Samuel R. Gross
University of Michigan Law School
Daniel J. Matheson
University of Michigan Law School
Cornell Law Review, Vol. 88, p. 486, 2003
Abstract:
News stories of executions now routinely include reports of statements by members of the victims' families. For this study we examined such reported statements for 138 executions in the United States, from 1999 through 2002. We also looked at a smaller set of reports of statements by family members of the victims after death-row defendants are exonerated and released; we found such reports in 34 of the 85 death-row exonerations from 1988 through mid-2002. Neither set of stories is anything like a representative sample of the reactions of the families of capital murder victims, and their content is distorted by the habits and biases of the media. Nonetheless, they provide an intriguing glimpse into the effects of capital punishment on some of those who are most directly affected by the underlying crimes.
When a capital defendant is put to death, the most common reaction from the victim's family is relief that it happened, at last. Victims' relatives also frequently express satisfaction with the execution, sometimes in the impersonal terms of justice, sometimes as unabashed pleasure in revenge. They often complain about the long and tortuous route from sentence to execution, and many are particularly unhappy about the attention that is repeatedly focused on the defendants rather than the victims; some see the execution as an opportunity to redress that imbalance. Finally, many victims' relatives hope that at the point of death the killer will accept responsibility and apologize for his crimes, and that they will be able to forgive him. This does occasionally happen, but judging from these data it's uncommon; more often the relatives who hope for this conclusion are disappointed and hurt.
In a disturbing number of cases - over 100 since 1973 - American defendants under sentence of death are exonerated and released. Judging from the stories we have found, most relatives of the victims refuse to accept this result and continue to believe that the exonerated defendants are guilty, sometimes in the face of overwhelming evidence. The relatives of the victims unambiguously accepted the innocence of the exonerated defendants in only 7 of the 34 capital exonerations in our study. These seven cases fall into two overlapping groups: cases in which the actual killer is identified (5 of 7), and cases in which the local police officers and prosecutors who investigated the crime now say that the defendant is innocent (5 of 7).
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=415081
US News & World Report - 6/17/97
Many grieving families seek comfort and closure in the execution of the murderer. Do they find it?
By the time Vicki Haack arrived at the "Death Chamber" viewing room last Tuesday, the man who had murdered her sister Lisa was already hooked up to the intravenous tubes. In 1986, Kenneth B. Harris, a crack cocaine addict, had entered her sister's apartment, raped and choked her, and then spent an hour drowning her in her bathtub. Now, he lay strapped to a gurney in a small, powder-blue room in the state penitentiary in Huntsville, Texas, his feet lashed together and his muscular arms extended as if on a crucifix. Haack stood against the viewing window, only 4 feet from Lisa's killer. As she watched Harris, she thought about her sister's death, and about Harris's family, who stood on the other side of a wall that divided the viewing room in half.
Harris showed no fear. He turned his head to the side to smile and nod at his audience. With the warden at his head and the prison chaplain at his feet, Harris apologized to both families for the pain he had caused them. Then he told the warden he was ready to die.
Vicki Haack wept quietly as Harris closed his eyes and expelled his last breath in two loud gasps through trembling lips. She heard Harris's sister scream on the other side of the viewing room. Six minutes later, Harris was pronounced dead.
After the execution, Vicki Haack said that her family had forgiven Harris. "We have no hate or bitterness in our hearts," she said. "But that doesn't mean he does not pay for his crime."
Go on with life.
It was something the murderer himself said, though, that seemed to capture what so many family members hope to get out of an execution. Just before his death, Harris turned to Haack and said simply, "I hope you can go on with your lives and we can put an end to this."
Putting an end to it--that's what so many victims' families seek. Last week, a parade of witnesses at the Timothy McVeigh trial described the explosion's impact on their lives. Off the witness stand, survivors expressed their belief that killing McVeigh would be just, given their loss, and many vented their fury. "The sooner [McVeigh] meets his maker, the sooner justice will be served," said Darlene Welch, whose 4-year-old niece, Ashley, was killed in the blast. "He will get what he deserves in the afterlife, where he will meet Hitler and Jeffrey Dahmer," says Ernie Ross, who suffered serious injuries from the blast while working across the street. Another survivor suggested that McVeigh should have one leg amputated and then be suspended over sharpened, growing bamboo shoots that would pierce his body.
