Friday, October 4, 2013

Remodeling the House that Closure Built

By Thomas Bartlett Whitaker

On 29 January, Texas very nearly killed Kimberly McCarthy. This would have been the first female Texecuted on my watch, and by my (internet-less, and therefore suspect) count only the 4th female thus disposed of by the Lone Star state in the modern death penalty era. It made me a little sick to my stomach to think that the goon-squad at the Walls Unit might be treating a woman in the same way that they deal with us menfolk, but I'm not really writing about her today. Shortly before 6pm one of the surviving family members of McCarthy's victim was contacted by one of the vultures of the media while he was en route to the death chamber in Huntsville. Thanks to the hyperspeed news cycle in which we are currently rotting, I was able to listen in on the call. The man seemed completely distraught, but I've heard such interviews before - too many damned times - and so I didn't think to get a pencil and paper out to record his comments. Fortunately, once I realized how important they might be, the Fort Worth Star-Telegram had reproduced the entire affair in print. I don't really see any reason to repeat the man's name here, save to say that he is the godson of the victim of McCarthy, who was a retired psychology professor. I'm going to pull a number of quotes from the article to give you a sense of what was said:

- "We were shocked and dismayed and angry and a whole plethora of emotions we were feeling about this," [name of interviewee] said Thursday. "This is outrageous. Nobody is considering the victims in this."

- "We have waited for 15 years patiently and quietly for justice that was promised to us after she was initially found guilty and given the death penalty...and the state of Texas so far has failed to realize justice for our family."

- "After 15 years we still don't have any kind of closure. And I can say this kind of situation has made things worse. It has created even more uncertainty for us. We don't know what will happen."

- "My 87-year-old mother is a basket case...she is crying. If you try to talk to her about it, she's so upset."

I think you get the picture. It is clear that this gentleman is in a lot of pain. He doesn't sound like he is particularly irate to me, more like...more like the murder had just happened. He seems overwhelmed about being forced to confront a situation that he doesn‘t understand and betrayed by the expectations the state had sold him. McCarthy committed her crime in 1997. Sixteen years is a long time for a wound to still be weeping.

My feelings upon hearing this interview were very complicated. I'm not sure that I can honestly untangle them here, but I am going to try. No one listening to this man could help but feel empathy for him. Mixed with that was a contradictory cloud of discomfort made up of a deep understanding of the absolute brokenness of our capital punishment system and a first-hand knowledge that a person can do a whole lot of changing in sixteen years. Add to that a hefty dose of moral aversion to state-sanctioned killing, plus a real concern about whether the pain experienced by someone else gives them any ethical claim to extend that pain and broadcast it onto another (especially whether that pain gives them the right to demand of the collective that we allow this to happen). In this adversarial system, there have to be winners and losers. I didn‘t pop any champagne corks when I heard that McCarthy got a stay - I don't know her or anything about her, after all. But I was pleased that she wasn't killed. And that seems to put me on the opposite side of the battlefield from this caller, but I don't really feel that way either. As I said, my feelings are conflicted. In any case, McCarthy has another date set for 3 April, so soon enough we will again be assigning roles to the winners and the losers. I can`t help but feel in this case, no one comes out ahead.

My relationship with the surviving victims to my crime is, to my knowledge, unique here in Texas. I don't know everyone here on the Row yet (how is that possible after over 2200 days?), but I don't really know anyone here who has much of any non-adversarial contact with the survivors, much less anyone who sees the principle representative of this party on a weekly basis. I’m not an expert on the healing process; that should be stated up front. I did take a Victim's Advocacy sociology course several years ago (and then a more advanced Victimology one) so as to better understand what my dad was feeling. Mostly I didn‘t want to say anything that would screw his process up. Or my own. Still, this hardly makes me a professional grief counselor, though I don't know any grief counselors that have had constant contact with the same victim for nearly 8 years. Expertise or no, I think my experiences have given me some insights into what it means to heal from a terrible atrocity. I've always been a little confused why so many ot the basic themes that I have learned seem to be absent from the programs designed by victims' rights advocates here in Texas. All I have to do is compare the tenor of that caller‘s voice to that of my dad's, and the differences are black and white.

