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."
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. 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, 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.
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. "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.
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
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. 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. Other states either limit the total number of family
members who may attend or leave the decision to the prison warden. 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.
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. The families of murder victims likely to experience a
similar sense of isolation.  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
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.  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. "Every
culture has a different way of mourning, but witnessing executions isn't one of
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." 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.
Because Ake showed genuine remorse, Douglass expressed his forgiveness. "I felt a real closeness to him. We've been
trapped in a foxhole together for all these years." Paul Stevens, the father of a murder victim, now
ministers to death row inmates at Eddyville Prison in Kentucky. 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."
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?" 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
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.
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. Cries for the death
penalty from the community, the media and the state may fall upon vulnerable
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. 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. 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
The media has also added to the pressure on families to attend, parading families to press conferences to give their
testimonials to vengeance. 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
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.
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. 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.
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. 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. The
hood prevents witnesses from determining how long the prisoner suffers, but
doctors believe death does not occur instantaneously. The weight of the body causes the skin, blood vessels and
muscles to tear.  The upper vertebrae
dislocate, the spinal cord separates from the brain, and death results. Clinton Duffy, a former warden at San
Quentin who participated in over sixty executions, described the scene to a
[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.
A prison guard holds the body steady until the prisoner suffocates if the drop
is too short. If the drop is too long, the
powerful jerk decapitates the prisoner.  Washington's hanging of
Westley Allan Dodd on January 5, 1993 was the first use of the gallows by any
state since 1965. Delaware then hanged
Billy Bailey on January 25, 1996, and two of the victim's sons watched the
The firing squad is another method of execution rarely used, but still
available in Oklahoma and Utah. 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. Guards strapped Gilmore to a chair and
placed a black hood over his head. A
doctor located his heart with a stethoscope and pinned a circular white cloth
target over the spot. 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. A person shot in the head dies almost
instantaneously, but a firing squad aims for the heart. 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. Gilmore died in
two minutes. 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. The bullets
often mutilate the body and the death is always bloody.
In Alabama, Ohio and Oklahoma, a victim's family may view the electrocution of
the prisoner. Family members would see the
prisoner strapped to a wooden chair with electrodes attached to his shaven head
and a mask covering his face. 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. The executioner then
lowers the voltage and administers repeated jolts "until the prisoner is dead."
 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.
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.
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." 
 Brooks Douglass, "Why I Want to Watch a
Killer Die," USA TODAY, Apr. 15, 1996, at A19
 Potok, supra note 17, at 3A.
 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.")
 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).
 Potok, supra note 17, at 3A.
 Helen Prejean, Dead Man Walking 235
 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
 See OKLA. STAT. ANN. tit. 22 §
1015 (West 1996).
 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).
 See Lynne N. Henderson, The
Wrongs of Victims Rights, 37 STAN. L. REV. 937, 938-39 (1985).
 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.")
 Henderson, supra note 34, at 964.
 See Id. at 976.
 Kokmen & Hanna, supra note 24,
at A1(quoting Sidney Welssman, psychiatry professor at Loyola University
 Polok, supra note 17, at
3A(quoting Rick Halperin, co-founder, Texans Against State Killing).
 Douglass, supra note 25, at
 Romano, supra note 20, at A1.
 Interview with Paul J. Stevens, father of
murder victim and death row spiritual advisor, in Franfort, KY
 Laura Myers, Death Penalty Protesters
Rally at Capitol, UPI, June 28, 1987, available in LEXIS, News
Library, Upstat File.
 Marietta Yeager, address at the Kentucky
State Capitol ( Dec. 15, 1996)(on file with author).
 21 U.S.C. § 848(r).
 Henderson, supra note 34, at
 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.
 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.
 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.
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.")
 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.)
 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).
 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
 See Jacob Weisberg, This is Your
Death, NEW REPUBLIC, July 1, 1991, at 23.
 See Campbell v. Wood, 18F.3d662,
724 n.57(9th Cir. 1994) (Reinhardt. J., concurring in part and dissenting in
 See Weisberg, supra note 57, at
 See Id. at 24.
 See Id.
 Martin R. Gardner, Executions and
Indignities, 39 OHIO ST. L.I. 96, 121(1978).
 See Id.
 See Id. at 120.
 Executions in the U.S., Death Penalty
 Yvonne Barlow, Executions Stir Death
Penalty Debate, DALLAS MORNING NEWS, Jan. 28, 1996, at A5.
 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).
 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).
 See Weisberg, supra note
57, at 24.
 See Id.
 See Id.
 See Id.
 See Id.
 See Id.
 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.
 See Gardener, supra note
62, at 124. Weisberg, supra note 57, at 24.
 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).
 See Glass v. Louisiana, 471 U.S. 1080,
1087 n.13 (1985) (Brennan, J., dissenting).
 See id.
 See id.
 Id. at 1086-87.
 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.
 Albert Camus, "Reflections on the Guillotine," in Resistance, Rebellion, and Death 187 (1961).