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Victim Impact StatementsThe goal behind punishment is to allow the defendant to be rehabilitated, discourage other perpetrators, and make society safer. Punishments should provide justice for the victims and make the defendant atone for his crimes in order to offer his/her (surviving) victims closure and allow them to heal.
The focus of this article is on examining how the understanding of punishment has changed over the last few decades and what changed roles the relatives of murder victims play in capital murder trials. This article’s central object of investigation is the victim impact statement, which provides the relatives of a murder victim with an opportunity to address the court prior to sentencing after a guilty verdict has been reached in the United States. The legal history of victim impact statements will be examined and embedded in the context of how punishments are viewed by society. During this process, I will also refer to how punishments are viewed in Germany. The article will look at the various attitudes of the relatives of murder victims about the death penalty and its impact on trials and understanding of punishment and briefly describe the role of the jury and the effects of the victim impact statements on their decision.
In the United States, the district attorney almost always calls the members of victim’s family to the stand as witnesses in capital cases – even if they have nothing to say about the facts of the case. For example, many family members of the victims were called as witnesses in the case against Timothy McVeigh, who was responsible for blowing up a government building in Oklahoma City in April 1995 – an attack in which 168 people were killed. Glenn A. Seidl testified about the death of his wife, who had worked in the building, and how difficult it was for him to deal with the grief of his nine-year-old son, who constantly asks about his mother and misses her terribly. Seidl also read a letter from his son in court that stated "I miss my Mom, we used to go for walks. She would read to me. We would go to Wal-Mart… Sometimes at school around the holidays I will still make my Mother’s Day and Valentine’s Day cards like the other kids.“ (Sarat, p. 9). Glenn A. Seidl was only the last of the 26 family members of those who were killed to be called as witnesses by the prosecution, in addition to three injured survivors and eight rescue or medical workers. The prosecution’s goal was to urge the jurors to not think of what happened as just mass murder: "There are 168 people, all unique, all individual…. All had families, all had friends, and they’re different.“ (Sarat, p. 8).
The role of victim impact statements
The role of victim impact statements has changed over the last few decades – most importantly with the U.S. Supreme Court decision in Payne v. Tennessee in 1991.
In 1976, the U.S. Supreme Court ruled that the death penalty was permissible and stated that it is "desirable for the jury to have as much information as possible when it makes the sentencing decision." In 1977, the same court ruled that, in cases such as Gardner v. Florida, “it is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than emotion.”
In 1982, a report was published during the Reagan Administration that took the growing “Victim’s Rights Movement” into account. The report not only called for consultation and therapy for victims of crimes and financial support, but judiciary recommendation number six reads: “Judges should allow for, and give appropriate weight to, input at sentencing from victims of violent crime.“ In 1997, President Clinton signed the Victim Rights Clarification Act, which allows victims to attend the trial of a defendant accused of the offense even though the victim may testify or offer a victim impact statement as to the effect of this crime on the victim or victim's family.
Between both these political decisions there is a fundamental change in the assessment of victim impact statements during the penalty phase of death penalty cases by the U.S. Supreme Court. In 1987, the Court ruled in Booth v. Maryland (Booth was given the death penalty for the murders of an elderly couple) that victim impact evidence was unconstitutional. During the sentencing phase of the trial after the defendant had been found guilty, the prosecution read a victim impact statement from the victims’ son, daughter, son-in-law, and granddaughter. In that statement, the son described his depression, and the daughter stated that she can no longer look at kitchen knives without being reminded of the murders (they were stabbed to death) and concluded that Booth could "[n]ever be rehabilitated." The U.S. Supreme Court struck down the sentence with a 5-4 decision, because in capital cases the victim impact statement is like a "mini trial“ on the character of the victim(s) and diverts the jury from focusing on the relevant evidence concerning the crime and from the defendant as a "uniquely individual human being,” as is intended by the Constitution. The admission of the family members' emotionally charged opinions and characterizations of the crimes could serve no other purpose than to inflame the jury. The Court clearly stated that "the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence." The U.S. Constitution’s eighth amendment prohibits cruel and unusual punishment. Nevertheless, prosecutors continued to use victim impact statements in death penalty cases and some appeals courts granted their use. Shortly thereafter, in 1989 the U.S. Supreme Court had to once again decide on the legality of victim impact statements in South Carolina v. Gathers. This time, the prosecutor had explained to the jury during the closing argument of the original trial that the victim was an extremely religious man and a useful and respected member of the community and pointed to a voter registration card which the victim had been holding in his hand when he was found murdered as being indicative of the victim's belief in his community and his country. The Supreme Court of South Carolina, while affirming the defendant's conviction, reversed the sentence and remanded the case for a new sentencing hearing, because it ruled that the prosecutor’s statements had suggested to the jury that Gathers deserved the death penalty because his victim was religious and a registered voter. The U.S. Supreme Court confirmed this ruling with another 5-4 decision and added that the statement about the victim had no connection to the responsibility of the defendant and contained factors that the defendant was unaware of and had not played a role in his decision to kill.
