Marquette Law Review
Volume 96
Issue 1 Fall 2012 Article 3
Assessing the Impact of the Ultimate Penal
Sanction on Homicide Survivors: A Two State
Comparison
Marilyn Peterson Armour
Mark S. Umbreit
Follow this and additional works at: http: //scholarship.law.marquette.edu/mulr
Repository Citation
Marilyn Peterson Armour and Mark S. Umbreit, Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors: A Two State
Comparison, 96 Marq. L. Rev. 1 (2012).
Available at: http://scholarship law.marquette.edu /mulr/vol96/iss1 /3
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megan.obrien@marquetteedu.
ASSESSING THE IMPACT OF THE
ULTIMATE PENAL SANCTION ON
HOMICIDE SURVIVORS:
A TWO STATE COMPARISON’
MARILYN PETERSON ARMOUR”
MARK S. UMBREIT
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 from four time periods to examine
the totality of the ultimate 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 postconviction 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.
* This Study was made possible through funds provided by the General Convention of
the Episcopal Church, U.S.A. and Marquette University Law School in Milwaukee,
Wisconsin. The authors express their appreciation to Stephanie L Rivaux, Ph.D., and
Richard Pargament, Ph.D. for their assistance with the quantitative analysis. The authors
would also like to thank Margaret McAbee, Executive Director of Survivor Resources, St.
Paul, Minnesota and Karen Martin, Regional Coordinator-Austin/Central Texas Region,
re) of the Attorney General, Crime Victim Services Division, as well as the survivors who
participated in this study.
** Ph.D. University of Texas at Austin, marmour@mail.utexas.edu.
*** Ph.D. University of Minnesota, mumbreit@umn.edu.
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TI.
Iv.
Ix.
XI.
MARQUETTE LAW REVIEW [96:1
INTRODUCTION wsseussmen enamine omni
THE ULTIMATE PENAL SANCTION
A. Texas and the Death Penalty.
B. Minnesota and LWOP.......
THERAPEUTIC JURISPRUDENCE AND FAMILY SURVIVORS
OF HOMICIDE VICTIMS.
A. Crime Victims’ Righi
B. Therapeutic Jurisprudence
C. Closure as Justification for the Death Penalty and
LWOP.
D. Evidence of Closure in VIS and Executions
THERAPEUTIC JURISPRUDENCE, SURVIVORS, AND
CONTROL
PERCEIVED CONTROL THEORY
THE PROCESS OF THE ULTIMATE PENAL SANCTION
A. Texas...
B. Minnesota
SUMMARY OF ULTIMATE PENAL SYSTEM.
METHODOLOGY
Design.
Measures .
Sample Procurement .
Data Collection
Data Analys:
‘Sample Profil
QUALITATIVE FINDINGS.
mR SORS
A. Category 1: Impact of the UPS on the Conviction
Experience...
B. Category 2: Impact of the UPS on the Postconviction
Experience .
C. Category 3: Aftermath of Murder and the UPS on
SUPVIVOPS Lives sescsccuass.ccesvacnmnunsun amncieuieeuanns 69
QUANTITATIVE RESULTS.
A. ICG-R Scores by State and Time.
B. Select Event Themes and ICG-R Score.
DISCUSSION OF FINDINGS
A. Outreach and VIS...
B. Social Expectations, Ambiguous Loss, and Closure 86
C.. The Involuntary Relationship . 88
D. Rumination and Vengeance . 89
E. Civil Actions and Accumulated Injusti 90
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2012] ULTIMATE PENAL SANCTION 3
F. Satisfaction with the Criminal Justice SySter....ceccccceeccceseeees 91
G. Physical and Mental Health of Survivors
H. Summary of Findings
XII. LIMITATIONS........0.0c
XIII. IMPLICATIONS
XIV. CONCLUSION.
APPENDIX A: FIGURE:
APPENDIX B: TABLES
APPENDIX C: UPS INTERVIEW GUIDE.
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4 MARQUETTE LAW REVIEW [96:1
I. INTRODUCTION
Homicide bereavement is marked by long-lasting and penetrating
upheaval in the lives of victim survivors. Current prevalence estimates
project 15% of young adults are survivors of homicide, reflecting a 6%
increase over previous estimates made in 1991." In most cases, these
survivors have unresolved feelings because the murderer, if
apprehended, does not receive the punishment he or she deserves—the
ultimate penal sanction (UPS), which is death or life without the
possibility of parole (LWOP) depending on the jurisdiction.” Indeed,
the chance that the murderer will even be charged with a capital offense
is rare—the death penalty is sought in only 1% of capital eligible cases.”
Although small in number, capital murder cases consume the attention
of the public through mass media, trend-setting legal decisions, and
public opinion polls. In contrast, family survivors receive little attention
except when family survivors’ need for justice is used by proponents in
debates about the purposes of the death penalty.
