north america.

they got together at the old minneapolis headquarters, the old pillsbury headquarters in minneapolis, to talk about none other than this emerging crisis really for the industry. and up in front of them got none other than one of their own, his name was michael mudd, he was a vice president of kraft. he was armed with 114 slides and laid at the feet of these ceos and presidents of these largest food companies responsibility for the, not only the obesity crisis, but he cited the rising cases of die leitz, high -- diabetes, high blood pressure, heart disease. ..

would be to get them collect you to do something. from his vantage point, it it may give us an outer failure. this defensively. they said we are rdf for a people choices. we have low sugar, if they want back, they can buy those alternative products. we are beholden to consumers and our own shareholders. they left the meeting basically going back to what they've been doing and continue to do, which is a deep reliance on saltshaker that. >> host: what our processed foods?

is go mostly ultra processed food. even a baby carrier can be processed because it doesn't go that way the ground. they can shape into the baby farm. for my son, processed foods added us to take natural ingredients and highly refined than and the formulas that i write about in the book are critically dependent on salt, sugar, fat. you can pick up a label unseat nancy some government regulation we have, the amount in these items senates rather short airy across-the-board at the grocery store are reliant the industry is on these ingredients. they can act as preservatives and also for a low cost because they hope the industry avoid

using her costly ingredient like fresh herbs and spaces. >> i arrived in minnesota, but i thought the first night in new

york, very kindly came and took me out and he took me to stay with marie ridder. she had this fantastic house in new york where she took me my first night. we ran out of food of course. but these two little children. rob was five months and show was to. we spent the night in this extraordinary house. and then she put me on a plane to minnesota. i have not looked at a map. i didn't know where minnesota was good at no idea. and i thought that when he put down the plane. he was crying. his tears were pouring out of states beauty defeat me this bottle of remy. when i got to minnesota i had

two babies and i knew what the brand-new is for her. last night is a great experience because he had this wonderful house at the clinic i open the windows of the husband says you can't do that. the whole thing froze up. and then we had a wonderful very, very different. people are exchanging tunafish casserole. i was doing my best. the friend of mine who is a psychiatrist alice in california and she and i were american about it because the washing machine