Even so, the lower courts continued to allow the use of victim impact statements, which severely undermined the U.S. Supreme Court’s decision.
In the meantime, two U.S. Supreme Court justices, Justice Lewis Powell and Justice William Brennan, had retired (Powell in 1987 and Brennan in 1990), and Justice Anthony Kennedy and Justice David Souter were appointed as their successors. This resulted in a change in the majority opinion on the victim’s rights movement, and the path was clear for Payne v. Tennessee. In 1987, Pervis Tyrone Payne stabbed his girlfriend’s neighbor while under the effects of cocaine and alcohol after she had rejected his sexual advances. He also stabbed her 2-year-old daughter. Her three-year-old son survived despite the severe wounds inflicted by a butcher knife. During the sentencing phase of the trial, the prosecution presented the testimony of the victim’s mother. When asked how her grandson, who had survived the attack, was affected by the murders of his mother and sister, she responded: "He cries for his mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his sister Lacie.” In arguing for the death penalty during closing argument, the prosecutor commented forcefully on the effects of the crime on the surviving grandson, who had witnessed the crime. He also mentioned Lacie in the courtroom: "No one will ever know about Lacie Jo because she never had the chance to grow up.(…) So, no there won’t be a high school principal to talk about Lacie Jo Christopher, and there won’t be anyone to take her to the high school prom. (…)” The Tennessee Supreme Court affirmed the conviction and sentence despite the use of the victim impact statement – and so did the U.S. Supreme Court, in a 6-3 decision. They felt that the pain and damage arising from the crime was relevant to determining the sentence and that victim impact statements were "simply another form or method for informing the sentencing authority about the specific harm caused by the crime in question.” In order to ensure balance during the trial, it is important that, in addition to the accused being allowed to bring up extenuating circumstances, the prosecution be allowed to introduce “good character” evidence regarding the victim and the emotional impact of the crime on the relatives of the murder victim. The U.S. Supreme Court’s decision in Booth, which was rendered just four years earlier, that victim impact evidence would encourage the jury to impose stricter and longer sentences if the victim was a respected member of the community rather than someone who was viewed as not being as useful, was now found to be wrong by a majority of the judges.
Another highlight in the history of admitting victim impact statements was the submission of victim impact statements in United States v. McVeigh. As already mentioned, not only the direct victims of the bombing — namely, survivors and family members — were allowed to submit a victim impact statement; several of the rescuers, who undoubtedly had to process traumatic events, were allowed to submit a victim impact statement. One example is a rescuer who was only able to hold the hand of a dying woman who was trapped under the rubble and could not be rescued quickly enough. However, the horrors that police offers and rescue workers experience every day in the course of their work hardly differ from comparable events that are triggered by an accident or natural catastrophe. McVeigh was a high point of the victim’s rights movement, because anyone who did not want to see this man dead immediately risked being accused of not honoring the victims. Without delay, President Clinton hailed the guilty verdict as a "long overdue day for the survivors and the families of those who died in Oklahoma City." (Sarat, p. 7). In Oklahoma City, church bells tolled after the verdict was read.
What is punishment?
Murder is a crime that has perpetrators and victims. (This may sound trivial, but it is mentioned here because in the case of tax evasion it is often difficult to determine someone who has been directly affected by the crime.) The fact that murder also affects the surviving family members and friends is obvious. The terms “closure” for the survivors as well as “deterrence” and “retribution” are often used as an argument for the death penalty. As we have seen, the relatives are increasingly being introduced by the prosecution during the trial as well as during the penalty phase. However, justice remains the only instance in which the law can speak. There are no direct rights of the victim to determine or even carry out the sentence. I would like to step back for a moment and analyze what punishment can be and the significance of punishment in our society (by this I will initially refer to the situation in Germany). I will then examine the extent to which this understanding of punishment differs from that of the United States, and come full circle by coming back to the victim impact statement and which understanding of punishment this is (or is not) based on.
