Victims, "Closure," and the sociology of emotion

Law and Contemporary Problems

Volumn 72, Issue 2, 2009, Pages 1-26

  Bandes, Susan A ^a  

^a DEPAUL UNIVERSITY   (United States)

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EID: 77950778196     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (187)

1. The term "survivors" denotes family members and others bereaved by murder
2. FRANK ZIMRING, THE CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT 42 (2003)
3. Prior to 1989, the terms "closure" and "death penalty" were never mentioned together. They were linked once in 1989. Starting in 1993, the mentions grew geometrically to more than 500 in 2001. For the first time in 2001, an ABC News-Washington Post poll asked whether the death penalty is fair
4. See, e.g., Edna Erez, Who's Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement of Justice, CRIM. L. REV. 545, 550-53 (1999) (arguing, in the context of noncapital cases, that the use of victim impact statements is empowering for victims).
5. See, e.g., Chip Brown, The Confessor: Conversations with a Serial Killer, N.Y. TIMES MAG., Apr. 29, 2007, at 39 (discussing a detective who uses the term to describe a motive for his quest to solve open murder cases)
6. see also For the Family of Sneha Anne Philip, Closure, N.Y. MAG., Jan. 31, 2008, available at http://nymag.com/daily/intel/2008/01/for_the_family_of_sneha_ann_ph.html (discussing the efforts of the family of a woman missing since September 10, 2001 to prove that she had died at the World Trade Center, rather than as the victim of a crime in which her own recklessness might have played a role, and their vindication in a Manhattan appellate court).
7. See, e.g., Stephanos Bibas, Forgiveness in Criminal Procedure, 4 OHIO ST. CRIM. L.J. 329, 336- 37 (2007) ("[M]any [victims] want to confront offenders face to face, tell their stories, and understand why their crimes happened.").
8. In their review of news articles about executions that recount the reactions of the victims' family members, Sam Gross and Daniel Matheson found a broad range of reactions. Among the minority who said they had experienced some sort of closure, the term was given several different meanings, including relief that the long court process had ended, relief that the defendant could not hurt anyone else, and relief that the defendant would stop receiving so much press attention. None claimed that his or her suffering for the loss would be in any way alleviated by the execution. Samuel R. Gross & Daniel J. Matheson, What They Say at the End: Capital Victims' Families and the Press, 88 CORNELL L. REV. 486, 490-94 (2003)
9. see also Vik Kanwar's interesting discussion of closure as a "sanitized version" of the more visceral "satisfaction." Vik Kanwar, Capital Punishment as "Closure": the Limits of a Victim-Centered Jurisprudence, 27 N.Y.U. REV. L. & SOC. CHANGE 215, 248 (2001).
10. For example, closure is cited by lower courts as a value militating against granting defense motions that might delay or reopen a capital case. See, e.g., Grayson v. King, 460 F.3d 1328, 1342 (11th Cir. 2006) (describing the government's compelling interests, which in this case outweighed the capital defendant's due process argument for post-conviction access to biological evidence, as including "guarding against a flood of requests, protecting the finality of convictions, and ensuring closure for victims and survivors")
11. see also Skaggs v. Commonwealth, No. 2002-SC-0436-MR, 2005 WL 2314073, at *5 (Ky. Sept. 22, 2005) ("Surely the family and friends of the two victims are entitled to some consideration as to the closure of these grisly and senseless murders....")
12. State v. Korsen, 111 P.3d 130, 135 (Idaho 2005) (citing survivor and victim closure as interests weighing against reopening or delaying a verdict).
13. SUSAN BANDES, THE PASSIONS OF LAW 1-19 (1999)
14. See infra III-VII
15. ARLIE HOCHSCHILD, THE MANAGED HEART: COMMERCIALIZATION OF HUMAN FEELING 201-203 (1983)
16. Ninety-five percent of all studies of emotion involve individual subjects. E-mail from Dacher Keltner, Psychologist and Director of the Berkeley Social Interaction Laboratory, to Susan Bandes (May 2, 2007) (on file with Law and Contemporary Problems).
17. Psychologist Jerome Kagan observes that social scientists tend to "generate hypotheses from abstract concepts rather than concepts that are closely tied to observed phenomena." JEROME KAGAN, THREE SEDUCTIVE IDEAS 78 (1998).
18. JONATHAN H. TURNER & JAN E. STETS, THE SOCIOLOGY OF EMOTIONS 1 (2005).
19. See, e.g., Eliot R. Smith, Charles R. Seger & Diane M. Mackie, Can Emotions Be Truly Group Level? Evidence Regarding Four Conceptual Criteria, 93 J. PERSONALITY & SOC. PSYCHOL. 431 (2007).
20. See, e.g., PAULA M. NIEDENTHAL ET AL., PSYCHOLOGY OF EMOTION: INTERPERSONAL, EXPERIENTIAL, AND COGNITIVE APPROACHES 305-342 (2006).
21. See, e.g., Catherine Lutz and Geoffrey M. White, The Anthropology of Emotions, 15 ANN. REV. ANTHROPOLOGY 405 (1986) (noting the move away from relegating emotion to the sidelines of culture theory).
