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An Argument Against Allowing the Families of Murder Victims to View Executions by  Michael Lawrence Goodwin Journal of Family Law,  Vol. 36, No 4  1997  [Reprinted with permission of the Journal of Family Law
Victims families generally state one of two reasons for wanting to attend an execution. Some family members view the execution as an opportunity for closure. Brooks Douglass, who authored Oklahoma's right-to-view bill sixteen years after his parents were murdered, stated "It is not retaliation or retribution that I seek in witnessing the execution of the man who killed my parents. It is closure. Closure on an era of my life which I never chose to enter. Closure of years of anger and hate."[1] Other family members view their presence in the execution chamber as a final opportunity to represent their murdered family member in the criminal justice process. "It's the last thing we can do for the girls....It's not going to be easy, but it may help us," said one mother as she prepared to watch the execution of her daughters' killer.[2] Theory and practice, however, draw into question whether allowing the victims families to view an execution serves either of these purposes.

Although some families claim viewing the execution brings about a sense of closure,[3] the very concept of closure presents problems. It is a vague notion at best. A family may never experience closure after losing a member. The entire concept may merely create false hope. In addition, an execution chamber, surrounded by media and members of a family watching the government kill one of it's own members may not be the appropriate place for such a cathartic event to occur.


Viewing Executions Has Not Provided Satisfaction

Right-to-view statutes, intended to benefit victims' families, may instead revictimize those families. After viewing an execution, some families have felt disappointment and increased vengeance rather than closure. Families believe the executed died too easily or they wish they could watch the execution again and again, or devise a more painful form of execution.[4] "He died an extremely lot easier than my daughter did.....He got a spiritual advisor, the choice of a last meal. I wish I'd had a last chance to be with my daughter," commented Elizabeth Harvey after witnessing Robert Lee Willie's electrocution.[5] After realizing the execution did not eliminate his suffering or frustration, Vernon Harvey later commented to Willie's spiritual advisor, "Know what they should've done with Willie?.....They should've strapped him in that chair, counted to ten, then at the count of nine taken him out of the chair and let him sit in his cell for a day or two and then strapped him in the chair again."[6]

States also risk an emotional confrontation between the family of the victim and the family of the prisoner when both attend the execution. Although some states have divided the viewing room as a precaution, the possibility of an ugly confrontation still exists. The results have been explosive in the past when the victim's family confronted the family of the condemned.[7] Such a confrontation would further destroy the dignity and impair the healing of all those involved.

In some states, the right-to-view law also adds another element to the already arbitrary death penalty process by leaving attendance decisions to the discretion of prison officials. Only Oklahoma guarantees all adult members of the victims immediate family a right to attend.[8] Other states either limit the total number of family members who may attend or leave the decision to the prison warden.[9] Arbitrarily limiting the number of family members that may attend creates inconsistency in the application of the death penalty. Additional problems may arise if the prisoner killed two or more victims. One family may feel frustrated and demeaned if only the other family is allowed to attend the execution.


Victims Families Often Oppose Executions

Some victims families do not want to attend. While an execution may signal the end of the criminal justice system's involvement in prosecuting a crime it does not end the recovery for the victims family. No retaliatory death will compensate for the loss of a loved one. A victim's family needs compassion, not a grisly spectacle. Sociological studies of violent crime victims suggest the support of families and friends may help the victim regain a sense of security by reducing the victim's sense of dread and isolation.[10] The families of murder victims likely to experience a similar sense of isolation. [11] Friends and family often avoid those stricken by tragedy, justifying their actions as giving those who are suffering space and time to grieve. In truth, our society's emphasis on happiness makes seeing another's distress extremely uncomfortable. Friends may withdraw rather than face the family during a time of sorrow, and the family loses the comfort of their extra-familial relationships.[12]