Punishment: Recognizing the crime as injustice
I will not go into great detail on the history of criminal law in Germany (see Foucault/ Hassemer/ Reemtsma). As far as the development of our current judicial system, to put it briefly, the judiciary has developed into a mediator between the perpetrator and the victim in a civilized court. The State states precisely and bindingly as far as is possible under its canon of law which sanctions it will use for which crimes and under which circumstances and promises to limit its power to those sanctions. The recognition of the offense by the judiciary as an injustice is supposed to restrain the victim’s possible need for revenge and place it in “expert hands.” (Hassemer/ Reemtsma, p. 20). A crime (let’s stick with murder) shakes the perception "that I don’t have anything to be concerned about." The administration of justice cannot heal traumas that have been caused by a crime – and also does not claim to, but it can give the victim something else. It "is the renewal of the promise to not have certain worries and concerns. Whether he/she (the victim) will be in a position to not worry is another story and has nothing to do with the question of the administration of justice." (Hassemer/ Reemtsma, p. 135). This argument is plausible when, for example, we look at the struggles of feminists to get marital rape legally recognized as a crime and rape legally recognized as a war crime under international law in the International Court of Justice in Den Haag and the International Criminal Tribunal for Rwanda. It took a long while for the arguments of the feminist lawyers and activists to be accepted. The recognition that in both cases a crime even took place in the first place is the prerequisite for the victim to best integrate the (traumatic) experience into their own life. The paths for this are very different and also have varying degrees of success and are based on the individual. The recognition of rape as such with the consequences of the prosecution of the defendant is necessary, but is not enough for the victim to come to terms with the damage resulting from the rape. Thus, the Criminal Code with its "recognized" crimes and the length of the penalties there reflects the prevailing societal mood. Unlike the recognition as a crime, the penalty is subjected to increasingly different perceptions, because the question that is asked here is usually understood to be an either/or question: is the penalty there for the defendant or for the victim?
Defendant orientation of penalties
In 1976, a new penal code came into effect in the Federal Republic of Germany. It was the result of long discussions on the basic rights of prisoners. Limits for life sentences were confirmed by the Federal Constitutional Court (Bundesverfassungsgericht) on June 21, 1977, which held "that a dignified execution of a life sentence can only be ensured if the convicted person has a concrete and in principle realizable chance of regaining his freedom at a later time, because the core of human dignity is hit deeply when, irrespective of his personal development, the convicted person has to give up any hope of ever achieving his freedom." According to Hassemer, the intention of this law and the legal and scientific debates is "the defendant orientation in the interest of a cautious and just criminal law." (Hassemer/ Reemtsma, p. 57). He names, among other things, the position of the accused as the subject in the criminal proceeding and the right to a defense as the central themes that form the basis of penal law. He sees an orientation towards more than revenge in modern criminal law. “While revenge and atonement is a rather normative phenomenon that is concentrated on mankind’s internal forum, improvement and deterrence also work from the outside in. They aim at the convicted (improvement) and virtual (deterrence) defendants and the calculating rationality, and they promise that the penalty and its effect on the defendant will improve the world. A stronger defendant orientation can hardly be imagined“ (ibid.). In Germany, the minimum time to be served for a sentence of life imprisonment is 15 years after which the prisoner can apply for parole. If the verdict in the original trial includes an explicit finding of "exceptional gravity of guilt" (in German: "Besondere Schwere der Schuld") then the possibility of parole after 15 years is excluded and the prisoner can apply for the first time after 18 years. In cases of "exceptional gravity of guilt," the defendant’s early release after 15 years is not guaranteed. In reality, a finding of "exceptional gravity of guilt" drastically increases the time before parole is granted. The average time served for a life sentence in Germany is between 17 to 23 years. (For orientation purposes: According to the Federal Statistics Office [Statistisches Bundesamt], in 2003 there were 2,080 people in German prisons who had been given life sentences). At the end of the 20th century, the perception of the defendant quickly and radically changed (this could be observed in Germany as well as the U.S.). At the same time, the defendant is no less a focus: "While up to now the defendant appeared as the medium of violable basic rights, he now plays the role of threatener and violator.“ (Hassemer/ Reemtsma p. 58). This is a result of the fact that the victim is increasingly becoming the focus of public interest. The victim is only a victim because of the actions of the defendant, who himself acts more or less as a potential victim of the state’s punitive power. While in the 1970s the efforts to return perpetrators to society were important to its sense of justice, the attempt to exclude the perpetrators is being promoted as being sympathetic to the victim. It is also an emotional process that interprets empathy for the defendant as a lack of pity for the victims and becomes an argument for harsher punishments in the form of victim impact statement.