22. E.g., SHARON KRAUSE, CIVIL PASSIONS: MORAL SENTIMENT AND DEMOCRATIC DELIBERATION (2008)
23. see also GEORGE LAKOFF, THE POLITICAL MIND (2008)
24. GEORGE E. MARCUS, THE SENTIMENTAL CITIZEN: EMOTION IN DEMOCRATIC POLITICS (2002)
25. DREW WESTEN, THE POLITICAL BRAIN: THE ROLE OF EMOTION IN DECIDING THE FATE OF THE NATION (2007)
26. DANIEL GOLEMAN, SOCIAL INTELLIGENCE: THE NEW SCIENCE OF HUMAN RELATIONSHIPS 83 (2006) (quoting Richard Davidson, Director of the Laboratory for Affective Neuroscience at the University of Wisconsin)
27. see also Richard J. Davidson & Steven K. Sutton, Affective Neuroscience: The Emergence of a Discipline, 5 CURRENT OPINION IN NEUROBIOLOGY 217 (1995).
28. The extent to which emotions are biologically rooted is also an important and burgeoning area of study. See, e.g., ANTONIO DAMASIO, THE FEELING OF WHAT HAPPENS: BODY AND EMOTION IN THE MAKING OF CONSCIOUSNESS 51 (1999) (referring to a group of primary or universal emotions-happiness, sadness, fear, anger, surprise, and disgust-and to a larger group of secondary or social emotions, and arguing that although culture and learning can alter the expression and meaning of emotions, all share a biological core)
29. see also Erin O'Hara & Douglas Yarn, On Apology and Consilience, 77 WASH. L. REV. 1121, 1140-51 (2002) (discussing the biologically rooted taste for apology and forgiveness)
30. Andrew Ortony & Terence J. Turner, What's Basic About Basic Emotions?, 97 PSYCHOL. REV. 315 (1990) (raising the possibility that the concept of basic emotions is an article of faith)
31. Peggy Thoits, The Sociology of Emotions, 15 ANN. REV. SOC. 317, 320 (1989) (noting the ongoing debate about socially constructed versus basic or biologically rooted emotions).
32. See, e.g., TURNER & STETS, supra note 14, at 2 (explaining the social construction of emotions).
33. See, e.g., Sigal G. Barsade, The Ripple Effect: Emotional Contagion and Its Influence on Group Behavior, 47 ADMIN. SCI. Q. 644, 644-75 (2002).
34. See Arvid Kappas, The Science of Emotion as a Multidisciplinary Research Paradigm, 60 BEHAV. PROCESSES 85 (2002).
35. KAGAN, supra note 13, at 14-38
36. see also JEROME KAGAN, WHAT IS EMOTION?: HISTORY, MEASURES, AND MEANINGS 4-10 (2007)
37. See, e.g., C. Daniel Batson, Prosocial Motivation: Is It Ever Truly Altruistic?, 20 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 65 (1987).
38. There is no unanimity about the meaning of altruism in the philosophical literature. See, e.g., Symposium, 10 SOC. PHIL. & POL'Y, Winter 1993, at 1 (devoting an entire issue to the philosophy of altruism).
39. The classic behavioral definition of altruism is "behavior that benefits another organism, not closely related, while being apparently detrimental to the organism performing the behavior, benefit and detriment being defined in terms of contribution to inclusive fitness." Robert L. Trivers, The Evolution of Reciprocal Altruism, 46 Q. REV. BIOLOGY 1, 35 (1971). The adaptationist view, however, focuses on evolved design rather than on behavior; processes such as "kin selection" and "reciprocal altruism" lead to the evolution of mechanisms designed to deliver benefits to other organisms because such behaviors lead to the replication of the genes that underlie them. Robert Kurzban, Biological Foundations of Reciprocity, in TRUST, RECIPROCITY, AND GAINS FROM ASSOCIATION: INTERDISCIPLINARY LESSONS FROM EXPERIMENTAL RESEARCH 105-27 (E. Ostrom and J. Walker eds., 2003)
40. John Tooby & Leda Cosmides, Friendship and the Banker's Paradox: Other Pathways to the Evolution of Adaptations for Altruism, PROC. BRIT. ACAD. 88, 119-43 (1996). I am grateful to Rob Kurzban for his guidance on these issues.
41. See generally 22 EMOTION RESEARCHER (2006-2007) (the definition issue, which contains a dizzyingly wide array of suggested definitions). The Emotion Researcher is the Official Newsletter for the International Society for Research on Emotion.
42. Id. at 9 (definition of Anna Wierzbicka).
43. Id. at 7 (definition of Arvid Kappas), 12 (definition of Manfred Holodynski).
44. TURNER & STETS, supra note 14, at 1
45. The precise means by which emotion and cognition interact are very much a matter of debate. See, e.g., ANTONIO R. DAMASIO, DESCARTES' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN (1994) (exploring the somatic marker hypothesis)
46. Joseph Forgas, Mood and Judgment: The Affect Infusion Model, 117 PSYCHOL. BULL. 39 (1995) (presenting a model of affective states as influences on social judgment)
47. Oliver Goodenough & Kristin Prehn, A Neuroscientific Approach to Normative Judgment in Law and Justice, PHIL. TRANSACTIONS ROYAL SOC'Y LONDON SERIES B 359, 1717 (2004) (considering the impact of findings of cognitive neuroscience about moral reasoning on legal reasoning)
48. Elizabeth A. Phelps, The Interaction of Emotion and Cognition: Insights from Studies of the Human Amygdala, in EMOTIONS AND CONSCIOUSNESS (Lisa Feldman Barrett et al. eds., 2005) (exploring the role of the human amygdala in regulating emotion and cognition).
