Ultimate Punishment (4 page)

I
F THESE ARE THE PERILS
, why have a death penalty? What do we get out of it?

One group that consistently supports executions is the surviving loved ones of murder victims. As an AUSA, I'd handled only one shooting case. Clearly, I didn't know enough about how the world looks to the victims of violence. As a result, a number of my colleagues and I urged the Commission to hear from the murdered person's survivors, who are commonly referred to as “the victims.” In murder cases, alone among crimes, the anguish and loss of loved ones stands in for what was experienced by the actual victims, who can no longer speak for themselves.

In order to sample public opinion about the capital punishment system, the Commission held open hearings in both Chicago and Springfield, the state capital. The roster of speakers was dominated by death penalty opponents, many of them associated with religious groups. (One organization whose position I hadn't anticipated was the Illinois Medical Society, which objects to state laws allowing physicians to assist in executions, in violation of the Hippocratic oath.) Understandably, survivors were not eager to turn their hearts inside out in that kind of forum, and as a result we scheduled private sessions where they felt freer to speak.

I learned a great deal in those hours. What made the deepest impression on me was my eventual recognition that losing a loved one to a murder is unlike any other blow delivered in our often-cruel lives. This is because the survivor's loss is not the result of something as fickle and unfathomable as disease, or as random as a typhoon. Instead, he has had someone ripped from him by the conscious choice of another human being. This is so far from the ingrained assumptions we share in living together that the reality is almost impossible to accommodate. And the unique nature of this loss is a special challenge to the regime of reason and rules that is the law because it exists, first and foremost, to encourage and enforce minimum standards of civilized behavior. Even before the law's technicalities, its unfamiliar language, privileges, and procedures, and its decade-long delays from trial to execution—even before all of that starts, the law, by its own terms, has failed these people.

This recognition was a long time coming to our legal system. Crime, as we conceive of it, is committed against the community as a whole, and thus matters of policy, including punishment, depend on community judgments. The U.S. Supreme Court had ruled as late as 1987, in
Booth v. Maryland
, that it was unconstitutional in a capital sentencing proceeding to admit a statement of the impact of the crime on the survivors. Such evidence was inflammatory and irrelevant, the Court said, since sentencing should look solely to the character of the defendant and his crime, not to the tears of the bereaved.

By the end of the 1980s, the so-called victims' rights movement had gained ascendance nationwide, and the Court, as has so often been the case on questions of capital punishment, reversed itself in 1991. Now, in most states, victims have a statutory right, as they do in Illinois, to be heard by the sentencing tribunal.

Do survivors want the killer to die? Not universally. But more often than not, they do. And what is it they hope to gain by seeing a murderer put to death? Obviously, answers to this question are highly individual, but in speaking to victims, certain themes emerged.

Dora Larson has been a victim advocate for nearly twenty years, helping the surviving family members deal with both the tribulations of violent crime and the way the legal system addresses it. She herself is a survivor.

“[M]y 10 year-old daughter, Victoria Joell Larson—-or Vicki—was kidnapped, raped, and strangled and put into a grave her 15 year-old killer had dug three days before,” she told us when she testified before the Commission on December 13, 1999. Given her professional and personal experience, Mrs. Larson was in a unique position to describe what survivors want.

Clearly, it would render a loved one's death even more meaningless if the crime was repeated. This concern presumably can be met by a life term. Yet Mrs. Larson noted several ways in which life sentences pose a far greater emotional burden than an execution. Because Vicki Larson's killer was under eighteen, he was not eligible for the death penalty.

Even if we guarantee that life sentences will include no possibility of parole, anxieties remain for survivors. Another woman who appeared before us, Laura Tucker, pointed out that the man who'd savagely beaten and murdered her nine-day-old niece, the baby's father, had made two escape attempts while awaiting his death sentence. With his history of vicious child abuse, she contended that no child in the state would be safe were he again at large.

Survivors' concerns are also accelerated by the dynamism of the legal process: laws change. In Dora Larson's case, the U.S. Supreme Court's decision in
Apprendi v. New Jersey
, creating new constitutional requirements that must be met before imposing so-called enhanced sentences—sentences that, in particularly aggravated cases, can be extended beyond the statutory maximum—has left her worrying that her daughters killer's life term might now be unlawful. If so, his sentence could be shortened to sixty years, which would put him back on the street at the age of forty-five.

Mrs. Larson is right. As long as a killer is alive, he's likely to keep throwing paper. From a penitentiary cell, there's not much to lose. And eventually the law may come to his aid. The reality, though, is that a death sentence is probably more illusory than a life term. As I noted, even before Governor Ryan's moratorium, more than a third of the time a condemned prisoner in Illinois eventually escaped death row; and less than half of one percent had actually been executed, which is consistent with national averages. Moreover, no jurisprudence is more unstable than that governing capital sentencing. Until June 2002, the mentally retarded could be sentenced to death. Now it's unconstitutional, with no telling how many sentences across the country will be overturned as a result.

But the fact that survivors never stop hearing about the killer while he's alive motivates victim families to talk again and again about “closure,” an end to the legal process that will allow them to come to final terms with their grief. Only an execution, they maintain, will provide that irreversible conclusion.

On the Commission, a number of us tried, without success, to determine whether the hope of closure is satisfied in reality. I have not found any long-range studies of survivors which attempted to assess their emotional state in the years following an execution. As Mrs. Larson said, “[S]urviving families are sentenced to a life of pain, unanswered questions, what-ifs, and trips to the grave.” These remain whether the killer lives or dies. Jay Stratton, who lost his mother in the Oklahoma City bombing, watched the execution of the principal perpetrator, Timothy McVeigh. Stratton reportedly said, “I thought I would feel satisfied, but I don't.” Some scholars maintain that survivors only experience more emotional turbulence in the wake of an execution.

