CAPITAL PUNISHMENT AS "CLOSURE": THE LIMITS OF A
Copyright (c) 2001 New York University School of Law
Review of Law and Social Change 2001 /
N.Y.U. Rev. L. & Soc. Change 215
INQUISITION AND THE BIRTH OF INQUIRY:
FRAGMENTS OF A GENEALOGY
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THE POLITICS OF NECESSITY
International and Constitutional Commitments
of Emergency Regimes
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DARK GUARDIAN OF THE POLITICAL: CARL SCHMITT’S
ETHICAL CRITIQUE OF THE LIBERAL INTERNATIONAL ORDER
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* Senior Legal Studies Consultant, The Federation Employment
and Guidance Service (FEGS), New York, New York; J.S.D. Candidate, LL.M.,
2001, New School of Law; J.D., 2000, Northeastern University School of Law;
B.A., 1997, New College of Florida. This paper originally arose out of
"Meting Out Justice: Finality, Fairness, and the Death Penalty,"
a colloquium of the NYU Review of Law & Social Change, which took place
on March 29, 2001. In the months since that conference, the concern of closure has assumed an
unprecedented prominence in our cultural landscape. The execution of
Timothy McVeigh on June 11, 2001 and the attacks on the World Trade Center
and the Pentagon on the following September 11 led me to rewrite and
reconsider much of this paper. In the wake of recent atrocities and in
light of an open-ended war, the themes of victimization, retribution, and closure threaten to take on
world-historical proportions. While these world events have influenced this
article, they have not changed my view that closure will remain an elusive or impossible goal for the
courts to achieve on behalf of victims, despite its continuing centrality
to our increasingly victim-centered culture. Thanks to my co-panelists
David Baldus, Paul Borchardt, Sally Kohn, Russell Stetler, and Ron White;
to all the incredible student editors who worked on this Colloquium Issue;
and to N.Y.U. professors David Garland, Christine B. Harrington, and Frank
Upham. Thanks also to Joy Kanwar,
Esq. and Mimi N. Martin for valuable feedback on the Colloquium
presentation. Finally, thanks to my partner Lacey Torge, Doctoral Candidate
at NYU's Department of Performance Studies, for sharing her insights on The
Laramie Project. I dedicate this paper to absent friends and family from
Katmandu to Manhattan, lost in the long summer between June and September
of last year.
In the poetic context, literary critic Barbara Herrnstein Smith defines closure as "a sense of
appropriate cessation. It announces and justifies the absence of further
development; it reinforces the feeling of finality, completion, and composure
... ." n1 Life, unlike literature, often denies us "the sense of
an ending;" this can be profoundly unsatisfying. n2 Perhaps nothing
expresses the impossibility of closure
more dramatically than the death penalty. Although capital punishment
represents an attempt at complete closure,
a death sentence in the United States is not a clear articulation of
finality but rather is a constant deferral of the last word. For the death
row inmate, the death penalty really means several years in prison with an
indeterminate chance of release through reversal or commutation, and with
the possibility of execution sometime in the future. For a murder victim's
family, the indeterminacy of the process can be a persistent
[*216] source of frustration and anxiety. The murder victim's
surviving family members ("secondary victims") enter a legal and
symbolic system that amplifies their sentiments and magnifies their resentments.
At the same time, their individual grieving processes are interrupted and
displaced by entrenched moral debates on how best to achieve fairness and
finality through the criminal justice system. Of course, a literal finality
obtains if the offender is eventually killed. Nonetheless, the ostensible
finality of the execution itself is invested with such extraordinary
anticipation - a yearning for the irretrievable, a desire for the
un-imaginable - that it could invite the most undesirable consequences. It
is precisely the "run-on" character of death sentences in the
United States that makes the idea of closure seem attractive and valuable. The social value of closure has been a relatively
neglected dimension of the death penalty debate. Yet in our time, the
cultural production of a feeling of closure
for the secondary victims has become, at least implicitly, an independent
justification for the retention and enforcement of the death penalty in the
United States. n3 The emergence of a discourse of closure naturally accompanies the rise of a victim-centered
jurisprudence. Indeed, closure
has become the central trope of the growing victim-centered jurisprudence.
In this essay, I consider the relationship between the specific meaning of closure to the Victims' Rights
Movement and the broader cultural meaning of closure as achieved through mercy, execution, and life
imprisonment. Although I discuss the concept of closure in various senses, contexts, and meanings, I focus on
criticizing its use as a justification for the death penalty. n4 Part I of
this essay takes as a point of departure a parable drawn from the headlines
- the trial of the killers of Matthew Shepard. This story dramatizes an
interesting limit-case where secondary victims seek closure not through pursuing the death penalty but through
designing victim-centered measures that teeter uncomfortably on the fulcrum
between vengeance and mercy. In Part II, I examine the historical context
of the waxing and waning of victims' rights and remedies. In doing so, I
will describe how, over the last forty years, public outrage coalesced into
an influential mainstream reform effort: the Victims' Rights Movement. I
will particularly consider two outcomes of this movement: victim impact
statements and a proposed Victims' Rights Amendment to the Constitution. In
[*217] Parts III and IV, I outline the two routes to closure that a victim-centered
discourse offers, which I call "mercy-as-closure" and "vengeance-as-closure." In Part V, I describe how a will to achieve closure through the criminal
justice system is connected to the expressive function of law and
punishment. n5 While law and punishment are always to some extent
expressive, the rhetorical landscape of the death penalty seems to be
tilting toward the primacy of the secondary victim and victim-centered
notions of closure. This
suggests that the production of a victim-centered jurisprudence poses a
challenge to settled norms of sovereignty over life and death and marks the
loss of an important line of mediation between public prosecution and
private expression, a loss which would render the criminal justice system
recursively vulnerable to forms of anguish and intimacy historically held
at bay. Taken together, the various parts of this essay offer some evidence
that the criminal justice system's pursuit of "satisfaction" or
"closure" on the
behalf of victims could impose severe costs on our society's institutional
arrangements and constitutional values.
I. Ghost Stories & Passion Plays
The killer of order is killed, to bring torn edges together, and in so
doing tears open other edges along which all that (says) makes-up the story
of the executed circulates forever, displaying the impossibility of being,
at any instant, that story. The literal ending, the matter (is) over,
carried to the grave, is just the start of a bigger process predicated on
the query: tell me what really happened: ghost stories ... . "It is
this insistence and consequential repetition that continually fails to fill
the void, to stop the flow, to bridge the gap. No matter how much is said,
no story can ever satisfy; the said is forever another beginning." n6
I would like nothing better than to see you die, Mr. McKinney. However,
this is the time to begin the healing process, to show mercy to [*218]
someone who refused to show any mercy, to use this as the first step in my
own closure about losing
The 1998 torture and murder of gay college student Matthew Shepard in
Laramie, Wyoming is by now a well-known story. From the headlines of nation-al
newspapers n8 to the recent off-Broadway play The Laramie Project, n9 the
story of the infamous hate crime has been told and re-told until it has
been transfigured into a kind of Passion Play. Homophobic thugs crucified
him, the media resurrected him, and a massive social movement martyred him;
Shepard's vio-lent death has become a rallying symbol for the discourse
around hate crimes in the United States.
In the "documentary theatre" production The Laramie Project,
members of a performance collaborative transcribed and edited 200
interviews with residents of Laramie and compiled a performance directly
off the pages of the transcripts. Because of the depth of its authors'
research, the play raises complicated ques-tions about victimization and retribution.
Rather than coming off as cold and archival, the narrative sustains an
almost religious quality, a tone that draws heavy-handedly on symbolic
meanings widely ascribed to the victim's "cruci-fixion." The
climactic scene of the play takes place at the sentencing hearing of Aaron
McKinney, one of Matthew Shepard's murderers. n10 Dennis Shepard, Matthew's
father, reads a prepared statement "on behalf" of McKinney. n11
We learn that while he the father "would like nothing better" than
for McKinney to have the death penalty, perhaps Matthew would not. n12
Though Matthew the victim was not morally opposed to the death penalty,
sparing McKinney's life [*219] would be a testament to his
memory, and to values of tolerance that he em-bodied. n13 Thus, the vengeful
father would cede to the grace of his son; he would save McKinney and
symbolically restore Matthew's voice as a public actor. Moreover, Dennis
Shepard makes clear that mercy is self-serving: "This is the time to
begin the healing process, ... to use this as the first step in my own closure about losing Matt."
n14 This scene, directly preceded by an enactment of McKinney's confession
and explication of the night he killed Matthew, transforms Shepard into a
messianic symbol. Matthew's father says that "every Christmas"
McKinney should remember he was given his life in Matthew's name. With
these words, the audience is invited to conjure an image of the Evil
McKinney remembering the Good Shepard on the day Christ was born, praying
for forgiveness. n15
Despite its aspiration to serve as a "documentary" account, The
Laramie Project manages to unleash the familiar tropes of a passion play or
martyr-drama; it dramatizes an unrelieved clash between evil and innocence
in stark symbolic terms. The play probably overstates the miraculous effect
of Matthew Shepard's sentiments but, like every case that involves the
threat of state killing, the McKinney case certainly was enveloped in a
larger Manichean struggle over symbols. In sparing McKinney, Matthew
Shepard's family was concerned with which story would capture our
imaginations - would it be the Passion Play of Matthew Shepard or would it
be the ghost story of an executed McKinney haunting the public discourse
for years to come? Dennis Shepard's statement dramatizes a commonly
expressed desire for closure,
at "bringing the torn edges together." n16 Importantly, Shepard
said that he and his wife supported the plea agreement because it
foreclosed a prolonged appeals process or the possibility of a lighter
sentence; moreover, it prevented McKinney from becoming a symbol. n17
[*220] The extent to which the Shepards influenced the plea
bargain process illus-trates another facet of the victim-centered
jurisprudence - the increased defer-ence to victims as controlling the
terms of litigation, creating a kind of "outsider jurisprudence"
where victims effectively shape the legal consequences for offenders.
Shepard asserts in his statement to the court: "At no time did
[prosecutor Cal Rerucha] make any decision on the outcome of this case
without the permission of Judy and me. It was our decision to accept
[McKinney's] plea bargain ... and the earlier plea bargain of
[co-defendant] Henderson." n18 Judy Shepard, Matthew's mother,
convinced Dennis Shepard and prosecutor Rerucha to agree to a plea and
sentencing arrangement before the jury could consider McKinney's
punishment. n19 Under the arrangement, McKinney was sentenced to two
consecutive life terms in the state penitentiary, n20 with no possibility
of appeal or parole, with a "gag order" on both McKinney and his
lawyers from talking to the media about the case. n21 One commentator noted
that "the agree-ment was hailed by editorial writers throughout the
country as an example of parental mercy triumphing over vengeance." n22
Other reports documented the unusual amount of involvement of the victim's
family in decisions that would have otherwise been left to the prosecution.
[*221] Another striking example of "outsider
jurisprudence" in this story was the entrance of a network of national
lesbian, gay, bisexual and transgender (LGBT) rights organizations that
joined the struggle over symbols when prosecutor Cal Rerucha indicated that
he would seek the death penalty for McKinney and Henderson. In February
1999, after a contentious internal debate, a group of eleven LGBT rights
organizations, including the National Gay and Lesbian Task Force and Lambda
Legal Defense and Education Fund, issued a statement condemning the death
penalty in the Shepard case. n24 Rather than Matthew speaking from beyond
the grave, it was likely the voices in this statement that convinced the
Shepards to stop supporting the death penalty for Matthew's killers. In the
end, Mr. Rerucha indicated that he and the Albany County Attor-ney's office
had little or nothing to do with the terms of the plea agreement, n25 which
instead can be credited to the Shepards, the LGBT rights movement, or the
State of Wyoming's victim's rights statute.
The Matthew Shepard story presents a parable about closure. We can un-derstand Dennis and Judy Shepard as
prototypical of a new kind of victim em-powered by an emergent discourse
combining popular sentiment and private justice. This power allowed Dennis
Shepard's heroic attempt at closure,
at "bringing the torn edges together." In particular, the gag
order imposed on McKinney, preventing him from ever discussing the case
again, should be under-stood as an extraordinary triumph of the victim's
will. When a surviving family pushes for the death penalty, among the desires
it might express is to silence the voice of the condemned. The resulting
silence freezes the story of the murder at the point of sentencing, a
narrative that decidedly favors the victim. It also places the voice of the
condemned on an equal plane with the primary victim: both can no longer
speak. Here, Dennis Shepard seems to acknowledge that put-ting the
condemned on death row only heightens the public's interest in that story.
A sharply divided public is drawn to ghost stories and death dramas, even
as the victim's family bears the burden of countering the death row
inmate's own victim-talk. This extension of the story of the crime, with
the defendant elevated to protagonist, is the bind of using capital
punishment as closure.
Empowered by a broader victims' rights agenda, however, Dennis Shepard was
given more latitude to express his desires. Moreover, by personally shaping
the plea and sentencing agreements, he was seemingly given the de facto
power to impose a life sentence, and this resonated in the double meaning
of his performative ut-terances of "I'm going to grant you life"
and "I give you life." n26 Here a power [*222]
previously only in the hands of the state or the sovereign, is symbolically
handed "back" to victims - an act equipoised on the fulcrum of
vengeance and forgiveness, of mercy and damnation.
Despite the element of mercy in Shepards' sentence, this story raises the
concern that victim-centered proposals for punishment could favor
unacceptable outcomes, even if they exclude the death penalty. It is
interesting that a victim's family member, given almost unlimited leeway in
exercising personal will on the criminal process through extraordinary
publicity, an active social movement, and a relatively passive prosecutor,
would choose a form of punishment gaining ac-ceptance as the most popular
alternative to the death penalty: life without parole. Although no sentence
or punishment may actually provide complete closure, the discourse of Victims' Rights seems to suggest
that a victim with unlimited power, whether or not accompanied with a
retributive spirit, would be attracted to a kind of total incapacitation or
"enclosure," a zone where sovereignty is exercised over a
"life that does not deserve to be lived." n27 A victim's family's
"will to closure"
could invite forms of "enclosure" virtually equivalent to death,
and this possibility should be a cause for moral and ethical concern. In
this sense, the kind of "enclosure" achieved in the Shepard
story, life without parole or appeals and with a gag order silencing the
prisoner, is for the moment the ultimate triumph of victim-centered
jurisprudence. In the following section, I will explore how this apparent
shift in power has become possible and discuss the broad policy
implications and dangers of a certain quality of sovereignty passing into
the hands of primary and secondary victims.