49. See, e.g., Linda Seward, Shame and Guilt Cultures, http://mtsu32.mtsu.edu:11283/shame_guilt.htm (last visited Oct. 19, 2008) (charting the differences between shame cultures and guilt cultures for the benefit of students planning to study abroad).
50. ZIMRING, supra note 2, at 89
51. See, e.g., Thoits, supra note 20, at 322. The work of Erving Goffman on interaction rituals is seminal to the study of cultural scripts for performing and interpreting emotions. See ERVING GOFFMAN, FRAME ANALYSIS: AN ESSAY ON THE ORGANIZATION OF EXPERIENCE (1974)
52. ERVING GOFFMAN, INTERACTION RITUAL: ESSAYS ON FACE-TO-FACE BEHAVIOR (1967) [hereinafter GOFFMAN, INTERACTION RITUAL]
53. ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE (1959)
54. Thoits, supra note 20, at 323
55. See CANDACE CLARK, MISERY AND COMPANY: SYMPATHY IN EVERYDAY LIFE (1998), discussed in Thoits, supra note 20, at 323
56. See Thoits, supra note 20, at 323 (examining "sympathy norms and the rules of sympathy exchange")
57. For excellent summaries of the work in this area, see generally id. and TURNER & STETS, supra note 14.
58. For example, American Studies professor Joel Pfister has noted that "some Western emotions, once deemed vital to human essence, are now obsolete (the medieval notion of "accide" or losing one's zeal for praying, the Renaissance notion of melancholy)." Joel Pfister, On Conceptualizing the Cultural History of Emotional and Psychological Life in America, in INVENTING THE PSYCHOLOGICAL: TOWARD A CULTURAL HISTORY OF EMOTIONAL LIFE IN AMERICA 17, 22 (Joel Pfister & Nancy Schnog eds., 1997).
59. Cheshire Calhoun, Making Up Emotional People: The Case of Romantic Love, in THE PASSIONS OF LAW, supra note 9, at 217
60. HOCHSCHILD, supra note 11, at 201-03
61. No single institution operates independently, of course. To study the culture of the capital system implicates a web of interlocking institutions, including the criminal justice system, the jury system, police and prosecutors, the prison system, and the media.
62. MARTHA C. NUSSBAUM, UPHEAVALS OF THOUGHT: THE INTELLIGENCE OF EMOTIONS 405 (2001) (discussing the power of institutions to influence emotions that impede appropriate compassion).
63. E.g., Jerome Groopman, The Grief Industry, NEW YORKER, Jan. 26, 2004, at 30 (discussing the controversy over grief counseling with specific reference to families of victims of the September 11, 2001 terrorist attacks).
64. See, e.g., United States v. Bull, 214 F.3d 1275 (11th Cir. 2000) (upholding the district court's imposition of anger-control treatment and a requirement that the defendant pay for the treatment as properly falling within the statutory authorization to impose "special conditions of supervised release" in a case involving the unauthorized use of a VISA card)
65. State v. Kline, 963 P.2d 697 (Or. Ct. App. 1998) (upholding the trial court's imposition, at a parole revocation hearing, of a condition that the abusive father refrain from fathering any additional children until he had completed drug treatment and anger management programs).
66. See Molly Butler Bailey, Improving the Sentencing of Domestic Violence Offenders in Maine: A Proposal to Prohibit Anger Management Therapy, 21 MAINE B.J. 140 (2006) (noting that in Maine the three approved sentences for domestic violence offenders are jail time, batterer's intervention, and anger management therapy; and arguing that anger management therapy is dangerous and ineffective in this context and should be prohibited as a sentence)
67. Benedict Carey, Anger Management May Not Help at All, N.Y. TIMES, Nov. 24, 2004, at D3 (noting that state and county programs have been set up without supporting research on the effectiveness of anger management, even though studies show that the programs are often ineffective and sometimes exacerbate anger).
68. "Compassionate individuals construct institutions that embody what they imagine; and institutions, in turn, influence the development of compassion in individuals." NUSSBAUM, supra note 45, at 405.
69. See infra text accompanying notes 52-55
70. Although the concept is used in noncapital contexts as well, the focus here is solely on its use in capital cases. Every legal context raises certain unique issues for victims and their role in the justice system. For example, one study of victim impact statements and their reception by judges in noncapital cases found that judges exhibited very different attitudes toward the appropriate expression of emotion by rape victims and by domestic violence victims. See generally Mary Schuster & Amy Propen, Victim
71. See generally Douglas E. Beloof et al., Constitutional Implications of Crime Victims as Participants, 88 CORNELL L. REV. 282 (2003).
72. See also Elizabeth Beck et al., Seeking Sanctuary: Interviews with Family Members of Capital Defendants, 88 CORNELL L. REV. 382, 387-90 (2003) (describing the victims' rights movement).
73. I have argued elsewhere that although victims often set out to gain the former set of goals, in our current adversary structure they tend to succeed mostly in attaining the latter. Susan Bandes, Victim Standing, 1999 UTAH L. REV. 331 (1999).
74. Vanessa Barker, The Politics of Pain: A Political Institutionalist Analysis of Crime Victims' Moral Protests, 41 LAW & SOC'Y REV. 619 (2007). Barker concludes that political structures that were intensively polarized tended to deepen crime victims' demands for vengeance and provide legal expression for those demands, whereas political contexts with intensive civic engagement and well developed norms of social trust and reciprocity tended to bring about pragmatic measures mixing restorative and restrictive approaches. Id. at 638.