Yet Mrs. Larson and many others assert that large numbers of survivors find the execution of their lost loved one's killer a meaningful emotional landmark. Because McVeigh had killed more than 160 people, his execution provided a broad sample of survivor opinion, and many of those who witnessed it, either in person or through a closed-circuit feed to Oklahoma City, told reporters in the immediate aftermath that they had experienced a sense of relief. There are enough such anecdotal accounts that I, for one, am unwilling to dismiss them, particularly because execution brings a definitive end point to what seems to be the most enduring grievance of many survivors.

As Dora Larson put it:

The fact that a life-incarcerated killer still has birthdays, Christmases, sees the sun rise and set, can look through the visiting room panel and hear his mother say she loves him and can repeat those words to her, is the ultimate indignity to many victim families. Some critics may label the survivors' desire for death “retribution,” or even “revenge,” but that's subtly off the mark. From what I heard, they do not await the murderer's execution simply to establish a gruesome tit-for-tat, in which the horror of being killed is revisited on a killer, or out of the logic of the sacrificial altar, where witnessing someone else's anguish will expiate their own pain. The justice they seek is the same kind embedded in the concept of restitution: the criminal ought not end up better off than his victim. To survivors it is unconscionable and infuriating that after all the misery the murderer has wrought, he still experiences many of the small joys of existence, and thus in some measure his life and his family's is better than the victim's and theirs.

“Yet even if a survivor's desire for a killer's death reflects broadly held views of what is just, the actual implementation of those wishes may not be fair. For example, emphasizing the preferences of victims has exaggerated many of the inherent inequities of our capital justice system, often enhancing the randomness of who gets sentenced to death and who does not. The murders of Melissa Ackerman and Jeanine Nicarico were virtually identical crimes, yet Brian Dugan received life imprisonment for the murder of Melissa Ackerman, because the Ackerman family was willing to accept the sure, quick resolution offered by a guilty plea, while the Nicaricos have demanded death for their daughter's killer. It violates the fundamental notion that like crimes be punished alike to allow life or death to hinge on the emotional needs of the survivors.

The rise of the victims' rights movement in the 1980s was based on the reality that survivors were often shunted aside in the criminal process, poorly informed, and even forgotten. Yet it is also not coincidental that victims' rights came into their own in the Reagan era, when there was increasing acceptance of a libertarian market-oriented ideology, which sees security as one of the few acceptable goals of government action. Building on that, the notion seems to be that when the legal system fails to provide security, citizens are entitled to assume the law's power on their own. Thus victims have sometimes become virtual proprietors of the justice system in capital cases. Yet is it the law, alone, that has failed when a murder takes place? Or is the responsibility a far broader one that reaches to all the institutions in our society—schools, churches, towns, and families? Why make the law the one engine for recompense for survivors?

To me by far the greatest fallacy in justifying capital punishment with the oft-heard mantra that “the victims deserve it” is that it is, in a favored lawyers' phrase, an argument that “proves too much”—an argument that, when extended, defeats itself. Once we make the well-being of victims our central concern and assume that execution will bring them the greatest solace, we have no principled way to grant one family this relief and deny it to another. From each victim's perspective, his loss, her anger, and the comfort each victim may draw from seeing the killer die are the same whether her loved one perished at the hands of the Beltway Sniper or died in an impulsive shooting in the course of a liquor-store holdup. The victims-first approach allows us no meaningful basis to distinguish among murders.

Yet in a state like Illinois, 49 times out of 50, a death sentence is not imposed for a first-degree homicide. Are we saying that justice has not been done in 98 percent of cases? Not according to the Supreme Court, which has established constitutional requirements that presuppose that the death penalty will be imposed on a select basis. The Court requires legislatures to create exacting guidelines about the factual circumstances under which capital punishment may even be considered, followed by a scrupulous weighing of the aggravating and mitigating factors that characterize a particular crime and defendant. And in this formulation, no matter how liberal the victim-impact rules, the expressed desires of survivors for the death penalty have no permissible role. Indeed, when we allow victims to “own” the process, we are defying that framework.

This leads me to think that we hide behind victims to some extent, identifying with their just wrath as a more comfortable expression of our own retributive impulses. Prosecutors, in particular, use the victims' desires as a fig leaf for their own judgments. When the system works as it is supposed to, however, we subordinate the survivors' wishes to other elements in our calculus of justice to determine what's best for all of us.

Nor is this wrong, in my view. While the magnitude of loss is by far the greatest for the bereaved, the community as a whole has been deprived of the victim's potential. And when we punish, we do so in the name of all of us. The unique role of the jury in expressing the will of the community is the seeming reason that American law has exalted the jury's role in capital matters, where, as in no other criminal case, it is empowered to pronounce sentence. (In acceding to this arrangement, the courts have also relieved judges of having to wield the law's most uncomfortable responsibility on many occasions.) And we don't decide what the community's interests are merely by asking victims how they feel. We know how they feel: full of grief and rage. The law ought not prolong or complicate their suffering as it tends to do—but part of that is because prosecutors and legislators make empty promises of swift and sure justice, when they know that in capital cases our jurisprudence requires saturation certainty, and thus prolonged litigation, before an execution takes place. The legal system surely owes victims an outcome that is just by common lights, so they feel no obligation to take matters into their own hands, as was portrayed in the film
In the Bedroom
. And the Commission's report pointed out that we can do a far better job in providing compassionate services for victims. Cops swarm the scene, but nobody tells the family how to get a death certificate.