Since the early 1990s, the death penalty has been touted as bringing
closure to survivors.’ Support for this belief has grown. In 2010, a
national poll found that 60% of respondents supported the death
penalty.” The primary reason given for their support was that the death
penalty gave victim families satisfaction and closure.’ This same
contention is increasingly advanced as the reason to support LWOP.’
1. Heidi M. Zinzow et al., Losing a Loved One to Homicide: Prevalence and Mental
Health Correlates in a National Sample of Young Adults, 22 J. TRAUMATIC STRESS 20, 24
(2009).
2. Margaret Vandiver, The Death Penalty and the Families of Victims: An Overview of
Research Issues, in WOUNDS THAT DO NOT BIND: VICTIM-BASED PERSPECTIVES ON THE
DEATH PENALTY 235, 237 (James R. Acker & David R. Karp eds., 2006).
3. Race and the Death Penalty, AM. CIv. LIBERTIES UNION (Feb. 26, 2003),
hitp:/www.aclu.org/print/capital-punishment/race-and-death-penalty.
4. Susan A. Bandes, Victims, “Closure,” and the Sociology of Emotion, 72 LAW &
CONTEMP. PROBS. 1, 2 (2009).
5. Public Ambivalence Fuels Support for a Halt in U.S. Executions, ABCNEWS.COM
(May 2, 2001), http://abcnews.go.com/images/PollingUnit/851a1 DeathPenalty. pdf.
6. Id.
7. See Dan Cortez, Sentencing Brings Closure, DETROIT FREE PRESS, Aug.
4, 2006, http://www.accessmylibrary.com/article-1 G1-149063827/sentencing-brings-closure-
victim.html; Juliette Rule, Blankinship Family Now Has “Closure,” WYOMINGNE
(Aug. 25,
http://www.wyomingnews.com/articles/2006/08/25/news/local_news/O1local_8-25-06.txt;
Yonika Willis, Last of Three Teens Sentenced in Keim Slaying, SOUTHBENDTRIBUNE.COM,
Apr. 28, 2006, http://articles.southbendtribune.com/2006-04-28/news/26935013_1_keim-hill-
cornfield.
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2012] ULTIMATE PENAL SANCTION 5
This belief, though popularly held, has never been systematically
examined. Without evidence, the claim of benefit to survivors is only
speculation that achieves the status of truth because of social
expectations. It also places the justification for the UPS on the backs of
victim survivors who already suffer under the weight of immeasurable
grief, horrific trauma, unmet expectations, and empty assurances. The
striking absence of survivors’ voices specific to the UPS stands in
marked contrast to the volumes written on the death penalty.
The UPS has been promulgated as a punishment for offenders and a
mechanism that helps restore equity and reduce suffering in homicide
survivors. Studies show that the aftermath of homicide is extremely
painful and long-lasting, the provision and impact of solace is limited,
and the institutional response tends to revictimize rather than assist
survivors in their healing process. Consequently, any claim about the
success of an event or intervention deserves attention because so little
seems to help. Until survivors speak for themselves, however, society
will continue to project its hoped-for outcome on their experience and
the voice of survivors will only be heard in reaction to the presumptions
and misrepresentation of their journey.”
The purpose of this Study is to answer the question: How does the
UPS affect the families of homicide victims (victim survivors)? The two
states selected for the Study were Texas (death penalty) and Minnesota
(LWOP). By turning directly to survivors as the true experts on their
own experience, the Study examines the relevance of closure to their
posthomicide experience—asking what constitutes a healing path for
survivors where offenders received the UPS and what elements in the
criminal justice system foster or hinder the healing process.
TI. THE ULTIMATE PENAL SANCTION
All federal and state jurisdictions plus the military have legal
sentences for capital or first-degree murder. The primary legal
sentences upon conviction are the death penalty and LWOP. Currently,
there are thirty-three states with the death penalty and seventeen states
and the District of Columbia without the death penalty.’ All states that
8. See Marilyn Peterson Armour & Mark S. Umbreit, Exploring “Closure” and the
Ultimate Penal Sanction for Survivors of Homicide Victims, 19 FED. SENT’G REP. 105 (2006);
see also Vandiver, supra note 2 (providing an overview of the issues and the need for a
systematic program of research on the effects of capital punishment on the families of murder
victims).
9. States With and Without the Death Penalty, DEATH PENALTY INFO. CTR.,
http:/(www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited Oct. 8, 2012)
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6 MARQUETTE LAW REVIEW [96:1
use the death penalty also use LWOP as an alternate sentence."” With
the exception of Alaska," states without the death penalty use LWOP as
their ultimate sentence.” The availability of LWOP both as a primary
and secondary option has resulted in a quadrupling of the “lifer
population” in prisons from 34,000 in 1984 to 140,000 in 2008."