Murderers are paying for their crimes with their lives in record numbers this year. Over the course of three nights last week, four men were killed in the Huntsville Death Chamber. Seven more are scheduled to die there later this month, bringing the total number of executions in Texas to 11 this month and 27 this year, shattering the state's annual record of 20 set in 1935. A Huntsville prison official said, "We're finally ahead of the curve. We're executing them faster than they are coming in." Elsewhere, the appeals of many of the nation's 3,000-plus death row prisoners are running out--a situation, experts note, that foreshadows an acceleration of executions.
This would seem to be what Americans want. In poll after poll, more than 70 percent say they support the death penalty, a figure that has remained consistent for at least the past decade. But while the percentages haven't changed much, the nature of the discussion has. Not long ago, it was framed in terms of practicality: Was the death penalty effective in deterring crime? Was permanently incapacitating an offender the best way to protect society? Was capital punishment fairly and evenly administered?
But increasingly, another argument for the death penalty is being voiced, one far more elemental. It centers not on the criminal's debt to "society" but on the right of a victim's loved ones to gain peace of mind through his death. The right, in other words, to a form of therapeutic vengeance. Death-penalty opponents have traditionally viewed this kind of personal retribution as essentially barbaric. The mark of a civilized society is the ability to maintain a system of justice based on laws, not emotions--on theories of jurisprudence, not psychology. But is bringing solace to a victim really an illegitimate justification for the death penalty? And isn't providing solace a powerful form of restitution?
Basic emotion. The impulse for revenge is potent and natural. "When someone is executed who killed a member of your family," says Brooks Douglass, "vengeance is a part of the emotions that everyone feels." In 1979, when Douglass was 16 years old, two drifters entered the Douglass family farmhouse in Okarche, Okla., as Brooks, his parents, and his 12-year-old sister, Leslie, were sitting down to dinner. The two men, Glen Burton Ake and Steven Keith Hatch, hogtied Brooks and his parents in the living room. The family was forced to listen as the men raped Leslie in a bedroom. Then, the men sat down to eat the family's hamburger patties and mushroom gravy. Ake shot all four Douglasses in the back, before leaving with $43 in cash and the wedding rings from Brooks's parents.
Their parents died, but Brooks and Leslie survived to begin 18 years of anguish. Brooks testified seven times in the seven years after the attack, reliving that terrible night each time. Ake was sentenced to life in prison while Hatch got the death penalty.
Last August, Douglass watched Hatch's execution, an experience that evoked powerfully conflicting emotions. As Hatch died, Douglass felt as if he were watching two scenes simultaneously, his parents' deaths and that of their murderer. Before the execution, he agonized over the death penalty; afterward, he felt as if death had come too easily for Hatch.
The grieving process for a murder victim is somewhat like that for anyone else: disbelief, anger, grief, and then, finally for some, acceptance. But survivors of homicide victims rarely move easily through these stages. Murder often taps a well of rage that can drown out all other emotions.
Too easy? Richard Estell from Plano, Texas, and his wife have lived with their anger and sadness since Sept. 5, 1993, when their daughter, Ashley, 7, was abducted from a park playground as they watched their son's soccer game a few yards away. The man convicted of Ashley's rape and murder, a previously convicted sex offender, Michael Blair, delayed his execution this past spring through an appeal. When he is finally put to death, Estell plans to be there. "For me, it is partly closure and partly the focus on personal revenge," he says. "I want to see him gone." Death by lethal injection is too good for Blair, says the heartbroken father. "I can't get it out of my mind what my daughter must have felt," he says. "I'd really like to see him put in with the general prison population [where he would likely be raped himself]. That would be proper punishment."
Prosecutors often stoke a family's rage by telling them that only the death penalty can assuage their sorrow. "When you have lost a child, you go into a state of insanity, and you think whatever they want you to think," says Aba Gayle, 64, of Santa Rosa, Calif., whose 19-year-old daughter was murdered in 1980. "They told me, `We are going to catch this man. We're going to convict him, and when we have an execution, you will be healed.' The DA told me this, and the sheriff's department, also the media. And I believed them." Gayle now regrets that and is fighting to keep her daughter's killer from being executed.