At this vulnerable time, the state revictimizes the family by holding out the very end of the punishment process as a sort of carrot of emotional healing and closure. Victims' family members likely search for a "psychological resolution" to the pain incurred from losing a family member. [13] The criminal justice system's emphasis on executions and the inevitible media coverage often create an impression that the much sought after resolution will come with the prisoner's execution, but the death penalty keeps the case alive for years, forcing the family to endure numerous appeals and parole board meetings. When the execution date arrives, if viewing the execution does not bring about the healing or closure expected, the family members may become even more skeptical about the healing process. Watching violence does not likely bring about healing. "We're talking about revenge, and it's not clear to me that revenge changes one's long term ability to deal with loss," stated one psychiatrist.[14] "Every culture has a different way of mourning, but witnessing executions isn't one of them."[15]

The vengeance offered by allowing families to view the execution also ignores the reality that victims often seek a meaning to their victimization, not revenge. "Healing has to be bigger and better than reducing ourselves to participating in gruesome acts."[16] Some family members have found healing through reconciliation. Brooks Douglass experienced a sense of satisfaction after meeting with George Ake, the other man convicted of killing his parents.[17] Because Ake showed genuine remorse, Douglass expressed his forgiveness.[18] "I felt a real closeness to him. We've been trapped in a foxhole together for all these years."[19] Paul Stevens, the father of a murder victim, now ministers to death row inmates at Eddyville Prison in Kentucky.[20] He found forgiveness allowed him to pay tribute to his daughter. Stevens described his transformation: "[h]ate absorbed every day of my life until I started talking to the inmates at the prison. One trip to death row and I was hooked, I couldn't quit. I'm still going eleven years later."[21]

Other family members of murder victims have sought to abolish the very form of punishment that the state offers them as consolation. A murder victim's daughter-in-law formed a group opposed to the death penalty, reasoning, "[h]ow could we stand as murder victims, in our pain and sorrow, and give it to someone else's family as well?"[22] Offended by the state's offer of retribution, Marrietta Yeager, whose daughter was abducted and murdered during a family camping trip, stated "[t]o say an execution of some malfunctioning individual would help me heal insults the memory of my little girl. She is worthy of a more noble, honorable, and beautiful memorial."[23]


Right-to-View Laws Imply Some Value in Attending Executions

Perhaps right-to-view laws pose the greatest potential for harm to the victim's family in situations where the family is unsure whether to attend the execution. Congress has recognized the offensiveness of forcing a person to attend an execution. Federal prison guards cannot be required to perform any function in furtherance of an execution.[24] No state's right-to-view law mandates the attendance of a victim's family, but holding out a right to attend the execution implies some value attaches to exercising that right. When combined with the public's endorsement of capital punishment and the family's vulnerability during a time of grief, a statute guaranteeing a right to attend may effectively persuade the families to attend. After a murder, the victim's family often searches for meaning and acceptance by the community.[25] Cries for the death penalty from the community, the media and the state may fall upon vulnerable ears.

The public, the press and even the families of other victims feed the furor surrounding the family at a very traumatic time, creating an impression that the family is failing its loved one if it does not exercise the right to watch the execution. Often, crowds gather outside the gates of prisons and cheer when the word of execution comes.[26] Arguably, states should protect the victims' families from scenes of demonstrators exploiting a violent crime, a state imposed killing, and the grief of at least two families as a political flashpoint. Instead, right-to-view statutes imply victims families have something to gain through their presence at executions and the surrounding turmoil.

Politicians exploit victims' families by using both the public and publicized executions for political grandstanding. Politicians know that support for the death penalty wins votes.[27] Their vocal support of executions exploits the families of both the victims and the condemned by using their suffering for political gain, and creates pressure on families to accept and endorse their offerings of retribution and compensation.

The media has also added to the pressure on families to attend,[28] parading families to press conferences to give their testimonials to vengeance.[29] At a time when families need compassion and a willing ear, the media forces them either to put their emotions on display as they watch their government kill, or to defend their reasons for not attending the execution. All this hype and pressure to attend may result in an experience the family of the victim will later regret. Individuals also may change their opinions regarding capital punishment, or worse yet, evidence demonstrating the executed prisoner's innocence may later surface. Much more likely, the victims family will be upset by the sight of the execution.