II. Contests of Closure: The Victims' Rights
A. Victims' Rights, Remedies, & Rage
Admittedly, the Shepards' experience is anything but the standard story
about the assertion of "Victims' Rights" in this country. While
this social move-ment is often considered sympathetic to the retention and
enforcement of the death penalty, the movement expresses enough diversity
that it also created the conditions of possibility for the Shepards'
"act of mercy." A later part of this essay will take up the
relative roles of "vengeance" and "mercy" in
victim-centered jurisprudence. For now, it is sufficient to understand that
the phrase [*223] "Victims' Rights Movement" refers
to a more or less organized social movement that advocates changes in
criminal law and procedure designed to provide crime victims, collectively
and individually, more satisfaction within the legal sys-tem. n28 In
historical context, these demands for satisfaction have been characterized
by demands for compensation, participation, and closure. Through the ef-forts of this movement, the rhetorical
landscape of the debate over the death penalty seems to be subtly tilting
toward the primacy of the secondary victim, n29 though the assertion of
rights for victims still remains a highly contested matter. Recently
expressing his support for a proposed Victims' Rights Amendment to the U.S.
Constitution, Professor Laurence Tribe nonetheless acknowledged that the
proposed amendment would "take effect against the background of a
legal culture in which the very notion of "victims' rights' has
traditionally been dis-missed either as a vague metaphor or as an atavistic
throwback to a primitive era of private justice." n30 Justice Dolliver
of the Washington State Supreme Court, an opponent of the same amendment,
puts it more forcefully: "By constitu-tionally emphasizing the
conflict between the victim and the accused and placing the victim in the
role of a quasi-prosecutor or co-counsel, the victims' rights amendment
represents a dangerous return to the private blood feud mentality."
Tribe and Dolliver are both referring to a history in many societies of
pri-vate vengeance or private prosecution, where murder was in some form or
ano-ther avenged by the victim's family. Throughout the history of criminal
justice, there are examples of systems of private grievance being displaced
by public prosecution. n32 One common primitive form of grievance was
"blood feuding," where an offender's clan was expected to provide
"satisfaction" to a victim's clan in the form of an equitable
restitution for the offense. n33 If left unsatisfied, [*224]
the latter would hold a vendetta against the offender and his family, which
might last for generations. n34 Family feuds evolved into systems of
communal justice, where disputing sides would be pressed into settlement by
the community at large. n35 Under Anglo-Saxon law, a system developed where
a murderer was compelled to pay a compensatory fine to the victim's family.
n36 If a murderer failed to pay this fine, he or she was deemed an outlaw
and abandoned by the community. Denied the protections of communal law, the
offender could be killed with impunity. In addition to paying the victim's
family, the murderer had to pay a separate fine to the King. n37
Eventually, under feudalism, the King started to take the murderer's entire
compensatory payment, and murder became considered a breach of "the
King's peace." n38 As such, the victim's family lost the burdens and
benefits of the blood feud, including the right to satisfaction, which
usually consisted of monetary compensation or the determination of the
The Norman invasion of England in 1066 again introduced a system of private
prosecution. The "appeal," as the new system was called, involved
a pri-vate accusation made by the victim or victim's family against the
suspect. n39 The appeal placed the entire burden of proving an accusation
on primary or secondary victims. n40 Public prosecution only became
feasible with the centrali-zation of the modern state and legal system, n41
which involved both a loss and gain for the victims. When the task of
private prosecution was lifted from vic-tims and kin, the burden of resource
allocation shifted to the state in vindicating the wrong. An element of
personal involvement and satisfaction was also sacri-ficed as victims were
relegated to the status of passive participants in the process.
The American colonies imported their traditions from English common law and
repeated the same general pattern as the earlier Anglo-Norman systems,
shifting from private to public prosecutions as the governments of the
colonies became more organized. n42 By the founding of the republic,
separate rights for victims were not given the force of law in the Bill of
Rights or elsewhere. n43 Once again, the power to enforce the law shifted
from ordinary citizens to professionals in an organized juridical field.
Only the state or federal government [*225] had standing in a
criminal action and the state generally collected any fines. Crime victims
were relegated to the sidelines and valued mainly for their testi-mony in
court. While modes of private vengeance still existed in organized
vigi-lante movements, including lynching, and in the ritualized violence of
duels, these were emphatically extra-legal forms relegated to the margins
of society. n44 Considering this ignominious genealogy, it is not
surprising that some consider the modern invocation of "victims'
rights" (along with "outsider jurisprudence") to be a
sinister throwback to darker times. Others, however, cast it as another
positive development alongside all social movements for the inclusion and
empowerment of oppressed groups. n45
The transition from private justice to public prosecution has been a
recurrent and powerful pattern in modern legal systems. Even the most
successful counter-movement is unlikely to substantially reverse this
process. Yet, as dramatized by the Shepard case, the modern Victims' Rights
Movement at least poses a serious challenge to these settled norms. In a
modern criminal case, a prosecutor, not the crime victim, initiates and
controls the case. This method of beginning the case contrasts with civil
cases where the injured party initiates the court action. If the prosecutor
is viewed as nothing more than a stand-in for the community injured by a
crime, then it may appear, in a historical context, that the prosecutor is
merely surrogating the functions of the victim's kin. Yet unlike earlier
legal systems, the modern prosecutor acts as a surrogate for the com-munity
at large, and not simply for the primary or secondary victims. The
prosecutor typically may file or refuse to file criminal charges without a
victim's approval. This element of discretion and independence from the
will of parti-cular members of the community mark the boundaries of the
modern power of prosecution. This power is precisely what the Victims'
Rights discourse threatens to erode.
Although it may not always be useful to discuss the so-called Victims'
Rights Movement as a single unified historical development, I will do so
here for heuristic purposes by drawing on major developments and common
tendencies. The movement's genealogy is not so simple. Compensation schemes
for crime victims have been revived as a feature of common law systems
since the 1950s, when the English penal reformer Margaret Fry proposed
these schemes in England, New Zealand, and California. n46 Around the same
time, a new school of criminology, called victimology, was developed to
focus on the behaviors of victims in studies of crime. n47 This emerged as
the first distinctively "victim-centered" discourse, but tended
toward a "blame the victim" approach rejected [*226]
by the later Victims' Rights Movement. n48 As a grassroots political
movement, the emergence of the Victims' Rights Movement in the early 1970s
can be as-cribed to a confluence of historical forces. Some have described
the rise of the Victims' Rights Movement as a response to the abolition and
procedural rights campaigns launched by the NAACP Legal Defense and
Educational Fund in the mid-1960s, which initially succeeded in securing
enhanced procedural pro-tections for capital and other criminal defendants.
n49 In this context, the move-ment is an expression of popular resentment
towards Supreme Court decisions that extended constitutional rights of
criminally accused and while holding that victims have no "judicially
cognizable interest in the prosecution ... of ano-ther." n50 Others
trace the Victims' Rights Movement to the efforts of women's groups in the
early 1970s "to inform the public about the problems that rape victims
encounter in the criminal justice system", eventually broadening to
include address the treatment of crime victims in general. n51 In time, the
broader movement that grew out of grassroots feminist practice and
"law and order" rhetoric of the political Right in the 1980s
converged on a common language, which translated forms of "rage"
into formal remedies and rights. In 1982, President Ronald Reagan appointed
a Task Force on Victims of Crime that pub-lished a report concluding that
"innocent victims of crime have been overlooked, their pleas for
justice have gone unheeded, and their wounds - personal, emo-tional, and
financial - have gone unattended" and recommended ratification of a
constitutional amendment to guarantee the protection of victims' rights.
n52 In 1984, Congress passed the Victims of Crime Act, which redirected
revenues from bail forfeitures and criminal fines to help fund state victim
assistance programs. n53 While at least twenty-nine states have amended
their constitutions [*227] to protect victims' rights, n54
efforts at amending the U.S. Constitution have met with considerably more caution
The main obstacle to the "rights" aspect of the movement is the
concern that these would conflict with or trump defendants' rights. In
recent years, however, the popularity of Victims' Rights has caught up
culturally, though not legally, with defendants' rights. The Victims'
Rights Movement's recent accomplish-ments include the drafting of victims'
bills of rights, several international Victims' Rights conferences, and
numerous victim assistance programs. n55 Des-pite a continuing association
with right wing politics, Victims' Rights has also entered the mainstream
political agenda. The studiously centrist Clinton administration made this
presence obvious through its support for the Victims' Rights agenda. Under
that administration, the Justice Department doubled its victims assistance
budget to $ 400 million, and President Clinton supported the movement by
insisting that ""the only way to give victims equal and due
con-sideration' is to amend the Constitution." n56 Though the current
Bush admini-stration has not yet stated a position on the Victims' Rights
agenda, it seems unlikely that they will be any less enthusiastic. n57
[*228] If a common agenda can be ascribed to the Victims'
Rights Movement, its main objectives include compensation, participation,
and closure. Compensation
usually refers to material restitution that is intended to restore victims
roughly to their positions before the harm. Participation is more
complicated and might include, for example, the right to be notified in
advance of any court hearing in a case, the right to be consulted before a
plea bargain, the right prior to sentencing to give statements about the
crime's impact, and the right to be notified of a criminal's parole
hearing, release date, or escape from prison. n58 Typically, proponents of
Victims' Rights emphasize its modest goals (such as participation as
"notification" or as "adding voices without subtracting
any") while opponents emphasize its potentially far-reaching consequences.
For example, according to Professor Paul Cassell, a supporter of Victims'
Rights, crime victims have a right to be present during proceedings and
their presence would incur minimal costs. n59 On the other hand, Victims'
Rights opponent Bruce Shapiro refers to one aspect of the movement as a
"vengeance-rights lobby," and sees the pro-posed victims' rights
amendment as "upending the historic purpose of the Bill of
Rights" to protect the disadvantaged. n60 The third demand of closure, the most subjective and
elusive goal, often goes beyond mere participation and relies on the result
of a case.
It is important to note that Victims' Rights discourse, as it relates to
murder victims (and therefore often the death penalty), has distinctive
characteristics not shared by the Victims' Rights Movement as a whole.
First, the emphasis on restoration and material compensation to the
families is less pronounced in death penalty discourse because a murder
victim's family cannot be restored their lost loved-one or fully
compensated by monetary means. Where it is proposed, com-pensation is
merged with the penalty itself as an additional punitive measure rather
than as a means to do away with the bad consequences of the offense.
Otherwise, it takes the form of other conditions on a sentence, such as an
Secondly, in murder and death penalty cases, participation is seen as a
valu-able means to influence the sentencing. In these cases, the persons
claiming the [*229] victims' rights are secondary victims. In
non-death penalty cases, the insertion of primary victims into the criminal
process does not have an assuredly positive valence because their
experience may replicate the trauma of the crime, requiring them to
"relive their victimization." Secondary victims, on the other
hand, most often experience victimization as grief and loss, rather than
violence. n61 In the murder context, then, any ambivalence about victim
participation dissipates be-cause secondary victim participation is
perceived not as repeated victimization but as a therapeutic means to deal
with grief and achieve closure.
In tailoring the Victims' Rights discourse to the families of murder
victims, the focus shifts away from compensation and meaningful
participation, although both elements are present, and moves toward closure. Demands for participation
and compensation of victims, rather than being given value in themselves,
are invested in obtaining punishments that are thought to provide closure: capital punishment or
life without parole. In seeking closure,
victims' families and their supporters typically lobby for swifter
executions or longer prison terms. n62 Facilitating closure can certainly include elements of compensation, such
as an apology, or participation, such as victims' impact statements or the
viewing of executions, but these are subordinated to what has become the
primary focus of "closure"
discourse - punishment. n63
Sociologist David Garland suggests that we should give attention to the
"cultural role" of punishment, to how forms of punishment
"create social mean-ing and thus shape social worlds." n64 Others
have called this the "expressive function" of law and punishment.
n65 Penal scholar Joseph E. Kennedy claims that "the public's
attitudes toward issues of punishment are driven more by sym-bolic concerns
about values than by instrumental concerns such as the actual reduction of
crime," and thus claims support for the death penalty is "rooted
in the symbolism of society's willingness to provide the ultimate
punishment for [*230] the most serious crimes." n66
According to Garland, punishment can be under-stood as a set of signifying
practices that "teaches, clarifies, dramatizes and authoritatively
enacts some of the most basic moral-political categories and distinctions
which help shape our symbolic universe." n67 What I refer to here as
the "expressive" role of law is more generally the translation of
emotions into cog-nizable rights and remedies. Martha Nussbaum has said:
In appealing to emotion, we are appealing to especially
deeply rooted judgments about what is worthwhile... . If social
institutions are not altogether corrupt, there is reason to hope that
emotions will contain an accurate record of a citizen's deepest attachments
and commit-ments ... . So there is reason to think that appealing to
emotions might conduce to good reasoning rather than the reverse. n68
The expression of "rage" accompanied by rights-consciousness has
helped the Victims' Rights Movement cross uneasily into articulating rights
and remedies in the juridical field. According to John Brigham:
Rage, as an ideological form, calls attention to the roots
of a system; thus rage is counter-hegemonic. It counters the claim of
sovereign institutions to command obedience, substituting its own form of
meaning for others, whether of a conventional sort or imposed with force.
What then is the value of rage in the transformation of our legal
institutions? The question here is not whether the expression of rage is
generally legitimate or maladaptive within the legal system, n70 but how it
can be catalytic of rights and remedies. Rage can be seen as an originary
moment in the mobilization of interests and sentiments, which are later
articulated in the demands for remedies and rights. In its level of
rhetorical sophistication, the Victims' Rights Move-ment has moved beyond
rage toward the articulation of remedies, but has not yet gained many
formal constitutionally guaranteed rights. This could indicate that the
movement is still at an early stage of communicating their rage in
"rights talk." Martha Minow has said that the consciousness that
leads to rights-talk "is not simply awareness of those rights that
have been granted in the past, but also knowledge of the process by which
hurts that once were whispered or unheard [*231] have become
claims, and claims that once were unsuccessful, have persuaded others and
transformed social life." n71 For the Victims' Rights Movement, the
task at hand is the transformation of rage into a quest for remedial
measures at the state and federal levels, and finally for constitutional
The issue of whether "victims" can be considered a viable
rights-claiming constituency turns on whether they can actually be
identified as a group and granted generalized rights and remedies. The
threshold question for any general-ized remedy for victims is, "Who
counts as a victim?" Even primary victims, where they survive, do not
have "standing" in a criminal prosecution. Standing is a
considerably greater obstacle for secondary victims. Thus, as we will
dis-cuss in terms of victim impact statements and the proposed Victims'
Rights Amendment, persistent questions arise of what relationship a
secondary victim must have to the decedent in a murder case. The legal
definition of "victim" is merely the first of a number of
questions that demand an answer about the identification of victims.
