September 5
USA:
Victim Impact Statements
The goal behind punishment is to allow the defendant to be rehabilitated,
discourage other perpetrators, and make society safer.
Punishments should provide justice for the victims and make the defendant
atone for his crimes in order to offer his/her (surviving) victims closure
and allow them to heal.
The focus of this article is on examining how the understanding of
punishment has changed over the last few decades and what changed roles
the relatives of murder victims play in capital murder trials. This
article's central object of investigation is the victim impact statement,
which provides the relatives of a murder victim with an opportunity to
address the court prior to sentencing after a guilty verdict has been
reached in the United States.
The legal history of victim impact statements will be examined and
embedded in the context of how punishments are viewed by society. During
this process, I will also refer to how punishments are viewed in Germany.
The article will look at the various attitudes of the relatives of murder
victims about the death penalty and its impact on trials and understanding
of punishment and briefly describe the role of the jury and the effects of
the victim impact statements on their decision.
In the United States, the district attorney almost always calls the
members of victim's family to the stand as witnesses in capital cases -
even if they have nothing to say about the facts of the case. For example,
many family members of the victims were called as witnesses in the case
against Timothy McVeigh, who was responsible for blowing up a government
building in Oklahoma City in April 1995 - an attack in which 168 people
were killed. Glenn A. Seidl testified about the death of his wife, who had
worked in the building, and how difficult it was for him to deal with the
grief of his nine-year-old son, who constantly asks about his mother and
misses her terribly. Seidl also read a letter from his son in court that
stated "I miss my Mom, we used to go for walks. She would read to me. We
would go to Wal-Mart Sometimes at school around the holidays I will still
make my Mother's Day and Valentine's Day cards like the other kids."
(Sarat, p. 9).
Glenn A. Seidl was only the last of the 26 family members of those who
were killed to be called as witnesses by the prosecution, in addition to
three injured survivors and 8 rescue or medical workers. The prosecution's
goal was to urge the jurors to not think of what happened as just mass
murder: "There are 168 people, all unique, all individual. All had
families, all had friends, and they're different." (Sarat, p. 8).
The role of victim impact statements
The role of victim impact statements has changed over the last few decades
- most importantly with the U.S. Supreme Court decision in Payne v.
Tennessee in 1991.
In 1976, the U.S. Supreme Court ruled that the death penalty was
permissible and stated that it is "desirable for the jury to have as much
information as possible when it makes the sentencing decision." In 1977,
the same court ruled that, in cases such as Gardner v. Florida, "it is of
vital importance to the defendant and to the community that any decision
to impose the death sentence be, and appear to be, based on reason rather
than emotion."
In 1982, a report was published during the Reagan Administration that took
the growing "Victim's Rights Movement" into account. The report not only
called for consultation and therapy for victims of crimes and financial
support, but judiciary recommendation number six reads: "Judges should
allow for, and give appropriate weight to, input at sentencing from
victims of violent crime."
In 1997, President Clinton signed the Victim Rights Clarification Act,
which allows victims to attend the trial of a defendant accused of the
offense even though the victim may testify or offer a victim impact
statement as to the effect of this crime on the victim or victim's family.
Between both these political decisions there is a fundamental change in
the assessment of victim impact statements during the penalty phase of
death penalty cases by the U.S. Supreme Court.
In 1987, the Court ruled in Booth v. Maryland (Booth was given the death
penalty for the murders of an elderly couple) that victim impact evidence
was unconstitutional. During the sentencing phase of the trial after the
defendant had been found guilty, the prosecution read a victim impact
statement from the victims' son, daughter, son-in-law, and granddaughter.
In that statement, the son described his depression, and the daughter
stated that she can no longer look at kitchen knives without being
reminded of the murders (they were stabbed to death) and concluded that
Booth could "[n]ever be rehabilitated."