75. It is beyond the scope of this article to consider fully the complex interaction of social, cultural, political, and legal forces that account for the evolution of the capital system in the United States generally, or the increasing influence of the victims' rights movement in particular. For influential explorations of these issues, see generally STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY (2003)
76. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY (2001)
77. JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR (2007)
78. JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2005)
79. ZIMRING, supra note 2
80. Compare Death Penalty Information Center, Facts About the Death Penalty, http://www.death penaltyinfo.org/documents/FactSheet.pdf (last visited June 27, 2009), with Death Penalty Information Center, States That Allow Victim Impact Statements, http://www.deathpenaltyinfo.org/legal-issues- states-allow-victim-impact-statements (last visited June 27, 2009).
81. 501 U.S. 808 (1991) (overruling Booth v. Maryland, 482 U.S. 496 (1987)).
82. Id. at 822. This is a topic I've visited before. See Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. CHI. L. REV. 361 (1996). In that article I examined the arguments against the original premise for upholding the use of victim impact statements-specifically, their informational value. The question that concerned the Court then was whether these statements would allow death sentences to be imposed based on improper or irrelevant factors. My focus in this article is mainly on the shift in rationales, and the use of the healing and closure rationale. But it is also on what we have learned in the nearly twenty years since Payne was decided, and on what we still need to learn, both about the actual workings of victim impact statements, and about emotion, cognition, and institutions.
83. Payne, 501 U.S. at 825.
84. Justice O'Connor touched on the idea that the statement is for the benefit of the victim in her concurrence in Payne when she said, "Murder is the ultimate act of depersonalization. It transforms a living person with hopes, dreams, and fears into a corpse, thereby taking away all that is special and unique about the person. The Constitution does not preclude a State from deciding to give some of that back." Id. at 832 (O'Connor, J., concurring). As Robert Mosteller observes, "The argument is styled in terms of returning something to the murder victims themselves, but obviously that action is symbolic. Its impact is for the benefit of the victims' families and friends...." Robert P. Mosteller, Victim Impact Evidence: Hard to Find the Real Rules, 88 CORNELL L. REV. 543, 550 (2003).
85. See cases cited supra note 8. As I will discuss in detail below, attaining closure has come to implicate not only the survivor's ability to be heard, but also the need for a sentence of death and an execution. See infra text accompanying notes 100-110.
86. See, e.g., Victim Impact Statements, http://www.letswrap.com/legal/impact.htm (last visited Oct. 19, 2008). This website, a summary of information on victim impact statements from the Minnesota Center for Crime Victim Services, argues that statements provide victims a right to address the court prior to sentencing, allow them to express the impact of the crime on them and their families, and may aid victims in their emotional recovery. See also Mary Lay Schuster & Amy Propen, 2006 WATCH Victim Impact Statement Study 6, http://www.watchmn.org/pdf/watch-vis%20Final%20.pdf (last visited Oct. 19, 2008) ("Judges and advocates were generally in agreement that the impact statement can be a powerful 'part of the healing process' for the victim.").
87. See discussion of the McVeigh case infra text accompanying notes 111-19
88. See Susan Bandes, Reply to Paul Cassell: What We Know About Victim Impact Statements, 2 UTAH L. REV. 545, 551-52 (1999) (citing studies on victim satisfaction and noting a lack of studies on the psychological effects of victim impact statements on murder survivors)
89. Robert C. Davis & Barbara E. Smith, Victim Impact Statements and Victim Satisfaction: An Unfulfilled Promise?, 22 J. CRIM. JUST. 1 (1994) (analyzing noncapital felony cases and finding little evidence that victim impact statements promote victim satisfaction)
90. Robert Elias, The Law of Personhood: A Review of Markus Dirk Dubber's Victims in the War on Crime: The Use and Abuse of Victims' Rights, 52 BUFF. L. REV. 225, 246 (2004) (arguing that encouraging victims and survivors to voice hatred may increase the sense of victimization).
91. This is not to suggest that the constitutional criteria are clear, or that their interpretation is free of controversy-quite the contrary
92. In general the extent to which it is possible to discern the authentic emotional states of others is itself a "formidable epistemological problem." See Jeffrie G. Murphy, Moral Epistemology, the Retributive Emotions, and the 'Clumsy Moral Philosophy' of Jesus Christ, in BANDES, supra note 9, at 157 (discussing the problem of other minds)
93. see also Jeffrie G. Murphy, Remorse, Apology, and Mercy, 4 OHIO ST. J. CRIM. L. 423, 437 (2007) ("[I]issues of deep character are matters about which the state is probably incompetent to judge.").