The career of the victim
To be confronted by the victims of (violent) crimes also means being confronted with one’s own fears and vulnerabilities. The victim of a violent crime was completely subjected to someone else’s will. This idea is an extremely unpleasant one, and that is probably why after a while victims (and relatives of victims) often signalize their indignation about the suffered injustice, loss, and their rage on the defendant: “No more.” The tolerance of the world around us for grief and pain decreases over time, and it decreases even faster among the general public, who are already being exposed to the headlines about the next catastrophe or the next crime. According to Reemtsma, the reevaluation of the role of victim is "a growing reaction to civilization’s Holocaust catastrophe, i.e., Germany’s mostly successful attempt to understand its killing Europe’s Jews.“ (Hassemer/ Reemtsma p. 42). He calls the acceptance being shown to the reports of the victims "moral acceptance.“ It is, as it were, an attempt to look at the world through the eyes of the victim and therefore the attempt to give him/her back some of his/her dignity and help him/her emerge from his/her status as victim into a new subject status. (Because as Reemtsma correctly notes, the victim literature cannot teach us anything that we shouldn’t already know: that people should not be allowed to do (have done) this to other people.) The new role of the victim has also changed the discussions about penalties. One obvious example is the change in the perception – and punishment – of rape and sexual abuse after the victims of these crimes were given a voice by the women’s movement or raised their own voice. “Bearing witness” and "being heard“ are rightly recognized as part of processing what has been experienced and having been subjected to someone else’s will. They are a prerequisite for being able to live with the experience/ the loss. Bearing witness can also be offering a victim impact statement in court. However, I believe that the call for a harsher penalty "for the victims" is just an attempt to gain control of one’s own feelings of fear, vulnerability, and powerlessness as the listener. The goal is to (re)create the illusion of a world in which we can clearly differentiate and select between good and evil people. The mother of little Levke, who was found murdered, testified "There will never be a suitable punishment“ (Süddeutsche Zeitung, May 11, 2005). She had been called as a witness not because she could say anything about the crime, but to offer testimony about Levke and, above all, about the loss that she and the rest of her family have to live with. The article in the Süddeutsche Zeitung noted: "The atmosphere in the courtroom and the strict formalities of the proceedings are not conducive to emotions, and as a rule the victims of a crime are not encouraged to show their feelings." And after the mother’s testimony:“… there were no longer any uninvolved observers in the courtroom. There were only sympathetic people, many of whom had tears in their eyes.“ But Levke’s mother also said that she did not care what punishment the defendant would receive. "There will never be a suitable punishment, because he is still alive and she isn’t.“ (Marcus H., who confessed to the crime, was sentenced in June 2005 to life in prison and subsequent maximum security detention.) The limits of empathy for the victim, especially the relatives of murder victim, and the opportunity to help them with the help of a severe penalty, even the death penalty, is hidden in this sentence: She is no longer alive, that is irrevocable. At the same time, the victim’s desire for revenge can also be interpreted positively: "Anyone who bears a desire for revenge will want to make the person who made them into an object of outside intentions into an object himself and thereby win back their own subjectivity.“ (Hassemer/ Reemtsa, p.123) The defendant and victim therefore become equal through the revenge (fantasies). However, Reemtsa does not view this as inevitable, but rather as an option, because “there are enough people who do not feel the need for this type of reestablishment of equality – probably because this reestablishment of equality also levels the difference between justice and injustice."