Additions to death row have slowed dramatically from a high of 312 in
1995 to 78 in 2011." Nationwide, there were 3,170 prisoners on death
row as of 2012."°
A. Texas and the Death Penalty
Texas has a long history of use of the death penalty for capital
murder. Beginning with a history of local public hangings, seen as
necessary for maintaining order during the post-Civil War period, Texas
has swung through a number of cycles in its use of executions.” In the
early 1900s, the frequency of lynching diminished.” In 1923, Texas
ordered all executions to be carried out by the state.» The rope was
[hereinafter States With and Without the Death Penalty].
10. Life Without Parole, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org
/life-without-parole (last visited Oct. 8, 2012) [hereinafter Life Without Parole] (noting that all
thirty-three death penalty states offer life without parole).
11. Id. Although Alaska does not technically have LWOP, see id., some of the
sentences imposed are the practical equivalent, see, e.g, ALASKA STAT. § 12.55.125 (2010)
(stating that Alaska has a mandatory sentence of ninety-nine years for first-degree murder if
there is an aggravating factor).
12. See Life Without Parole, supra note 10.
13. Kevin Johnson, Growing Prison Populations Hinder Budget Cuts,
USATODAY.COM, Oct. 21, 2011, http://usatoday30.usatoday.com/news/nation/story/2011-10-
20/prison-life-sentence-budget/50846828/1; see also Californians to Decide in November
Whether to Kill the Death Penalty, CALIFORNIA CAPITOL NETWORK, Apr. 23,2012,
hitp://www.scpr.org/news/2012/04/23/32141 /californians-can-decide-come-november-whether-
kill/ (asserting that California has the highest number of prisoners on death row). Voters in
California rejected a referendum to repeal the death penalty in November 2012. See Aaron
Smith, California. to | Keep Death Penalty, CNN MONEY, Nov. 7, 2012,
http://money.cnn.com/2012/11/07/news/economy/california-death-penalty/index.html. If it
had passed, the initiative would have changed the status of more than 700 prisoners on death
row to LWOP. Id.
14. DEATH PENALTY INFO. CTR., FACTS ABOUT THE DEATH PENALTY 3 (2012),
available at hitp://www.deathpenaltyinfo.org/documents/FactSheet.pdf [hereinafter FACTS
ABOUT THE DEATH PENALTY].
15. Id. at 2 (stating that there were 3,170 death row inmates as of April 1, 2012).
16. JAMES W. MARQUART ET AL., THE ROPE, THE CHAIR, AND THE NEEDLE:
CAPITAL PUNISHMENT IN TEXAS, 1923-1990, at ix, 2-3 (Ist ed. 1994).
17. Id. at ix.
18. David Carson, History of the Death Penalty in Texas, TEXAS EXECUTION INFO.
CENTER (2012), http://www.txexecutions.org/history.asp.
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2012] ULTIMATE PENAL SANCTION 7
replaced by the electric chair, and executions were moved from local
communities to the privacy of a state prison located in east Texas.”
With the Great Depression, state-sanctioned executions increased,
especially in the South, but declined again during World War II.” This
decrease continued through the civil rights movement with anti-death
penalty forces bringing about a moratorium on the use of the death
penalty out of a nationwide concern with the arbitrary and capricious
administration of capital punishment.” By 1964, Texas had electrocuted
361 offenders.” Between 1964 and 1982, all executions were
suspended.”
In 1972, the U.S. Supreme Court in Furman v. Georgia™ concluded,
in a S—4 decision, that the practice of capital punishment was
unconstitutional.” Besides concluding that it was cruel and unusual
punishment, three of the justices, in separate concurring opinions,
argued that the infrequent application allowed for too much discretion,
which therefore “opened the door to discriminatory practices.”” Texas,
consequently, commuted the sentences of fifty-two inmates to life,
clearing death row.” In response to the Court’s decision, the Texas
Legislature standardized the way the death penalty was assessed and
created rigid guidelines that eventually became associated with a new
mode of execution.* Lethal injection was used for the first time in 1982
in Texas.” By the early 1990s, twenty-two other states adopted this
method of execution as well.” In the final decade of the century, Texas
led the nation in executions. Indeed, from 1997 to 2000, there were
ninety-two executions in Texas, more than all executions in the other
thirty-three death penalty states combined.”
Over the next two decades, evidence emerged from DNA profiling
19. MARQUART, supra note 16, at ix.
20. Id.
21. Id.
22. Carson, supra note 18, at 1
23. Id.; see also MARQUART, supra note 16, at ix.
24, Furman v. Georgia, 408 U.S. 238 (1972).