94. See, e.g., GOFFMAN, INTERACTION RITUAL, supra note 35, at 48-50 (discussing the rules of conduct for the presentation of self in particular roles)
95. see also MARKUS DIRK DUBBER, VICTIMS IN THE WAR ON CRIME: THE USE AND ABUSE OF VICTIMS' RIGHTS 188-92 (2002) (discussing stock images of victims)
96. For discussions of the many variations among victims and survivors, see, for example, WOUNDS THAT DO NOT BIND: VICTIM-BASED PERSPECTIVES ON THE DEATH PENALTY 17-140 (James R. Acker & David R. Karp eds., 2006)
97. Bandes, supra note 59, at 405-08
98. Susan Bandes, When Victims Seek Closure: Forgiveness, Vengeance and the Role of Government, 27 FORDHAM URB. L.J. 1599 (2000)
99. Wayne A. Logan, Declaring Life at the Crossroads of Death: Victims' Anti-Death Penalty Views and Prosecutors' Charging Decisions, 19 CRIM. JUST. ETHICS 41, 48 (1999). For discussions of murder survivors who oppose the death penalty, see, for example, Robert Renny Cushing & Susannah Sheffer, DIGNITY DENIED: THE EXPERIENCE OF MURDER VICTIMS' FAMILY MEMBERS WHO OPPOSE THE DEATH PENALTY (2002). See also Brief for Murder Victims' Families for Reconciliation as Amici
100. See Lynne N. Henderson, The Wrongs of Victims' Rights, 37 STAN. L. REV. 937, 964-66 (1985) (discussing the evolution of emotions after victimization).
101. The MADD workbook asks a series of questions to assist victims in drafting their statements. Here is one example: The Emotional Impact How do you feel emotionally when you wake up in the morning? What do you think about? How often do you cry? Describe the last time you cried. What do you think about when you go to bed at night? How difficult is it for you to sleep? How long do you sleep? Do you have nightmares? About how much of every day do you feel sad? Do you feel more tired than you did before the crime? Have you been diagnosed with depression, anxiety, post-traumatic stress disorder, or any other stress-related illness since the crime? Are you on any medications for those conditions? Have you considered suicide since the crime? Have you had difficulties with relationships since the crime? How has it affected your family life? Has your view of the world as a safe and fair place changed since the crime? Has your spirituality changed since the crime? MOTHERS AGAINST DRUNK DRIVING, YOUR VICTIM IMPACT STATEMENT 9 (2003), available at http://www.madd.org/docs/Victim%20Impact%20Statement%20Workbook.pdf.
102. Id. at 28.
103. Id. at 5.
104. See ROBERT JAY LIFTON & GREG MITCHELL, WHO OWNS DEATH?: CAPITAL PUNISHMENT, THE AMERICAN CONSCIENCE, AND THE END OF EXECUTIONS 204-10 (2002) (describing some cases in which survivors who began by supporting a death sentence came, for a variety of complex reasons, to oppose or regret the execution of the condemned man)
105. see also Brief for Murder Victims' Families for Reconciliation as Amici Curiae, supra note 70, at *8 ("Execution of the offender causes some victims to feel implicated in another person's death.")
106. Jeff Goodell, Letting Go of McVeigh, N.Y. TIMES MAG., May 13, 2001, at 40 (recounting the change of heart of Patrick Reeder, who lost his wife and mother-in- law in the Oklahoma City bombing).
107. NICHOLAS TAVUCHIS, MEA CULPA: A SOCIOLOGY OF APOLOGY AND RECONCILIATION 51 (1991)
108. Sheri Lynn Johnson, Speeding in Reverse: An Anecdotal View of Why Victim Impact Testimony Should Not Be Driving Capital Prosecutions, 88 CORNELL L. REV. 555, 559 (2003).
109. In Payne, the Supreme Court did not rule on the admissibility of survivor opinion testimony about the proper sentence in capital cases, a type of testimony that was previously held unconstitutional. Although the denial of survivor opinion testimony might appear to apply to both pro- and anti-death penalty opinions, there are two reasons why this may not be so. First, judges appear more willing to allow "thinly veiled pro-death-penalty opinions," such as exhortations to the jury to "show no mercy," testimony that the Nevada Supreme Court allowed, characterizing it as "a request that the jury return the most serious sentence it found appropriate." Wayne Logan, Victim Impact Evidence in Federal Capital Trials, 19 FED. SENT'G REP. 8 (citing Witter v. State, 921 P.2d 885, 895-96 (Nev. 1996)). Compare this with Robison v. Maynard, 943 F. 2d 1216 (10th Cir. 1991), in which the Tenth Circuit upheld the exclusion of testimony of a survivor who planned to ask for mercy, characterizing it as opinion testimony. Second, as discussed below, testimony that does not bear the hallmarks of a death penalty opponent, such as a plea for mercy or forgiveness, tends to be received by the jury as a plea to impose a death sentence. See infra text accompanying notes 127-30.
110. Bandes, supra note 54, at 341 & n.45. Charles Baird and Elizabeth McGinn describe several such cases, including one in which the prosecutor sought to bar the mother of a murdered six-year-old boy both from giving a victim impact statement and from taking the stand at all, though he put her brother, a death penalty supporter, on the stand. Charles F. Baird & Elizabeth E. McGinn, Re-Victimizing the Victim: How Prosecutorial and Judicial Discretion Are Being Exercised to Silence Victims Who Oppose Capital Punishment, 15 STAN. L. & POL'Y REV. 447, 466 (2004).
111. The federal Crime Victims' Rights Act, 18 U.S.C. § 3771 (2006), was passed to address this problem and to protect federal crime victims' rights to be heard. See A Proposed Constitutional Amendment to Protect Victims of Crime: Hearing Before the U.S. Senate Comm. on the Judiciary on S. J. Res. 6, 105th Cong. 70 (1997) (testimony of Marsha Kight). There are numerous unresolved questions about the scope and operation of the Act. However, it specifically states that it does not establish grounds for an independent cause of action based on its violation. 18 U.S.C. § 3771(d)(6). It further states that "nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." Id.