In the case of murder, the reestablishment of "equality" thus appears to be the death penalty. With the increased importance of the victim impact statement and statements like the one made by President Clinton about the death penalty for Timothy McVeigh as “justice for the victims,” the thought of revenge becomes the basis for the degree of penalty – not deterrence and not rehabilitation. With the promise of the death penalty as "healing for the victims," the state becomes a vicarious avenger. Private revenge fantasies are legitimized in the law, and the separation between private wish and public law becomes blurred. Reemtsma is quoted again here: "The idea that the state could exercise revenge vicariously has something to do with the widespread notion that anyone can do it. Anyone who has become a victim of a crime often experiences that his fellow man wants to cause some kind of association with him by exposing him to fantasies of vicarious revenge such as: ‘Well, if I could get my hands on him…!’(…) I have always experienced 'the opposite side’ in fantasies like this in which the person gives free rein to his aggression and sometimes even maliciousness when a perfect, apparently morally assailable opportunity comes along.“ (Hassemer/ Reemtsma, p. 126). I have two comments about this quote. Reemtsma’s assertion is in any case a thankful one, since he, who was himself was kidnapping victim, cannot be exposed to another 'perfect, apparently moral accusation’ to have never experienced the suffering of the victims himself and still disagree with their wish for revenge / the death penalty. At the same time, the fact that the people who make this accusation have not been victims either (for example, the prosecutors) is often overlooked. Even more important, it appears to me that a person can only follow this argument if we declare the victims with all their concerns to be the only experts, something completely different than giving them a say in decisions that affect them. Consequently, the muzzle of being a "non-victim" makes each act of parliamentary democracy impossible when representatives make decisions every day about things that do not immediately affect them, but where they do it in the name of their constituents and therefore also in the name of those people affected by the crime.
My second comment to the quote is in reference to our fellow man. In my opinion, the desire for balance can also be that of a safe and secure world in which murder can be sorted out with the murderers. The desire to be able to separate good and evil people and be able to simply eliminate the evildoers – and therefore evil itself. (The fact that this idea of selection and elimination leads to terror and dictatorships is not just evident in the German history of National Socialism.) The call for the death penalty uses and strengthens this offer to our fellow men of being able to also know what it is like to stand on the "right, the good" side. This form of populism with a call for harsher punishments is ultimately used to score politically. The best example of this is the rape of children outside the family – a crime that has a decreasing number of cases while the public (thanks to increased reports by the news media) has the impression that the opposite is true, and the call for more high security detentions has therefore become more popular in the last few years. (Hassemer/ Reemtsma, p. 203).
Murder Victims’ Families for Reconciliation
"Murder Victims’ Families for Reconciliation" is the name of a small organization in which the friends and family of murder victims and friends and family of death row inmates work together to offer mutual support and abolish the death penalty. I met Carol Byars in September 2000 at her workplace, a small café near Houston, where she earns her living working as a waitress. Her husband was murdered 20 years ago. She did not want his murderer to be executed; she saw the same pain she saw when she looked in the mirror every morning in the face of the murderer’s wife in the courtroom. She became an opponent of the death penalty. Many of her friends and acquaintances could not understand it. "You must not have really loved your husband if you don’t want to see his murderer dead!” According to her, she gets her courage to face life as well as her newfound zest for life from the power of reconciliation. She did not receive any support from the judicial system. The members of "Murder Victims’ Families for Reconciliation" believe that living with the pain and loss – or, as many people call it, healing – can only be found through reconciliation, not retaliation. The organization also works on identifying alternatives to the death penalty. They support programs that teach prisoners how to solve conflicts without violence and their group lobbies for legislators and prosecutors to focus on having the criminal justice system make amends and resocialize them instead of carrying out retribution.
Here, forgiveness plays a similar role as the call for revenge and death. The active decision to forgive the murderer allows the surviving family members to experience themselves as subjects and no longer as being in the hands of the perpetrator, because this decision is theirs alone. Rachel King, who wrote a book about "Murder Victims’ Families for Reconciliation," puts it like this: "The irony of forgiveness is that while it appears to be a selfless act, it is really a very selfish one. People who are unable to forgive cling to their bitterness und rage and are therefore doubly wounded by the killer, who has taken away not only their loved one but also any chance of enjoying their own life. As Bill Pelke says of the girl who killed his grandmother, ‘Forgiving Paula Cooper did a lot more for me than it did for Paula Cooper.’” (King, p. 8).