While the existing Victims' Rights Movement faces an uphill battle in
trying to articulate coherent standards for "victim identity"
within the juridical field, it has already had some success in leading (and
misleading) broader cultural notions of victim identity. On one hand,
victimization may serve as a catch-all "politicized" identity to
mobilize political participation and activism for legal rights. At the same
time, cultural images propagated by the Victim Rights Movement tend to
obscure important truths about the facts of victimization in this country.
In important ways, the movement has managed to reconstitute the public face
of victimization. For example, the categories "victim" and
"perpe-trator" overlap much more than we are led to believe by
the Victims' Rights Movement and its expressivity in legal remedies.
According to David Garland, not only do those people who are statistically
most likely to be victimized by crime fit the same demographics as those
who are most likely to be convicted of crimes, but convicted offenders have
often actually been crime victims them-selves. n72 The public face of the
Victims' Rights Movement hides the most severely affected victims of
violent crime, sexism and racism (e.g., prostitutes or teenage black males
in the juvenile justice system) who are implicitly disqualified as
"genuine" victims in Victims' Rights rhetoric. Therefore, laws
are named after prominent sentimentalized victims - white female children
as in "Megan's Law" n73 - who constitute the public's preferred
image of a "victim" [*232] and consequently determine
the expressive function of this victim-centered legislation. Thus the movement's
construction of the "ideal community" of victims has a false
face. Unlike other politicized identifications, participation in the
Victims' Rights Movement does not necessitate the experience of
victimi-zation on a routine and systematic basis. Since we are all
potential victims, the Movement promises an "all-purpose form of
oppression for many whose contact with crime will be mainly through the
media." n74 Unfortunately, this insulates the Movement from the race,
gender, and class-based realities of repeat victims of petty and violent
crime. For this reason, the movement can actually channel its demands for
security and vengeance against some of these same groups based merely on
media images of crime. This means that cultural images of victimi-zation
can be essentialized, skewed and only then translated into
"rights." The Victims' Rights Movement's simultaneous
"gentrification of the victim" and discourse of closure also interacts with a kind
of "gentrification of revenge." Elayne Rapping says:
For in the Victims' Rights Movement's model, revenge is no longer
associated with the disreputable "vulgarity of young lower-class
males," but with the most respectable, middle-and upper-class segments
of our population; those who see themselves as "victims," more
often than not, of today's version of "vulgar, lower class youth"
- usually poor inner-city blacks, the most demonized figures in media
treatments of crime today. n75
The Victims' Rights Movement seems poised to give meaning to
"victimization" and to convert group rage into rights and
Claiming victimization and claiming rights are gestures constitutive of
participation in legal expressivity. However, access to the expressive
function of law, to vindication of emotions and entitlements through the
law, is necessarily limited to persons with legal standing. The modern
Victims' Rights movement has concentrated on winning standing, and
therefore gaining access to the expressive function of law, in two areas: a
proposed Victims' Rights Amend-ment and victim impact statements.
B. The Victims' Rights Amendment
As socio-legal scholar Jonathon Simon has recently reminded us:
Crime is not necessarily a wedge issue. Almost all demographic segments of
the population, and both political parties, supported [Victims' Rights]
measures. On the other hand, one may fear that they [*233]
produce a kind of false unity around narratives whose compelling facts
provide potent political mobilization but little mandate to govern. n76
Certainly, the popular sympathy for crime victims is so prevalent that
there might eventually be sufficient political mobilization to secure the
passage of a measure like S.J. Resolution 6, the proposed Victims' Rights
Amendment to the Constitution of the United States. This resolution was
first introduced in the 105th Congress on January 21, 1997 by Senators
Dianne Feinstein (D-Cal) and Jon Kyl (R-Ariz), but it has been stalled ever
since despite wide support from members of both parties. According to the
language of the proposed amendment, individuals who are victims of a crime
for which the defendant can be imprisoned for a period longer than one year
or crimes that involves violence would have the following rights:
(1)"to notice of, and not to be excluded from, all public proceedings
relating to the crime;"
(2)"to be heard, if present, and to submit a written statement at a
public pretrial or trial proceeding to determine a release from custody, an
acceptance of a negotiated plea, or a sentence;"
(3)"to the rights described in the preceding portions of this section
at a public parole proceeding, or at a nonpublic parole proceeding to the
extent they are afforded to the convicted offender;"
(4)"to notice of a release pursuant to a public or parole proceeding
or an escape;"
(5)"to final disposition of the proceedings relating to the crime free
from unreasonable delay;"
(6)"to an order of restitution from the convicted offender;"
(7)"to consideration for the safety of the victim in determining any
release from custody;" and
(8)"to notice of the rights established by this article." n77
The debate around this amendment centers on the questions of how these
aspirational "rights" can be enforced as law and what enforcing
them would do to our criminal justice system. How would the amendment
interact with other constitutional principles such as protecting individual
rights and making the system more politically responsive? On one hand, the
Constitution has never provided affirmative entitlements to one class of
citizens from the government and over other citizens - least of all to a
class of citizens who are as politically powerful as "crime
victims" under current state statutes and constitutional amendments.
On the other hand, an amendment might pose little danger since the
"rights" listed above merely provide a laundry list of the kinds
of protections [*234] already provided in state statutes and
amendments. n78 In addition, since none of the rights delineated actually
pertain to the fact-finding portion of a case, they may have little effect
on the accuracy of criminal trials.
Looking carefully at the rights of a victim delineated in the amendment language
itself, the remedies outlined do not truly ask the state to redistribute
its protections for one group at the expense of another. As a
constitutional matter, opposing the category "victims' rights" to
"defendant's rights" makes a degree of sense. Nevertheless, this
is not a zero-sum opposition. For example, the defendant's rights are not
reduced where the victim is simply given the same right as the defendant to
know when the case comes before the court and when the offender is once
again on the street. The defendant's constitutional rights could also be
protected where the victim has the right to address the court only after
the offender has been found guilty. These kinds of demands do not
neces-sarily subtract from procedural fairness. However, particular
sections of the pro-posed amendment do seem to conflict with existing
constitutional values. For example, the proposed victim's right to have the
defendant's trial free from unreasonable delay is not necessarily
compatible with a defendant's own right to a fair and speedy trial. This is
especially true if the question of what is "unreasonable" no
longer refers merely to delays that might prejudice the defendant's right
to a fair trial, but also those delays that might frustrate a victim's
interest in closure. The
fairness of a trial could be compromised if the timeliness of a trial is
determined by conflicting standards. To avoid infringing on defendants' rights,
the various rights to victim participation in the amendment should not be
read to imply more substantive entitlements, such as determining the
content of a negotiated plea or a sentence.
Years of grassroots mobilization have helped overcome some of the
aw-kwardness of defining "victims" as a viable political
constituency, but they still make little sense as a constitutionally
protected category. Regarding the ques-tion of who is a victim, the group
Murder Victims' Families for Reconciliation has asked:
Would a battered woman convicted of assaulting her batterer be required to
provide financial compensation to the batterer? Would the surviving family
members of a murder victim be considered victims? If so, which family
members? ... What about cases where victims of the same convicted offender
disagree on sentencing or release issues? n79
The threshold questions involve victim identity (i.e., "Who is a
victim?" "Which victims count?"). n80 The proposed amendment
treats the term "victim" [*235] as self-defining. To
be sure, a high level of specificity would be unusual for a constitutional
amendment, but it would seem that the amendment is both unenforceable and
indeterminate without such a definition. Since constitutional entitlements
hinge on the term "victim," we could expect a near-constant
stream of litigation seeking to define this status for its attendant
entitlements. The amendment might properly cover living primary victims but
still be entirely unenforceable by secondary victims. Yet the rhetoric of
the national Victims' Rights Movement historically has included murder
victims' families without addressing this dilemma. Do secondary victims
include close friends of the victim, live-in partners, estranged
grandparents, abusive spouses, long-lost cousins, illegitimate children,
secret admirers, or close relatives with severe Alzheimer's who remember
little of the primary victim? As far as legal relevance goes, it is hard to
justify any of these people playing more of a role in the proceedings than
interested witnesses. Even in the clearest cases of loss of consortium,
such measures are still objectionable because they privilege partici-pation
and emotional well-being of crime victims over other purposes of the
criminal trial. n81 This is the kind of expressivity that is best left to
discrete statutes and experimentation by the "laboratories" of
state law. The constitu-tional amendment process should be reserved for the
enduring expression of values, not appeals to emotion or momentary social
panics. Because of the diffi-culty of the process of amendment and
re-amendment, the Constitution cannot be used merely for the vindication of
the emotional harms of an ill-defined class of persons. n82 The Victims
Rights Amendment so far has failed to get beyond a favorable report in the
Senate Judiciary Committee. n83
C. Victim Impact Statements
Some of the conceptual problems that would arise in any Victims' Rights
Amendment are already playing themselves out in the context of victim
impact statements. Victim impact statements are statements given before a
sentence is pronounced, allowing the victim greater participation in the
disposition of the case and often seeking to contrast the innocence of
victims with the guilt of the offender. Prior to 1991, victim impact
evidence was not allowed in capital mur-der trials. In the 1987 case Booth
v. Maryland, the United States Supreme Court [*236] held that
the use of victim impact statements, describing a victim's personal
characteristics, the impact of the crime on the victim's family, and the
family members' opinions and characterizations of the crime, "creates
a constitutionally unacceptable risk that the jury may impose the death
penalty in an arbitrary and capricious manner." n84 In 1991, in Payne
v. Tennessee, the Court reversed direction and permitted the use of victim
impact statements in the sentencing stage of capital cases accepting them
as simply another form of relevant infor-mation. n85 In this case, however,
the Court held that "if the State chooses to permit the admission of
victim impact evidence and prosecutorial argument on that subject, the
Eighth Amendment erects no per se bar." n86 In Payne, the Court
overruled Booth to the extent that Booth prohibited the use of victim
impact evidence describing the personal characteristics of victims and the
emotional impact of the crimes on victims' families. n87
Accepting the Payne decision in Weeks v. Commonwealth, the Supreme Court of
Virginia affirmed the trial court's admission of victim impact evidence and
rejected Weeks's argument that the testimony was not relevant to the jury's
sentencing decision. n88 Citing Payne, the court held that "victim
impact testimony is relevant to punishment in a capital murder prosecution
in Virginia." n89 But while Weeks seemed to hold that all such
evidence would be admissible and relevant, in Beck v. Commonwealth, the
same court held that such testimony is admissible provided it is relevant.
n90 The court explained, "The statutes do not limit evidence of victim
impact to that received from the victim's family members. Rather, the
circumstances of the individual case will dictate what evidence will be
necessary and relevant, and from what sources it may be drawn." n91
The test for admissibility remains relevance; this does not provide
automatic access for secondary victims and it is certainly not an amorphous
appeal to closure. In a
capital murder trial, as in any other criminal proceeding,
[*237] the determination of the admissibility of relevant
evidence is within the sound discretion of the trial court subject to the
test of abuse of that discretion.
In criminal proceedings, the expressive capacity of victims of crime and
their families is extended through the use of victim impact evidence. This
evi-dence is designed to play out the way Shepard's statement did - as a
ghost story, resurrecting the voice of the dead. Austin Sarat describes
victim impact evidence as moving the victim "from anonymity to
embodiment, from absence to presence[;] ... [it] becomes a vehicle for
resurrecting the dead and allowing them to speak as their killers are being
judged." n92 The problem with victim impact statements is that they
could create an overemotional expression in trial procedures that is driven
by imperatives of closure
and satisfaction for the victim. n93 As we have seen, opponents of victim
impact statements and the Victims' Rights Amendment trace the genealogy of
such victim participation to an earlier era of "individual retaliation
and vigilante justice." n94 Proponents claim these rights and remedies
"restore victims to their traditional role in the criminal justice
system." n95 What is "restored" depends a great deal on what
was lost in the first place. Indeed, when the state took over prosecutions,
an element of personal involvement was sacrificed. Charitably, it can be
called a "return" to participation ("voice" or
"inclusion"). In more Nietzschean terms, though, it must be
recognized that, in the transition to public prosecution, victims and
survivors were forced to sacrifice a more positive pleasure, a "will
to power" or "will to closure"
over the voice of the criminal accused, or in the rawest connotation of the
word - satisfaction.
The previous sections should provide an adequate legal-historical context
for the following analysis of "a will to closure" or "satisfaction." Here, I take a more
interdisciplinary approach to the question of closure. Just as in blood feuds, where "demanding
satisfaction" was a formalization and rationalization of secondary
victims' cathartic needs, so today is the demand for "closure." "Closure"
and "satisfaction" are twin notions of catharsis that are
reflected differently in the familiar markers of our culture. n96 Of these
two notions of [*238] catharsis, the term
"satisfaction" is today a poor relation to closure, the crazy cousin hidden
in the attic. In political discourse, such as the debate over the Victims'
Rights Amendment, "closure"
is somehow presented as a rational and dispassionate matter of political concern,
emptied of its emotional underpinnings and distanced from the viscerality
of "satisfaction." The tenuous distinction between "closure" and
"satisfaction" tracks the similarly unsound distinction between
"retribution" and "vengeance." In each case, the former
is a sanitized version of the latter. The idea of "closure" for victims has been
explored in the therapeutic context (grief and finality) and
"satisfaction" has been whispered in the context of punishment
(vengeance and finality), but as victims move to the center of the criminal
trial, the lines are again blurring between the two con-cepts. n97 It is
not that raw emotional retributivism never finds its way into our legal and
political discourse; it is simply that it is often disguised or displaced
into other precincts of culture. Unlike "closure," which has a solemn and tem-perate ring to it,
"satisfaction" seems a vulgar yearning, perhaps even
libidinally-structured, like a young Mick Jagger swaggering and posturing
and screaming his frustration, "I can't get no Satisfaction!" n98
This is obviously not an ontological statement about the impossibility of closure, but a personal and
individualized expression of emotion. It suggests a visceral craving, like
the insatiable desire for gratification or a "fix." Such
expressions of emotional intensity - whether in the form of lust, grief,
disgust, shame, or yearning - are regularly disqualified from legal
discourse. n99 Yet achieving satisfaction, reaching the threshold of
appropriate catharsis and expiation, dramatizes the individualized
"need" for closure
expressed by many victims. Other glimpses of popular culture suggest the
visceral nature of satisfaction. Elayne Rapping ana-lyzed her experience
viewing the movie Death Wish upon its theatrical release in 1974. n100 The
narrative of the film centers around the protagonist seeking revenge after
the brutal murder of his family. Rapping linked the gratification of the
audience with the impulses that led to the burgeoning Victims' Rights
The audience cheered more loudly at each burst of vengeful gunfire ... .