The U.S. Supreme Court struck down the sentence with a 5-4 decision,
because in capital cases the victim impact statement is like a "mini
trial" on the character of the victim(s) and diverts the jury from
focusing on the relevant evidence concerning the crime and from the
defendant as a "uniquely individual human being," as is intended by the
Constitution. The admission of the family members' emotionally charged
opinions and characterizations of the crimes could serve no other purpose
than to inflame the jury.
The Court clearly stated that "the Eighth Amendment prohibits a capital
sentencing jury from considering victim impact evidence." The U.S.
Constitution's eighth amendment prohibits cruel and unusual punishment.
Nevertheless, prosecutors continued to use victim impact statements in
death penalty cases and some appeals courts granted their use.
Shortly thereafter, in 1989 the U.S. Supreme Court had to once again
decide on the legality of victim impact statements in South Carolina v.
Gathers. This time, the prosecutor had explained to the jury during the
closing argument of the original trial that the victim was an extremely
religious man and a useful and respected member of the community and
pointed to a voter registration card which the victim had been holding in
his hand when he was found murdered as being indicative of the victim's
belief in his community and his country. The Supreme Court of South
Carolina, while affirming the defendant's conviction, reversed the
sentence and remanded the case for a new sentencing hearing, because it
ruled that the prosecutor's statements had suggested to the jury that
Gathers deserved the death penalty because his victim was religious and a
registered voter. The U.S. Supreme Court confirmed this ruling with
another 5-4 decision and added that the statement about the victim had no
connection to the responsibility of the defendant and contained factors
that the defendant was unaware of and had not played a role in his
decision to kill.
Even so, the lower courts continued to allow the use of victim impact
statements, which severely undermined the U.S. Supreme Court's decision.
In the meantime, 2 U.S. Supreme Court justices, Justice Lewis Powell and
Justice William Brennan, had retired (Powell in 1987 and Brennan in 1990),
and Justice Anthony Kennedy and Justice David Souter were appointed as
their successors. This resulted in a change in the majority opinion on the
victim's rights movement, and the path was clear for Payne v. Tennessee.
In 1987, Pervis Tyrone Payne stabbed his girlfriend's neighbor while under
the effects of cocaine and alcohol after she had rejected his sexual
advances. He also stabbed her 2-year-old daughter. Her 3-year-old son
survived despite the severe wounds inflicted by a butcher knife.
During the sentencing phase of the trial, the prosecution presented the
testimony of the victim's mother. When asked how her grandson, who had
survived the attack, was affected by the murders of his mother and sister,
she responded: "He cries for his mom. He doesn't seem to understand why
she doesn't come home. And he cries for his sister Lacie." In arguing for
the death penalty during closing argument, the prosecutor commented
forcefully on the effects of the crime on the surviving grandson, who had
witnessed the crime. He also mentioned Lacie in the courtroom: "No one
will ever know about Lacie Jo because she never had the chance to grow
up.() So, no there won't be a high school principal to talk about Lacie Jo
Christopher, and there won't be anyone to take her to the high school
prom. ()"
The Tennessee Supreme Court affirmed the conviction and sentence despite
the use of the victim impact statement - and so did the U.S. Supreme
Court, in a 6-3 decision. They felt that the pain and damage arising from
the crime was relevant to determining the sentence and that victim impact
statements were "simply another form or method for informing the
sentencing authority about the specific harm caused by the crime in
question."
In order to ensure balance during the trial, it is important that, in
addition to the accused being allowed to bring up extenuating
circumstances, the prosecution be allowed to introduce "good character"
evidence regarding the victim and the emotional impact of the crime on the
relatives of the murder victim.
The U.S. Supreme Court's decision in Booth, which was rendered just four
years earlier, that victim impact evidence would encourage the jury to
impose stricter and longer sentences if the victim was a respected member
of the community rather than someone who was viewed as not being as
useful, was now found to be wrong by a majority of the judges.
Another highlight in the history of admitting victim impact statements was
the submission of victim impact statements in United States v. McVeigh. As
already mentioned, not only the direct victims of the bombing - namely,
survivors and family members - were allowed to submit a victim impact
statement; several of the rescuers, who undoubtedly had to process
traumatic events, were allowed to submit a victim impact statement. One
example is a rescuer who was only able to hold the hand of a dying woman
who was trapped under the rubble and could not be rescued quickly enough.