25. Id. at 239-40.
26. MARQUART, supra note 16, at x.
27. Carson, supra note 18, at 1
28. MARQUART, supra note 16, at x.
29. Carson, supra note 18, at 1
30. MARQUART, supra note 16, at x.
31. Carson, supra note 18, at 2-3.
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8 MARQUETTE LAW REVIEW [96:1
that prompted reform efforts.” In 2001, the Texas Legislature passed a
law guaranteeing DNA testing to prisoners who can establish “a
reasonable probability” that their innocence will be secured as a result
of the testing.” From 2000 to the present, “the number of executions, in
Texas, decreased from almost 100”™ to 13.° In addition to the influence
of DNA testing, the reduction in executions over the past decade was
also influenced by the U.S. Supreme Court’s finding that executing
mentally retarded prisoners is cruel and unusual punishment and
therefore unconstitutional.” In 2005, the Court added another
restriction to the exercise of the death penalty, ruling that offenders who
committed their capital offense when they were younger than eighteen
could not be executed.” Finally, in 2005, the Texas Legislature provided
an alternative to death as the UPS.” It adopted LWOP, making it
possible for jurors to sentence an offender to life without the possibility
of parole, instead of sentencing to death.
The number of prisoners on death row in Texas is the lowest it has
been since 1986.” Currently, a death penalty case costs an average of
$2.3 million in Texas.” The average time from sentencing to execution
in Texas is 10.8 years.” Since 1996, victim survivors have been allowed
to watch the execution.”
Recent debates surrounding the death penalty center on the makeup
32. Jay D. Aronson & Simon A. Cole, Science and the Death Penalty: DNA, Innocence,
and the Debate over Capital Punishment in the United States, 34 LAW & SOC. INQUIRY 603,
605-06 (2009).
33. 2001 Tex. Gen. Laws 2, 2-3; see Carson, supra note 18, at 3.
34. SHELDON EKLAND-OLSON & DANIELLE D1RKS, HOW ETHICAL SYSTEMS
CHANGE: LYNCHING AND CAPITAL PUNISHMENT xi (2012).
35. DPIC’s Year End Report: Death Sentences Plunge to Historic Lows, DEATH
PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/dpic-releases-201 1-year-end-report
(last visited Oct. 8, 2012) (“Texas led the country with thirteen executions, but that number
represents a 46% decrease from 2009, when there were twenty-four executions.”).
36. Atkins v. Virginia, 536 U.S. 304, 321 (2002); see also Carson, supra note 18, at 3.
37. Roper v. Simmons, 543 U.S. 551, 568 (2005); Carson, supra note 18, at 3.
38. 2005 Tex. Gen. Laws 2705; Carson, supra note 18, at 4.
39. See TRACY L. SNELL, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTI
CAPITAL PUNISHMENT, 2009—STATISTICAL TABLES, at 19 tbl.18 (2010) (providing statistics
through 2009).
40. FACTS ABOUT THE DEATH PENALTY, supra note 14, at 4.
41. See SNELL, supra note 39 (noting that 10.8 years is the “average number of years
under sentence of death as of 12/31/09,” in Texas),
42. Death Row Facts, TEXAS DEPARTMENT OF CRIM. JUST., http://www.tdcj.state.tx.us/
stat/dr_facts.html (last visited Oct. 8, 2012) (“Effective January 12, 1996, close relatives and
friends of the deceased victim were allowed to witness executions.”).
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2012] ULTIMATE PENAL SANCTION 9
of lethal injections due to a worldwide shortage of one of the drugs,” the
high number of wrongful convictions,” and continuation of the long-
standing racial pattern of defendant bias.”
B. Minnesota and LWOP
Although Minnesota is considered a non-death penalty state, it too
has an early history of public lynchings—most often of Native
Americans and African Americans.” Moreover, in 1849, when Congress
created the Minnesota Territory, territorial law held that “all persons
convicted of premeditated murder automatically received death
sentences.” Prior to the 1880s, lynchings and state-sanctioned
executions attracted hordes of spectators, fueling a mob mentality that
energized the crowds.” In particular, the controversial, state-supported
hanging of Ann Bilansky, in 1860, laid the groundwork for the
anti-death penalty movement, which began in the 1880s.” In 1868,
Minnesota passed a non-retroactive bill making life sentences the
norm—“requiring jurors to affirmatively vote for death sentences.”
However, life sentence as the default ended fifteen years later when
a bill passed reinstating the death penalty for first-degree murder.” The
resurgence of public executions again drew large crowds with written
invitations sent to the citizenry for viewing from a spectator’s platform.”
In an effort to control these public events, Minnesota passed a statute in
1889 requiring nighttime executions, which quickly generated a
43. Carson, supra note 18, at 4
44. See Brandi Grissom, Courts Found DA Error in Nearly 25% of Reversed Cases, TEX.
TRIB., July 5, 2012, http://www.texastribune.org/texas-dept-criminal-justice/texas-court-of-
criminal-appeals/courts-found-prosecutors-erred-25-exonerations/print.