For some survivors, the execution of a killer does quench the rage. Paula Foster's daughter, Jennifer Burns, then 21, was a bookkeeper at an Arlington, Texas, nightclub when David Lee Herman shot her in the back of her head during a robbery attempt in 1989. Foster says Herman's six years on death row kept her full of hate. "When it first happened, I didn't have much anger toward him," she says. "I didn't know him. But I became more angry at him because of all the appeals. He didn't deserve to live during those six years."
But defeating the anger only left Foster alone with her grief. Foster says that during the trials and appeals she felt she was doing something for her daughter. Since the execution, on April 2 in Huntsville, she says, "I keep thinking, `What can I do for Jennifer now?' The execution is another healing step. Maybe I'm finally realizing that Jennifer is really gone."
Grief counselors suspect that some people focus on their hatred of the killer to keep the more painful feelings of sorrow at bay. Since an appeals process can take years, survivors who nurse their rage may go more than a decade without really grieving. For some survivors, the anger is intensified by guilt. A parent fails to protect a child from a pedophile; a wife feels remorse that the last words she exchanged with her husband before his death were spoken in anger.
More often than not, families of murder victims do not experience the relief they expected to feel at the execution, says Lula Redmond, a Florida therapist who works with such families. "Taking a life doesn't fill that void, but it's generally not until after the execution [that the families] realize this. Not too many people will honestly [say] publicly that it didn't do much, though, because they've spent most of their lives trying to get someone to the death chamber."
Linda Kelley, of Houston, watched the murderer of her two children--Mark, 26, and Kara, 20--die in February 1996. "My family and I have been characterized as hatemongers for wanting to watch him," she says. "We are not hatemongers. If we were really bent on revenge, we would have gotten him ourselves at the trial. We are law-abiding citizens." She was the first survivor allowed to witness an execution under a then new Texas law. "When I was standing there watching him," she says in measured tones, "this anger came back in me. All I could think of was that he stood there and looked at my precious children and shot them in the head. I kept thinking, `I hate you for what you did. I hate you for taking the father of my two grandbabies.' "
But Kelley says the execution left her unsatisfied. "You stand there and you watch a man take two gasps and it's over," she says. "I would like to have seen him humiliated a little bit. I think that he should have been brought in and strapped down in front of us. My son dies after being shot in the face and choking on his own blood. We make it too easy [on killers]."
Sandra Miller, 50, spent 16 years nursing her hatred of William Bonin, the "Freeway Killer" who was put to death in California in February 1996. In 1980, Miller's 15-year-old son, Rusty Rugh, a straight-A student, was abducted near their home in Riverside, Calif., as he was about to get on a bus to go to his job after school. Rusty was beaten, raped, and murdered by Bonin. His slim body was dumped by the side of the Ortega Freeway. "The rage is unbelievable," says Miller. "I was 17 when I got pregnant with Rusty. I loved him more than life." Bonin was ultimately convicted of raping, torturing, and murdering 14 boys. On the eve of his execution, Miller wrote him a note: "I think of how I could torture you. You've brought out feelings in me I didn't know a human being could have."
But Bonin's death brought Miller none of the relief she had hoped for. She has spent many of the intervening years in an alcoholic haze, she says. A granddaughter born nine years ago helped patch some of her loss, but like many survivors, she couldn't move on. A measure of peace has come only since she struck up an unlikely friendship with Bonin's biographer, Alexis Skirloff. Bit by bit, Skirloff told Miller about the murderer's own brutal childhood and about what she knew of Rusty's last hours. As a result, Miller has found some compassion for Bonin, become more able to grieve for Rusty, and drawn closer to the rest of her family. "My other two kids lost their brother and then they lost their mother," she says.
The fury often is exacerbated by treatment of the families by the criminal justice system. Sheriff's offices inform them of the death with callous indifference to the shocking nature of the news. Family members regularly travel for hours to attend court only to discover the hearing had been postponed and they weren't notified. Andy Serpico was appalled when, after the 1979 rape and murder of his wife, Bonnie, the judge at assailant James Free's trial forced Serpico and his daughters to sit in the back row of the courtroom, while Free's weeping mother was allowed to sit next to the jury. Even more galling was when the judge forbade Serpico to tell the jury Bonnie had been a mother. "The belief was that it would be prejudicial," he says. "This is why I was very vocal through the whole process of trials and clemency hearings. Everybody would get to meet James Free, get to know James Free. I wanted people to remember that Bonnie Serpico was a real person."