112. See, e.g., Cushing & Sheffer, supra note 70, at 12-13 (discussing implicit messages to survivors that their feelings are inappropriate)
113. see also LIFTON & MITCHELL, supra note 75, at 204 (discussing the impact on a survivor of prosecution encouragement of her "anger and hatred")
114. See Kelly v. California, 555 U.S. __, No. 07-11073, slip op. at 5 (2008) (Stevens, J., dissenting from denial of certiorari) (observing that victim impact statements elicit emotions that are likely to increase the chance of a death sentence)
115. DUBBER, supra note 69, at 188-89 (analyzing the role of victims' emotions in prosecution strategy)
116. Baird & McGinn, supra note 79, at 464-65 (discussing concern about the ability of judges to withstand victim impact testimony at sentencing)
117. See Schuster & Propen, supra note 64, at 9-10. Schuster and Propen reported, in the context of victim impact testimony in noncapital cases, that judges were often uncomfortable with negative emotions like anger and hatred, for example. Id. They stated, While we observed several sentencing hearings in which judges made an extra effort to welcome, thank, or even praise the victim, we did see one in which we wished the judge had made more effort. The court waited a long time for the defendant, who was in custody for murdering his wife, to be brought into court, and the judge was clearly concerned about getting back to a trial that he was conducting. After the advocate read statements from the step-father and mother of the victim, the judge's only comment was "ok." The attack was particularly brutal, so much so that the sentence was an upward departure from the guidelines. We imagined that it would be hard for the victim's family, who sat in the gallery, to interpret just what that "ok" meant. Id. They also recounted instances in which judges were inattentive or rude to victims. Id. at 21-23
118. see also Wayne Logan, Confronting Evil: Victims' Rights in an Age of Terror, 96 GEO. L.J. 721, 769 (2008) (recounting disturbing stories of patronizing and dismissive judicial reactions to accounts of victim suffering).
119. LIFTON & MITCHELL, supra note 75, at 204
120. Marilyn Peterson Armour & Mark S. Umbreit, Exploring "Closure" and the Ultimate Penal Sanction for Survivors of Homicide Victims, 19 FED. SENT'G REP. 105, 110 (2006)
121. Article 3, NEWSL. MURDER VICTIMS' FAMS. FOR HUM. RTS. (Murder Victims' Fams. for Hum. Rts., Cambridge, Mass.), Newsletter 7, Fall 2008/Winter 2009 (issue on "closure").
122. Bandes, supra note 70, at 1601-02
123. Similarly, survivors may seek understanding from watching the defendant's demeanor as he is executed, as occurred during the execution of Timothy McVeigh. See CNN.com, Witnesses Describe McVeigh's Last Moments, http://premium.edition.cnn.com/2001/LAW/06/11/mcveigh.witnesses/ (last visited Oct. 20, 2008). See generally Jody Lynnee Madeira, Blood Relations: Collective Memory, Cultural Trauma, and the Prosecution and Execution of Timothy McVeigh, 45 STUD. L. POL. & SOC'Y 75 (analyzing the importance to survivors and others of watching Timothy McVeigh's face as he was executed). Another possible venue for this attempt to gain understanding is victim-offender mediation. The difficult questions that arise from a survivor's attempt to gain understanding in this way deserve in- depth treatment that is beyond the scope of this article.
124. Craig Haney, Lorelie Sontag & Sally Constanzo, Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death, 50 J. SOC. ISSUES 149, 151 (1994).
125. See supra text accompanying notes 28-32
126. For example, one study found that white jurors interpreted the demeanor of black defendants quite differently (and more harshly) than black jurors did: where a black juror saw remorse and sincerity, a white juror saw incorrigibility and deceptiveness. Black and white jurors displayed similar differences in reading one another's demeanors, with both black and white jurors reading more negative emotions across racial lines. William J. Bowers, Benjamin D. Steiner & Marla Sandys, Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors' Race and Jury Racial Composition, 3 J. CONST. L. 171, 244-52 (2001)
127. see also Michael E. Antonio, Arbitrariness and the Death Penalty: How the Defendant's Appearance During Trial Influences Capital Jurors' Punishment Decision, 24 BEHAV. SCI. & L. 215 (2006).
128. A recent, rather colorful example of this dynamic occurred in the Lewis "Scooter" Libby trial, in which all but one juror arrived in court on Valentine's Day wearing "bright red T-shirts with a white valentine heart over their clothes.... [in order] to express their fondness for the judge and the court staff." Neil A. Lewis, Saying He Was Misled by Defense, Judge in Libby Case Puts Some Evidence Off- Limits, N.Y. TIMES, Feb. 15, 2007, at A27. The lone T-shirt holdout was later dismissed from the jury on the ground that she had been exposed to trial-related information over the weekend. Michael J. Sniffen, No Verdict Yet From Remaining Libby Jury, WASH. POST, Feb. 26, 2007, http://www. washingtonpost.com/wp-dyn/content/article/2007/02/26/AR2007022600586.html.
129. Barsade, supra note 22, at 644-75
130. See generally SCOTT SUNDBY, A LIFE AND DEATH DECISION: A JURY WEIGHS THE DEATH PENALTY (2003) (illustrating group dynamics in the context of three actual capital jury deliberations)
131. SUNWOLF, PRACTICAL JURY DYNAMICS: FROM ONE JUROR'S TRIAL PERCEPTIONS TO THE GROUP'S DECISION-MAKING PROCESS (2004) (discussing the psychological and neurological components of group dynamics in the jury context). See also Barsade, supra note 22, at 644-75 (discussing emotional contagion generally).