WHAT THE VICTIM'S FAMILY WOULD SEE

The truth about what witnesses to an execution observe perhaps serves as the most convincing, and undoubtedly the most upsetting argument against allowing the victims' families to attend. The grisly sight of an execution may not provide a sufficient legal justification for a court to strike down a right to view law but the graphic details provide a substantial policy argument against allowing states to open their execution chambers to victims' family members, who may be particularly sensitive to the violent sight of an execution. In an ironic misuse of terms states present their various methods of execution as "humane," painless," and dignified.[30]

Currently states allowing family members to view executions employ four of the five methods of execution available in the United States: hanging, firing squad, electrocution, and lethal injection.[31] Yet, a vulnerable family member who witnesses an execution will discover the gruesome reality behind the antiseptic descriptions used to survive Eighth Amendment challenges. The scene in the execution chamber may shock a family member anticipating a humane execution.

In Delaware and Washington, a victim's family may see a hanging, the oldest of five available methods of execution.[32] Witnesses to a hanging see the prisoner on the platform. The prisoner stands over a trap door as the executioner fastens a rope around his neck and places a blindfold or black hood over his head.[33] The trap door opens and the prisoner drops. The length of the drop depends on the weight of the prisoner; in Washington, for example, a 170-pound person falls six feet before the rope snaps taut.[34] The hood prevents witnesses from determining how long the prisoner suffers, but doctors believe death does not occur instantaneously.[35] The weight of the body causes the skin, blood vessels and muscles to tear. [36] The upper vertebrae dislocate, the spinal cord separates from the brain, and death results.[37] Clinton Duffy, a former warden at San Quentin who participated in over sixty executions, described the scene to a Congressional committee:

[w]hen the trap springs he dangles at the end of the rope....His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, his neck may be broken, and the rope many times takes large portions of skin from the side of his face the noose is on. He urinates, he defecates, and droppings fall to the floor while witnesses look on, and at almost all executions one or more faint and have to be helped out of the witness room.[38]

A prison guard holds the body steady until the prisoner suffocates if the drop is too short.[39] If the drop is too long, the powerful jerk decapitates the prisoner. [40] Washington's hanging of Westley Allan Dodd on January 5, 1993 was the first use of the gallows by any state since 1965.[41] Delaware then hanged Billy Bailey on January 25, 1996, and two of the victim's sons watched the hanging.[42]

The firing squad is another method of execution rarely used, but still available in Oklahoma and Utah.[43] When Utah executed John Albert Taylor on January 26, 1996, the state used the firing squad for the first time since Gary Gilmore's execution twenty years before.[44] Guards strapped Gilmore to a chair and placed a black hood over his head.[45] A doctor located his heart with a stethoscope and pinned a circular white cloth target over the spot.[46] Five shooters stood in an area completely enclosed by canvas to conceal their identities, aimed their .30-caliber rifles through a slot in the canvas wall, and fired.[47] A person shot in the head dies almost instantaneously, but a firing squad aims for the heart.[48] The prisoner "loses consciousness when shock causes a fall in the supply of blood to the brain," and then dies from the loss of blood or tearing of the lungs.[49] Gilmore died in two minutes.[50] If the shooters miss their target, as they did with Elisio Mares in 1951 in Utah, then the prisoner bleeds to death much more slowly.[51] The bullets often mutilate the body and the death is always bloody.[52]