However, the horrors that police offers and rescue workers experience
every day in the course of their work hardly differ from comparable events
that are triggered by an accident or natural catastrophe.
McVeigh was a high point of the victim's rights movement, because anyone
who did not want to see this man dead immediately risked being accused of
not honoring the victims.
Without delay, President Clinton hailed the guilty verdict as a "long
overdue day for the survivors and the families of those who died in
Oklahoma City." (Sarat, p. 7). In Oklahoma City, church bells tolled after
the verdict was read.
What is punishment?
Murder is a crime that has perpetrators and victims. (This may sound
trivial, but it is mentioned here because in the case of tax evasion it is
often difficult to determine someone who has been directly affected by the
crime.) The fact that murder also affects the surviving family members and
friends is obvious. The terms "closure" for the survivors as well as
"deterrence" and "retribution" are often used as an argument for the death
penalty.
As we have seen, the relatives are increasingly being introduced by the
prosecution during the trial as well as during the penalty phase. However,
justice remains the only instance in which the law can speak. There are no
direct rights of the victim to determine or even carry out the sentence. I
would like to step back for a moment and analyze what punishment can be
and the significance of punishment in our society (by this I will
initially refer to the situation in Germany). I will then examine the
extent to which this understanding of punishment differs from that of the
United States, and come full circle by coming back to the victim impact
statement and which understanding of punishment this is (or is not) based
on.
Punishment: Recognizing the crime as injustice I will not go into great
detail on the history of criminal law in Germany (see Foucault/ Hassemer/
Reemtsma). As far as the development of our current judicial system, to
put it briefly, the judiciary has developed into a mediator between the
perpetrator and the victim in a civilized court. The State states
precisely and bindingly as far as is possible under its canon of law which
sanctions it will use for which crimes and under which circumstances and
promises to limit its power to those sanctions. The recognition of the
offense by the judiciary as an injustice is supposed to restrain the
victim's possible need for revenge and place it in "expert hands."
(Hassemer/ Reemtsma, p. 20).
A crime (let's stick with murder) shakes the perception "that I don't have
anything to be concerned about." The administration of justice cannot heal
traumas that have been caused by a crime - and also does not claim to, but
it can give the victim something else. It "is the renewal of the promise
to not have certain worries and concerns. Whether he/she (the victim) will
be in a position to not worry is another story and has nothing to do with
the question of the administration of justice." (Hassemer/ Reemtsma, p.
135).
This argument is plausible when, for example, we look at the struggles of
feminists to get marital rape legally recognized as a crime and rape
legally recognized as a war crime under international law in the
International Court of Justice in Den Haag and the International Criminal
Tribunal for Rwanda. It took a long while for the arguments of the
feminist lawyers and activists to be accepted. The recognition that in
both cases a crime even took place in the first place is the prerequisite
for the victim to best integrate the (traumatic) experience into their own
life. The paths for this are very different and also have varying degrees
of success and are based on the individual.
The recognition of rape as such with the consequences of the prosecution
of the defendant is necessary, but is not enough for the victim to come to
terms with the damage resulting from the rape.
Thus, the Criminal Code with its "recognized" crimes and the length of the
penalties there reflects the prevailing societal mood.
Unlike the recognition as a crime, the penalty is subjected to
increasingly different perceptions, because the question that is asked
here is usually understood to be an either/or question: is the penalty
there for the defendant or for the victim?
Defendant orientation of penalties
In 1976, a new penal code came into effect in the Federal Republic of
Germany. It was the result of long discussions on the basic rights of
prisoners. Limits for life sentences were confirmed by the Federal
Constitutional Court (Bundesverfassungsgericht) on June 21, 1977, which
held "that a dignified execution of a life sentence can only be ensured if
the convicted person has a concrete and in principle realizable chance of
regaining his freedom at a later time, because the core of human dignity
is hit deeply when, irrespective of his personal development, the
convicted person has to give up any hope of ever achieving his freedom."