Excursus on the human ability to forgive
The political philosopher Hannah Arendt sees the ability to forgive as the foundation that makes acting humanely possible. She views human activity as the human ability to do what natural science ‘research’ does every day, namely “to start new unprecedented processes whose outcome remains uncertain and unpredictable.“ (Arendt, pp. 231-232) Whatever we do is irreversible as soon as it has been done. "And this incapacity to undo what has been done is matched by an almost equally complete incapacity to foretell the consequences of any deed or even to have reliable knowledge of its motives." (Arendt, p. 233). According to Arendt, in order to remain capable of acting under these conditions, mankind needs the ability to forgive. In light of the uncertainty of the consequences of our actions we also need to be able to make promises. "The possible redemption from the predicament of irreversibility – of being unable to undo what one has done though one did not, and could not, have known what he was doing – is the faculty of forgiving. The remedy for unpredictability, for the chaotic uncertainty of the future, is contained in the faculty to make and keep promises." (Arendt, p. 237). "Without being forgiven, released from the consequences of what we have done, our capacity to act would, as it were, be confined to one single deed from which we could never recover; we would remain the victims of its consequences forever.“ (Arendt, p. 237) We find Arendt’s promise in the German Constitution and law books. Since the future still remains uncertain and evildoers break promises, punishment can restore the broken promise of a certain future. In order to be able to act again after the murder, forgiveness is almost a pragmatic necessity. The death penalty denies the perpetrator this maxim of human activity.
SuZann Bosler, who survived a robbery in which her father was murdered by an intruder and she herself was stabbed and severely injured, offered a victim impact statement against the murderer, James Bernard Cambell, in 1988 during the sentencing phase of the trial. In the statement, she plead for the defendant’s life, since she and her father had forgiven him, because as a pacifist it was what Christ would have wanted them to do. The prosecutor, Michael Band, stated to the press that he would continue to seek the death penalty, because the state cannot be as merciful as Ms. Bosler (King, p. 147). SuZann Bosler responded, saying: "He didn’t respect what I wanted. Neither did the judge.” (King p. 152). During the second trial in 1997, (the initial sentence – death – was overturned because of overzealousness and incorrect witness questioning on the part of the prosecution) SuZann Bosler appeared as a witness for the defense. She was forbidden to tell the jury that she opposes the death penalty or talk about the sentence she wanted. After the jury’s verdict (life in prison) was announced, she thanked them, saying: "I can’t thank you enough. I have worked hard for his life to be spared. Now I can go on with my own life. And I thank you very much for that. God bless you all.” (King, p. 159). King describes the jury’s reaction as follows: "Several jurors clutched tissues wet from drying their teary eyes. Some hugged each other. Reporters asked jurors for their opinion on the verdict. One said it was ‘a fair, humane decision.’ Another said that the crime was heinous, but ‘the mitigating factors were strong.’ (Campbell had been severely damaged by abuse from his childhood and had a low I.Q.). However, one admitted, 'If something like that happened to me, I don’t think I could forgive.’” The thanks from the surviving victim confirms to the jury that they came up the right verdict, this time against the wishes of the prosecution.
District Attorney Kerry Spears of Milam County in Texas went one step further in the case of Ben Contreras. Ben Contreras was charged with killing 59-year-old Preston Solomon and his 24-year-old stepdaughter Stephanie Young. A third victim survived the attack after being shot in the chest and arm. The District Attorney decided not to demand the death penalty. "Anytime we’re talking about plea offers or penalties we consult the victims or their families and give great consideration to their feelings. It’s a fair statement to say that the death penalty is not something the surviving victim and other family members were interested in pursuing.” (Cameron Herald, April 28, 2005) Whether this was really the reason to not ask for the death penalty cannot be determined here.
But, in my opinion, one thing is certain: the desires of the victims cannot play such a role in sentencing, if we feel the job of the judiciary is to act in a superordinate position and that it needs to be more than just a long arm of individual needs, whatever they may be. To be consistent, we must also think about introducing the right to mercy for the surviving family members, perhaps a right to receive financial redress from the defendant and to allow "mercy to prevail" in exchange – a thought that does not appear to be that far off in the U.S. Some victim groups feel the fact that prisoners have a right to have their own money is unreasonable and are demanding the right to this money as redress for the victims. Victim groups also view the victim impact statement as an extended instrument of individualized revenge that the state should carry out “for the victim.” In order to avoid this, victims’ statements against the death penalty should not be allowed to play a role during sentencing. But they are important to invalidate the claim that anyone who is against the death penalty is automatically against the victim.