[It represented] the beginning of a slow but insidious trend in national
consciousness and criminal justice policy away from the [*239]
liberal policies of the Warren Court, with its concerns for the rights of
defendants to be protected from possible abuses by the engines of the
Others have noted the incongruence between the celebration of retribution
in popular culture and the muffling of retribution in legal culture. For
instance, legal theorist William Ian Miller produced a substantial study on
Clint Eastwood vigilante films, describing revenge as a style of doing
justice. n102 Although disqualified from the juridical field, vengeance is
still one of the guilty pleasures of popular narratives like movies. It
provides a visceral satisfaction and narrative closure; it can excite and edify. In life and in law, however,
remedies aimed at closure
often partition off the emotional content that drives them: rage,
vengeance, and satisfaction. More recently, however, the term
"satisfaction" is again gaining respectability in legal
discourse, resonating with utilitarian theories (i.e., those directed
toward the maximization of pleasure and minimization of pain), and merging
with the relatively solemn and quasi-clinical term "closure." As "closure,"
catharsis is not viewed as a Nietzschean "will to power," but
perceived as necessary for victims' recovery process.
"Satisfaction" re-enters legal discourse as the state finds
itself setting up performances for and through victims. Achieving the
efficacious experience of emotional satisfaction is presumed to be the goal
of these performances: when victims view an execution, when victims make
statements before and after sentencing, statements after a conviction
approving the punishment, and when victims sometimes address convicted
criminals after sentencing. These maneuvers are widely seen as valuable
because they appear to address victims' desire for closure, although their actual therapeutic value remains
Two related dilemmas emerge as the rhetorical landscape of the death
penalty shifts toward the primacy of the secondary victim and toward
victim-centered notions of closure.
Firstly, Victims' Rights discourse often slips between addressing the
expressive needs of individual victims and the expressive goals of the
larger "community." Secondly, individual requirements for "closure" are so personal that
it would be difficult to conceive of any general-ized remedy that could be
properly tailored to this purpose. On the level of a social movement, the
"rage" expressed by the Victims Rights Movement is not that of
individual cases, but a collective rage over the disparity between rights
available to defendants and victims. On another level, this discourse is
often concerned with ways to "individualize" the victim's
satisfaction in a given criminal case. Because the "felt" harms
of victimization are so individual and subjective, the victims'
satisfaction cannot be determined in advance by ready- [*240]
made legal procedures, but can only be achieved by expressing individual
desires and inserting these into the process.
These same dilemmas can be recast in philosophical terms. Retributive and
utilitarian theories of punishment seem to support the idea that providing
"satisfaction" is a worthy goal of punishment. In his book,
Justifying Legal Punishment, Igor Primoratz explains: "Any pain, any
evil inflicted on the of-fender can be a source of [vindictive]
satisfaction, first for the victim, and then for all those who, for
whatever reason, feel indignation at the offense committed and want its
perpetrator punished." n103 However, such theories of punishment
merely restate the dilemma between "individualizing" and
"collectivizing" satisfaction in the apparent contrast between
individual vengeance and social retribution. n104 According to
retributivist Paul Boudreaux, individual vengeance is the "desire to
punish a criminal because the individual gains satisfaction from seeing or
knowing that the person receives punishment." n105 This is the kind of
satisfaction that a victim is supposed to experience when she is allowed to
view an execution or influence a sentence. Boudreaux also claims that
social retri-bution is merely an aggregation of individual desires, which
ultimately provide the justification for punishments. n106 In my view, the
demands of individual ven-geance and social retribution cannot be so easily
reconciled. Just as individual desires are vastly different from each
other, "social retribution" cannot merely reflect one set of
individual desires. Indeed, under a properly utilitarian analysis, the
evils produced by victim-centered measures must be weighed against their
benefits to society as a whole. Whatever the actual merits and psychological
benefits of individualization of victims' experience of the process (e.g.,
"right to view" statutes or "post-sentence victim
allocution"), n107 the social costs of an aggressively victim-centered
discourse should be clear: it takes the focus off blameworthiness and
individualization of the criminal accused, and attends to contingent and
Though victim-centered proposals seem to flow from retributivist and
utili-tarian theories of punishment, these theories do not automatically
endorse pro-viding victims with closure
or satisfaction. Although the accepted motivation behind punishment is
society's need for satisfying its retributive impulse, the expressivity of
punishment can always be rationalized by a formula that suggests its
necessity and proportionality, such as the ancient jus talionis ("an
eye for an [*241] eye") or the more recent "just
desert" theory. Indeed, even some of the leading jurisprudential
defenders of a "turn to emotion" insist emotions are valuable in
law only insofar as they can guide our ability to reason. Martha Nussbaum
has said reasoning can be aided by emotions because emotions "contain
an accurate record of a citizen's deepest attachments and
commitments." n108 In the context of punishment, Robert Gerstein has
referred to a "kernel of rationality ... found in the passion for
Assuming it is possible, should we individualize the delivery of closure? Even if the notion of
victim satisfaction can be a legitimate consequence of punishment, what
kind of satisfaction should we aim to produce? Should we aim to provide
emotional closure associated
with the cessation of grief, or should we seek to achieve immediate and
efficacious satisfaction to individuals who associate their need for closure with feelings of vengeance
If closure is directed at
grief, then it is unlikely that legal and procedural remedies can even
begin to address this powerful emotion. Countless jour-nalistic treatments
have followed the human interest stories of victims seeking closure. Among the best of these
is Eric Schlosser's celebrated article in the Atlantic Monthly, which
tracks the stories of murder victims' families and finds that grief unfolds
for each person without a foreseeable course. n110 The patterns of mourning
following a homicide are complicated because grief "may be prolonged
by the legal system, the attitudes of society, the nature of the crime, and
the final disposition of the case:" n111
After a murder the criminal-justice system usually delays and disrupts the
grieving of the victim's loved ones. If the murderer is never found, the
death lacks a sense of closure;
if the murderer is apprehended, the victim's family may face years of legal
proceedings and a resolution that is disappointing. Insufficient evidence
may lead the prosecution to drop charges or to reduce them from murder to
manslaughter. Co-defendants may be given a lesser punishment, des-pite a
role in the murder, in order to obtain their cooperation. Each new hearing
may stir up feelings that were seemingly laid to rest. n112
One secondary victim explained: "You never bury a loved one who's been
murdered, because the justice system keeps digging them up." n113 The
untidy heap of emotions that occurs is nearly impossible to pull apart;
grief and the desire for vengeance mix uncomfortably with shock and
numbness. n114 In this [*242] context, the requirements of closure and satisfaction are
difficult to identify, let alone achieve, though a judicial process
competent only to charge, prosecute, and sentence the offender whose crime
caused the secondary victim's grief. Courts cannot bring about the ultimate
moment of cessation in an infinitely more complicated process of grieving.
Still, courts and legislators, propelled by the Victims' Rights Movement,
have formulated ever more elaborate ways to deliver closure to victims. One of the most common of which is the
viewing of executions. Looking at the reac-tions of secondary victims in
prominent murder cases, however, it becomes all the more apparent that
individual reactions to a crime and the success of punish-ment in creating
conditions of closure vary
widely. Considering some reported expressions of grief and closure, it appears that the mere
fact of an execution does not necessarily produce the desired feeling of closure that the system seems to
wants to deliver. On one side we have statements that suggest the
impossi-bility or at least the difficulty of achieving closure, which range from
disappoint-ment over unchanging grief and confusion n115 to a lack of
visceral satisfaction. Some of victims who are the most invested in having
a killer executed and/or witnessing the execution, report this latter
experience. A typical statement is that of Elizabeth Harvey, one of the first
relatives to view an execution under Louisiana's "right to view"
statute, who stated: "[The prisoner's] death was not near what my
daughter went through. He had his last meal, his friends all around."
Michael Radelet, a sociologist who has written several books on the death
penalty indicated that the focus on closure
discourse merely invites a cruel ex-ploitation of grieving families:
"The families get used and co-opted ... . I don't even know what the
term "closure' means.
Someone kills your child, there is no closure." n117 As far as visceral satisfaction goes,
another expert has said, "We're talking about revenge, and it's not
clear to me that revenge changes one's long-term ability to deal with
Nor is it clear what actually would deliver visceral satisfaction in the
short term. At a meeting of the New Orleans Chapter of Parents of Murdered
Children, a man stated: "I got to witness the son of a bitch fry who
killed our daughter. The chair is too quick. I hope he's burning in hell."
n119 Sometimes it [*243] even seems that perhaps satisfaction
can only be delivered through extra-legal means. Upon hearing of the murder
of Jeffrey Dahmer in prison, Janie Hagen, the sister of one of Dahmer's
victims, decided to send a thank you to the culprit; she told reporters,
"I'd like to know him and get to talk to him ... . He's my hero."
n120 On the other hand, it is notable that so many of the statements
expressing enthusiasm about the process being able to deliver closure are taken from or published
or expressed or said before the actual execution, in antici-pation of closure. Nine years after two men
killed his parents, Brooks Douglass, an Oklahoma state legislator,
expressed his need for closure
in an editorial in USA TODAY: "[I want] closure on an era of my life into which I never chose to
enter. Closure of years of
anger and hate... . I believe I will find closure with [one of my parents' killers] watching him
die." n121 Even the victims most expectant of gaining closure or satisfaction through participation
in a trial and execution are often left emotionally hollow. Despite common
expressions of relief and jubilation immediately following an execution,
close attention to the long term impact of executions on victims' families
would probably confirm that viewing them does not do much one way or the
other for victims' families. n122
Consider how in an individual victim, several conflicting emotional
res-ponses can quickly chase and overwhelm one another. Take for example
Linda Kelley, the mother of two children who were brutally murdered, and
the first secondary victim to view an execution in Texas under the Parole
Board's new policy. Before the execution of killer Leo Jenkins, Kelley
stated, "Other people have witnessed executions, and they find it's
like a closure. It has to
help." n123 After the execution, she used language of rejoicing
appropriate to a closure-optimist:
"I'm glad it's over and I'm glad it's done and I'm glad he's off this
earth." n124 She also reported feeling anger and some misgivings about
his last words, but she still expressed overall approval of the process:
"I was angry. I was angry at him when he died... . I don't want
remorse. "I'm sorry' just doesn't get it ... . The best thing he could
do for me and my family is to go through with this, to die." n125
During a news conference, she reportedly "grew angry as she described
her feelings." n126 She expressed ambivalence that Jenkins was
"getting out of this" and "will have no more pain." n127
She eventually [*244] questioned whether her earlier sense of closure was real or meaningful:
"I'm trying to make myself realize that even when I'm back home ...
and [the execu-tion] is all over, [my children] are still gone and we still
have to live with this." n128 This is not to say that Kelley changed
her mind or regretted viewing the execution, but it is understandable if
the closure that the viewing
statute provided her was momentary and illusory.
Considering confusion in a single victim and the diversity of reactions
among different victims in their individual circumstances, one can imagine
the cacophony of emotions emerging from victims of an act of mass violence,
such as the Oklahoma City bombing or Colin Ferguson's Long Island train
massacre. In such cases, the public's attention, the victims' wrenching
testimony, and calls for retribution are greatly multiplied, as is the
difficulty of individualizing the victims' satisfaction. If the expression
of individual victim desires in murder cases would lead to widely different
outcomes and open the door to dangers of the inherent inconsistency in the
way we deal with the rights and issues for similarly situated people, n129
the aim of "individualization" faces a different kind of
difficulty when applied to a case of mass violence. With multiple victims
of a single crime by a single defendant, the subjective requirements for closure can be complicated and
In an act of violence of a large scale, another possible response comes to
the fore: the desire to extend forgiveness or mercy. This was the eventual
response from some of the secondary victims of Timothy McVeigh's bombing of
the Alfred P. Murrah building in Oklahoma City, where 168 people died. n130
After months of wanting vengeance, of wanting to see McVeigh "fry,"
Bud Welch, a primary victim's father, concluded, "I'm not going to
find any healing by taking Tim McVeigh out of his cage to kill him. It will
not bring my little girl back." n131 [*245] Welch joined a
number of Oklahoma bombing victims' families who lobbied to stop McVeigh's
execution, but the jury never heard their stories. n132 In perhaps the most
widely watched case involving the mass vocalizations of victim-impact
testimony, exactly which victims' stories would count was determined by a
prosecutorial strategy aimed at an execution. n133 This effectively barred
victims who were opposed to execution from seeking closure by bearing witness in the legal record.
With the public use of victim impact statements at trial, and with over 240
survivors viewing the execution live or on closed circuit television, the
McVeigh case has been hailed as a triumph of the Victims' Rights Movement.
However, this case also reveals important fissures and counter-voices in
this movement. There seems to be a fundamental hypocrisy in the movement's
universalistic goals of providing "rights" and individual closure to all victims, and its
exclusionary gestures toward particular victims: the Victims' Rights
Movement's calls for empathy and procedural fairness are eviscerated when diverse
views on punishment are disallowed. While evidence of primary victim impact
can be distinguished from evidence of the opinion of a victim's family
member that the death penalty should not be imposed, there is in practice
no real distinction between families demanding execution so they can have closure and families demanding a
different sentence so they can have closure.
To be sure, contests between vengeance and mercy as routes to closure should not distract from
the fact that this is still the prosecutors' case, not the victims'.
The inclusion of secondary victims is objectionable at many levels, not
merely because it makes executions more likely. Thus, all of my
aforementioned objections to the relevance of victim impact evidence should
apply also to pleas for mercy. The inconsistency in determinations of
relevance between victim testimony that calls for retribution and victim
testimony in favor of mercy rele-vant is nonetheless clearly unacceptable
in itself. As I will try to make clear in the next section of this essay,
questions of mercy and forgiveness are potentially as central to any
victim-centered jurisprudence as those of vengeance and satisfaction.