Still, whatever my intuitions and feelings on the matter, they amount to nothing other than a hypothesis. I pay more attention to the comments survivors of homicide make in the media than anyone else I know, even to the extent that I keep a small file on the subject, divided by geographical region of the US. It should come as no surprise to anyone that pain has no geographical barriers, but how that pain is expressed does actually vary - and in many cases, in major ways. Though they seldom get the limelight, there are actually many organizations out there made up of survivors who are against capital punishment. I have always wondered why some organization didn't do a study to survey these people to figure out why they are able to deal with loss in such a healthy manner, to find meaning in even the worst acts and to use them to advance their own humanity. Why, to state it simply, people like my father aren't put under a microscope to figure out how he has found joy once again. Seems like the kind of thing people like that caller might want to know about.

It turns out I was not the only person curious about this. over a period of several years, Marilyn Peterson Armour, a professor at the University of Texas, and Mark Umbreit, a professor at the University of Minnesota, conducted a massive, mixed methods study on the ways the sentence handed down to offenders affects the healing process of the survivors of homicide. Interestingly, my dad was contacted and agreed to participate in the study. In February a conference was held at Marquette University to discuss the findings, so my dad and step-mother got a paid vacation to Wisconsin. In...uh...February. Which is a great time to visit the state. If, you know, you are a polar bear. Still, they were able to extend the vacation for a few all-expenses days and visited lovely Chicago, so that was nice. In...February. (Hey, I said my dad could feel joy again, not that he knew how to pick a vacation spot.) You can see the program for the conference here  and here. It should probably be noted that there are some heavy hitters on this list, so this was a fairly major gathering.  Both TDCJ and the AG's office sent people, which is a story I will save for another day. 

I usually do not have any problem summarizing and simplifying the studies I sometimes club you over the head with, but this one presented me with such an orgy of evidence for the positions I have been advocating for years that I hardly know where to begin. I had better start by saying that I am going to have to leave a bunch of really good stuff out, because the study itself is already pared down to the essentials and my copy is over 100 pages long and no way am I going to subject any of you to 100 pages of my writing. If you would like to read the entire study, a digital copy will be included below (my copy is missing the graphs, but I will try to have them attached by the time this goes live).

The abstract for the study states: "Numerous studies have examined the psychological sequelae that result from the murder of a loved one. Except for the death penalty, however, sparse attention has been paid to the impact of the murderer's sentence on homicide survivors' well-being. Given the steadfastness of the public's opinion that the death penalty brings satisfaction and closure to survivors, it is surprising that there has been no systematic inquiry directly with survivors about whether obtaining the ultimate punishment affects their healing. This Study used in-person interviews with a randomly selected sample of survivors the totality of the ultimate from four time periods to examine penal sanction (UPS) process and its longitudinal impact on their lives. Moreover, it assessed the differential effect of two types of UPS by comparing survivors' experiences in Texas, a death penalty state, and Minnesota, a life without the possibility of parole (LWOP) state. Comparing states highlights differences primarily during the post conviction stage, specifically with respect to the appeals process and in regard to survivor well-being. In Minnesota, survivors of adjudicated cases show higher levels of physical, psychological, and behavioral health. This Study's findings have implications for trial strategy and policy development."

Aside from having to look up the word "sequelae", I thought the abstract pretty self-explanatory: the study analyzes the ways survivors cope with the loss of a loved one in the shadow of the presence of the Ultimate Penal Sanction, whatever that may be. In other words, does the death penalty really give people "closure," as we are so often told? Or is that merely a political position advocated by certain types of judges and prosecutors to get re-elected? This study removes the politicians from the picture and instead goes directly to the real experts on the matter: the victims. What is particularly revealing about this study is that it uses victims from a DP state (Texas) and ones from an LWOP state (Minnesota) and compares them over time to see which group has actually been best served by the judicial process. Spoiler alert: Texas loses. But you probably already knew that, if you've been hanging around this joint for long.