In Alabama, Ohio and Oklahoma, a victim's family may view the electrocution of the prisoner.[53] Family members would see the prisoner strapped to a wooden chair with electrodes attached to his shaven head and a mask covering his face.[54] The executioner throws the switch, and, in one method of electrocution, an initial voltage of approximately 2000 volts at seven to twelve ampere's rushes through the prisoner's body.[55] The executioner then lowers the voltage and administers repeated jolts "until the prisoner is dead." [56] In his dissent in Glass v. Lousiana, Justice Brennan graphically detailed the scene:

when the switch is thrown, the condemned prisoner "cringes," "leaps," and "fights the straps with amazing strength." "The hands turn red, then white, and the cords of the neck stand out like steel bands." The prisoners limbs, fingers, toes, and face are severely contorted. The force of the electrical current is so powerful that the prisoners eyeballs sometimes pop out and "rest on [his] cheeks." The prisoner often defecates, urinates, and vomits blood and drool....Sometimes the prisoner catches on fire, particularly "if [he] perspires excessively." Witnesses hear a loud and sustained sound "like bacon frying," and the sickly sweet smell on burning flesh" permeates the chamber.[57]

Part 1 of this note describes what the victim's family would see at an execution by lethal injection. All of these descriptions are approximations, and individual states may do things differently. Of course, some executions are administered more effectively than others, but a witness expecting a flawless performance by the executioner may be shocked when things go wrong. Prison personnel often botch executions.[58]

Viewing one of these botched executions would disturb even those most sure of their convictions prior to the execution. The most efficient execution, however, may upset a spectator expecting a humane procedure. Watching the state kill a defenseless human being could devastate even the most resilient death penalty supporters. "The man who enjoys his coffee while reading that justice has been done," wrote Albert Camus about executions, "would spit it out at the least detail." [59]

[1] Brooks Douglass, "Why I Want to Watch a Killer Die," USA TODAY, Apr. 15, 1996, at A19

[2] Potok, supra note 17, at 3A.

[3] See Hancock, supra note 3, at 1A ("Other people have witnessed executions, and they find it's like closure : It has to help."); Romano, supra note 20, at A1 (The death penalty is the ultimate closure.")

[4] A comment by a sister of a slain police officer, although she did not witness the execution, demonstrates the frustration felt by family members when an execution does not bring about a sense of healing. "When I think about my brother's head being blown off and him falling and hitting the ground and crawling on hands and knees and trying to call for backup and trying to call for help, I feel like that was too easy, for Steven to be just put to sleep, nice and passively and calmly. You know, I feel there should have been some kind of suffering, you know, some kind of anguish," All Things Considered : Capital Punishment (National Public Radio broadcast, Sept. 27, 1994).

[5] Potok, supra note 17, at 3A.

[6] Helen Prejean, Dead Man Walking 235 (1993).

[7] See, e.g., Keith D. Nicholson, Would you like more salt with that wound? Post-Sentence Victim Allocution in Texas, 26 ST. MARY's L.J. 1103 (1995). After defendant was sentenced to death in a texas courtroom, a melee broke out as the defendant's family left the courtroom. Id.at 1104. The father of the victim lashed out at the defendant, "I'll watch you die, Boy." Id. at 1104 n.3

[8] See OKLA. STAT. ANN. tit. 22 § 1015 (West 1996).

[9] See ALA. CODE § 15-18-83 (1996) (no more than two immediate family members); DEL CODE ANN. tit. II § 4209 (1996) (only one adult member of the immediate family of the victim) OHIO REV. CODE ANN. § 2949.25 (Banks-Baldwin 1996) (no more than three people designated by the victim's family).

[10] See Lynne N. Henderson, The Wrongs of Victims Rights, 37 STAN. L. REV. 937, 938-39 (1985).

[11] See, e.g., Pressley, supra note 2, at A#("but I will never forgive him for what he did. Our life is over. We are not, and never will be the same people. My husband and I are not living, we are just existing. We don't care whether we live or die.")

[12] Henderson, supra note 34, at 964.

[13] See Id. at 976.

[14] Kokmen & Hanna, supra note 24, at A1(quoting Sidney Welssman, psychiatry professor at Loyola University Medical Center).

[15] Id.

