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JUSTICE FOR THE VICTIMS: How The Death Penalty Injures Survivors


Wednesday, Jun. 20, 2001

As the world now knows, on Monday morning, June 11, Timothy J. McVeigh was executed by lethal injection. He died as punishment for killing 168 people when he bombed the Alfred P. Murrah Federal Building in Oklahoma City. In describing the significance of this execution, Attorney General Ashcroft spoke of bringing a sense of closure to McVeigh's living victims, the people who must confront the loss of those whom they loved and cherished.

Whether McVeigh's surviving victims will, in fact, experience such closure is a question that only they can answer. Thus far, they have not spoken with one voice.

Still, for purposes of this column, let us assume — contrary to fact — that all survivors of a murdered loved one yearn for an execution, and that therefore the death penalty is a benefit that society can convey to victims.

Even on this assumption, the existence of the death penalty may actually injure, rather than helping, the class of survivors.

Victims' Interests in an Execution

There is something very compelling about the claim that a victim has a legitimate interest in seeing the murderer of his loved one put to death. It is presumably for this reason that family members of a murderer's prey are often in attendance at an execution. In McVeigh's case, there were so many such individuals that it was necessary to broadcast the federal execution beyond the death chamber itself, using closed circuit television.

Even those who oppose the death penalty understand, and can empathize with, a mother's desire to watch her child's killer perish as punishment for his crime. And those who support the penalty readily invoke the wishes of the grieving mother who cries out for the blood of her baby's killer.

But what about the victims of those killers who are not sentenced to death, when other killers are? Put another way, what of the effect of sentencing disparities on victims? Even if we view the death penalty purely from the perspective of victims, we must consider these disparities.

Why the Death Penalty is Selectively Imposed

While this group — the victims of death-eligible killers not sentenced to death — is often overlooked, it will always exist. That is because, at least within the United States, any death penalty regime will exclude many murderers.

The Supreme Court held in Woodson v. North Carolina that a mandatory death penalty for murder violates the prohibition against cruel and unusual punishment. Every convicted capital defendant is entitled to have the sentencing authority consider whether death is truly warranted in his individual case.

The judge or jury thus has, and constitutionally must have, the discretion to decide that a particular murderer is not bad enough, or his crime not atrocious enough, for capital punishment.

The Supreme Court also held, in Furman v. Georgia, that the judge or jury must be guided in the exercise of discretion by aggravating and mitigating factors. Absent such guidance, the arbitrariness of boundless discretion will render any resulting death sentence cruel and unusual punishment.

Taken together, these holdings mean that the prosecutor seeking death must convince a judge or jury not just that the murderer in question committed a horrible crime by killing someone, but that he deserves to die for it. This turns out to be more difficult than it might sound.


The Impact of Sentencing Discretion

In a capital case, the exercise of discretion is complicated and somewhat mysterious. The Supreme Court recognized in Woodson, for example, that "juries operating under discretionary sentencing statutes have consistently returned death sentences in only a minority of first-degree murder cases." Of all the convicted murderers who are "death-eligible," then, only a very small number will in fact be sentenced to death.

The typical juror's inclination to refrain from sentencing any given murderer to death is apparently very strong. When mandatory death penalty regimes were still in place (before they were held unconstitutional in Woodson), for example, juries frequently refused to return guilty verdicts in order to avoid subjecting murder defendants to an automatic death sentence.

Even in response to the most heinous crimes, then, juries often do not exhibit the level of outrage that would be necessary (though perhaps not sufficient) to order a defendant put to death.

What makes the difference — and triggers the requisite outrage? Often, it is survivor testimony. In making the case for the death penalty, a prosecutor can introduce the testimony of survivors, those who will speak to the value of each life that was lost and of the pain and grief that remain in its place. McVeigh's prosecutors, for example, presented such testimony in support of a sentence of death.

In light of this reality, consider what happens when a jury that has the option of imposing a death sentence chooses life imprisonment instead. Unavoidably, this choice — one that is made in most capital cases — will appear to express a value judgment about the nature of the victims' loss.

The life sentence says, in effect, that what happened to the victims in this case — both the deceased and her survivors — might not be quite as bad as what happened to the victims in another case. If the jury has heard from brothers and sisters who want a killer to die, for example, a life sentence stands as a rejection of their claim for ultimate justice. If executing a killer is a gift we bestow upon survivors, then many survivors will walk away empty-handed.

Rejecting Some Survivors' Claims — and Doing So Based on Prejudice

To make matters worse, death sentences are not fairly distributed. As critics of the penalty have noted, marked racial disparities pervade capital sentencing. The usual objective of such critics is to call into question the fairness of executing African-American defendants. But the most dramatic and significant of sentencing disparities is linked to the race of victims rather than that of defendants.

As Justice Brennan wrote in his dissent from McCleskey v. Kemp, the "diminished willingness [of juries] to render such a sentence [of death] when blacks are victims, reflects a devaluation of the lives of black persons." The same devaluation is no doubt apparent for many other prejudices as well.

A Hierarchy of Atrocity

The two-track sentencing of capital offenders thus erects a hierarchy of atrocity — and an often-unfair one, at that. As the Supreme Court has said, "death is different." Its difference is what makes it so appealing to many survivors. For this very difference, though, it can be a powerful source of pain whenever it is not imposed. It becomes yet another "could have been" in lives already touched by tragedy. If the death penalty were not an option, there would be no qualitative legal line drawn between some murders and all of the rest.

We might thus consider the needs and interests of victims crying out for justice and arrive at the same conclusion as those who represent defendants: Fairness requires abolition. Abolition of the death penalty, ironically, might thus serve to honor the victims of every murder, by refusing to choose which among them is the most worthy.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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