According to Hassemer, the intention of this law and the legal and
scientific debates is "the defendant orientation in the interest of a
cautious and just criminal law." (Hassemer/ Reemtsma, p. 57). He names,
among other things, the position of the accused as the subject in the
criminal proceeding and the right to a defense as the central themes that
form the basis of penal law. He sees an orientation towards more than
revenge in modern criminal law. "While revenge and atonement is a rather
normative phenomenon that is concentrated on mankind's internal forum,
improvement and deterrence also work from the outside in. They aim at the
convicted (improvement) and virtual (deterrence) defendants and the
calculating rationality, and they promise that the penalty and its effect
on the defendant will improve the world. A stronger defendant orientation
can hardly be imagined" (ibid.).
In Germany, the minimum time to be served for a sentence of life
imprisonment is 15 years after which the prisoner can apply for parole. If
the verdict in the original trial includes an explicit finding of
"exceptional gravity of guilt" (in German: "Besondere Schwere der Schuld")
then the possibility of parole after 15 years is excluded and the prisoner
can apply for the first time after 18 years. In cases of "exceptional
gravity of guilt," the defendant's early release after 15 years is not
guaranteed. In reality, a finding of "exceptional gravity of guilt"
drastically increases the time before parole is granted. The average time
served for a life sentence in Germany is between 17 to 23 years. (For
orientation purposes: According to the Federal Statistics Office
[Statistisches Bundesamt], in 2003 there were 2,080 people in German
prisons who had been given life sentences).
At the end of the 20th century, the perception of the defendant quickly
and radically changed (this could be observed in Germany as well as the
U.S.). At the same time, the defendant is no less a focus: "While up to
now the defendant appeared as the medium of violable basic rights, he now
plays the role of threatener and violator." (Hassemer/ Reemtsma p. 58).
This is a result of the fact that the victim is increasingly becoming the
focus of public interest. The victim is only a victim because of the
actions of the defendant, who himself acts more or less as a potential
victim of the state's punitive power.
While in the 1970s the efforts to return perpetrators to society were
important to its sense of justice, the attempt to exclude the perpetrators
is being promoted as being sympathetic to the victim. It is also an
emotional process that interprets empathy for the defendant as a lack of
pity for the victims and becomes an argument for harsher punishments in
the form of victim impact statement.
The career of the victim
To be confronted by the victims of (violent) crimes also means being
confronted with one's own fears and vulnerabilities. The victim of a
violent crime was completely subjected to someone else's will. This idea
is an extremely unpleasant one, and that is probably why after a while
victims (and relatives of victims) often signalize their indignation about
the suffered injustice, loss, and their rage on the defendant: "No more."
The tolerance of the world around us for grief and pain decreases over
time, and it decreases even faster among the general public, who are
already being exposed to the headlines about the next catastrophe or the
next crime.
According to Reemtsma, the reevaluation of the role of victim is "a
growing reaction to civilization's Holocaust catastrophe, i.e., Germany's
mostly successful attempt to understand its killing Europe's Jews."
(Hassemer/ Reemtsma p. 42). He calls the acceptance being shown to the
reports of the victims "moral acceptance." It is, as it were, an attempt
to look at the world through the eyes of the victim and therefore the
attempt to give him/her back some of his/her dignity and help him/her
emerge from his/her status as victim into a new subject status. (Because
as Reemtsma correctly notes, the victim literature cannot teach us
anything that we shouldn't already know: that people should not be allowed
to do (have done) this to other people.)
The new role of the victim has also changed the discussions about
penalties. One obvious example is the change in the perception - and
punishment - of rape and sexual abuse after the victims of these crimes
were given a voice by the women's movement or raised their own voice.
"Bearing witness" and "being heard" are rightly recognized as part of
processing what has been experienced and having been subjected to someone
else's will. They are a prerequisite for being able to live with the
experience/ the loss.
