By Hedwig Lieback
The reasons most frequently provided for justifying the continuing use of the death penalty and Life in Prison Without Parole (LWOP) in the United States include “deterrence, cost effectiveness, incapacitation, and retribution” (Armour and Umbreit 2012, 15). The first three reasons have been disproven in the literature on the death penalty; for example, “the data on the danger posed by death row inmates suggests that the majority are not dangerous and serve time without incident” (ibid.). Yet as many as 28 states in the US still have the death penalty otheir books and many of these states still issue death sentences (“State by State” 2021). This leaves the opponents of the death penalty – whose number is on the rise (“National Polls and Studies” 2021) – with the last reason: retribution.
In 2012, Professors Marilyn Peterson Armour and Mark S. Umbreit set out to explore the common adage that the death penalty continues to be pursued because it “has been touted as bringing closure to survivors” (4). Prior to their study, the actual effect of issuing the death penalty on the families of the murder victim(s) has not been systematically explored. Armour and Umbreit use both qualitative and quantitative data to ask whether families and survivors actually are provided with a sense of ‘closure’ and then compare data from Texas, the state that most actively issues death penalties in the US today (Walpin “Why is Texas”), and Minnesota, a state that “abolished the death penalty in 1911” (Armour and Umbreit 2012, 10). Contrary to the allegedly clear-cut relation between the availability and the use of the death penalty and ‘closure,’ they find that the single most important factor in determining whether survivors are better able to process the violent death of a loved one lies in “the control survivors felt they had over the process of getting to the end” (98). The various interviews with family members and others who witness trials either ending in the death penalty or in life in prison without parole reveal that complex relations to both the criminal justice system, the families of the accused, and the accused themselves are at play. Claiming that survivors’ families unilaterally desire retribution by death or cannot see the accused as a human being are not substantiated by Armour’s and Umbreit’s inquiry. This, if anything, provides a path for thinking about serving justice without centering retribution where the loss of one life initially has to be avenged with the loss of another life later on.
A recurring theme, in our discussion on the death penalty and its abolition with Alexis Hoag, Kelley Henry, Susannah Sheffer, Liliana Segura and Lee Greenwood, was the broader social repercussions of death sentencing – and executions – by the state. Both Lee Greenwood as a survivor of the state’s homicide of her son and Susannah Sheffer as a mental health counselor and researcher emphasized that the death penalty’s harm extends well beyond the sentenced person. Sheffer invoked the concept of “disenfranchised grief” coined in 1989 by Kenneth Duka when describing the unique challenges people face when their loved one is sentenced to death and executed. In a study on people caring for a person on death row, Sandra J. Jones and Elizabeth Beck conduct interviews with family members of the condemned to explore how disenfranchised grief and – in the process leading up to an execution – nonfinite loss affect the mental health of those having a loved one on death row (2006, 281). Particularly the concept of disenfranchised grief points to several of the pervasive aspects of the death penalty. It refers to instances when the bereaved are denied the ‘right to grieve’ by the larger society (Doka, 1989). Disenfranchised grief occurs when a loss cannot be openly acknowledged, publicly mourned, or socially supported. Doka and others have found that when disenfranchised grief occurs, the emotions of the bereaved are intensified and healing becomes more difficult. In addition, the bereaved often experience high levels of distress, disorganization, and prolonged grieving. (Jones and Beck 2006, 284-85).
The often decade-long process from sentencing to execution, the uncertainty prior to every new court date and every glimpse of hope for a repeal of the sentence, and the frequently hostile environment people with a loved one on death row face both within the criminal justice system and outside of it, create an uninhabitable psychological state. For those who have not experienced this, it remains unimaginable.
The retribution-centered approach to punishment for severe crime not only forecloses the possibility that people are much more than their worst deeds and that no one is beyond the capacity to change but also that those affiliated with the defendant have no right to suffer and grieve. The prosecution frequently only recognizes the grief of the victim’s family as legitimate, something many interviewees in Jones’s and Beck’s study have also pointed to when they “talked of contempt when their grief was observable during courtroom proceedings. […] Several indicated that they were made to leave the courtroom while the victims’ loved ones are given tissues and water” (293). This, however, fails to recognize that there are no unharmed parties in a murder trial. Guilt by association, even though often a factor in legal practice, should not play a role when providing care for those whose loved ones, for a variety of reasons, have to go through a public, often excruciating, frequently biased, and emotionally fraught trial.