132. Janice Nadler & Mary R. Rose, Victim Impact Testimony and the Psychology of Punishment, 88 CORNELL L. REV. 419, 447 (2003) (mock jury study conducted through questionnaires gauging participant reactions to varying victim impact statements).
133. Id. at 444.
134. Id. at 443-45
135. Brian Myers, Emalee Weidamen & Gregory Pierce, Psychology Weighs in on the Debate Surrounding Victim Impact Statements and Capital Sentencing: Are Emotional Jurors Really Irrational?, 19 FED. SENT'G REP. 13, 16 (2006).
136. See Theodore Eisenberg, Stephen P. Garvey & Martin T. Wells, Victim Characteristics and Victim Impact Evidence in South Carolina Capital Cases, 88 CORNELL L. REV. 306, 321-22 (2003) (summarizing studies).
137. Id. at 319 (citing Bryan Myers & Jack Arbuthnot, The Effects of Victim Impact Evidence on the Verdicts and Sentencing Judgments of Mock Jurors, 29 J. OFFENDER REHABILITATION 95, 99-100 (1999)).
138. In Payne, the Supreme Court overruled Booth v. Maryland, 482 U.S. 496 (1987), to the extent Booth held the Eighth Amendment acted as a per se bar on the introduction of two types of victim impact evidence: evidence characterizing the victim and evidence of the impact of the killing on the victim's family. It did not discuss the admissibility of opinion evidence regarding sentence, and some commentators contend that therefore Booth's bar on opinion evidence remains undisturbed. See LINDA E. CARTER & ELLEN KREITZBERG, UNDERSTANDING CAPITAL PUNISHMENT LAW 127 n.47, 129 (2004).
139. See supra notes 77-82 and accompanying text (suggesting that the ban on opinion testimony tends to advantage the state, rather than affect both parties equally)
140. Nadler & Rose, supra note 93, at 447
141. John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 CORNELL L. REV. 257, 280 (2003)
142. see also ANNALISE ACORN, COMPULSORY COMPASSION: A CRITIQUE OF RESTORATIVE JUSTICE 59 (2004) (noting that performance rituals may amount to "a demonstration of power relations... [in which] everyone is forced to either participate or watch silently").
143. See sources cited supra note 86
144. see also Susan Jacoby, Watching McVeigh Die Helps No One, NEWSDAY, Apr. 17, 2001, at A33.
145. Some have called this experience "secondary victimization" by the criminal justice system. E.g., Deborah Kelley, Victim Participation in the Criminal Justice System, in VICTIMS OF CRIME: PROBLEMS, POLICIES, AND PROGRAMS 172, 182 (Arthur J. Lurigio et al. eds., 1990)
146. DEBORAH SPUNGEN, HOMICIDE: THE HIDDEN VICTIMS 10-11 (1998)
147. Scott Turow, To Kill or Not to Kill: Coming to Terms with Capital Punishment, NEW YORKER, Jan. 6, 2003, at 40 ("[T]he fundamental equality of each survivor's loss creates an inevitable emotional momentum to expand the categories for death penalty eligibility.").
148. Former Florida governor Jeb Bush stated that by introducing lethal injection and truncating certain procedural avenues to speed up appeals, "we can finally put an end to the unnecessary and endless delays long associated with death penalty cases in Florida. It is time to bring justice to the families of victims who have suffered and died at the hands of the most heinous criminals." Amnesty Int'l, USA (Florida): Further Information on Death Penalty, A.I. Index 51/016/2000, Jan. 24, 2000 (quoting Governor Jeb Bush)
149. see also Governor Jeb Bush's Statements Before the Special Session of the Florida State Legislature, N.Y. TIMES, Jan. 6, 2001, at A22.
150. For example, when District Attorney Jim Brazelton announced that he was bringing capital charges against Scott Peterson, he said: "I owe it to Laci, Conner, the community, and especially the family, who are the most important people here." Harriet Chiang, How Prosecutors Choose Death Penalty, SAN. FRAN. CHRON. April 24, 2003, at A1. For studies documenting wide disparities in capital charging decisions, see STATE OF ILLINOIS RYAN COMMISSION, REPORT OF THE GOVERNOR'S COMMISSION ON CAPITAL PUNISHMENT, Recommendation 30 (April 15, 2002)
151. James Liebman et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases and What Can Be Done About It, http://www2.law.columbia.edu/brokensystem2/updatedinfo.html (last visited Nov. 11, 2008).
152. See generally Susan Bandes, Loyalty to One's Convictions: The Prosecutor and Tunnel Vision, 49 HOWARD L.J. 475 (2006).
153. See., e.g., cases cited supra note 8. For discussions of the political pressures on judges in capital cases more generally, and the effects of those pressures on judicial behavior, see Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759 (1995)
154. Susan Bandes, Fear Factor: The Role of Media in Covering and Shaping the Death Penalty, 1 OHIO ST. J. CRIM. L. 585 (2004).