An act of mercy is a very high and concentrated expression of power, for it
presupposes condemnation. n134
[*246] When I saw his hands cuffed behind him and the noose
around his neck and everyone was waiting for my order, I thought that first
of all if this boy is dead, it will not bring back my son. n135
Mercy is the other side of closure.
An interesting counter-point to the Shepard story is that of Iranian father
Ali Mohebbi who, under Iranian law, was able to forgive his son's killer -
seventeen-year-old Morteza Amini Moqaddam - and give this decision the
force of law. n136 Mohebbi forgave Moqaddam minutes before he was to be
hanged in a public square in Iran. Here, the extreme of power and
performance that is mostly imagined in Dennis Shepard's statement to Aaron
McKinney ("I give you life") is fully realized. As the late
writer Elias Canetti detected in the context of sovereign mercy:
The supreme manifestation of power is the granting of a
pardon at the last moment. When the execution of the death sentence is
imminent, on the gallows, or in front of the firing squad, a pardon has the
appearance of new life. The limitation of power is its inability to bring
the dead back to life; in acts of mercy long withheld, the mighty can
imagine themselves as having overcome this limitation. n137
The private power of mercy evokes an ancient kind of sovereignty, a power
over the life and death of the convicted murderer. In our own legal system,
it is precisely the power of effective mercy that is supposed to be
surrendered to the sovereign and not left in the hands of private citizens.
At first glance, the Mohebbi-Moquaddam situation may seem precisely
parallel to the Shepard-McKinney case. Both fathers claimed to have
"spared" the killer in the name of a higher cause. Mohebbi's act
of mercy was reportedly a way to convey the symbolic values of his faith.
Shepard may have been expressing the values of "tolerance," which
seemed to take into consideration both a section of the LGBT movement's
disapproval of the death penalty and the apparently merciful sentiments of
his son. Yet in the end, Shepard's power to grant mercy might be seen as
merely illusory. In Jeffrie Murphy's terms, a murder victim's family only
has "standing" to forgive, but that forgiveness does not have the
legal authority of mercy. Only the state has the authority to punish the
murderer or to grant that murderer mercy, but the state does not
necessarily have the moral standing to forgive. n138 Murphy writes:
[*247] Forgiveness is primarily a matter of how I feel about you
(not how I treat you), and thus I may forgive you in my heart of hearts or
after you are dead ... . I may think I have forgiven you; but, when old
resent-ments rise up again, I may say, "I was wrong - I really have
not for-given you after all." But if I have shown you mercy, it is not
necessary that I - in showing it - must be the one wronged or injured by
your wrongful conduct. (It is not even necessary that anyone be wronged.)
All that is required is that you stand under certain rules and that I have
authority to treat you in a certain harsh way because of those rules. But
the matter is different with forgiveness. To use a legal term, I do not
have standing to resent or forgive you unless I have myself been the victim
of your wrongdoing. n139
Yet peculiarly, Shepard's posture was one of mercy without forgiveness.
Shepard told McKinney he was "showing mercy to someone who refused to
show any mercy," but also said "I will never forgive you."
Beyond mercy, Shepard also cited prudential reasons of convenience ("no
years of publicity, no chance of commutation") and retribution
("just a miserable future and a more miserable end"). Taken
together, these sentiments introduce a far less familiar symbolic universe,
one which does not simply resurrect or borrow ancient or comparative
systems of private prosecution and sovereign mercy. Whether or not Shepard
officially had the power of mercy, there can be little doubt that with-out
the Shepards' approval of McKinney's sentencing agreement, his jury would
have considered capital punishment.
While Mohebbi's forgiveness triggered an automatic grant of mercy from the
state, the family of the victim has no such official power in the United
States. The United States most closely approaches this point where
secondary victims can decisively effect whether the criminal accused will
receive the death penalty or an alternative penalty. Despite continuing
ambiguity as to the permissible scope of victim impact statements, such
statements delivered before sentencing are well-timed for this kind of
intervention and this display of power. Yet, as in [*248] the
case of the Oklahoma City bombing, the rhetorics of Victims' Rights,
participation and closure,
are asymmetrically being extended to victims who support the death penalty
and denied to others.
In light of the rhetoric of individualization of victims' desires for closure that permeates the
Victims' Rights Movement, it is hypocritical to deny mercy pleas from
similarly situated secondary victims who would be able to enter a statement
if they supported death. Evidence of a family member's opposition to the
death penalty has been disallowed in capital cases in a number of
jurisdictions. In Robison v. Maynard, n140 the Tenth Circuit considered
whether, under Payne v. Tennessee, n141 testimony from a victim's relative
that she did not want the jury to impose the death penalty was proper
mitigating evidence and admissible at the penalty phase hearing. The court
held that Payne did not make such evidence proper or admissible. n142 The
Robison court read Payne as allowing only evidence "that related to
the victim and the impact of the victim's death on the members of the
victim's family." n143 The court held that Payne did not "broaden
the scope of relevant mitigating evidence to include the opinion of a
victim's family member that the death penalty should not be invoked."
n144 If this rule were consistently applied, it would justify excluding all
victims' opinions about the appropriate punishment. Yet courts are all too
ready to assume that pleas for death or heightened punishment are relevant.
n145 Ulti-mately, the realization that allowing only views in favor of the
death penalty is hypocritical does not provide sufficient reason to
consider mercy pleas from secondary victims to be any more relevant than
pleas for death. The same problems of indeterminacy of which secondary
victims should be allowed to participate in the process plagues mercy
pleas. Thus, pleas for mercy should be treated similarly as other victim
impact statements, whether under a broad or narrow reading of Payne. The
rhetoric of individualization that caters to victims' desires for closure is dangerous, but it is
such inconsistency that is most detrimental to the administration of
Finally, understanding the Shepards' involvement in the McKinney case as an
outgrowth of the Victims' Rights Movement requires looking at more recent
developments beyond the causes of vengeance and inclusion, where
victim-talk has been used to advance the cause of mercy. The movement's
concern with [*249] "mercy-as-closure" belies the assumption in our political culture
that the procedural rights of criminal offenders and victims' protections
have a necessary zero-sum relationship. This assumption does not fully
account for the ambivalence and diversity in the movement. It would also be
incorrect to align the Victims' Rights Movement fully with the causes of
retention or abolition of the death penalty. Over the past several years,
the "voices" of murder victims have both promoted and opposed the
death penalty with equal force. The abolitionist group Murder Victims'
Families for Reconciliation n146 competes for discursive space with Parents
of Murdered Children, n147 who advocate use of the death penalty.
Heather Gert imagines the ironic case in which someone who is opposed to
the death penalty is murdered, and whose murderer is subsequently executed.
n148 Gert contends that people opposed to the death penalty should be
allowed to register their opposition in advance (similar to organ donation
or living wills) and that this should be considered in sentencing
decisions. n149 Others have imagined this same possibility outside of the
academic context. For example, in the early 1990s, Sister Camille D'Arienzo
of the Sisters of Mercy Convent in Brooklyn, New York began circulating a
"Declaration of Life," a document to be signed by death penalty
abolitionists declaring that, in the case they are murdered, the government
should not impose capital punishment in their names. n150 The declaration
reads in part:
I hereby declare that should I die as a result of a violent crime, I
request that the person or persons found guilty of homicide for my killing
not be subject to or put in jeopardy of the death penalty under any
circumstances, no matter how heinous their crime or how much I may have
I believe it is morally wrong for my death to be the reason
for the killing of another human being.
[*250] I request that the Prosecutor or District Attorney
having the jurisdiction of [sic] the person or persons alleged to have
committed my homicide not file or prosecute an action for capital
punishment as a result of my homicide.
I request the Court to allow this Declaration to be admissible as a
statement of the victim at the sentencing of the person or persons charged
and convicted of my homicide; and, to pass sentence in accordance with my
This Declaration is not meant to be, and should not be taken as, a
statement that the person or persons who have committed my homicide should
I request that my family and friends take whatever actions are necessary to
carry out the intent and purpose of this Declaration; and, I further
request them to take no action contrary to this Declaration. n151
The "Declaration of Life" movement is a grassroots effort that
distinguishes itself within the broader Victims' Rights Movement as an
attempt not only to disarm zealous prosecutors but also vengeful families.
n152 Here the primary vic-tims of a crime pre-empt the victim-claiming of
their own kin. Considering the primary victim's own declaration at
sentencing would seem the ultimate act of victim "inclusion," but
it prevents the courts from having to take complicated steps to provide closure for secondary victims. The
language of the declaration could strategically undercut even relevant
victim impact statements' calls for vengeance based on suffering or the
heinousness of the crime. Ironically, this ultimate act of inclusion is
perhaps the only way to get away from the problems of the current centrality
of secondary victims, from indeterminacy of standing to ambiguous standards
of relevance for victim impact statements urging either mercy or vengeance.
Of course, no issue as to the admissibility of the "Declaration of
Life" has yet arisen in an actual case. Perhaps, under the current
climate, the re-entry of the voice of the primary victim could be seen as
an encouraging development, and one that bears more direct relevance to a
capital trial. On the other hand, any such considerations seem attenuated from
the blameworthiness of the defendant and society's interest in a proper
prosecution, conviction, or acquittal. In any case, the full ethical and
constitutional impli-cations of this recent development have yet to be
[*251] In his remarks at a recent symposium on "The Role
of Forgiveness in the Law," David Lerman, an Assistant District Attorney
in Wisconsin, stated:
I believe, first, that forgiveness should be seen as flowing from the
victim (or a surrogate victim or a victim's representative) or from the
neighborhood most affected by a particular crime. To the extent that a
prosecutor takes on the mantle of the community to effect justice, then I
as a prosecutor may engage in forgiveness.
Otherwise, I think that what I engage in plea bargaining or lowering a
sentence is compassion or mercy... .
Prosecutors are the hub of the system. We control so much of what goes on
in the criminal justice system; therefore, I think we play an absolutely
vital role in advancing the notion of forgiveness in criminal justice
processes. How should we do that? We should allow for practices which
advance the possibility of forgiveness. This is what is most helpful to
victims, I believe. n153
This statement muddies the proper division of powers between prosecutors
and victims. The prosecutor, through institutional mediations, holds the
legal power of mercy, and affected victims may hold the ethical ability to
forgive, but neither holds both. It may be valid for a prosecutor, such as
Lerman, to view his grants of mercy as flowing from particular victims,
compulsory legislative expressions to the same effect, such as the one that
guided Cal Rerucha in the McKinney case, seem unacceptable. In such a case,
the prosecutor cannot merely act as proxy for the community's interests as
a whole; he is particularly beholden to individual victims and what they
believe they need out of the process. As I will discuss in the following
section, such notions of the prosecutor's proxy function seriously
misunderstand the essential quality of "mediation" in the
V. Expressivity and the Juridical
The relevant emerging discourse in legal theory has not yet been named, but
might be called "Law and Emotion." Prominent scholarship in this
area includes Susan Bandes's work on "empathy," William Ian
Miller's work on "humiliation" and "disgust," Martha
Nussbaum and Dan Kahan's work on "shame," and Richard Posner's
dabbling in related topics. n154 I have sprinkled this essay with various
references to "expressivity" and the "expressive function of
law," which I define as the translation of sentiments and emotional
appeals into cognizable rights and remedies. This is simply to give a name
to what is by now a well-accepted description of one of the law's variegated
functions. Drawing on [*252] Nussbaum, among others, D. Don
Welch has said, "Heeding one's emotions can, in general, be a good
guide to remaining in harmony with the fundamental com-mitments that result
from one's considered judgment, and thus, it is important to assess
specific affective responses by how well they are integrated with one's
larger moral purposes or emotional commitments." n155 The most common
cri-tique of such a position is that allowing for emotions expressed
through law opens up the dangers of irrationalism.
It is not my view that emotionally derived commitments are any more
irrational than any other commitments, values, or sentiments expressed
through the law. The problem of expressivity is not irrationalism, but
rather indeterminacy. A skepticism towards determinacy is valuable insofar
as it does not allow concepts to be self-defining. An unreflective
acceptance of creeping expressivity avoids a decision about why any of
these values should be reflected in our laws, and why other choices should
be rejected. Emotions are not irrational, per se, but they are
self-justifying. Thus, instances of what I have called in this essay the
"expressive function of law" or "legal expressivity"
should be treated empirically, and not as a general problem to be purged.
My own analysis of the Victims' Rights Movement's crafting of remedies
based on sentimentality is also an effort to pose questions about a kind of
sovereignty and its limits. Michel Foucault notes:
Besides its immediate victim, the crime attacks the
sovereign: it attacks him personally, since the law represents the will of
the sovereign; it attacks him physically, since the force of the law is the
force of the prince... . Punishment, therefore, cannot be identified with
or even measured by the redress of injury; in punishment, there must always
be a portion that belongs to the prince, and, even when it is combined with
the redress laid down, it constitutes the most important element in the
penal liquidation of the crime. n156
In this essay I have worked from this generally accepted description of
sovereignty, a monopoly of the political decision in the hands of the
state, and the proper delegation of its functions to the courts and
prosecutors. n157 Nevertheless, [*253] perhaps rather than identifying
either the courts or the prosecutor as "the state" it is more
useful to see both as part of what Pierre Bourdieu calls the
"juridical field." According to Bourdieu:
The juridical field is a social space organized around the
conversion of direct conflict between directly concerned parties into
juridically regulated debate between professionals acting by proxy. It is
also the space in which such debate functions. These professionals have in
common their knowledge and their acceptance of the rules of the legal game,
that is, the written and unwritten laws of the field itself, even those
required to achieve victory over the letter of the law ... . The jurist has
most often been defined as a "third person mediator." In this
definition, the essential idea is mediation, not decision. n158
Thus, the juridical form of sovereignty (mediation) is already a weaker
form than the political form (decision). It relies almost entirely on the
acceptance of the proxy function of legal professionals and the
renunciation of direct violence by the "directly concerned
parties." To liken the loss of sovereignty resulting from a
victim-centered jurisprudence to the rabble cutting off the heads of the
king's officers to seize the ultimate power of the sovereign n159 is
probably too hyperbolic an image and too simplistic a notion of the state
and the legal system. Certainly, though, the demand for increased
accountability to victims has put new constraints on courts, prosecutors,
and parole boards, among other juridical actors, and it attacks the very
raison d'etre of the juridical field.