Another aspect too often ignored in discussions of the death penalty is its power to fundamentally undermine trust in the legal system and thus trust in a protective state. Jones and Beck point out that [p]rior to their loved one’s conviction, many of the family members that we interviewed saw the state as their protector. After their interaction with the criminal justice system they became jaded and felt betrayed. Not only did they view the criminal justice system as a maze of incomprehensible rules that they viewed as stacked against them, but they also began to note that the state engages in premeditated homicide (2006, 289).
Witnessing the state as an executioner combined with generally negative interactions with a legal system that not only seeks what many argue constitutes ‘cruel and unusual punishment’ but that also often refuses to acknowledge the defendant’s basic humanity contributes to “families’ disillusionment with the state and criminal justice system” (290). Here, both the racial and socio-economic structures favoring harsh punishment in the United States also contribute to families’ often horrible experiences. Alexis Hoag, in her article on “Valuing Black Lives” points out that the historically grown social structure of the United States permits any procedurally ‘fair’ application of the death penalty even if one were not to oppose it on ethical grounds alone (2020, 988). Hoag summarizes that “the death penalty continues to be administered to the most disfavored members of society: the poor, those with mental illness, and Black people. The death penalty is still disproportionately sought and imposed against defendants accused of murdering white victims” (ibid.).
Assessing the death penalty, then, not from the vantage point of an allegedly disinterested legal structure but from the vantage point of those living with and dying because of it reveals a picture of enormous suffering based on a haphazard argument. Not all family members of murder victims want the (alleged) perpetrator to be executed and sometimes prosecutors pursue the death penalty against the victims’ families’ expressed wishes (Armour and Umbreit 2012, 39). The death penalty has not led to a decrease in violent crime. It has often failed to provide victims’ families with ‘closure,’ and it has dragged numerous loved ones of the accused into years or even decades of uncertainty, trauma, and growing distrust in the legal system at large. The irreversibility of a death sentence also assumes that legal procedures in these cases can be conducted error- and bias-free. They cannot. To assume a position of infallibility as a state relying on all too human judges, prosecutors, defense attorneys, and juries contradicts all evidence proving that neutrality in the legal system is a myth. Opposing the death penalty, then, and rallying for its abolition can be supported on normative grounds, via empirical assessments of its actual administration, and with an eye toward the innocent unavoidably affected by such a sentence. The evidence is easily accessible and well-known by now which leads us to the conclusion that those who support the death penalty in light of these facts support retribution. Such a stance will not prevent more harm but inflict more harm.
“State by State.” The Death Penalty Information Center, Jan. 2021, https://deathpenaltyinfo.org/state-and-federal-info/state-by-state.
“National Polls and Studies.” The Death Penalty Information Center, Jan. 2021, https://deathpenaltyinfo.org/facts-and-research/public-opinion-polls/national-polls-and-studies.
Armour Peterson, Marilyn, and Mark S. Umbreit. 2012. “Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors: A Two State Comparison.” Marquette Law Review 96(1): 1-131.
Hoag, Alexis. 2020. “Valuing Black Lives: A Case for Ending the Death Penalty.” Columbia Human Rights Law Review 51(3): 983-1007.
Jones, Sandra J., and Elizabeth Beck. 2006. “Disenfranchised Grief and Nonfinite Loss as Experienced by the Families of Death Row Inmates.” Omega 54(4): 281-299.
Keefe, Patrick Radden. 2015. “The Worst of the Worst.” The New Yorker, 7 Sept., https://www.newyorker.com/magazine/2015/09/14/the-worst-of-the-worst.
Walpin, Ned. “Why is Texas #1 Executions?” The Death Penalty Information Center, accessed 26 Jan. 2021, https://deathpenaltyinfo.org/stories/why-is-texas-1-executions.
 “[J]ury selection in death-penalty cases involves a procedure known as ‘death qualification,’ in which prospective jurors are questioned about their views on capital punishment, and anyone who opposes the practice on principle is disqualified” (Keefe 2015). This skews the jury into a particular direction since support for the death penalty also correlates with other, thus introducing an additional selection bias on top of the racial and class bias that marks many juries in the US to begin with.