In recent years, a victims-rights movement has tried to address this perceived imbalance. In the last decade, 15 states have followed Texas's lead in allowing victims' families to view executions. Many courts now let victims testify directly to the accused during the trial and to make statements about their pain and suffering during sentencing.
Of course, survivors are not the only ones seeking vengeance. Callers to a New York radio show had suggestions for punishing Susan Smith, the South Carolina mother who had drowned her two sons: "Drown her." "Cook her." "She should be fried."
Nor are the survivors the only ones seeking peace of mind. In a way, so is the rest of the country. While death penalty foes are quick to point out that the United States is one of the few Western countries with capital punishment, it is also true that Americans are more likely to experience violent crime than citizens of other countries.
Americans might not feel so vengeful if they trusted the judicial system to protect them from the worst predators. Indeed, support for the death penalty drops from 77 percent to below 50 percent when people are given a choice between the death penalty and life without parole plus restitution for victims' families. Such stiff penalties are now common. But the fear that a criminal will be prematurely released is reinforced every time someone like Charles Manson or Sirhan Sirhan, convicted under earlier laws, gets a hearing for possible parole.
The anxiety about violent crime, however, is out of proportion with reality. Murder victims are about as likely to be killed in cold blood by strangers as they are in the heat of an argument by a close associate. Most children are abducted or abused not by strangers but by relatives.
Unequal justice? Allowing fear to affect decisions about executions can lead to apparent inequities. Roughly 80 percent of those put to death in the past two decades had killed whites, though only about half of murder victims are white. This has led religious groups such as the Mennonite Central Committee to conclude that in the realm of capital punishment, "black lives are worth less than white lives." Others dispute the inequity idea, arguing that the figures don't take into account the seriousness of crimes.
Some theologians, like Greg Koukl of the evangelical study group Stand to Reason, discount this as a reason for abolishing the death penalty. "The answer isn't to get rid of punishment," he says, "but to make justice equal for all." As Koukl and others see it, the death penalty is warranted and religiously permissible according to passages of both the Old and New testaments--particularly the "eye for an eye" teaching espoused in Deuteronomy. The idea of punishment "fitting" the crime is not just about vengeance, they say, but fostering a basic sense of justice.
Others, however, believe the death penalty conflicts with the basic teachings of Jesus. Says Donald Shriver, former president of the Union Theological Seminary, "There is literally nothing I can find in the teachings of Jesus that would justify the death penalty."
Seeking revenge also violates a central tenet of Western law, that criminals should be punished on behalf of society as a whole, not the victim. Not all judicial systems are set up in this manner. In Saudi Arabia, for example, two Britons accused of murdering an Australian last December have been sentenced to death by beheading. Their sentence could have been commuted, however, if the victim's brother had been willing to accept monetary compensation. (He wasn't.) For better or worse, American judges and juries are supposed to mete out punishment whether or not the victim's family condones or condemns it.
In Denver last week, U.S. District Judge Richard Matsch limited testimony of survivors in order to keep the sentencing phase of McVeigh's trial from turning into "some kind of lynching." Said Matsch, "We're not here to seek revenge on Timothy McVeigh." Outside the courtroom, though, residents of Oklahoma City openly discussed how executing McVeigh would make them feel. Marsha Kight, who lost her daughter in the bombing, said, "It would probably give me some satisfaction to know that [McVeigh] could never be able to see anybody that he cares about--because that's what my sentence is. I don't get to see my daughter, so why should he see anyone he cares about?" But she does not support executing him. "If it brought my daughter back, that would be one thing, but it's not going to."
Jannie Coverdale lost her two grandsons, Aaron, 5, and Elijah, 2, in the bombing. She said she opposed the death penalty--until the bombing. She fears McVeigh would attract a following of extremists in jail and end up orchestrating the killing of others, so she wants him executed. But she's trying not to hate him. "Hatred is a sickness," she says, the proof being what it drove McVeigh to do in the first place. "That's why our loved ones died. I won't put myself on Timothy McVeigh's level." She says she hasn't forgiven McVeigh yet, but, for her own sake, she's trying.