45. See Laura Bassett, Death Penalty May Be Ruled Unconstitutional in Texas,
HUFFINGTON Post, Dec. 1, 2010, http://www.huffingtonpost.com/2010/12/01/death-penalty-
may-be-rule_n_790705.html (“Out of the 464 people that have been executed in Texas, about
70 percent have been minorities, according to the Texas Department of Criminal Just
46. See States With and Without the Death Penalty, supra note 9; JOHN D. BESSLER,
LEGACY OF VIOLENCE: LYNCH MOBS AND EXECUTIONS IN MINNESOTA, at xvii, 1 (2003).
47. BESSLER, supra note 46, at 1.
48. See id. at 1-23 (describing the culture that accompanied lynchings); see also Michael
Anderson, Minnesota’s John Day Smith Law and the Death Penalty Debate, MINN. HISTORY
MAG., Summer 2002, at 84-86 (describing public executions).
49. BESSLER, supra note 46, at 93-94; see also Anderson, supra note 48, at 86 (describing
the significance of the Ann Bilansky murder).
50. BESSLER, supra note 46, at 97.
51. Id. at 104-05.
52. Id. at 110.
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10 MARQUETTE LAW REVIEW [96:1
nationwide trend toward in-private, after-dark executions.” This law,
known as the Smith law, eliminated the spectacle of public executions by
requiring that executions occur before sunrise inside the jail.” The law
also banned newspaper reporters from attending the executions, which
the press ignored based on free speech considerations.”
In 1906, detailed accounts by the press of a botched hanging led to a
full-blown criminal investigation that resulted in the indictment of three
newspapers” and the Smith law being upheld.” The effort to muzzle the
press fueled abolitionist efforts.” Minnesota abolished the death
penalty in 1911 based on arguments that innocent people were being
executed and criminals were going free because juries were reluctant to
impose the death penalty.” Besides making convictions easier, the
option of life imprisonment was made viable, in part, by the Board of
Pardon’s willingness to curtail the use of its pardoning power—ensuring
that the sentence would be carried out.” There have been more than a
dozen attempts to have the death penalty reinstated, all of which have
failed” (including an effort in 2004 by then-Governor Tim Pawlenty”).
A number of new laws and enhancements to the life imprisonment
statutes, however, have been enacted. In 1980, “[s]entencing guidelines
were implemented as a modified form of determinate sentencing for all
crimes except life sentences for first-degree murder.”” Between 1980
and 1989, Minnesota set seventeen years as the minimum term for life
sentences before parole eligibility.” In 1989, the legislature set a thirty-
year minimum and added life without parole for certain crimes.” For
53. Id. at xvi-xvii; see also Anderson, supra note 45, at 87-88 (describing the ban on
press coverage and the continued publishing about executions without penalty).
54. Anderson, supra note 48, at 87.
55. BESSLER, supra note 46, at 118-20.
56. Id. at 153; see Anderson, supra note 48, at 89 (discussing the reporting on the
botched hanging of William Williams “despite the publishing ban”).
57. BESSLER, supra note 46, at 158-59.
see Anderson, supra note 48, at 90 (discussing the impact of the Smith law
on the rest of the country and the debate about the death penalty in the United States).
59. See generally BESSLER, supra note 46, at 162-80.
60. Id. at 179.
61. Id. at 230.
62. See Dan Haugen, Gov. Lays Out Plans for Death Penalty, MINNESOTA DAILY, Jan.
28, 2004, http://www.mndaily.com/print/23843.
63. See MINN. DEP’'T OF CORR., CORRECTIONS RETROSPECTIVE 1959-1999, 21-22
(1999), available at http://www.doc.state.mn.us/publications/documents/docretro.pdf.
64. Id.
65. Id.; see 1989 Minn. Laws 1581, 1589, 1592.
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2012] ULTIMATE PENAL SANCTION i
sixteen years, the thirty-year minimum constituted life imprisonment. A
former prisoner explained how a life sentence with the possibility of
parole after thirty years works:
Sadly, there is no chance for early release when you’re serving a
life sentence. After 30 years, they will consider you for release
but there’s no guarantee you'll get out. Most lifers end up
serving 5-10 years longer than the minimum sentence, and some
will never be released due to the severity of their crime, or if it’s
a high profile case.”
In 2005, Minnesota passed a bill adding life without release (LWOR) for
premeditated first-degree murder.” Minnesota Department of
Corrections reports that there are 569 “lifers” in Minnesota prisons as of
January 1, 2012."
Incapacitation and retribution have become the chief objectives of
sentencing in Minnesota over the past two decades.” Moreover, the
state has increasingly focused on repeat sex offenders as an obstacle to
community safety. In 1992, it added life imprisonment for certain repeat
sex offenders convicted of first-degree criminal sexual conduct.” In
2005, it enhanced the sanction for repeat offenders by including LWOR
for first- and second-degree criminal sexual conduct offenses involving
heinous acts.” The state also used LWOR as a sentence that ensured
incapacitation for juveniles convicted of murder in the first-degree.”
LWOR for juveniles, however, was declared cruel and unusual
punishment, and therefore, deemed unconstitutional in a 54 vote by the
U.S. Supreme Court in June 2012.”