The issue of victim satisfaction is actually more important than you know, so forgive me a brief detour so that I can put a few things in context. Traditionally, there have been four justifications trotted out in support for capital punishment: cost effectiveness, incapacitation, deterrence, and retribution. Cost effectiveness was always a sham, and none of the pro-DP groups even bother with it any longer. Every single time an analysis of the costs of the DP has been completed, it has shown that it is far cheaper to lock people up for the rest of their lives than to execute them (it costs, on average, 2.3 million dollars to litigate a capital case in Texas, the vast - and I mean virtually the entire - share of those funds being spent by the state). Similarly, the argument for incapacitation has been dismantled because all of the data on death-sentenced prisoners shows the vast majority are not dangerous in prison and when commuted into the general population serves their time without incident. Deterrence is the justification used by the pseudo-intellectuals, but it is worth noting that nearly all of the studies done on the matter show the deterrent effect of the death penalty to be non-existent. Even more devastatingly, last year the National Research Council condemned all of the studies showing a deterrent effect, saying their methodologies were corrupt. It remains an uncomfortable fact for the deterrence apologists that states without the DP on average have murder rates far below that of states with capital punishment still on the books.

That leaves us with retribution. Though vengeance is not supposed to be the focus of the judicial process (at least not in this, the supposedly enlightened West), the concept of offenders getting their "just deserts" underpins our entire system. Twenty years ago, this was the primary justification for the death penalty. Now, however, a not-so-subtle shift has occurred within the retribution camp, one that justifies vengeance not on the basis of repayment for error but for the constructive purpose of healing the victims. In short, the concept of "closure" via legalized homicide is now the foundation upon which rests the capital punishment scheme in the United States. This reality is what makes the present study so damning: if the victims actually aren't healed by the death penalty and are even proven to have been harmed by the judicial system when compared to victims in cases where the UPS was life imprisonment, then the entire house of cards begins to tumble to the ground.

I think on some level it is impossible to talk about closure in any sort of systematic manner, because it has wildly different connotations for different people. It might end up being something as elusive to delineate as pornography: I don't know how to define it, but I know it when I see it. When prosecutors talk about it, they tend to wrap it up in gold leaf and parade it about as if it were some sort of universal panacea: a magical potion that restores all of the lost happiness of the victims. Of course, we all know there is no such thing. When someone dies or a relationship ends, we are left with a hole in our lives shaped like the person vanished. You can find new loves, new friends, a new family even, but those hollows are never going to go away. In a perfect world you would visit those absences in order to pay homage to the memory of those we left behind, and then return to the light and the love of the rest of your life. You wouldn't live in the shadows of the dead forever, or get sucked into those holes every time your mind strayed down memory lane. Life must go on; one must find a reason for going on. That is closure in its real form: a way to find meaning in loss, and to use the worst events imaginable to help us and the people around us gain a new appreciation for our purposes on earth.

No one ever talks about it like this in the criminal justice sphere, however. So it is no wonder that in news article after news article and study after study, survivors report that the concept of closure described in the pop-psychological field bears zero resemblance to their own journeys. The current study notes that "interviews with victims' families and survivors of the Oklahoma City bombing found that twenty-two out of twenty-seven victims claimed that closure never occurs." Whatever this word really represents, we are not doing a very good job of providing it to those most in need.