ACTING SWIFTLY
Before Oklahoma City, Carolyn Templin was, by her own admission, "very much opposed" to capital punishment. "But losing my son-in-law made it clear how important the death penalty is," she says. Templin's son-in-law, Scott Williams, was killed in the Murrah building blast, three months before his daughter, Kylie, was born. Templin now believes that if one is "found guilty beyond a doubt, the only appropriate way is to execute the person." And swiftly, too: Endless delays in carrying out death sentences, she says, serve only to undermine their deterrent effect. Templin traveled to Washington to lobby for a bill speeding up executions for convicted terrorists on death row. The bill's passage renewed her faith in the very federal government that Timothy McVeigh so hated. McVeigh could have channelled his anger constructively. "Instead, he chose to mass murder 168 families." For that, she says, he deserves to die.
MAKING HIM SUFFER
Some family members of victims have a deep need to see the murderers suffer as their loved ones did. "After it was done, we came out, and it was like, `Is that it?' " recalls Danny Roberts. "My brother suffered terribly when he died. I really wanted to see them bring [Patrick Rogers] into the room and strap him down. They should have let us see a little bit of the terror in Rogers's face that my brother must have felt."
Danny's brother, David, a 23-year-old Paris, Texas, police officer, was killed Sept. 21, 1985, when he pulled Rogers, then 21, over to question him about a robbery. Before Roberts opened his police cruiser door, Rogers fired a stolen pistol. Roberts's widow later gave birth to his son. The Roberts family watched as Rogers was executed June 2.
"Do I hate Patrick Rogers?" asks Danny Roberts. "The first few years after my brother died, yeah. But I don't know the man. I just know what he did."
HONORING VICTIMS
At 16, Brooks Douglass never expected to be a crusader for victims' rights. That changed the day in 1979 when he witnessed the murder of his parents and the rape and attempted murder of his sister, and nearly died himself. Douglass spent the next 17 years following the murderers through trial after trial, hearing after hearing. After his election to the Oklahoma State Senate, he devoted himself to sponsoring and passing victims' rights bills, including the controversial law permitting survivors and victims' families to view executions.
"I was criticized for fostering revenge," Douglass says. "So what? Who are we to question what a person's feelings are when they go view an execution? There is no other party that has more to benefit from seeing the killer executed than a family member." In August 1996, Douglass and his sister watched the execution of one of the men who terrorized their family.
FEELING DIMINISHED
On Dec. 20, 1989, 21-year-old bookkeeper Jennifer Burns was in the upstairs office of an Arlington, Texas, nightclub when David Lee Herman, a former club manager, burst in, pistol in hand. After making Burns, another woman, and the male day manager fill bags with $11,200 in cash, he forced Burns to strip so that he could fondle her. "This is where the fun begins," he said, and he proceeded to shoot all three employees. Workers Sally Fogle and Clay Griffin survived; Burns died in Fogle's arms.
When a jury later sentenced Herman to die, Paula Foster, Burns's mother, dabbed at tears outside the courtroom and said, "God, you don't know how much I wanted that." Although Herman was executed on April 2, Foster is still angry at the judicial system: "It was always the state of Texas versus David Lee Herman. You feel like you're not important. [The prosecutors] have no idea of your need to be involved."
TAMING FURY
Sandy Miller's rage was not calmed by the trial and execution of William Bonin, who raped and killed her son and at least 13 other boys. Only after lengthy talks with Bonin's biographer, did her fury begin to subside. She came to the realization that serial killers are made, not born. "As a boy, [Bonin] had been raped and put in an orphanage--not that he didn't deserve what he got, but maybe he wouldn't have gotten to the point he did if the system had helped him," she says.
Though not necessarily against the death penalty, she now doubts its value as therapy for survivors or as a deterrent to criminals. "A person who is that sick will keep on no matter what," she says. Such people should be locked up for good, she says, and their victims' families given a chance to confront them directly. Had she been given that opportunity, she says, her healing would have begun years earlier.
http://www.prodeathpenalty.com/vengeance.htm
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