155. Former Illinois Governor George Ryan's commutation of the sentences of all but four (pardoned) death-row inmates to life in prison followed a series of highly emotional hearings on the prisoners' clemency petitions. The hearings were requested by the Illinois State's Attorney's Office. The issue of closure was raised often: both murder victims' families and the press decried the hearings themselves for reopening painful wounds, and pled with the governor not to deprive survivors and the public of the closure of execution. See John Patterson, Clemency Hearings Open Old Wounds, CHI. DAILY HERALD, Oct. 15, 2002, at 1
156. Editorial, Ryan's Hearings Cruel and Unusual, CHI. SUN-TIMES, Oct. 22, 2002, at 27
157. see also DEADLINE (Home Vision Entertainment 2004) (chronicling the Ryan clemency hearings). The film includes the testimony of Robert Jones, father of a murdered girl: "It would be a grave insult to our daughter for the governor to grant clemency." See generally AUSTIN SARAT, MERCY ON TRIAL: WHAT IT MEANS TO STOP AN EXECUTION (2005).
158. United States v. McVeigh, 958 F. Supp. 512 (D. Colo. 1997), aff'd 153 F.3d 1166 (10th Cir. 1998).
159. United States v. Moussaoui, 282 F. Supp. 2d 480 (E.D. Va. 2003).
160. See Payne v. Tennessee, 501 U.S. 808, 825 (1991) (describing victim impact evidence as "simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question").
161. See, e.g., Old Chief v. United States, 519 U.S. 172, 188-89 (1997) (recognizing the power of narrative).
162. Logan, supra note 83, at 744 (citing Transcript of Record at 6809-11, United States v. Usama Bin Laden, 126 F. Supp. 2d 290 (S.D.N.Y. 2001)).
163. Logan, supra note 83, at 750 (discussing victim impact statements in the Moussaoui case)
164. Id. As Logan notes, in order to exclude all but three dozen impact witnesses, the government needed to obtain an exception to the Justice for All Act, which normally allows crime victims to be reasonably heard at any public proceeding concerning sentence. Id.
165. see also 18 U.S.C. § 3771 (a)-(d).
166. United States v. Johnson, 362 F. Supp. 2d 1043, 1107 (N.D. Iowa 2005), cited in Kelly v. California, 555 U.S. __, No. 07-11073, slip op. at 2 (2008) (Breyer, J., dissenting from denial of certiorari) and at 6 n.3 (Stevens, J., dissenting from denial of certiorari).
167. The very difficulty of raising the issue of prejudice without appearing heartless illustrates the challenge of regulating impact testimony, particularly in mass killing cases. In an exchange from one mass murder trial, the defense counsel, seeking to limit victim testimony, apologized for "seeking to minimize in a legal sense what cannot be minimized in a human sense." The judge dismissed his plea for balance, saying "What is a fair balance? Two hundred killed and 5,000 injured and what is the calculus of that?" Logan, supra note 70, at 743-44 (citing Transcript of Record at 6809-11, United States v. Usama Bin Laden, 126 F. Supp. 2d 290 (S.D.N.Y. 2001)).
168. Penry v. Lynaugh, 492 U.S. 302 (1989) (holding that sentencing structure must give effect to mitigating evidence)
169. Hitchcock v. Dugger, 481 U.S. 393 (1987) (holding that a sentencer must consider mitigation testimony)
170. Lockett v. Ohio, 438 U.S. 586 (1978) (holding that individualized sentencing in capital cases is constitutionally required)
171. see also Bandes, supra note 59, at 402-05 (discussing the influence of victim impact testimony on a jury's ability to consider mitigation evidence)
172. See Payne v. Tennessee, 501 U.S. 808, 825 (1991) (assuming that the due process clause would provide a mechanism for relief in the event of unduly prejudicial testimony)
173. see also John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 CORNELL L. REV. 257 (2003) (reviewing post-Payne cases and finding little meaningful effort to regulate victim impact testimony).
174. Richard Burr, Litigating with Victim Impact Testimony: The Serendipity that Has Come from Payne v. Tennessee, 88 CORNELL L. REV. 517, 520 (2003) (quoting statements made by Judge Matsch during an in-chambers conference on proposed victim impact testimony).
175. Id. at 521
176. see also Susan Bandes, Letter to the Editor: For McVeigh's Victims, A Spectrum of Pain, N.Y. TIMES, Apr. 26, 2001, at A22.
177. Burr, supra note 124, at 521
178. see also Logan, supra note 83, at 743. Although McVeigh was sentenced to death, Moussaoui was not. There is no definitive explanation for the Moussaoui
179. Bandes, supra note 59, at 406-07
180. see also Barton Poulson, A Third Voice: A Review of Empirical Research on the Psychological Outcomes of Restorative Justice, 2003 UTAH L. REV. 167, 167 (2002) (defining restorative justice as viewing crime as a violation against the person rather than the abstract entity).
181. Logan, supra note 83, at 28-30
182. See Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Testimony in Capital Trials, 41 ARIZ. L. REV. 143 (1999).
183. Logan, supra note 83, at 30
184. This tension is evident in the death penalty context, in which the Eighth Amendment requires both individualized consideration and guided discretion. See Lockett v. Ohio, 438 U.S. 586, 606 (1978) (invalidating an Ohio law as not requiring individualized consideration of mitigating factors)
185. Scott E. Sundby, The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L. REV. 1147, 1150 (1991) (examining the tension between individualized consideration and equal treatment).
186. Susan Bandes, The Heart Has Its Reasons: Examining the Strange Persistence of the American Death Penalty, 42 STUD. L. POL. & SOC'Y 21, 30-31 (2008) (discussing the current state of the empirical debate)
187. John Donahue & Justin Wolfers, Uses and Abuses of Statistical Evidence in the Death Penalty Debate, 58 STAN. L. REV. 791, 791 (2005) (a meta-analysis of empirical studies of deterrence).