Douglas Mulder was the district attorney who prosecuted Randall Adams in 1977. Adams was convicted and sentenced to death. His sentence was later commuted to life imprisonment, and Adams was exonerated and released from prison in 1989. In a book about his story, Adams describes the district attorney’s reaction to his release as follows: "The April 1989 issue of D Magazine quoted Mulder: ‘It’s a shame. But Adams isn’t the first murderer to beat the system.’ A reporter asked, what if he, Mulder had been my defense attorney way back in 1977, instead of the prosecutor. ‘Oh yeah,’ Mulder replied, 'I’d have gotten him off. There’s no doubt in my mind.’” (Adams/Hoffer p. 346) The district attorney gets to the heart of what is important in the courtroom in a capital murder case – winning.
The "trial" of a person becomes a competition. This is extremely obvious in the "case" of Leonel Herrera. His defense attorneys were granted a stay of execution, which was scheduled three days later, from a state court judge based on new evidence regarding the possible innocence of their client (new witness testimonies, including a man who was sitting in the car when the murder occurred). "Texas immediately appealed, and the day before Herrera’s execution, as Texas had argued that even assuming Leonel Herrera was innocent, innocence was no basis for granting a writ of habeas corpus. In other words, the court (the Fifth Court of Appeals, S.V.) held nothing in the United States Constitution prohibits a state from executing an innocent man as long as his constitutional right to due process was not violated in the course of his trial.“ (Tucker, p. 218) The Supreme Court denied his appeal in January 1993. "The ruling, cited as ‘Herrera vs. Collins’ held that there was no constitutional right to federal relief based on newly discovered evidence of actual innocence, when the defendant’s original trial had been free from procedural error.” (http://www.come-and-hear.com/editor/cp-herrera-ai ) Leonel Herrera was executed by the State of Texas on May 12, 1993 at the age of 45. To this day, there has never been a hearing on the strong evidence pointing to his brother, who has since died.
If one stays with the idea of a competition, the jurors are the judges in the case, declaring either the prosecution or the defense to be the winner. The prosecution is primarily targeting the jury when it uses victim impact statements.
Studies by Benjamin Fleury-Steiner show that the members of a jury tend to differentiate between insiders and outsiders, even within the jury itself. The sentencing decision therefore becomes a moral one; the death penalty differentiates between moral insiders and immoral outsiders. Members of the jury who have doubts are pressured by being pushed into the role of outsiders. Members of the victim’s family who are grieving the loss of their loved one belong to the insiders and a plea for a life sentence against the intentions of the district attorney’s office can therefore make a member of the jury into an outsider. The defense often tries to portray their client as a normal human being by bringing up mitigating aspects such as their difficult childhood, depressions, and other factors to explain their actions ("They construct narratives first to humanize their clients and second to connect their clients’ fates with broader social and political concerns.“ Sarat, p. 182), but in a climate in which turning the suspect into a person is always understood as an abandonment of the victims this method currently does not stand much of a chance.
Adams, Randall, Hoffer, Marilyn, and Hoffer, William. Adams v. Texas, New York: St. Martins Press, 1991. German title: Unschuldig, Bergisch Gladbach, 1991
Arendt, Hannah. The Human Condition, Chicago: University Of Chicago Press, 2nd edition, 1998. German title: Vita activa oder vom tätigen Leben, Munich, 4th edition, 1985.
Donahoe, Joel F. “The Changing Role of Victim Impact Evidence in Capital Cases, Western Criminology Review 2(1),” URL: http://wcr.sonoma.edu/v2n1/donahoe.html, 1999.
Fleury-Steiner, Benjamin. Jurors’ Stories of Death: How America’s Death Penalty Invests in Inequality, Ann Arbor, Michigan: University of Michigan Press, 2004.
Hassemer Winfried and Reemtsma, Jan Philipp. Verbrechensopfer, Gesetz und Gerechtigkeit [Crime Victims, The Law, and Justice], Munich: Beck, 2002.
King, Rachel. Don’t Kill in Our Names: Families of Murder Victims Speak Out Against the Death Penalty, Piscataway, New Jersey: Rutgers University Press, 2003.
Sarat, Austin. When the State Kills: Capital Punishment and the American Condition, Princeton, New Jersey: Princeton University Press, 3rd edition, 2002.
Tucker, John C. May God Have Mercy: A True Story of Crime and Punishment, New York: W. W. Norton & Company, 1997.
First published in Death row 3/2005, magazine of ALIVE e.V.
Author: Sina A. Vogt, Huerth, Germany, freelance journalist email@example.com
Translation: Jill Sommer