The juridical field normally defines the parameters of the victims'
involvement in a trial. Yet it is through a proper participation in the
political field that the Victims' Rights Movement attempts to overturn the
institutional ground rules of the juridical field. There is a double
movement in the Victims' Rights Movement's expressivity; it conjures up
rage in the political field (by way of its policy demands), so that particular
victims can better express themselves in the juridical field (through
increased participation in the process). Yet even the "end" of
participation is merely an intermediate "means" to yet another
end: to intervene in a defendant's life chances. The expression of rage
accompanied by rights-consciousness has helped the Victims' Rights Movement
cross disconcertingly into articulating rights and remedies that would
restructure the juridical field. Thus, it is increasingly through the laws,
and not despite them that victims can attempt to exercise sovereign powers
of mercy and punishment. [*254] As a matter of definition, the
basis for legal punishment is always juridical and never political, always
mediated and never personal. Igor Primoratz argues that:
The victim of the offense, or a relative or a friend, can take revenge on
the offender; the mob can lynch him; but neither will be punishment. One
can be punished only by a judge, or a jailer, or an executioner; for only
these are authorized to so do by the legal order against which he has
What we have here is not "an atavistic throwback to private
vengeance," n161 but something that might be more troubling. The
earnest desire for inclusion may have the effect of hastening the point at
which the sovereign expression enters into a zone of indistinction with
private expressivity. n162 Finally, we should not limit this discussion to
the death penalty, but consider broader realignments in sovereign powers to
punish. We should be reminded that whether a victim recommends death or
life imprisonment, the imposition of punishment "interferes with a
person, it involves a restriction of his freedom, it lays certain
restraints upon him, it limits his range of choice" n163 and is tradi-tionally
left entirely to the state. Rigorous inquiries along legal, policy, and
philosophical dimensions should ask whether these developments, taken
together, constitute a dispersal or realignment of the power of mercy and
potentially the power to kill.
Conclusion: The Sense of an Ending
In this paper, I have argued that the Victims' Rights Movement operates at
the fulcrum of vengeance and inclusion. In joining death penalty discourse,
victims' families find themselves on a terrain involving death and pain, in
a battle over sympathies, sentiments and resentments. The Victims' Rights
Move-ment features a respect for "individualization" of closure - a focus on the
sub-jective experiences and feelings of victims and for their need to tell
their own stories - but at the same time it is plagued by the indeterminacy
of "victimization" and divisive contests over the meaning of
debate over the death penalty is one identifiable disruption in the unity
of Victims' Rights discourse. Victims' Rights discourse has long embraced
its potential to [*255] interject testimony by the victim's
family in an effort to persuade the sentencer to impose a more stringent
penalty. However, there is a co-equal power that emerges from the movement,
which can be called "mercy," which is itself a concept that must
be further problematized.
This paper has not been a sustained exercise in constitutional
interpretation, but it should not be surprising that I believe a
victim-centered jurisprudence, as it increases the participation of
secondary victims, would tend towards results that are inherently arbitrary
and capricious. Also, if secondary victims are allowed more latitude to
shape the sentencing, such penalties must face rigorous Equal Protection
and Due Process hurdles. My approach has been more an interdisci-plinary
meditation on the possible interactions between particular institutions and
emotions. Insofar as the remedies generated by the Victims Rights Movement
(including victim impact statements) attempt to influence the sentence by
reference to the desires of the secondary victim, they are essentially
subjective. Victims' responses about how to achieve closure and deal with grief vary so widely that the
institutional integrity of the juridical field could degener-ate if expected
to tirelessly chase and deliver this closure. We also should not become too comfortable with the
possibilities of "mercy-as-closure,"
since it is as subjective a route to closure as vengeance. Thus, I end this paper not with a sense
of closure or satisfaction,
but with the desire to revisit these questions with a renewed sense of
urgency and precision. I will deny us for now the "sense of an
ending" so we can make it our task to begin again.
n1. Barbara Herrnstein Smith, Poetic Closure: A Study Of How Poems End 35-36 (1968).
n2. Frank Kermode, The Sense Of An Ending: Studies In The Theory Of Fiction
23 (1967) ("We cannot ... be denied an end; it is one of the great
charms of books that they have to end."). For a scholarly analysis of
the role of endings and the effect of unsatisfying conclusions in modern
life, see Russell Reising, Loose Ends: Closure And Crisis In The American Social Text (1996).
n3. See, e.g., Governor Mario M. Cuomo, The Crime Victim in a System of
Criminal Justice, 8 St. John's J. Legal Comment. 1, 20 (1992) (concluding
that one goal of criminal justice system should be to bring closure to victims' feelings of
n4. I suppose moral philosophers and criminologists could view the issue of
closure merely as the
recasting of a more familiar justification for punishment - retribution.
See generally Philosophy of Law 635-731 (Joel Feinberg & Hyman Gross,
eds., 4th ed. 1991) (providing excerpts of classic philosophical literature
on the nature of punishment). I argue that "closure" is not coterminous with retribution and has
independent properties. First, it attends more closely to the victims'
subjective desires than to society as a whole. Moreover, as I will show in
this paper, closure is not
merely retributive. It can be used variously as a justification for the
death penalty, a justification for mercy, a reason to let victims' families
view an execution, and a reason to avoid stays and delays in an execution.
n5. See Joel Feinberg, The Expressive Function of Punishment, in Doing And
Deserving: Essays in The Theory Of Responsibility 95, 98 (1970) (claiming
punishments have the quality of expressing "attitudes of resentment
and indignation, and of judgments of disapproval and reprobation");
Cass R. Sunstein, On the Expressive Function of Law, 144 U. Pa. L. Rev.
2021 (1996) (supporting the contention that laws and legal penalties
express social meanings). The "expressive" function can also be
extended to the context of "shaming penalties." These penalties
involve the public stigmatization of offenders through such means as
forcing them to wear signs such as "I am a convicted child
molester" or requiring juvenile offenders to perform contrition
ceremonies like apologizing while on their knees. See George F. Will,
Restore the Sting of Shame, News and Observer (Raleigh, NC) Feb. 1, 1996,
at A13, available at LEXIS, News Library, Nwsobv File.
n6. Linda Marie Walker, coup de grace, in 600,000 Hours (Mortality)
(Experimental Art Foundation, Adelaide, South Australia, 1994) (quoting
Maurice Blanchot, The Madness of the Day 18 (Lydia Davis, trans., 1981))
available at http://www.va.com.au/parallel/x1/journal/lmw/coup.html.
n7. Excerpts From Statement by Father, N.Y. Times, Nov. 5, 1999, at A22.
For more information on the context of Mr. Shepard's statement, see Michael
Janofsky, Parents of Gay Obtain Mercy for His Killer, N.Y. Times, Nov. 5,
1999, at A1.
n8. The Associated Press reported that "[a] gay University of Wyoming
student was beaten, burned and tied to a wooden ranch fence like a
scarecrow until a passerby found him a half-day later, near death."
E.N. Smith, Gay Man Attacked in Wyoming, AP Online, Oct. 9, 1998, available
at 1998 WL 21170396. See also Tom Kenworthy, Gay Man Near Death after Beating,
Burning, Wash. Post, Oct. 10, 1998, at A1 (reporting the events leading to
Shepard's beating and how the police were investigating the incident as a
n9. Moises Kaufman and the Members of Tectonic Theater Project, The Laramie
Project (2001) [hereinafter The Laramie Project]. The Laramie Project ran
at the Union Square Theatre over the summer of 2000. Artistic Director
Moises Kaufman and the members of the Tectonic Theater Project traveled to
Laramie, Wyoming barely a month after the murder to interview members of
the town about Shepard's murder, the subsequent media coverage of the
murder, and the trial of Shepard's killers. Id. at vii. Anna Deveare Smith
innovated this "documentary" genre of performance in Twilight:
Los Angeles, a work documenting the Los Angeles riots. Anna Deveare Smith,
Twilight: Los Angeles, 1992 (1994).
n10. The Laramie Project, supra note 9, at 95-96.
n11. The Laramie Project, supra note 9, at 95 (explaining
that McKinney's defense attorneys approached Matthew Shepard's parents and
requested their participation in the sentencing hearing).
n12. Matthew Shepard Online Resources, Mr. Shepard's Statement to the
Court-11/4/99, at http://www.wiredstrategies.com/mrshep.htm (last visited
Apr. 20, 2002) (on file with the Review of Law & Social Change). See
also Janofsky, supra note 7, at A1.
n13. See Robert W. Black, Defendant Gets Life in Gay Killing Plea Deal,
Atlanta Const., Nov. 5, 1999, at A3 (reporting that "prosecutor Cal
Rerucha said he didn't want the deal at first, but Shepard's family wanted
to show tolerance because their son believed in it").
n14. Excerpts from Statement by Father, supra note 7.
n15. To be sure, the emphasis on Christmas was among the quasi-theological
resonances I identified in my own viewing of the play. Both the published
script of the play and the Associated Press reported these words as
follows: "Every time you celebrate Christmas, a birthday, the 4th of
July, remember that Matt isn't. Every time you wake up in your prison cell,
remember you had the opportunity and the ability to stop your actions that
night.'" The Laramie Project, supra note 9, at 96; Deal Spares Life of
Gay Man's Killer, Chi. Trib., Nov. 5, 1999, at 3. However, Dennis Shepard
explicitly encouraged the theme of martyrdom: "Matt became a symbol,
some say a martyr ... . That's fine with me ... ." Excerpts from
Statement by Father, supra note 7. Others, such as playwright and gay
rights activist Tony Kushner, went even further along these lines, speaking
of Matthew's "passion" and "crucifixion" in
quasi-religious terms: "May you think about this crucified man, and
may you mourn, and may you burn with a moral citizen's shame." Tony
Kushner, Matthew's Passion, The Nation, Nov. 9, 1998, at 4, 6.
n16. Walker, supra note 6.
n17. Dennis Shepard announced:
Your agreement to life without parole has taken yourself out
of the spotlight and out of the public eye. It means no drawn-out appeals
process, chance of walking away free due to a technicality and no chance of
a lighter sentence due to a "merciful" jury. Best of all, you
won't be a symbol. No years of publicity, no chance of commutation, no
nothing - just a miserable future and a more miserable end. It works for
Excerpts From Statement by Father, supra note 7.
n18. Dave Cullen, A Dramatic Moment Of Mercy: The Shepard Family Spares the
Life Of their Son's Killer, (Nov. 5, 1999), Salon.com, at
http://www.salon.com/news/feature/1999/11/05/shepard/ (reporting that
Rerucha claimed the decision to accept the agreement was ultimately his,
but that he did not even enter the room where the Shepards' negotiated
McKinney's sentencing agreement) (on file with Review of Law & Social
Change); see Julie Cart, Killer of Gay Student Is Spared Death Penalty,
L.A. Times, Nov. 5, 1999, at A1 (reporting that "Rerucha stated that
he had reservations about the plea bargain, but that Matthew's mother
prevailed upon him to agree to it"); see also Michael Bronski, Justice
Is Blind and Gagged, Z Magazine, Jan. 2000, at 17 (reporting that
"Rerucha worked closely with the Shepards in crafting the plea bargain
and sentencing agreement. Rerucha claimed that he was mandated to do so
under Wyoming law - an example of the expansive "victim's rights' laws
that have been increasingly implemented over the past decade"),
available at www.zmag.org/zmag/articles/jan2000bronski.htm.
n19. Matthew Shepard's father has declared that he has not forgiven
McKinney. See Mr. Shepard's Statement to the Court-11/4/99, supra note 12
(telling McKinney, "You robbed me of something very precious, and I
will never forgive you for that"). Matthew's mother's motivation for
accepting the plea, however, was reportedly forgiveness. See Cart, supra
note 18, at A1. Prosecutor Cal Rerucha said that he "will never get
over Judy Shepard's capacity to forgive." Id.
n20. Janofsky, supra note 7, at A1.
n21. Bronski, supra note 18, at 18. Commentators like Bronski and Rick
Halperin, among others, have noted that the plea agreement appears to be
virtually unenforceable against McKinney, because he is already serving two
life sentences and any additional punishment would be meaningless. See Id.;
Rick Halperin, Death Penalty News: Wyoming: McKinney Agreement, Abolish,
Nov. 19, 1999, at http://venus.soci.niu.edu/<diff>archives/ABOLISH/dec99/0365.html
(last visited on April 20, 2002) (on file with Review of Law & Social
n22. Phil Curtis, More than a Verdict, The Advocate, Jan. 18, 2000, at 35,
n23. Some of the same commentators who hypothesized that the gag order may
be unenforceable recognize that such a gag order, and moreover victim
participation, can nonetheless represent a dangerous new trend in plea
agreements. See Bronski, supra note 18, at 18; Halperin, supra note 21.
n24. Curtis, supra note 22, at 36.
n25. See sources cited supra note 19.
n26. See Janofsky, supra note 7, at A1 (quoting Dennis Shepard: "Mr.
McKinney, I'm going to grant you life, as hard as it is for me to do so,
because of Matthew... . I give you life in the memory of one who no longer
lives. May you have a long life and may you thank Matthew every day for
it."). Though according to Dave Cullen, supra note 18, McKinney's fate
had been ironed out behind closed doors the night before, Shepard's statement
was delivered as if it was itself performative. Performative speech is
speech that is consequential, speech that "does things." See
generally J.L. Austin, How To Do Things With Words (J.O. Urmson &
Marina Sabisa, eds., 2d Ed. 1975); see also Judith Butler, Excitable
Speech: A Politics of the Performative (1997).
n27. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life 8, 137
(Daniel Heller-Roazen, trans., 1998). Italian philosopher Agamben revives
the classical Greek distinction between bios ("political life")
and zoe ("bare life"). The latter entails a state of state of
subhuman abandonment, such as that in a concentration camp. I use Agamben's
terms here to provoke a somewhat hyperbolic thought experiment, suggesting
the ethical danger of allowing victims to condition life without parole
until it resembles a state of total enclosure, and therefore "bare
n28. See Lynne N. Henderson, The Wrongs of Victim's' Rights, 37 Stan. L.