One of the central components in the healing process is the reduction of a sense of powerlessness. Crime - and murder in particular - pierces the carefully constructed cocoon of our modern lives, so figuring out how to restore some of this control clearly needs to be a therapeutic goal, maybe the most important goal of the entire criminal justice process. That said, herein lies a bit of a problem, one that you have probably already noted. Life is chaotic. Almost anything can happen to us or those we care about at any time. So, to a certain extent, the entire modern American idea of a "safe" life is an illusion. Pop it, and you see life for what it really is sans all of the cultural spruce ups. Perceived Control Theory - which is referenced in this study - refers to the extent to which individuals believe that they can control events that affect them; higher rates of perceived control correlate with better "physical health, self- esteem, personal adjustment, coping, decreased stress and depression and psychological well-being." In other words, believing that the world is your oyster makes you happier...until that bubble bursts. When the illusion dies, studies have found that a strong prior sense of control "may be maladaptive...leading to a sense of helplessness or personal failure." The current study spends some time discussing the theory that by incrementally restoring the sense of control one has over one's life, the healing process can be made smoother, and survivors may engage in more adaptive, approach-oriented coping strategies. And herein lies one of the starkest differences between LWOP and DP states: in the former, the court process runs a comparatively rapid course, while in the latter, the appeals process drags on potentially for decades. When that caller spoke about waiting 15 years for justice, this is exactly the problem: by pegging "justice" to "death," the survivors are never able to regain control of their lives until that murder takes place (though I’m doubtful any genuine sense can even be had after such an event). Had McCarthy been sentenced to life in prison in 1997, it is virtually guaranteed that this man and his family would be living far healthier lives today.

The hard numbers from the survey back this up. In Minnesota, the appeals process almost always runs its course in less than two years. Their system, it must be noted, is comparatively more expensive to run than the one operating in Texas, with real Public Defenders handling cases instead of court-appointed stick figures, but at least they handle their business quickly. As a result, 65% of Minnesotans were very satisfied or satisfied with their criminal justice systems, compared to 42% of Texans. Moreover, 53% of Texans were very dissatisfied compared to only 20% of Minnesotans. The study divided cases into four time frames, dealing with the amount of time the case requires to move through the judicial process. Each case was additionally labeled as being "stuck," "moving," or "completed." Of the cases on appeal, 90% of the MN cases had been "completed"; the remaining 10% were all moving through the process unimpeded. Of this small subset, victims reported a 48% level of satisfaction, with 10% neutral and 10% dissatisfied (the other 33% were reserving judgment entirely).

The numbers paint a very different picture in Texas. 112reported as being satisfied with the appellate system, 53% were "worried", and 37% were "non-apprehensive." A further 42% would report that they did not feel well-served by the system, to the extent that they felt it actually added an additional layer of victimization. The study spends a significant number of pages explaining these statistics, but in the interests of brevity, I think I can say that the main reason for these levels of dissatisfaction deals with the length and uncertainty of the appeals process. One of the victims surveyed states:

"I don't think I'll live to see it...I feel sure [the judge] is opposed to the death penalty. If I wrote him a letter, I'm afraid he'll say, 'Well, I'm gonna show that fellow. I'll hold the case open longer.' And he can do it and I can't do a thing about it...[a decision] would end it all. And that would be a blessing, just right there. Get it out of that court and get it on the way. If you want to say it goes back to life then so bit it. Render that decision."

The study found that:

The difference in the appeals process is particularly striking in terms of time, potential for delay, reversal of the verdict, and participant's responses. Whereas Minnesotans were finished with the process within two years after the conviction, Texans were waiting, in some cases, for over fifteen years. Moreover, Minnesotans indicated that there was almost no delay in the appeals process or reason for uncertainty about the outcome. In contrast, 37% of all Texas cases and 100% of cases still in appeals during Time 3 and Time 4 [later in the timeline, Ie, very old cases] were stuck. Indeed, 10% of Minnesotans were dissatisfied with the appeals process in comparison to over 50% of Texas who were clearly worried gain that they felt they had attained in the death sentence might be undone by a new trial, resentencing, or a determination of the US Supreme Court. Participants' apprehension about losing the control they thought they had over the murderer's sentence was significant and likely kept survivors caught and suspended with little sense of who was in charge, what laws and procedures prevailed, what impact new legal proceedings might have on their lives, and how long their waiting to know might last."

