"Closure" and Capital Punishment

Posted by James Brockway, Guest Blogger on April 12th, 2011

In their study, “Not In My Name: An Investigation of Victim’s Family Clemency Movements and Court Appointed Closure,” recently published in The Western Criminology Review, University of Louisville sociologists Thomas J. Mowen and Dr. Ryan D. Schroeder shine a spotlight on one of the more misunderstood elements of the death penalty, namely the effect that death sentences have on covictims, the surviving family of the murdered.  While victim’s family members are often trotted out as the main beneficiaries of capital punishment, Mowen and Schroeder’s research draws attention to the growing victim’s clemency movement and helps to explain how the recent emphasis on closure as a justification for the death penalty has in fact produced greater covictim opposition.  Their work also draws attention to the role media coverage plays in both representing and shaping public opinion on the death penalty, highlighting the way that newspapers have a tendency to overstate victim support for the system.

Mowen and Schroeder begin their analysis with a survey of the criminological research done on the justifications prevalently appealed to by death penalty supporters.  They note that the public generally accepts that there is little, if any, deterrent or fiscal benefit to capital punishment.  In spite of this, public support remains relatively strong (though drops dramatically in polls which compare death sentences to life without the possibility of parole).  The reason for this is that there has been a shift in justification from utilitarian policy concerns to an emphasis on moral arguments that focus on the importance of retribution and victim closure—i.e. the belief that executions are essential to providing family members with some emotional relief that allows them to ‘move past’ their suffering.  As recent research by Scott Vollum and Jacqueline Buffington-Vollum has shown, these types of value-expressive justifications are less vulnerable to change in the face of evidence which demonstrates the short-comings of capital punishment than arguments that focus on the policy’s effectiveness because such justifications are tied to the individual’s conception of their identity.

As the authors are very quick to point out, there are some very serious problems with these closure based arguments for maintaining capital punishment.  First, there is a serious contradiction between the “highly contextual and individualized” nature of closure as an emotional state, and the objective and rational framework of the legal system which is supposed to deliver this feeling to the aggrieved.  This problem is compounded by the fact that there is often a very real difference between the way the court and covictims conceive of closure—for family members who have lost love ones, the pain of that loss frequently lingers long after the case is “closed” and the legal mechanisms for applying justice have reached their terminus.  The idea that any legal remedy could resolve their suffering functions to marginalize the voices of covictims as they go through the grieving process, and may in fact stifle the creation of social networks that are responsive to their needs (as can be seen anecdotally in the way California’s victim’s restitution fund has been allowed to approach bankruptcy as the state continues to spend millions of dollars each year on capital punishment).  The tension between the diverse and continuous process of grieving and the one size fits all approach of the justice system has the effect of shoehorning covictims into a court approved version of closure which leaves little room for alternative ways of coping with loss.  

In addition to creating problems for victims, the closure approach to capital punishment also raises significant concerns for the fairness of our justice system.  By treating trials as therapeutic tools, the emphasis on closure reverses the presumption of the accused’s innocence which is a hallmark of our legal system, and threatens to only heighten the bias which frequently plagues capital trials.  If trials are being undertaken in order to serve the particular emotional needs of family members, we are implicitly sending the signal to jurors that their primary obligation is not to dispassionately assess guilt or innocence, but is instead to actively involve themselves in victims’ healing processes, thus staking the deck against defendants before trials even begin.

Because of these concerns, there has been a growing contingent of victims who oppose execution as a means of closure.  Mowen and Schroeder’s study documents the emergence of this covictims clemency movement as a reaction to the shift in popular justification for capital punishment, while also evaluating the way newspaper coverage of capital trials seeks to minimize acknowledging this reaction.  To do this, they analyzed 119 articles from the 1992-2009 that comprised a representative cross-section of death penalty coverage.  They found that there was a statistically significant increase in covictim resistance to capital punishment which occurred at a rate of 3.262% during the period studied.  They also discovered that courts had a tendency to cite closure as an explicit justification far more frequently then covictims (who other studies have indicated report executions bring closure in only 2.7% of relevant cases).

Despite this trend of increased opposition, newspaper coverage consistently attempts to highlight victim support for the death penalty.  In their research, Mowen and Schroeder consistently found that articles which emphasized the execution-closure connection were longer and more prominently featured in the paper than their anti-death penalty counterparts.  While they were reluctant to draw overly sweeping conclusions from their data set, Mowen and Schroeder rightly observe that their findings point to a growing disjunction between the actual will of victim’s family and the popular representation of their interests.

“Not In My Name” represents an important step towards challenging conventional wisdom regarding covictims’ stance on capital punishment, and raises important questions about the practical and moral implications of using state-killing as a tool for healing.  Mowen and Schroeder have pointed the way for a research agenda which attempts to take seriously the multitude of perspectives held by victims’ families, and their call for a transformation of “victims’ families from noncontributing outsiders...to active participants within the current capital punishment paradigm” demands attention from all of us who are committed to ensuring that no one, be they covictim, or defendant, is “victimized at the hands of ‘justice.’”

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  1. Comment by jomno, Jun 20th, 2011 7:00pm

    I am familiar with the work of Dr. Mowen. His research is highly respected within the academic realm. I respect his research, along with that of his pupil (Schroeder) and hope this becames a more popular paradigm in the arguement against capital punishment. Something must change! We must listen to our leaders.


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