Bearing witness can also be offering a victim impact statement in court.
However, I believe that the call for a harsher penalty "for the victims"
is just an attempt to gain control of one's own feelings of fear,
vulnerability, and powerlessness as the listener. The goal is to
(re)create the illusion of a world in which we can clearly differentiate
and select between good and evil people.
The mother of little Levke, who was found murdered, testified "There will
never be a suitable punishment" (Sddeutsche Zeitung, May 11, 2005). She
had been called as a witness not because she could say anything about the
crime, but to offer testimony about Levke and, above all, about the loss
that she and the rest of her family have to live with. The article in the
Sddeutsche Zeitung noted: "The atmosphere in the courtroom and the strict
formalities of the proceedings are not conducive to emotions, and as a
rule the victims of a crime are not encouraged to show their feelings."
And after the mother's testimony:" there were no longer any uninvolved
observers in the courtroom. There were only sympathetic people, many of
whom had tears in their eyes."
But Levke's mother also said that she did not care what punishment the
defendant would receive. "There will never be a suitable punishment,
because he is still alive and she isn't." (Marcus H., who confessed to the
crime, was sentenced in June 2005 to life in prison and subsequent maximum
security detention.)
The limits of empathy for the victim, especially the relatives of murder
victim, and the opportunity to help them with the help of a severe
penalty, even the death penalty, is hidden in this sentence: She is no
longer alive, that is irrevocable.
At the same time, the victim's desire for revenge can also be interpreted
positively: "Anyone who bears a desire for revenge will want to make the
person who made them into an object of outside intentions into an object
himself and thereby win back their own subjectivity." (Hassemer/ Reemtsa,
p.123) The defendant and victim therefore become equal through the revenge
(fantasies). However, Reemtsa does not view this as inevitable, but rather
as an option, because "there are enough people who do not feel the need
for this type of reestablishment of equality - probably because this
reestablishment of equality also levels the difference between justice and
injustice."
In the case of murder, the reestablishment of "equality" thus appears to
be the death penalty. With the increased importance of the victim impact
statement and statements like the one made by President Clinton about the
death penalty for Timothy McVeigh as "justice for the victims," the
thought of revenge becomes the basis for the degree of penalty - not
deterrence and not rehabilitation. With the promise of the death penalty
as "healing for the victims," the state becomes a vicarious avenger.
Private revenge fantasies are legitimized in the law, and the separation
between private wish and public law becomes blurred.
Reemtsma is quoted again here: "The idea that the state could exercise
revenge vicariously has something to do with the widespread notion that
anyone can do it. Anyone who has become a victim of a crime often
experiences that his fellow man wants to cause some kind of association
with him by exposing him to fantasies of vicarious revenge such as: 'Well,
if I could get my hands on him!'() I have always experienced 'the opposite
side' in fantasies like this in which the person gives free rein to his
aggression and sometimes even maliciousness when a perfect, apparently
morally assailable opportunity comes along." (Hassemer/ Reemtsma, p. 126).
I have 2 comments about this quote. Reemtsma's assertion is in any case a
thankful one, since he, who was himself was kidnapping victim, cannot be
exposed to another 'perfect, apparently moral accusation' to have never
experienced the suffering of the victims himself and still disagree with
their wish for revenge / the death penalty. At the same time, the fact
that the people who make this accusation have not been victims either (for
example, the prosecutors) is often overlooked. Even more important, it
appears to me that a person can only follow this argument if we declare
the victims with all their concerns to be the only experts, something
completely different than giving them a say in decisions that affect them.
Consequently, the muzzle of being a "non-victim" makes each act of
parliamentary democracy impossible when representatives make decisions
every day about things that do not immediately affect them, but where they
do it in the name of their constituents and therefore also in the name of
those people affected by the crime.
My second comment to the quote is in reference to our fellow man. In my
opinion, the desire for balance can also be that of a safe and secure
world in which murder can be sorted out with the murderers. The desire to
be able to separate good and evil people and be able to simply eliminate
the evildoers - and therefore evil itself. (The fact that this idea of
selection and elimination leads to terror and dictatorships is not just
evident in the German history of National Socialism.)
