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March 20, 2009

Notable new and helpful thoughts on the capital concept of closure

I just noticed this interesting-looking new piece on SSRN by Jody Lynee Madeira, titled "Why Rebottle the Genie?': Capitalizing on Closure in Death Penalty Proceedings." Here is the abstract:

Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy.  For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality.  Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant's constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what extent closure is an appropriate adjudicative goal, it is necessary to more thoroughly investigate the concept and develop a theory of closure.

This article provides an argument against rebottling the closure genie, a task not only seriously implausible but unsound under principles of communicative theory.  Proposing that closure is an authentic cultural and communicative construct that has become indelibly linked to capital proceedings, this article advocates a shift in focus to more practical questions.  This article first summarizes how legal scholarship has described closure up to this point, and then examines how courts utilize the rhetoric of closure to effect change for victims' families in a variety of contexts.  It then reviews widespread scholarly opposition to utilizing criminal law to pursue therapeutic ends. Thereafter, this article seeks to broaden the contemporary understanding of closure by exploring how members of one victim population -- Oklahoma City Bombing victims' families and survivors - have described closure in intensive face-to-face interviews.  These reflections provide the foundation for theorizing closure as a communicative concept composed of two interdependent behaviors: intervention and reflexivity. While intervention is an interpersonal component that urges victims' families to take action to effect change and pursue accountability, reflexivity is an intrapersonal component that nudges them to contemplate and work through grief, emotion, and trauma after a loved one's murder.  Finally, this article considers the pragmatic ramifications of applying a communicative theory of closure.

Because I have long thought that the concept of closure has been over-used and under-examined in capital punishment debates, I am looking forward to finding time to read this piece closely.  I suspect, however, that this important new foray will not give me closure on the concept of closure in capital cases.

March 20, 2009 at 10:38 AM | Permalink

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Advocating Death Penalty Closure: At Sentencing Law and Policy, Doug Berman has a post linking to Jody Lynee Madeira's recent research paper, "Why Rebottle the Genie? Capitalizing on Closure in Death Penalty Proceedings." According to the abstract, Mad... [Read More]

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Comments

"Closure" is psychobabble, and does not justify the death penalty. Nor will it relieve bereavement in any way. It violates Fifth Amendment procedural due process.

There is not even evidence that the concept of closure can be reliably measured in the physical world. Any evidence showing its existence must rule out induction of the idea in the mind of the survivor by the interviewer.

I am not reading anti-scientific garbage articles by lawyers. They are ridiculous at this late date (both the articles and the lawyers).

Posted by: Supremacy Claus | Mar 21, 2009 9:33:16 AM

Thanks for your post, Doug.

I certainly cannot agree with the assertions of the previous poster. It is true that "closure" alone cannot justify the death penalty. But it has become an important rhetorical justification for executing capital offenders, and is a proper focus of concern for that reason alone. My research shows that certain populations of victims have experienced relief following executions because offenders are removed from their lives. Rather than indicating "finality," "closure" should be taken as a term that indicates that victims' families have utilized criminal proceedings to fulfill perceived responsibilities to murdered loved ones, including giving victim impact testimony. Victims' families find these opportunites deeply meaningful. The question of what effect such participation has upon defendants' rights is a related, but separate, question. For example, it is possible to say that participation in capital proceedings is "good" for victims' families but disadvantageous for defendants. And since defendants are the proper focus of capital proceedings, a focus on "closure" may be improper for that reason.

As far as the assertion that "any evidence showing its existence must rule out induction of the idea in the mind of the survivor by the interviewer," the media and the criminal justice system plant the idea of "closure" far earlier than interviewers such as myself who speak to murder victims' family members years after an execution. This is readily ascertainable from the article, which also applies the social science of communication studies to providing a theory of "closure." Even at this "late date," empirical research on the lived experiences of murder victims' families remains a critical need.

Posted by: Jody Lynee Madeira | Mar 21, 2009 11:22:26 AM

Jody. Do you have a link to your research? I'm curious about it. Certainly I agree that reaching what is sometimes called "closure" is a real psychological event. But I wonder if death if the only way for people involved to achieve that closure, and if so, why that would be the case. "My research shows that certain populations of victims have experienced relief following executions because offenders are removed from their lives." I don't doubt that is true. But to what extent have you compared that experience to the closure achieved by families of killers sentenced to LWOP. Is it the same? Or is it in some way qualitatively different?