The process itself, in other words, robs them of a sense of control. But it must be noted that the only reason it has the power to do this is because from the outset, these people were taught to view death as the only outcome that would grant them relief.  The easy answer to this problem (and the one no doubt being seized upon by the AG's office) is to speed up the appeals process. Unfortunately, this has already been done both on the state and the federal levels. For instance, in Texas both the direct appeal and the post-conviction writ run simultaneously, which is a ludicrous situation because the writ should cover ineffectiveness by the direct appeal attorney...which is hard to do if they are basically due at the same time. In the federal courts, the AEDPA eviscerated the avenues petitioners are allowed to use to prove they didn't get fair trials. Considering that Texas alone represents more than a third of post-Gregg executions, I don't think that anyone can say that Texas isn't already lethally efficient at the business of state-sanctioned killings. Take an additional look at the fact that Texas easily ranks first in the nation at wrongful convictions (and this despite a judiciary that has expressed zero interest in discovering such matters), and it becomes obvious that any further attempts to grease the wheels of justice will only result in more innocent men and women being butchered. The system has been primed to run at optimum levels, and it is unlikely that they can redline it any further. Even at the current frantic pace, however, Texan victims do not seem served by the death penalty. What is going on?

There is no single or easy answer to this question. I very much doubt that one can be arrived at without addressing the variance in cultural traditions between MN and TX. We are outside of the scope of the study now, and venturing into my own theory. The very concept of "tradition" means something distinct down here in the South, to the extent that our state government employees can, without any apparent sense of shame, take off from work on "Confederate Heroes Day." Tradition in Texas is akin to an authoritative guide to life. The idea that belief and behavior should be governed by the weight of precedent is often confused with a sense of history or truth because it involves an affection for the past. Some traditions (keeping your powder dry, say) make good, practical sense. Many others do not, and are basically just one specific way of spinning history. Unfortunately, humankind has held to many of this latter sort for millennia, especially when it comes to the subject of death. Various pre-historic peoples felt it was necessary to open the chest cavities of other peoples in order to ensure that the sun would rise. Old women who happened to know which herbs cured various diseases were burnt at the stake for being witches. When we come into contact with a tradition that objectively verifiable facts contradict, what do we do? We educate. We try to batter back the specters of ignorance (or we should, rather). This concept of death bringing resolution is just another iteration of a very old idea. It belongs to an earlier era of our species, and virtually every other civilized nation has buried the practice because they have found it simply does not work for anyone.

The portion of the study that I found most interesting deals with how the MN victims responded to their pain when compared to the TX ones. Texans, for instance, had more active mental relationships with the murderer, meaning they constantly fixated upon him/her, to the detriment of the other facets of their lives; roughly 1/3 of MN victims did not concentrate on the murderer beyond the necessary compared to only 5% of Texans. 79% of Texans had extremely negative responses to the murderer versus 57% of Minnesotans. Texans placed lesser importance on the murderer's remorse (32%) than MN victims (50%), which signifies to me that they have been conditioned to care less about why things happen, which of course is a major impediment to growing beyond the initial act.

Here is the big statistic, the one that blows a hole in the entire Texas system: only 37% of Texan victims had a positive opinion about the UPS (the death penalty) versus 71% of Minnesotans (LWOP). We are killing scores of people for a 37% satisfaction rating. So much for Texas being the "Victims' Rights Paradise" claimed by Governor Goodhair.

It gets worse. When it comes to physical reactions to the loss of a loved one due to homicide and the appellate process, 42% of Texans indicated no manifestations. Of the remainder, 16% experienced problems sleeping, 26% reported disease or illness associated with extreme stress; in MN, 60% reported no manifestations, with only 10% reporting disease or illness due to stress.