66. See Mr. C Response, How Does Parole Work in Minnesota, PRISONTALK.COM (Dec.
11, 2008, 2:14PM), http://www. prisontalk.com/forums/archive/index.php/t-381724.htmL
67. 2005 Minn. Laws 901, 922.
68. See MINN. DEP’T OF CORR., ADULT INMATE PROFILE AS OF 01/01/2012 (2012),
available at http://www.doc.state.mn.us/aboutdoc/stats/documents/2012JanA dultProfile.pdf.
69. See Phil Carruthers, Sentencing Trends: Analysis and Recommendations, COUNCIL
ON CRIME AND JUSTICE, http://www.crimeandjustice.org/councilinfo.cfm?pID=51 (last visited
Oct. 27, 2012),
70. 1992 Minn. Laws 1983, 1997, 2000-01.
71. 2005 Minn. Laws 901, 929-31.
72. See MINN. STAT. § 260B.101 (2008) (giving juvenile court original jurisdiction over
“delinquent” children); MINN. STAT. § 260B.007 (2008) (“The term delinquent child does not
include a child alleged to have committed murder in the first degree after becoming 16 years
of age .
73. Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012).
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12 MARQUETTE LAW REVIEW [96:1
III. THERAPEUTIC JURISPRUDENCE AND FAMILY SURVIVORS OF
HOMICIDE VICTIMS
Although the literature on sentencing for murder is replete with
historic accounts of abolitionist and death penalty developments, there
is virtually no mention of homicide survivors. Indeed, it is only in the
past thirty years that crime victims’ voices have been added—based on
survivors’ demands to be heard, validated, and treated with dignity and
respect.” Their recent visibility is due to a convergence of three forces:
the crime victims’ rights movement, the emergence of therapeutic
jurisprudence, and a new emphasis on closure for survivors as
justification for the death penalty.
A. Crime Victims’ Rights
Support for crime victims’ rights emerged in the late 1970s as a
cohesive movement birthed out of a deep frustration with the criminal
justice system and its marginalization and treatment of victims.” After
decades of invisibility, crime victims nationwide shared the “widespread
sentiment that the legal system did not accord victims the respect or
sympathy they deserved, and this lack of support resulted in negative
interactions with the criminal justice system.”” The rights asserted by
crime victims focused heavily on their needs for information,
involvement in criminal justice proceedings, and demands to be treated
with fairness, dignity, and respect throughout the criminal justice
process.” The movement has made significant strides over the past
thirty years in establishing the crime victim’s role and enhancing the
place of the victim (or victim survivor) in the criminal process. Besides
establishing the Office of Victims of Crime under the Department of
Justice™ and procuring federal funding for services to crime victims,” all
14. See Bruce J. Winick, Therapeutic Jurisprudence: Perspectives on Dealing with Victims
of Crime, 33 NOVA L. REV. 536, 544 (2009),
75. Like all other victims, survivors are a part of the victims’ rights movement and are
intended beneficiaries of the movement. See Megan A. Mullett, Fulfilling the Promise of
Payne: Creating Participatory Opportunities for Survivors in Capital Cases, 86 IND. L.J. 1617,
1618 n.10 (2011).
76. Id. at 1622.
imerica/ (last visited Oct. 8, 2012) (noting that the Office of Victims of
ime was created by the U.S. Department of Justice to implement recommendations from
President Ronald Reagan’s Task Force).
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states either amended their constitution to address victims’ rights or
passed crime victims’ rights legislation.” The federal Justice for All Act,
passed in 2004, established eight specified rights, including “[t]he right
to be reasonably heard at any public proceeding ... involving release,
plea, sentencing or any parole proceeding”’—a right which directly
affects survivors in capital cases.
B. Therapeutic Jurisprudence
Therapeutic jurisprudence is both a movement and a study of the
law’s therapeutic impact that emerged during the late 1980s.” It calls for
a diminution in the law’s antitherapeutic effect and an increase in its
potential to enhance the well-being of the people it affects.” It was
initially aimed at civil commitment and the treatment of persons with
mental health disorders,“ but evolved to include drug and other
problem solving courts,” military law, bankruptcy law, and worker’s
compensation law.”
Only recently has therapeutic jurisprudence expanded beyond its
initial focus on the rehabilitation of offenders to include victims.” This
79. See id. (noting that in 1984 the Victims of Crime Act (VOCA), Pub. L. 98-473, 98
Stat. 2170 (codified as amended at 42 U.S.C. §§ 10601-10604), was passed and established the
Crime Victims Fund to support state victim compensation and services).
80. See History of Victims’ Rights, NATL CRIME VICTIM L. NST.,
http:/law.|clark.edu/centers/national_crime_victim_law_institute/about_ncvli/history_of_victi
ms rights (last visited Oct. 8, 2012).
