June 24, 2021 22:53

The Death Penalty and the Misleading Concept of ‘Closure’

When William Barr first served as U.S. Attorney General, in the first Bush administration, he supported the death penalty based on its deterrent and retributive value. Until he departed last month, he remained a steadfast supporter of capital punishment.

But his rationale changed. In announcing the ramp-up of the federal machinery of death that has led so far to ten executions in the past five months (with yet another one, the execution of Lisa Montgomery, scheduled for a week before the end of President Trump’s term), Barr stated that “we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

Barr’s shift mirrored a subtle but powerful change in the national conversation about capital punishment. As the deterrence rationale proved hard to justify, and the retributive rationale began to sound too angry and vengeful, both have been replaced with a kinder, gentler-sounding justification: by carrying out executions we can honor the victims and help their families heal.

The argument for the importance of providing “closure” to the families of murder victims has been used to impose death sentences, trim procedural protections, permit victim impact statements, truncate appeals, deny clemency petitions, speed up executions, and permit the use of unauthorized lethal injection drugs.

“Closure” sounds like a venerable and authoritative psychological concept. It’s also a powerful prosecution argument—it isn’t easy to oppose granting peace to those who’ve endured tremendous suffering.

But there are two glaring problems with the argument. First, “closure” isn’t a psychological concept at all. It’s a creature of popular culture, the media, victims’ advocacy groups, and the legal system. Second, there is no good evidence that a death sentence or an execution helps bring closure.

The notion of closure began in the late 1980’s as a political goal of the victims’ rights movement, and it has had a meteoric career.

It is now an article of faith that closure is a state of mind the criminal justice system can help provide. One problem with the claim is that the term “closure” is vague and amorphous. It might mean finding the answers to the terrible questions a murder leaves open, such as whether the victim suffered.

It might mean affording family members a chance to address the court and share the pain and loss the crime has wrought. Or it might mean knowing that the defendant can never harm anyone again. None of these goals requires a death sentence.

The meaning of “closure” that has captured the popular imagination and given prosecutors a powerful weapon is the most problematic one: the notion that a death sentence or an execution can provide respite from grief—or even an end to suffering. The evidence on whether execution brings closure is scant; but what exists does not support this claim.

If closure means closing a book, leaving pain and grief behind, few will experience it. As one family member said “I hate that word. I don’t know who made that word up. There is no closure.”

What the studies do show is that bereaved families now believe they will come to feel closure.

Many feel victimized again when the death sentence or the execution does not have the promised effect. Some say they’ve found closure but define it in idiosyncratic ways: “We’ll never recover from this. This brings some closure, but it does not bring back my mom.” Some link it to the ability of their murdered relative to rest in peace.

Some experience it as a kind of pressure to move on and stop complaining. One parent of a victim of the Columbine shooting said “I have observed some in this community who want very much to hear no more about Columbine and to hear us say we’re finding closure.”

The most telling finding is that a number of family members feel relieved simply because they are finally free of the legal system. As Matthew Shepherd’s parents and the Richard family (victims of the Boston Marathon bombing) understood, much of the pain comes from the capital system itself—lengthy, heart wrenching legal proceedings in which the family would be called to testify and the defendant would remain at center stage for years.

One study found that one of the hardest things family members experience is the disconnect between the “closure” they were promised and the complicated emotions they actually felt.

The Richard family’s experience highlights the hypocrisy at the heart of the government’s support for closure on behalf of victims and their families. The government sought and obtained the penalty over their objection. The jury never even learned that they had objected. (The sentence has since been overturned).

More recently, the families of three people slain by Daniel Lewis Lee in Arkansas beseeched the federal government to forgo Lee’s execution, arguing that it would bring them more pain, and also that traveling to view the execution would expose them to COVID. Despite their pleas, the execution proceeded.

The Biden administration has vowed to eliminate the federal death penalty and incentivize the states to follow suit, but the basic question of why we execute will remain, and it cannot be answered by relying on dubious pop psychology and unsupported assumptions.

To help the families of murder victims, we would do better to ask more directly: what do these family members need in order to move forward with their lives? Some of those needs, including frequent and respectful communications from prosecutors and other legal actors, are within the power of the criminal justice system.

susan bandes

Susan A. Bandes

Others, including therapeutic support and material assistance, may be better met by other agencies.

What is not helpful is to conscript murder victims’ families to support an agenda that is not their own, and to do it in their name.

Susan A. Bandes is Centennial Professor of Law Emeritus at DePaul University College of Law. Her articles on closure are available here and here.

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