[16] Polok, supra note 17, at 3A(quoting Rick Halperin, co-founder, Texans Against State Killing).

[17] Douglass, supra note 25, at A19.

[18] Id.

[19] Romano, supra note 20, at A1.

[20] Interview with Paul J. Stevens, father of murder victim and death row spiritual advisor, in Franfort, KY (Dec.15,1996).

[21] Id.

[22] Laura Myers, Death Penalty Protesters Rally at Capitol, UPI, June 28, 1987, available in LEXIS, News Library, Upstat File.

[23] Marietta Yeager, address at the Kentucky State Capitol ( Dec. 15, 1996)(on file with author).

[24] 21 U.S.C. § 848(r).

[25] Henderson, supra note 34, at 959.

[26] See, e.g. Steven A. Blum, Public Executions: Understanding the "Cruel and Unusual Punishments" Clause, 19 HASTINGS CONST. L.Q. 413, 417(1992). At the 19985 execution of James Raulerson for killing a policeman during a robbery, police officers stood near the death house and cheered the execution, some wearing t-shirts with the words "Crank up Old Sparky" under a drawing of the electric chair. Id. Vendors outside the prison gates in Joliet. Illinois, where John Gacy was executed, sold commemorative t-shirts to the approximately four hundred death penalty supporters. As midnight approached, the chants started: "Let him die!", "Kill the Clown" and "John-nee, the devil's waiting for you!" Lindsey Tanner, Serial Killer Gacy is Quietly Put to Death, COURIER, J (Lousville, Ky.)May 11, 1994, at A2.

[27] Before the crucial New Hampshire primary of his first presidential campaign, then-Governor Bill Clinton proudly returned to Arkansas to "preside" over the execution of brain damaged Ricky Rector. Marshall Frady, Death in Arkansas, NEW YORKER, Feb. 22, 1993, at 105. South Carolina Attorney General Charles Condon, impressed with Arkansas' execution of three people in one night, included a call for an "electric sofa" in his campaign for office. David A. Kaplan, Anger and Ambivalence, NEWSWEEK, Aug. 7, 1995, at 24. In Florida, the Secretary of State, who affirms the governor's signature on death warrants, made the execution of John Earl Bush a family affair when she attended with her husband and son. Michael Griffen, Secretary of State watched Execution with Husband and Son, ORLANDO SENTINEL, Oct. 23, 1996, at A1. After the malfunctioning electric chair in Florida caused at least two people to catch on fire during their executions, Florida Attorney General Bob Butterworth boasted "[p]eople who wish to commit murder, they better not do it in the state of Florida because we may have a problem with our electric chair." Ron Word, Flames Erupt from Inmate's Head, A.G. says it's a deterrent, ASSOCIATED PRESS, Mar. 25, 1997, available in 1997 WL 4859129.

[28] See Prejean, supra note 30, at 214. Before a prime time television interview, Peter Jennings told Helen Prejean the attendance of the victim's family sparked the network's interest in Robert Lee Willie's execution. Id.

[29]See Hancock, supra note 3 at A1. ("This is justice in a big way. Believe me, justice was served tonight," Linda Kelley said after Leo Jenkins execution. "I was angry. I was angry at him when he died.")

[30] Justice Brennan, arguing that electrocution violates the Eighth Amendment, noted that commentators and medical experts have urged states to adopt lethal gas or injection as the method of choice because they are swifter, less violent and more humane," Glass v. Louisiana, 471 U.S. 1080, 1093 (1985) (Brennan, J., dissenting.)

[31] If Arizona, Colorado, Maryland, Mississippi, Missouri or North Carolina adopts a right-to-view law, families in those states may see a prisoner executed in a gas chamber, although at least one court has held California's use of the gas chamber violates the Eighth Amendment. See Fierro v. Gomez, 865 F. Supp. 1387 (N.D. Cal, 1994), off'd, 77 F.3d 301(9th cir. 1996). vacated, 117 S. Ct. 285 (1996). States have rejected other means of extinguishing life previously condoned by civilizations, such as beheading, burning at the stake, disemboweling while alive, breaking at the wheel, boiling in oil, public dissection, and drawing and quartering. See, e.g., Wilkerson v. Utah, 99 U.S. 130, 135 (1878).