81. Justice for All Act of 2004, Pub. L. No. 108-405, § 3771, 118 Stat. 2260, 2261 (codified
as amended in scattered sections of 18 U.S.C.).
82. See Peggy Fulton Hora et al., Therapeutic Jurisprudence and the Drug Treatment
Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Abuse and
Crime in America, 74 NOTRE DAME L. REV. 439, 439-41 (1999).
83. See David B. Wexler, Putting Mental Health into Mental Health Law: Therapeutic
Jurisprudence, 16 LAW & HUM. BEHAV. 27, 32 (1992).
84. See, e.g., DAVID B. WEXLER & BRUCE J. WINICK, ESSAYS IN THERAPEUTIC
JURISPRUDENCE (1991); DAVID B. WEXLER, THERAPEUTIC JURISPRUDENCE: THE LAW AS
A THERAPEUTIC AGENT (1990); David B. Wexler, New Directions in Therapeutic
Jurisprudence: Breaking the Bounds of Conventional Mental Health Law Scholarship, 10
N.Y.L. SCH. J. HUM. RTS. 759 (1993); David B. Wexler, Reflections on the Scope of
Therapeutic Jurisprudence, 1 PSYCHOL. PUB. POL’Y & L. 220, 225-26 (1995).
85. See Dennis Roderick & Susan T. Krumholz, Much Ado About Nothing? A Critical
Examination of Therapeutic Jurisprudence, 1 S. NEW ENG. ROUNDTABLE SYMP. L.J. 201, 216
(2006).
86. See Amy T. Campbell, Using Therapeutic Jurisprudence to Frame the Role of
Emotion in Health Policymaking, 5 PHX. L. REV. 675, 678 (2012).
87. See Edna Erez et al., Therapeutic Jurisprudence and Victim Participation in Justice:
An Introduction, in THERAPEUTIC JURISPRUDENCE AND VICTIM PARTICIPATION IN
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14 MARQUETTE LAW REVIEW [96:1
new area of interest reflects concerns about victim retraumatization and
the antitherapeutic potential of the criminal justice system to accentuate
crime victims’ feelings of powerlessness and compound feelings of
injustice,“ thereby producing lowered self-esteem,” depression and
discontent,” and self-degradation.” Studies support these concerns.
Research on survivors from a national representative sample found that
the more satisfied survivors were with the criminal justice system’s
management of their loved ones’ murder cases, the less likely they were
to be depressed or anxious.” Another study found that 71% of
survivors had lifetime PTSD,” which “might be attributable to
aggravation of symptoms produced by interacting with the criminal
justice system.” Although the criminal justice system can negatively
influence victim well-being, a four-state study (n = 1309) also found that
crime victim satisfaction can mitigate crime-related PTSD.”
Although therapeutic jurisprudence recognizes the necessity to
respond to either the positive or negative impact of the law,” its more
recent focus on victims and their emotional well-being has generated
intense controversy about the fundamental purpose of law and due
JUSTICE: INTERNATIONAL PERSPECTIVES, at x (Edna Erez et al. eds., 2011).
88. See Armour & Umbreit, supra note 8.
89. See, e.g., Gerda Koper et al., Procedural Fairness and Self-Esteem, 23 EUROPEAN J.
Soc. PSYCHOL. 313, 314 (1993); Heather J. Smith et al., The Self-Relevant Implications of the
Group-Value. Model: Group Membership, Self-Worth, and Treatment Quality, 34 J.
EXPERIMENTAL SOC. PSYCHOL. 470, 489 (1998).
90. See, e.g., Carolyn L. Hafer & James M. Olson, Beliefs in a Just World, Discontent,
and Assertive Actions by Working Women, 19 PERSONALITY & SOC. PSYCHOL. BULL. 30, 34
(1993); Howard Tennen & Glenn Affleck, Blaming Others for Threatening Events, 108
PSYCHOL. BULL. 209, 224 (1990).
91. See generally Madeline E. Heilman et al., Self-Derogating Consequences of Sex-
Based Preferential Selection: The Moderating Role of Initial Self-Confidence, 46
ORGANIZATIONAL BEHAV. & HUM. DECISION PROCI S$ 202 (1990) (discussing self-
derogation generally).
92. Angelynne Amick-McMullan et al., Family Survivors of Homicide Victims:
Theoretical Perspectives and an Exploratory Study, 2 J. TRAUMATIC STRESS 21, 32 (1989).
93. John R. Freedy et al., The Psychological Adjustment of Recent Crime Victims in the
Criminal Justice System, 9 J. INTERPERSONAL VIOLENCE 450, 457 (1994) (finding lifetime
PTSD among 71% of family and friends of homicide victims who had reported the crime to
law enforcement).
94. Dean G. Kilpatrick & Mary P. Koss, Homicide and Physical Assault, in THE
MENTAL HEALTH CONSEQUENCES OF TORTURE 195, 199 (Ellen Gerrity et al. eds., 2001).