Posted by: Daniel | Mar 21, 2009 3:04:26 PM

Yes, Jody. I too would like to see the reliability statistics on the assessment of closure interview. Reliability means, repeatability. I am not even asking for validity statistics.

Posted by: Supremacy Claus | Mar 21, 2009 4:08:03 PM

Yes, Daniel, you hit the nail on the head. Basically I have interviewed members of an atypical victim population--victims' families and survivors of the Oklahoma City bombing--and have concluded that these persons perceived that they were trapped in an involuntary relationship with McVeigh in which McVeigh utilized media contacts to further wound them from behind prison walls. Therefore he, unlike Nichols, needed to die. Of course, the caveat is that this is a case study. What I have been trying to do for a few years now is to get grant funding to conduct a multi-state study of less sensational murder cases, in part to see if the concept of the victim-offender relationship persists, and in part to compare LWOP in non-death penalty states to executions in death penalty states. I suspect that survivors in death penalty states might prefer the death penalty as the most severe penalty. After all, waiting around for over 15 years and riding the emotional roller coaster of appeals is much more protracted than the finality that can come with LWOP. The link to the paper that summarizes my research (which was my dissertation) is http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1007041 ("Blood Relations: Collective Memory, Cultural Trauma, and the Prosecution and Execution of Timothy McVeigh"). It will also be the subject of a forthcoming book published by NYU Press.

As for reliability/repeatability, my research involved open-ended qualitative interviews analyzed through a grounded research methodology, so repeatability is diminished but not altogether lost. Another person would have to conduct the same interview in order to ascertain that element. However, inter-coder reliability was established, so that helps.

Posted by: Jody Lynee Madeira | Mar 21, 2009 10:00:40 PM

One more addition--in essence then, what compelled survivors to perceive that McVeigh, and not Nichols, needed to be executed was a felt need to silence him. There was a case in FL 2 or so years ago where the killer murdered 2 or 3 teenage girls and while on death row composed songs about the murders; the victims' families spoke of much the same silencing need in that case. It will be interesting to see if that persists in less sensational cases.

Posted by: Jody Lynee Madeira | Mar 21, 2009 10:05:26 PM

I would like to silence, by torture and execution, the heinous, outrageous criminal lover lawyer hierarchy. However, the law as it stands today, does not allow for that. This is not Iran. I would suggest that the victims have good opportunities to compose ditties about the murderer in a cage, counting the days to his death. Hey, Hey, ditwad, only 14 days left for you today. Stay well.

In this country, the remedy for obnoxious speech is other obnoxious speech.

The victim movement is another lawyer rent seeking trick. They insist that victims be provided with a lawyer to represent their interest. Closure is another bogus reason to generate lawyer make work.

The name is not accurate. They are not victims, except perhaps of the biased, criminal lover lawyer system of protecting the criminal. They are survivors of crimes committed against a loved one.

I would like to see direct action groups of such survivors take the pain to the criminal lover lawyer hierarchy. These are internal traitors, and protectors of the criminal.

Posted by: Supremacy Claus | Mar 21, 2009 11:17:57 PM

Jody. Wow. good work. There is so much to that paper I couldn't put all my thoughts here if I wanted too. I'll just make one remark. I was struck by a footnote where one of the people at the trial described looking at McVeigh and meeting his gaze as "looking at the Devil". I was struck by that comment because I heard those exact words reported a few days ago in a media account. The person who said them was a victim of Bernie Madoff and who attended his arraignment. Not only would it be interesting to see how people experienced closure in a LWOP state, it would also be interesting to do a similar case study of Bernie Madoff's victims and compare the victim's responses to a capital vs. non capital tragedy. Indeed, I think the Madoff cases offer a unique opportunity for just such a comparison.

Posted by: Daniel | Mar 22, 2009 1:59:55 AM

Absolutely...along with Kenneth Lay and other recent "super" white collar criminals too. It's interesting that Lay's death was said to deprive his victims of "closure" as well. Thanks for the Madoff reference...that will be a great addition as I start the heavy revision process for the book. Please feel free to e-mail me thoughts and comments at jmadeira@indiana.edu...I'm sure that they would be invaluable!

Posted by: Jody Lynee Madeira | Mar 22, 2009 5:59:53 PM

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