The differences are even more striking when you compare the numbers on the psychological effects murder and the judicial process have had on those surveyed: 42% of Texans described persistent struggles, compared to only 20% of Minnesotans. 63% of Texans reported as being depressed or emotionally dulled, compared to 25% of Minnesotans. In terms of positive emotional growth (the people who used the experience of murder to grow spiritually, emotionally, etc, etc), only 42% of Texans reported as having progressed in this manner, compared to 55% of MinnesotansRead that twice, because that is a massive difference. There is nothing biologically different between the citizens of both states, so what we are talking about here is purely a cultural difference. Something about the traditions that Texans hold dear and the expectations they have for the future makes them A) more prone to physiological and psychological damage after life-altering events, and B) less capable of growing past them. I'm convinced that the eye-for-an-eye-style of vengeance sold to Southerners by preachers and politicians is the primary culprit here. Because they have never been taught otherwise, they are blinded to the fact that no victim will ever find peace until they learn to stop focusing on the crime itself and the culprit and get busy living their lives.

The study points to this as well. 75% of Minnesotans used "refocusing behaviors" (lifestyle changes, devoting themselves to a project or a cause), compared to only 37% of Texans. 32%of Texans engaged in activities that cemented the past in the present (constant memorials, visits to the graveyard), compared to only 5% of Minnesotans. Most important to me were the differences in the "sense of agency" numbers. Sense of agency refers to the subjective awareness that one is initiating, executing, and controlling one's own volitional acts in the world; it is the idea that one has regained some of the control that the murder took away. 47% of Texans reported some attempts at this behavior, compared to 85% of Minnesotans.

I could go on, but I think you get the picture. Whatever some people believe about the death penalty being good for victims, the evidence shows otherwise. The image here is almost like a parent telling a child on Halloween that if she eats all of that candy, she is going to get sick. The child wants it so badly that she refuses to listen, and before long the mother is proven correct. As the study put it: "Although the social expectation is that avenging a wrongdoer will relieve anger and that higher punishment will lead to a better mood, experimental studies show the opposite." But we all knew that, right? Somewhere deep inside each of you, a voice was telling you that the intentional murder of a living human being could never be moral. It could never heal anyone of any pain. The sooner we break the seeming synonymy between "execution" and "closure", the sooner victims of crimes can actually begin to start down the road towards real healing. This is now proven in theory, what has been proven to me in fact for the last 7.5 years.

If you would like to read the an op-ed written by a veteran corrections officer whose son was murdered on the subject of the illusion of closure and the death penalty, please click here

Read the full study mentioned above here. 

If you believe that racism and bigotry have been excised from the Texas legal system, you might want to watch this video.

Thomas Bartlett Whitaker 999522
Polunsky Unit
3872 FM 350 South
Livingston, TX 77351

Please visit the updated Minutes Before Six homepage to see 


CS McClellan/Catana said...

A well thought-out essay, Thomas, and very much along lines that I've been thinking about. Thanks for the link to the study, which I downloaded before I even finished reading. At least someone has made a start on asking the crucial questions. The question that parallels this one is why, of two people growing up in the same dreadful circumstances, one will turn to violence and the other will live a perfectly normal life.

Until we can begin to solve both those problems and find solutions, I think we don’t have a chance in hell of eliminating the death penalty and its companion, life without parole. The whole system is based on what turn out to be myths, and myths are incredibly hard to discredit, as shown by the persistence of the belief that the death penalty serves as a deterrent.

Carole said...

A few years ago, a Colonel in the Canadian Air Force pled guilty to a slew of crimes that included rape, underwear stealing and killing two women. Even though the Colonel pled guilty from the start, the prosecutors still put on a multi-day trial in which they carefully entered each piece of evidence into the record and described the crime associated with it. The Colonel had to sit in the dock during the trial, and the public and media fought for seats.

After it was over and the Colonel had received his 25 years with an option to extend, the longest sentence he could get, the family of one of the murdered women spoke on the courthouse steps.

"Justice was served", said the clearly grieving mother and brother. And for them, it had been served. The world had now seen his crimes, knew he'd been stripped of his rank and thrown out out of the Air Force and the uniform he once wore burned. Far from the pilot who had occasionally flown the Queen of England, he was now a lowly prisoner with a prison number, while the family was free to take up their lives again, knowing they had a future and the former Colonel's life of crime was over, along with his future.

Reading Thomas' post reinforced my belief that our system only creates more victims by extracting vengeance rather than serving justice and the above story illustrates why.