The call for the death penalty uses and strengthens this offer to our
fellow men of being able to also know what it is like to stand on the
"right, the good" side.
This form of populism with a call for harsher punishments is ultimately
used to score politically. The best example of this is the rape of
children outside the family - a crime that has a decreasing number of
cases while the public (thanks to increased reports by the news media) has
the impression that the opposite is true, and the call for more high
security detentions has therefore become more popular in the last few
years. (Hassemer/ Reemtsma, p. 203).
Murder Victims' Families for Reconciliation
"Murder Victims' Families for Reconciliation" is the name of a small
organization in which the friends and family of murder victims and friends
and family of death row inmates work together to offer mutual support and
abolish the death penalty.
I met Carol Byars in September 2000 at her workplace, a small caf near
Houston, where she earns her living working as a waitress. Her husband was
murdered 20 years ago. She did not want his murderer to be executed; she
saw the same pain she saw when she looked in the mirror every morning in
the face of the murderer's wife in the courtroom. She became an opponent
of the death penalty. Many of her friends and acquaintances could not
understand it. "You must not have really loved your husband if you don't
want to see his murderer dead!" According to her, she gets her courage to
face life as well as her newfound zest for life from the power of
reconciliation. She did not receive any support from the judicial system.
The members of "Murder Victims' Families for Reconciliation" believe that
living with the pain and loss - or, as many people call it, healing - can
only be found through reconciliation, not retaliation. The organization
also works on identifying alternatives to the death penalty. They support
programs that teach prisoners how to solve conflicts without violence and
their group lobbies for legislators and prosecutors to focus on having the
criminal justice system make amends and resocialize them instead of
carrying out retribution.
Here, forgiveness plays a similar role as the call for revenge and death.
The active decision to forgive the murderer allows the surviving family
members to experience themselves as subjects and no longer as being in the
hands of the perpetrator, because this decision is theirs alone.
Rachel King, who wrote a book about "Murder Victims' Families for
Reconciliation," puts it like this: "The irony of forgiveness is that
while it appears to be a selfless act, it is really a very selfish one.
People who are unable to forgive cling to their bitterness und rage and
are therefore doubly wounded by the killer, who has taken away not only
their loved one but also any chance of enjoying their own life. As Bill
Pelke says of the girl who killed his grandmother, 'Forgiving Paula Cooper
did a lot more for me than it did for Paula Cooper.'" (King, p. 8).
Excursus on the human ability to forgive
The political philosopher Hannah Arendt sees the ability to forgive as the
foundation that makes acting humanely possible. She views human activity
as the human ability to do what natural science 'research' does every day,
namely "to start new unprecedented processes whose outcome remains
uncertain and unpredictable." (Arendt, pp. 231-232) Whatever we do is
irreversible as soon as it has been done. "And this incapacity to undo
what has been done is matched by an almost equally complete incapacity to
foretell the consequences of any deed or even to have reliable knowledge
of its motives." (Arendt, p. 233). According to Arendt, in order to remain
capable of acting under these conditions, mankind needs the ability to
forgive. In light of the uncertainty of the consequences of our actions we
also need to be able to make promises. "The possible redemption from the
predicament of irreversibility - of being unable to undo what one has done
though one did not, and could not, have known what he was doing - is the
faculty of forgiving. The remedy for unpredictability, for the chaotic
uncertainty of the future, is contained in the faculty to make and keep
promises." (Arendt, p. 237). "Without being forgiven, released from the
consequences of what we have done, our capacity to act would, as it were,
be confined to one single deed from which we could never recover; we would
remain the victims of its consequences forever." (Arendt, p. 237)
We find Arendt's promise in the German Constitution and law books. Since
the future still remains uncertain and evildoers break promises,
punishment can restore the broken promise of a certain future. In order to
be able to act again after the murder, forgiveness is almost a pragmatic
necessity. The death penalty denies the perpetrator this maxim of human
activity.