Rev. 937, 951 (1985) (stating ""victim"s rights' may be
viewed as a populist movement responding to perceived injustices in the
criminal process"); see also David Garland, The Culture of Control:
Crime and Social Order in Contemporary Society 9 (2001) (noting that
"the feelings of the victim, or the victim's family, or a fearful,
outraged public are now routinely invoked in support of new laws and penal
policies"). See generally Jeffrie G. Murphy, Getting Even: The Role of
the Victim, in Retribution Reconsidered: More Essays in the Philosophy Of
n29. The primacy of the discourse of "victimization" has been
noted in works such as Joseph A. Amato, Victims and Values: A History and a
Theory of Suffering xix (1990) (noting that "claims of suffering have
invaded and, in measure, overwhelmed contemporary conscience and political
rhetoric"). The focus on "secondary victims" seems a
concomitant of death penalty discourse in particular, because the primary
victim is typically deceased and therefore more an object than subject of
n30. Letter from Laurence H. Tribe, Professor, Harvard Law School, to
Dianne Feinstein, Senator, U.S. Congress (Apr. 27, 2000) (on file with the
Review of Law and Social Change), available at
http://www.nvcan.org/docs/tribe0400.htm [hereinafter Letter from Laurence
n31. James M. Dolliver, Victims' Rights Constitutional Amendment: A Bad
Idea Whose Time Should Not Come, 34 Wayne L. Rev. 87, 90 (1987).
n32. See John H. Langbein, The Origins of Public Prosecution at Common Law,
17 Am. J. Legal Hist. 313, 317-18 (1973).
n33. Eric Schlosser, A Grief Like No Other, Atlantic Monthly, Sept. 1997,
at 37, 45, available at http://www.theatlantic.com/issues/97sep/grief.htm
(last visited April 20, 2002).
n35. See J. H. Baker, An Introduction to English Legal History 4 (3d ed.
n36. See Henderson, supra note 28, at 939.
n37. Schlosser, supra note 33, at 45.
n39. Janelle Greenberg, The Victim in Historical Perspective: Some Aspects
of the English Experience, 40 J. Soc. Issues 77, 80 (1984).
n41. See Baker, supra note 35, at 571-75 (describing the centralization of
criminal prosecution in early modern England).
n42. Thad H. Westbrook, At Least Treat Us Like Criminals!: South Carolina
Responds to Victims' Pleas for Equal Rights, 49 S.C. L. Rev. 575, 578
n43. See U.S. Const. amends. I-X.
n44. Lawrence M. Friedman, Crime and Punishment in American History 177-87
(1993) (describing history of vigilantism and duels and deciding that both
were exercises in lawlessness).
n45. See generally Schlosser, supra note 33.
n46. Henderson, supra note 28, at 944 n.36.
n47. See Robert Elias, The Symbolic Politics of Victim Compensation, 8
Victimology 213, 213 (1983) (noting that victim compensation schemes began
in the late 1960's as "part of the resurgent concern for crime victims
in American criminal justice").
n48. Ezzat A. Fattah, Some Recent Theoretical Developments
in Victimology, 4 Victimology 198 (1979).
n49. See Michael Meltsner, Cruel And Unusual: The Supreme Court and Capital
Punishment 60-72 (1973) (describing the litigation strategy of the NAACP
Legal Defense and Education fund).
n50. Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973). For a concise
discussion of the marginalized role of the victim in the American legal
system, see Sue Anna Moss Cellini, The Proposed Victims' Right Amendment to
the Constitution of the United States: Opening the Door of the Criminal
Justice System to the Victim, 14 Ariz. J. Int'l & Comp. L. 839, 849-56
n51. Keith D. Nicholson, Would You Like More Salt With That Wound?
Post-Sentence Victim Allocution in Texas, 26 St. Mary's L.J. 1103, 1111-12
n52. See President's Task Force On Victims Of Crime, Final Report, at ii
n53. Victims of Crime Act of 1984, 42 U.S.C. 10601-10604 (1994). Congress
has passed numerous other laws referring to victims' rights, including the
Victim and Witness Protection Act of 1982, the Victims' Rights and
Restitution Act, 1990, the "Victims' Bill of Rights" provisions
of the 1994 Omnibus Crime bill, and mandatory restitution as part of the
Antiterrorism and Effective Death Penalty Act of 1996. See Cellini, supra
note 50, at 854-55. Finally, Congress adopted the Victim Rights Clarification
Act especially to overturn the trial judge's sequestration order of
victim-witnesses in the Oklahoma City bombing case. See 18 U.S.C. 3510
(1994 & supp. IV 1998).
n54. Twenty-Nine States Amend Constitutions to Benefit Victims, St.-Fed.
Jud. Observer, April 1997, at 6. See also Ala. Const. amend. 557
("Basic Rights for Crime Victims"); Alaska Const. art. I, 24
("Rights of Crime Victims"); Ariz. Const. art. II, 2.1
("Victims' Bill of Rights"); Cal. Const. art. I, 28 ("Legislative
Findings and Determinations; Rights of Victims"); Colo. Const. art.
II, 16a ("Rights of Crime Victims"); Conn. Const. art. I, 8, pt.
b ("Rights of Victims of Crime"); Fla. Const. art. I, 16
("Rights of Accused and of Victims"); Idaho Const. art. I, 22
("Rights of Crime Victims"); Ill. Const. art. I, 8.1 ("Crime
Victim's Rights"); Ind. Const. art. I, 13, pt. b ("Victims of
crime, as defined by law, shall have the right ..."); Kan. Const. art.
XV, 15 ("Victims' Rights"); Md. Const., Decl. of Rts, art. XLVII
("Rights of Victim of Crime"); Mich. Const. art. I, 24
("Rights of Crime Victims"); Mo. Const. art. I, 32 ("Crime
Victims' Rights"); Neb. Const. art. I, 28 ("Crime Victims; Rights
Enumerated"); Nev. Const. art. I, 8, pt. 2 ("Rights of Victims of
Crime"); N.J. Const. art. I, P 22 ("Rights of Victims of
Crimes"); N.M. Const. art. II, 24 ("Victim's Rights"); N.C.
Const. art. I, 37 ("Rights of Victims of Crime"); Ohio Const.
art. I, 10a ("Rights of victims of crimes"); Okla. Const. art.
II, 34 ("Rights of Victims"); Or. Const. art. I, 42 ("Rights
of victim in criminal prosecutions and juvenile court delinquency
proceedings"); R.I. Const. art. I, 23 ("Rights of victims of
crime"); S.C. Const., art. I, 24 ("Victims' Bill of
Rights"); Tex. Const. art. I, 30 ("Rights of crime
victims"); Utah Const. art. I, 28 ("Declaration of the rights of
crime victims"); Va. Const. art. I., 8-A ("Rights of victims of
crime"); Wash. Const. art. I, 35 ("Victims of Crimes -
Rights"); Wis. Const. art. I., 9m ("Victims of Crime").
n55. Nicholson, supra note 51, at 1112.
n56. Bruce Shapiro, Victims & Vengeance: Why the Victims' Rights
Amendment is a Bad Idea, The Nation, Feb. 10, 1997, at 11, 12, available at
http://past.thenation.com/issue/970120/0210shap.htm (last visited April 20,
2002)'. See also Robert P. Mosteller, Victims' Rights and the Constitution:
Moving From Guaranteeing Participatory Rights To Benefiting The
Prosecution, 29 St. Mary's L. J. 1053, 1053 (1998) (noting that Clinton
made this statement during an election year).
n57. At least symbolically, the new administration has already indicated
some friendliness to the Victims' Rights cause. On April 9, 2001, George W.
Bush proclaimed the week of April 22 though April 28, 2001, as National
Crime Victims' Rights Week. In his proclamation, Bush stated:
The campaign to win rights for victims parallels other grassroots movements
in our Nation's history. These crusades most frequently began as small
local movements led by groups of passionate individuals who spoke out in
protest when they saw inequities. During this week, let us join in the
effort to establish fair legal rights and services for crime victims.
Press release, George W. Bush, President of the United States of America,
National Crime Victims' Rights Week 2001 (April 10, 2001) (on file with the
Review of Law and Social Change), available at
n58. The proposed constitutional amendment that was introduced in the
Senate included all of these elements. See The Proposed Constitutional
Amendment: Senate Joint Resolution 6, St.-Fed. Jud. Observer, Apr. 1997, at
n59. Paul G. Cassell, Victims' Rights Amendment Not a Threat to Defendant's
Rights, St.-Fed. Jud. Observer, Apr. 1997, at 3.
n60. Shapiro, supra note 56, at 13, 16. Shapiro also suggests that the
Victims' Rights Movement's efforts to restore the role of victims to its
prevalence in "the colonial days of private prosecution" might
lead to inequities in the system of prosecution generally. Id. at 17.
n61. There are exceptions when the murder victim's surviving relatives and
loved ones were also involved in the murder. Their involvement could be as
eyewitnesses, primary victims in the same criminal enterprise, or even as
the criminal defendants (a class of surviving victims that is inherently
puzzling to the dominant Victims' Rights discourse).
n62. It is not realistically within victims' families power
to lobby for more painful executions or harsher prison conditions, since
these are somehow less acceptable to propose - tantamount to torture - and
certainly outside their power, but they are allowed and sometimes
encouraged to "vent" such feelings in and out of court.
n63. For discussion of the "rights" aspect of Victims' Rights
discourse, see infra Part III.B.
n64. David Garland, Punishment and Culture: The Symbolic Dimensions of
Criminal Justice, 11 Stud. L. Pol. & Soc'y 191, 191 (1991). Punishment,
Garland tells us, "helps shape the overarching culture and contributes
to the generation and regeneration of its terms." Id. at 193. See
generally Austin Sarat, Capital Punishment as a Legal, Political, and
Cultural Fact: An Introduction, in The Killing State 3 (Austin Sarat ed.,
1999); Louis P. Masur, Rites Of Execution: Capital Punishment And The Transformation
Of American Culture, 1776-1865 (1989); John M. Sloop, The Cultural Prison:
Discourse, prisoners, and Punishment (1996).
n65. See Feinberg, supra note 5; Sunstein, supra note 5.
n66. Joseph E. Kennedy, Monstrous Offenders and the Search for Solidarity
Through Modern Punishment, 51 Hastings L.J. 829, 836 (2000).
n67. Garland, supra note 64, at 195.
n68. Martha C. Nussbaum, Comments, 66 Chi.-Kent L. Rev. 213, 234 (1990).
n69. John Brigham, The Constitution of Interests: Institutionalism, CLS,
and New Approaches to Sociolegal Studies, 10 YALE J.L. & HUMAN. 421,
445 (1998); see generally John Brigham, Right, Rage, and Remedy: Forms of
Law in Political Discourse, in 2 Studies in American Political Development
303 (Karen Orren & Stephen Skowronek, eds., 1987).
n70. For a generally positive view of the value of rage, see generally
Murphy, supra note 28. For a more negative account, see generally Willard
Gaylin, M.D., The Rage Within: Anger in Modern Life (1984) (arguing that
modern life is suffused with rage that could lead to unrestrained violence
if left unchecked).
n71. Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 Yale
L. J. 1860, 1867 (1987).
n72. Professor Garland expounded these views on victim-criminal overlap
during a Faculty-in-Residence seminar I attended at NYU School of Law in
Spring 2001. David Garland, Professor of Law and Sociology, NYU, Thinking
About Law and Society 6: The Sociology of Criminal Law (April 4, 2001). On
the demographic overlap between offenders and victims, see Marcus Felson,
Crime and Everyday Life, 21, 72-73 (2d ed. 1998) (citing Ezzat A. Fatah,
Understanding Criminal Victimization (1991)).
n73. Jonathan Simon, Megan's Law: Crime and Democracy in Late Modern
America, 25 Law & Soc. Inquiry 1111, 1136-37 (2000) (describing the
analytical effects of naming victims' rights legislation after Megan
n74. Id. at 1132.
n75. Elayne Rapping, Television, Melodrama, and the Rise of the Victims'
Rights Movement, 43 N.Y.L. Sch. L. Rev. 665, 668 (2000).
n76. Simon, supra note 73, at 1133.
n77. See S.J. Res. 6, 105th Cong. 1 (1997) (numbering added). See also The
Proposed Constitutional Amendment: Senate Joint Resolution 6, St.-Fed. Jud.
Observer, Apr. 1997, at 1.
n78. See statutes cited supra note 54.
n79. Statement by Murder Victims Families for Reconciliation on the
Proposed Victims' Rights Constitutional Amendment, Aug. 30, 1996 (with
regard to language in draft of S.J. Res. 6) (on file with the Review of Law
and Social Change), available at www.geocities.com/citizensftv/
victimsfamilies83096.html (last visited April 21, 2002).
n80. Elisabeth Semel, Victims' Rights Amendment's Ambiguity Would Encourage
Litigation, St.-Fed. Jud. Observer, Apr. 1997, at 3 (discussing the
difficulty in determining standing for purposes of bringing victims'
n81. See Summary of Arguments For and Against a Victims' Rights
Constitutional Amendment, St.-Fed. Jud. Observer, Apr. 1997, at 3 (noting
that proponents of victim's rights want participation and an opportunity
for psychological healing, while opponents believe that is in conflict with
criminal defendants' due process rights).
n82. See Philip B. Heymann, A Proposed Victims' Rights Constitutional Amendment:
Against an Amendment, St.-Fed. Jud. Observer, Apr. 1997, at 1.
n83. See Markus Dirk Dubber, The Victim in American Penal Law: A Systematic
Overview, 3 Buff. Crim. L. R. 3, 31 (1999) (noting that the amendment
received a favorable report from the Senate Judiciary Committee in July
n84. Booth v. Maryland, 482 U.S. 496, 503 (1987).
n85. Payne v. Tennessee, 501 U.S. 808, 827 (1991) ("A state may
legitimately conclude that evidence about the victim and about the impact
of the murder on the victim's family is relevant to the jury's [sentencing]
decision ... . There is no reason to treat such evidence differently than
other relevant evidence is treated."). For extended scholarly
commentary on this line of cases, see Jose Felipe Anderson, Will the
Punishment Fit the Victims? The Case for Pre-Trial Disclosure, and the
Uncharted Future of Victim Impact Information in Capital Jury Sentencing,
28 Rutgers L.J. 367 (1997); Ashley Paige Dugger, Victim Impact Evidence in
Capital Sentencing: A History of Incompatibility, 23 Am. J. Crim. L. 375
(1996); Patrick M. Fahey, Payne v. Tennessee: An Eye for an Eye and Then
Some, 25 Conn. L. Rev. 205 (1992); Martha Minow, Surviving Victim Talk, 40
UCLA L. Rev. 1411 (1993).
n86. Payne, 501 U.S. at 827.
n87. Id. at 830 & 830 n.2.
n88. Weeks v. Commonwealth, 450 S.E.2d 379, 389 (Va. 1994).
n89. Id. (citing Payne, 501 U.S. at 808).