[32] DEL. CODE ANN. tit. 11, § 4209(f) (1996) (execution by hanging or lethal injection): WASH. REV. CODE ANN. § 10.95.180(West 1990)(execution by lethal injection unless prisoner elects by hanging).

[33] See Jacob Weisberg, This is Your Death, NEW REPUBLIC, July 1, 1991, at 23.

[34] See Campbell v. Wood, 18F.3d662, 724 n.57(9th Cir. 1994) (Reinhardt. J., concurring in part and dissenting in part).

[35] See Weisberg, supra note 57, at 23-24.

[36] See Id. at 24.

[37] See Id.

[38] Martin R. Gardner, Executions and Indignities, 39 OHIO ST. L.I. 96, 121(1978).

[39] See Id.

[40] See Id. at 120.

[41] Executions in the U.S., Death Penalty Information Center.

[42] Yvonne Barlow, Executions Stir Death Penalty Debate, DALLAS MORNING NEWS, Jan. 28, 1996, at A5.

[43] OKLA. STAT. tit 22, § 1014 (1986) (firing squad used for execution only if preferred methods of lethal injection and electrocution are declared unconstitutional); UTAH CODE ANN. § 77-19-10 (Supp. 1997) (execution by firing squad or lethal injection).

[44] Death Penalty Information Center, supra note 65. Gilmore's brother Mikal explored the association between Utah's use of the firing squad and the Mormon doctrine of blood atonement in his memoir. MIKAL GILMORE, SHOT IN THE HEART 17-21(1994).

[45] See Weisberg, supra note 57, at 24.

[46] See Id.

[47] See Id.

[48] See Id.

[49] See Id.

[50] See Id.

[51] See Id.; Gardener, supra note 62, at 124. Apparently the riflemen intentionally missed the target, as all four bullets entered the wrong side of the chest. Id. In another instance, the prisoner was shot in the shoulder and screamed in pain for twenty minutes, until the riflemen obtained more ammunition and shot him in the head. Id.

[52] See Gardener, supra note 62, at 124. Weisberg, supra note 57, at 24.

[53] ALA. CODE § 15-18-83 (Supp.1997); OHIO REV. CODE ANN. § 2949.52 (Banks-Baldwin 1997)(electrocution prescribed unless prisoner requests lethal injection); OKLA. STAT. tit. 22. § 1015 (Supp. 1998) (lethal injection, unless not available, than electrocution, and if neither is available, firing squad).

[54] See Glass v. Louisiana, 471 U.S. 1080, 1087 n.13 (1985) (Brennan, J., dissenting).

[55] See id.

[56] See id.

[57] Id. at 1086-87.

[58] At John Evans' electrocution in 1983, an electrode caught fire and the strap holding it to his leg burst. Michael L. Radlet, Post-Furman Botched Electrocutions. Guards reattached the electrode and another jolt was sent through Mr. Evans body. Id. The electrode once again caught fire. Id. Two doctors examined Evans and determined he was still not dead. Id. The executioner then administered another current and the total execution took fourteen minutes. Id. At Raymond Landry's execution in 1989 the syringe came out of Landry's arm and sprayed the deadly chemicals towards the witness room. Id. Witnesses at Ricky Ray Rector's execution listened to Rector's moans from behind a curtain for an hour while the medical staff searched for a suitable vein in his arm. Id. Jesse Tafero's head caught fire when the state replaced the natural sponge used in the headpiece with a synthetic sponge. Id.

[59] Albert Camus, "Reflections on the Guillotine," in Resistance, Rebellion, and Death 187 (1961).



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