SuZann Bosler, who survived a robbery in which her father was murdered by
an intruder and she herself was stabbed and severely injured, offered a
victim impact statement against the murderer, James Bernard Cambell, in
1988 during the sentencing phase of the trial. In the statement, she plead
for the defendant's life, since she and her father had forgiven him,
because as a pacifist it was what Christ would have wanted them to do. The
prosecutor, Michael Band, stated to the press that he would continue to
seek the death penalty, because the state cannot be as merciful as Ms.
Bosler (King, p. 147). SuZann Bosler responded, saying: "He didn't respect
what I wanted. Neither did the judge." (King p. 152).
During the second trial in 1997, (the initial sentence - death - was
overturned because of overzealousness and incorrect witness questioning on
the part of the prosecution) SuZann Bosler appeared as a witness for the
defense. She was forbidden to tell the jury that she opposes the death
penalty or talk about the sentence she wanted. After the jury's verdict
(life in prison) was announced, she thanked them, saying: "I can't thank
you enough. I have worked hard for his life to be spared. Now I can go on
with my own life. And I thank you very much for that. God bless you all."
(King, p. 159).
King describes the jury's reaction as follows: "Several jurors clutched
tissues wet from drying their teary eyes. Some hugged each other.
Reporters asked jurors for their opinion on the verdict. One said it was
'a fair, humane decision.' Another said that the crime was heinous, but
'the mitigating factors were strong.' (Campbell had been severely damaged
by abuse from his childhood and had a low I.Q.). However, one admitted,
'If something like that happened to me, I don't think I could forgive.'"
The thanks from the surviving victim confirms to the jury that they came
up the right verdict, this time against the wishes of the prosecution.
District Attorney Kerry Spears of Milam County in Texas went one step
further in the case of Ben Contreras. Ben Contreras was charged with
killing 59-year-old Preston Solomon and his 24-year-old stepdaughter
Stephanie Young. A third victim survived the attack after being shot in
the chest and arm. The District Attorney decided not to demand the death
penalty. "Anytime we're talking about plea offers or penalties we consult
the victims or their families and give great consideration to their
feelings. It's a fair statement to say that the death penalty is not
something the surviving victim and other family members were interested in
pursuing." (Cameron Herald, April 28, 2005) Whether this was really the
reason to not ask for the death penalty cannot be determined here.
But, in my opinion, one thing is certain: the desires of the victims
cannot play such a role in sentencing, if we feel the job of the judiciary
is to act in a superordinate position and that it needs to be more than
just a long arm of individual needs, whatever they may be. To be
consistent, we must also think about introducing the right to mercy for
the surviving family members, perhaps a right to receive financial redress
from the defendant and to allow "mercy to prevail" in exchange - a thought
that does not appear to be that far off in the U.S. Some victim groups
feel the fact that prisoners have a right to have their own money is
unreasonable and are demanding the right to this money as redress for the
victims.
Victim groups also view the victim impact statement as an extended
instrument of individualized revenge that the state should carry out "for
the victim."
In order to avoid this, victims' statements against the death penalty
should not be allowed to play a role during sentencing.
But they are important to invalidate the claim that anyone who is against
the death penalty is automatically against the victim.
The Jury
Douglas Mulder was the district attorney who prosecuted Randall Adams in
1977. Adams was convicted and sentenced to death. His sentence was later
commuted to life imprisonment, and Adams was exonerated and released from
prison in 1989.
In a book about his story, Adams describes the district attorney's
reaction to his release as follows: "The April 1989 issue of D Magazine
quoted Mulder: 'It's a shame. But Adams isn't the first murderer to beat
the system.' A reporter asked, what if he, Mulder had been my defense
attorney way back in 1977, instead of the prosecutor. 'Oh yeah,' Mulder
replied, 'I'd have gotten him off. There's no doubt in my mind.'"
(Adams/Hoffer p. 346)
The district attorney gets to the heart of what is important in the
courtroom in a capital murder case - winning.
