Capital Punishment as Closure: The Limits of a Victim-Centered Jurisprudence

Introduction

In the poetic context, literary critic Barbara Herrnstein Smith defines closure as “a sense of appropriate cessation. It announces and justifies the absence of further development; it reinforces the feeling of finality, completion, and composure ….” Life, unlike literature, often denies us “the sense of an ending;” this can be profoundly unsatisfying. Perhaps nothing expresses the impossibility of closure more dramatically than the death penalty. Although capital punishment represents an attempt at complete closure, a death sentence in the United States is not a clear articulation of finality but rather is a constant deferral of the last word. For the death row inmate, the death penalty really means several years in prison with an indeterminate chance of release through reversal or commutation, and with the possibility of execution sometime in the future. For a murder victim’s family, the indeterminacy of the process can be a persistent source of frustration and anxiety. The murder victim’s surviving family members (“secondary victims”) enter a legal and symbolic system that amplifies their sentiments and magnifies their resentments. At the same time, their individual grieving processes are interrupted and displaced by entrenched moral debates on how best to achieve fairness and finality through the criminal justice system. Of course, a literal finality obtains if the offender is eventually killed. Nonetheless, the ostensible finality of the execution itself is invested with such extraordinary anticipation-a yearning for the irretrievable, a desire for the unimaginable-that it could invite the most undesirable consequences. It is precisely the “run-on” character of death sentences in the United States that makes the idea of closure seem attractive and valuable. The social value of closure has been a relatively neglected dimension of the death penalty debate. Yet in our time, the cultural production of a feeling of closure for the secondary victims has become, at least implicitly, an independent justification for the retention and enforcement of the death penalty in the United States. The emergence of a discourse of closure naturally accompanies the rise of a victim-centered jurisprudence. Indeed, closure has become the central trope of the growing victim-centered jurisprudence.

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