William Barr Uses Victims and Their Families to Prop Up America’s Failing Death Penalty System

Posted in: Criminal Law

As is often the case in America’s death penalty system, this summer’s resumption of federal executions was accompanied by high-minded talk about the families of murder victims and their needs. In July 2019, when Attorney General William Barr first announced his intention to put five condemned men to death, the Department of Justice issued a statement explaining that doing so would bring “justice to the victims of the most horrible crimes.”

At the time, Barr added, “We owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

Last June, after prevailing in a year-long legal struggle over whether federal executions could proceed, the AG reiterated those sentiments. He again spoke of the government’s obligation to provide justice for victims. And similar statements accompanied last month’s DOJ decision to appeal a court ruling overturning the death sentence of Dzhokhar Tsarnaev, the Boston Marathon bomber.

Barr’s invocation of an obligation to victims is a refrain repeatedly heard from death penalty supporters. It is part of their long-running effort to mobilize support for it by accommodating victims and including their perspectives and experiences in the death penalty process.

However, like other death penalty supporters, Barr ignored important but inconvenient facts about murder victims’ families and their wishes concerning capital punishment.

One such fact is that those families are by no means a unified or homogeneous group. Some ardently support capital punishment, but many are adamant in opposing it. Some want to see the person who killed their loved one die; others publicly oppose such a course of action.

In even the most high-profile cases and in the most shocking crimes, families have spoken out against the death penalty. They do not seek, or want, the kind of justice Barr promises to deliver.

Thus, after Dylann Roof shot nine people attending a Bible study group in a South Carolina church in 2015, several family members of the slain victims opposed his execution.

As the daughter of one of those who Roof killed explained, “Despite the anger I am still coping with from my mother’s death, I don’t believe in the death penalty, even for the man who killed her. That’s my conviction because of my faith. I’ve said the same thing all along—I don’t believe as human beings that we should take away someone’s life just because we have the power to do so. God is the only person, the only being who decides our fate.”

In the Tsarnaev case, one of the families who lost a son and who had a daughter horribly injured in the bombing asked the government not to seek the death penalty. In a letter published in the Boston Globe at the time of the original trial, they wrote, “We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives.”

Such objections were also registered this summer in the case of Daniel Lewis Lee, the first person executed under Barr’s edict. Lee, a one-time white supremacist, was put to death for torturing and killing a family of three. Earlene Peterson, who lost her daughter, granddaughter, and son-in-law because of his crime, joined Lee’s lawyers in an unsuccessful effort to stop the execution. As she observed, “I believe putting Daniel Lee to death is not the answer. It’s an easy way out. He should have to live through this. Like I did.”

When she could not persuade the AG to stop Lee’s execution, Ms. Peterson and others filed suit asking that it be delayed because of the COVID-19 pandemic and the fact that attending the execution would create an unacceptable risk of being exposed to the virus. The DOJ opposed her suit.

In late 2019, 175 family members of murder victims urged Barr not to resume federal executions. They argued that “The death penalty does not prevent violence. It does not solve crime. It does not provide services for families like ours. It does not help solve the over 250,000 homicide cold cases in the United States. It exacerbates the trauma of losing a loved one and creates yet another grieving family. It also wastes many millions of dollars that could be better invested in programs that actually reduce crime and violence and that address the needs of families like ours.”

Their plea went unheeded.

When death cases do go forward, murder victims’ families are generally afforded the chance to participate in the sentencing phase of capital trials and help shape the outcome of those proceedings.

But even this opportunity has turned out to be a mixed blessing for them.

As the anthropologist Susan Hirsch, herself the surviving spouse of someone killed in the 1998 terrorist attack on the American embassy in Nairobi, Kenya, observes, “Victims’ statements are a double-edged opportunity.” “Recounting a story in public may,” Hirsch writes, “allow it to veer out of the teller’s control. Victims may break down while testifying—crying, shaking, unable to complete the story. Less obviously, the state’s goals shape victims’ stories; the prosecution routinely focuses not on what had the most impact on a victim but what will have the most impact in convincing a jury to impose the harshest penalty.”

Noting the potential incompatibility of interests between prosecutors and victims’ families, Hirsch suggests that, as is true of their views of the death penalty itself, there is no single victim perspective about what should happen to any particular capital defendant.

As she puts it, “Whether they testify or not, victims hold many different understandings of the penalty phase and a variety of motivations for participating. Some hope to confront the convicted defendant with the horror of his crime. Other victims… seek public acknowledgment of their pain or loss. Still others feel a solemn obligation to make a public representation of a dead loved one, to make sure that the dead victim is ‘present’ in the legal proceeding.”

While victim testimony affords family members the chance to make their pain and suffering visible in capital trials, it is not without its costs to them. It also damages the fairness of the cases in which they participate.

Their testimony turns courts into sites of grief and mourning and intensifies the already heightened emotions that always attend the deliberations of sentencing bodies in capital cases.

All of this complexity belies Barr’s simple equation of capital punishment and doing justice for victims. It suggests that what he promised to deliver to their families by resuming federal executions is not necessarily the kind of justice they welcome or that leaves them better off. In fact, Barr’s emphasis on satisfying victims’ families distorts reasoned consideration of the federal death penalty as well as the adjudication of capital cases,

We should be clear: The AG and his allies are using victims and their families in an effort to bolster a death penalty system that is now widely understood to be rife with errors and is losing the American people’s support.

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