n90. Beck v. Commonwealth, 484 S.E.2d 898, 904 (Va. 1997) (holding that
admissibility of victim impact evidence "is limited only by the
relevance of such evidence to show the impact of the defendant's
n91. Id. at 905.
n92. Austin Sarat, When the State Kills: Capital Punishment and the
American Condition 52 (2001).
n93. Melissa Deckman Fallon, Victim Impact Statements: Do They Help or
Hinder? St.-Fed. Jud. Observer, Apr. 1997, at 4.
n94. Angela P. Harris, The Jurisprudence of Victimhood, Sup. Ct. Rev. 77,
92-93 (1991). On the significance of victim impact statements, see Austin
Sarat, Vengeance, Victims and the Identities of Law, 6 Soc. & Legal
Studies 163 (1997).
n95. Westbrook, supra note 42, at 576-77.
n96. "Closure" and
"satisfaction" are cathartic in an Aristotelian sense:
"purging" emotions of pity and fear. See Aristotle, The Complete
Works of Aristotle, Vol. II 2320 (Jonathan Barnes, ed., 1984). See also
Jennifer Bothamley, Dictionary of Theories 80 (1993).
n97. For an overview of a turn towards "therapeutic
jurisprudence" see Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence,
3 Psychol. Pub. Pol'y & L. 184, 185 (1997). See also Dennis P. Stolle,
Davd B. Wexler, Bruce J. Winick, & Edward A, Dauer, Integrating
Preventative Law And Therapeutic Jurisprudence: A Law and Psychology Based
Approach to Lawyering, 34 Cal. W. L. Rev. 15, 17 (1997) ("Therapeutic
jurisprudence is an interdisciplinary approach to law that builds on the
basic insight that law is a social force that has inevitable (if
unintended) consequences for the mental health and psychological functioning
of those it affects.").
n98. The Rolling Stones, (I Can't Get No) Satisfaction, on The Rolling
Stones: The London Years. (ABKCO 1989).
n99. See generally William Ian Miller, The Anatomy of Disgust (1997).
n100. Rapping, supra note 75, at 665.
n102. William Ian Miller, Clint Eastwood and Equity: Popular Culture's
Theory of Revenge, in Law in the Domains of Culture 161, 202 (Austin Sarat
& Thomas R. Kearns eds., 1998) ("Above all, stories of revenge are
meant to give us a chance at experiencing the delicious sense of
satisfaction of justice, true justice, being done.").
n103. Igor Primoratz, Justifying Legal Punishment 22 (1989). See also,
Robert S. Gerstein, Capital Punishment - "Cruel and Unusual"?: A
Retributivist Response, 85 Ethics 75, 76 (1975) (arguing that retributivism
posits that rational "passion for vengeance" should be included
as "part of any just system of laws").
n104. Paul Boudreaux, Booth v. Maryland and the Individual Vengeance
Rationale for Criminal Punishment, 80 J. Crim. L. & Criminology 177,
n106. Id. at 188-89.
n107. Nicholson, supra note 51, at 1134-36 (discussing possible
psychological benefits of post-sentence victim allocution).
n108. Nussbaum, supra note 68, at 234.
n109. Gerstein, supra note 103, at 76.
n110. Schlosser, supra note 33.
n111. Id. at 50-52.
n112. Id. at 52.
n114. Id. at 50-55 (describing the complicated grieving process that murder
victims' families endure).
n115. Ken Zapinski, Victims' Families Find No Peace and Dahmer's Kin are
Quiet About His Death, Plain Dealer (Cleveland, OH), Nov. 29, 1994, at 6A
(learning of Jeffrey Dahmer's death, parents of one of his victims said,
"It will never be over because we lost our son"), available at
1994 WL 10766093.
n116. Jennifer Liebrum, Group Pushes Right to View Execution/Victims
Advocates Want Families to Have a Say, Hous. Chron., Oct. 15, 1994, at 29,
available at 1994 WL 4596754.
n117. Louis Romano, With Death, Hope That Life Goes On; On the Eve of an
Execution, Victims Yearn for Peace at Last, Wash. Post, Aug. 8, 1996, at
A1, available at 1996 WL 10725156.
n118. Leyla Kokmen & Janan Hanna, Executions Become More Public, Chi.
Trib., Nov. 21, 1995, 2 at 1.
n119. Helen Prejean, Crime Victims on the Anvil of Pain, St. Petersburg
Times (St. Petersburg, FL), May 15, 1988, at 1D, available at 1988 WL
n120. Rebecca Carr & Maureen O'Donnell, Clash of Emotions for Dahmer
Victims' Families, Chi. Sun-Times, Nov. 29, 1994, at 6, available at 1994
n121. Brooks Douglass, Why I Want to Watch a Killer Die, USA Today, Apr.
15, 1996, at 19A, available at 1996 WL 2051198.
n122. Cf. Prejean, supra note 119, at 1D (arguing that executions
"don't do much for victims' families").
n123. Lee Hancock, Victims' Relatives Watch Execution in First for Texas,
Dallas Morning News, Feb. 10, 1996, at 1A.
n129. I will not discuss here the phenomenon of "death row
waivers," whereby prisoners elect the option of death, but it is worth
contrasting the state's reluctance to cede death decisions to death row
inmates with the emerging willingness to respect the wishes of victims. On
the topic of waivers generally, see Welsh S. White, Defendants Who Elect
Execution, 48 U. Pitt. L. Rev. 853 (1987). See also Peter Goldman, Death
Wish, Newsweek, Nov. 29, 1976, at 26; Julie Levinsohn Milner, Dignity or
Death Row: Are Death Row Rights to Die Diminished? A Comparison of The
Right to Die For The Terminally Ill And The Terminally Sentenced, 24 New
Eng. J. on Crim. & Civ. Confinement 279 (1998).
n130. Bruce Shapiro, Victims' Rights - and Wrongs, Salon.com (June 13,
1997) (describing how victims who sought to participate had to "pass a
death-penalty loyalty test" in order to be accepted), at
http://www.salon.com/june97/news/news970613.html (on file with the Review
of Law and Social Change). Bruce Shapiro reports:
In the New Yorker and on ABC, former prosecutor Jeffrey Toobin extolled the
role of victims" rights advocates in the case; in the New York Times,
Professor Lawrence [sic] Tribe of Harvard Law School attacked Judge Matsch
for suggesting that some of the emotion might be ""inflammatory.""
for Oklahoma City's victims became the watchword of television news
n131. Some Oklahoma City Bombing Families Fight for McVeigh's Life, CNN.com
(May 4, 2001), at
n132. See Shapiro, supra note 130 (noting that victims who
opposed the death penalty were unfairly excluded from McVeigh's
n133. Id. (noting that "the prosecution wanted an execution" and
chose victims to participate accordingly).
n134. Elias Canetti, Crowds and Power 298 (Carol Stewart trans., Continuum
Publishing Corp. 1981) (1960).
n135. Paige McThenia, The Role of Forgiveness in Capital Murder Cases, 12
Cap. Def. J. 325, 325 (2000).
n136. Id. See also Afshin Valenejad, Iranian Victim's Dad Spares Life of
Teen Killer, Chi. Sun-Times, Jan. 3, 2000, at 18, available at 2000 WL
n137. Canetti, supra note 134, at 299.
n138. Murphy and Hampton write:
Mercy, though related to forgiveness, is clearly different in at least
these two respects. First, to be merciful to a person requires not merely
that one change how one feels about that person but also a specific kind of
action (or omission) - namely, treating that person less harshly than, in
the absence of mercy, one would have treated him. Second, it is not a
requirement of my showing mercy that I be an injured party. All that is
required is that I stand in a certain relation to the potential beneficiary
of mercy. This relation - typically established by legal or other
institutional rules-makes it appropriate that I impose some hardship upon
the potential beneficiary of mercy.
Jeffrie G. Murphy & Jean Hampton, Forgiveness and mercy 167 (1988),
quoted in McThenia, supra note 135, at 330-31.
n139. Murphy & Hampton, supra note 138, at 20-21, quoted in McThenia,
supra note 135, at 331 n.36. For more discussion on the analytical
differences between mercy and forgiveness, see: Susan Bandes, When Victims
Seek Closure: Forgiveness,
Vengeance and the Role of Government, 27 Ford. Urb. L.J. 1353 (2000); Linda
Ross Meyer, Forgiveness and the Public Trust, 27 Ford. Urb. L.J. 1515
(2000); Minow, supra note 85, at 1435 ("If victims' stories premised
on subjective experience are all we have, then counterclaims of victimhood
obtain as much authority without enabling any possible evaluation of the
relative scale or seriousness of competing claims to entitlement,
deference, or blame."); Jeffrie G. Murphy, Forgiveness, Reconciliation
and Responding to Evil: A Philosophical Overview, 27 Ford. Urb. L.J. 1353
(2000); Everett L. Worthington, Jr., Is There a Place for Forgiveness in
the Justice System?, 27 Ford. Urb. L.J. 1721 (2000).
n140. 943 F.2d 1216 (10th Cir. 1991).
n141. 501 U.S. 808 (1991).
n142. Robison, 943 F.2d at 1217-18.
n143. Id. at 1217.
n144. Id. Alabama courts have also concluded that victim's requests for
sentences other than death should be excluded from the jury's
consideration. See Barbour v. State, 673 So.2d 461, 468-69 (Ala. Cr. App.
1994), aff'd, Ex Parte Barbour, 673 So.2d 473 (Ala. 1995).
n145. As we have seen with the Shepards, what is problematic about mercy
without forgiveness is the crafting of conditional punishments. It could be
argued that a prosecutor should be equally (if not more) moved to mercy by
a plea for mercy based in forgiveness than a plea for mercy based in a
desire for finality.
n146. See Murder Victims Families for Reconciliation, at
http://www.mvfr.org (last modified Jan. 26, 2002).
n147. See National Organization of Parents of Murdered
Children, Inc., at http://www.pomc.com (last modified Feb. 10, 2002).
n148. Heather Gert, The Death Penalty and Victims' Rights: Legal Advance
Directives, 33 J. Value Inquiry 457, 457 (1999).
n149. Id. at 460-72.
n150. This movement has been met with some success:
Since becoming available in the early 1990s, at least 10,000 individuals
worldwide have signed declarations, including actors Susan Sarandon, Mike
Farrell and Martin Sheen; Sister Helen Prejean (portrayed in the Academy
Award-winning film Dead Man Walking); former New York Governor Mario Cuomo;
and U.S. Congresswoman Carolyn McCarthy, whose husband was killed during
Colin Ferguson's murderous rampage on a Long Island Railroad train.
Wayne A. Logan, Declaring Life at the Crossroads of Death: Victims'
Anti-Death Penalty Views and Prosecutors' Charging Decisions, 10 Crim.
Just. Ethics 41, 41 (1999).
n151. Id. at 42-43.
n152. See Deans, Murder Most Foul, But Vengeance Kills the Soul, San Jose
Mercury News, July 17, 1983, at 4C (describing anti-death penalty efforts
of one particular survivor whose brother-in-law was murdered); Margery
Eagan, Murder Victims' Kin Make Strong Case for Compassion, Boston Herald,
March 16, 1999, at 17 (describing lobbying efforts by murder victims'
survivors against reinstatement of death penalty in Massachusetts),
available at 1999 WL 3392939; David Wallechinsky, "He Killed My Child
But I Don't Want Him to Die," Parade, Jan. 18, 1998, at 4 (discussing
emotional and spiritual conflicts among murder victims' survivors who
oppose the death penalty).
n153. Symposium, The Role of Forgiveness in the Law, 27 Fordham Urb. L.J.
1347, 1373 (2000) (remarks of David M. Lerman on "Forgiveness in the
n154. For an overview of this kind of work, including work by the authors
mentioned, see The Passions of Law (Susan Bandes ed., 1999).
n155. D. Don Welch, Ruling With The Heart: Emotion-Based Public Policy, 6
S. Cal. Interdis. L.J. 55, 85-86 (1997); Nussbaum supra note 68, at 234.
n156. Michel Foucault, Discipline and Punish: The Birth of the Prison 47-48
(Alan Sheridan, trans., 2d ed., Vintage Books 1995) (1975).
n157. On the other hand, the victim may be a more primal figure in the
definition of sovereign-ty. It is important to note that victimization is a
longstanding strategy of power. In his study of baroque German tragic
plays, Walter Benjamin makes an interesting point about dramaturgical
representations of sovereignty that I think helps to explain sovereignty in
its juridical form. Benjamin claims that images of sovereignty can be
represented by two faces - "the tyrant" and "the
martyr." Whereas the tyrant's power emanates through fear, the
martyr's power derives from pity. See Walter Benjamin, The Origins of
German Tragic Drama 69 (John Osborne, trans., Verso 1998) (1963). I believe
representations of victimization, as in martyr-dramas or passion plays,
still provide stark symbols for a potential sovereignty. This is evident in
The Laramie Project and the martyring of Matthew Shepard. Through Victims
Rights discourse, victims of violent crime are becoming asserted as martyrs
and as quasi-sovereign, in exercising the powers of mercy.
n158. Pierre Bourdieu, The Force of Law: Toward a Sociology of the
Juridical Field, 38 Hastings L.J. 805, 831 (1987).
n159. Regina Janes, Beheadings, in Death and Representation 242, 245 (Sarah
Webster Goodwin & Elisabeth Bronfen, eds., 1993) ("When the rabble
cut off the heads of the king's officers, they have redefined themselves as
the sovereign people. Literally and physically, they have seized the
ultimate power of the sovereign.").
n160. Primoratz, supra note 103, at 4.
n161. Letter from Laurence H. Tribe, supra note 30.
n162. For competing notions of sovereignty, see Georges Bataille, The
Accursed Share: An Essay on General Economy, Vol. III Sovereignty (Robert
Hurley, trans., Zone Books 1991) (1976); Walter Benjamin, Critique of
Violence, in One-Way Street and Other Writings 132 (Edmund Jephcott & Kingsley
Shorter, trans., 1978); Jacques Derrida, Force of Law: The "Mystical
Foundation of Authority," in Deconstruction and the Possibility of
Justice 3 (Mary Quaintance, trans., Drucilla Cornell, Michel Rosenfeld,
& David Gray Carlson eds., 1992); Foucault, supra note 156; Nikolas
Rose, Powers of Freedom: Reframing Political Thought (1999); Carl Schmitt,
Political Theology: Four Chapters on the Concept of Sovereignty (George
Schwab, trans., MIT Press 1985) (1922).
n163. John Kleinig, Punishment and Desert 23 (1973).