The "trial" of a person becomes a competition. This is extremely obvious
in the "case" of Leonel Herrera. His defense attorneys were granted a stay
of execution, which was scheduled three days later, from a state court
judge based on new evidence regarding the possible innocence of their
client (new witness testimonies, including a man who was sitting in the
car when the murder occurred). "Texas immediately appealed, and the day
before Herrera's execution, as Texas had argued that even assuming Leonel
Herrera was innocent, innocence was no basis for granting a writ of habeas
corpus. In other words, the court (the Fifth Court of Appeals, S.V.) held
nothing in the United States Constitution prohibits a state from executing
an innocent man as long as his constitutional right to due process was not
violated in the course of his trial." (Tucker, p. 218) The Supreme Court
denied his appeal in January 1993. "The ruling, cited as 'Herrera vs.
Collins' held that there was no constitutional right to federal relief
based on newly discovered evidence of actual innocence, when the
defendant's original trial had been free from procedural error."
(http://www.come-and-hear.com/editor/cp-herrera-ai/) Leonel Herrera was
executed by the State of Texas on May 12, 1993 at the age of 45. To this
day, there has never been a hearing on the strong evidence pointing to his
brother, who has since died.
If one stays with the idea of a competition, the jurors are the judges in
the case, declaring either the prosecution or the defense to be the
winner. The prosecution is primarily targeting the jury when it uses
victim impact statements.
Studies by Benjamin Fleury-Steiner show that the members of a jury tend to
differentiate between insiders and outsiders, even within the jury itself.
The sentencing decision therefore becomes a moral one; the death penalty
differentiates between moral insiders and immoral outsiders. Members of
the jury who have doubts are pressured by being pushed into the role of
outsiders. Members of the victim's family who are grieving the loss of
their loved one belong to the insiders and a plea for a life sentence
against the intentions of the district attorney's office can therefore
make a member of the jury into an outsider.
The defense often tries to portray their client as a normal human being by
bringing up mitigating aspects such as their difficult childhood,
depressions, and other factors to explain their actions ("They construct
narratives first to humanize their clients and second to connect their
clients' fates with broader social and political concerns." Sarat, p.
182), but in a climate in which turning the suspect into a person is
always understood as an abandonment of the victims this method currently
does not stand much of a chance.
References:
Adams, Randall, Hoffer, Marilyn, and Hoffer, William. Adams v. Texas, New
York: St. Martins Press, 1991. German title: Unschuldig, Bergisch
Gladbach, 1991
Arendt, Hannah. The Human Condition, Chicago: University Of Chicago Press,
2nd edition, 1998. German title: Vita activa oder vom ttigen Leben,
Munich, 4th edition, 1985.
Donahoe, Joel F. "The Changing Role of Victim Impact Evidence in Capital
Cases, Western Criminology Review 2(1)," URL:
http://wcr.sonoma.edu/v2n1/donahoe.html, 1999.
Fleury-Steiner, Benjamin. Jurors' Stories of Death: How America's Death
Penalty Invests in Inequality, Ann Arbor, Michigan: University of Michigan
Press, 2004.
Hassemer Winfried and Reemtsma, Jan Philipp. Verbrechensopfer, Gesetz und
Gerechtigkeit [Crime Victims, The Law, and Justice], Munich: Beck, 2002.
King, Rachel. Don't Kill in Our Names: Families of Murder Victims Speak
Out Against the Death Penalty, Piscataway, New Jersey: Rutgers University
Press, 2003.
Sarat, Austin. When the State Kills: Capital Punishment and the American
Condition, Princeton, New Jersey: Princeton University Press, 3rd edition,
2002.
Tucker, John C. May God Have Mercy: A True Story of Crime and Punishment,
New York: W. W. Norton & Company, 1997.
First published in Death row 3/2005, magazine of ALIVE e.V.
www.todesstrafe-usa.de
Author: Sina A. Vogt, Huerth, Germany, freelance journalist
[email protected]
Translation: Jill Sommer www.jill-sommer.com