95. Judith Lewis Herman, The Mental Health of Crime Victims: Impact of Legal
Intervention, 16 J. TRAUMATIC STRESS 159, 160-61, 163 (2003).
96. Winick, supra note 74, at 541.
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process rights of defendants.” Fallout from this controversy has
significantly influenced the procedural rights of family survivors to give
testimony about the impact of the murder during trials in capital cases
established under the Justice for All Act.“ The position held by
therapeutic jurisprudence proponents, however, has been to staunchly
maintain that the antitherapeutic impact of law on victims generally
does not mandate change in a law or legal procedure. Rather, if legal
values conflict with therapeutic ones, more research is needed into
possible creative approaches for reshaping the law or its application in
order to balance competing values.”
C. Closure as Justification for the Death Penalty and LWOP
Justifications for the death penalty and LWOP include deterrence,
cost effectiveness, incapacitation, and retribution. Deterrence, cost, and
the need for incapacitation specific to death penalty cases have been
hotly contested for many years. Cost effectiveness and incapacitation, in
particular, have less standing today than deterrence and retribution.
Taxpayers are increasingly concerned about paying $2-$3 million per
case for capital cases."” Indeed, many of the arguments to advance
LWOP in death penalty states are based on cost effectiveness.”
Moreover, the data on the danger posed by death row inmates suggests
97. See, e.g., Bandes, supra note 4.
98. See Antony Pemberton & Sandra Reynaers, The Controversial Nature of Victim
Participation: Therapeutic Benefits in Victim Impact Statements, in THERAPEUTIC
JURISPRUDENCE AND VICTIM PARTICIPATION IN JUSTICE: INTERNATIONAL PERSPECTIVES,
supra note 87, at 233 (describing the tension between the therapeutic rationale for victim
impact statements during sentencing and criminal justice principles dismissing therapeutic
benefits as alien to the criminal justice system).
99. Winick, supra note 74, at 537.
100, See Arthur L. Alarcén & Paula M. Mitchell, Executing the Will of the Voters?: A
Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty
Debacle, 44 Loy. L.A. L. REV. $41, $75 (2011) (noting after a review of individual death
penalty cases that the cost of death penalty trials in California between 1983 and 2006
“averaged about $1 million more per trial than the costs of average non-death penalty
homicide trials”); see also Costs of the Death Penalty, DEATH PENALTY INFO. CENTER,
http://(www.deathpenaltyinfo.org/costs-death-penalty#financialfacts (last visited Oct. 8, 2012).
101. See Alarcén & Mitchell, supra note 100, at $221. Alarcén & Mitchell discussed the
fiscal impact of using LWOP rather than the death penalty:
This initiative ... would save taxpayers millions of dollars per year over time...
California’s death row population would be immediately and dramatically reduced
to a fraction of its current size. This would result in a savings to taxpayers of an
additional tens of millions of dollars per year in death row housing costs.
Id.
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16 MARQUETTE LAW REVIEW [96:1
that the majority are not dangerous and serve time without incident—
mitigating the need for incapacitation.'”
Deterrence as justification for the death penalty has spawned
numerous studies,” many of which contest each other.” In 2012, the
National Research Council examined studies on the topic since the 1976
Supreme Court decision in Gregg v. Georgia that ended a four-year
moratorium on executions.” It concluded “[the] research to date ... is
not informative about whether capital punishment decreases, increases,
or has no effect on homicide rates.”"” The committee recommended
that “claims that research demonstrates that capital punishment
decreases or increases the homicide rate ... or has no effect on [it]
should not influence policy judgments about capital punishment.”"”
In contrast to the diminishing validity of cost, incapacitation, and
deterrence as justifications for the death penalty, retribution has
emerged more forcefully because of its current association with
survivors and the concept of closure, which has therapeutic appeal to
both victims and the public. This association is recent. Although the
victim rights movement introduced victim-impact statements (VIS), the
claim that the death penalty, and now LWOP, brings closure can be
traced to the U.S. Supreme Court’s 1991 decision in Payne v. Tennessee
to uphold the use of these statements in capital cases." Death penalty
scholar Franklin Zimring has documented the history of this association,
maintaining that the terms “closure” and “death penalty” were never
102. See MARQUART, supra note 16, at 181-82.
103. See, e.g, Hashem Dezhbakhsh & Joanna M. Shepherd, The Deterrent Effect of
Capital Punishment: Evidence from a “Judicial Experiment,” 44 ECON. INQUIRY 512, 512
(2006); John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the
Death Penalty Debate, 58 STAN. L. REV. 791, 795-96 (2005); Isaac Ehrlich, The Deterrent
Effect of Capital Punishment: A Question of Life and Death, 65 AM. ECON. REV. 397, 397
(1975).
104. See Marilyn Peterson Armour & Mark S. Umbreit, The Ultimate Penal Sanction
and “Closure” for Survivors of Homicide Victims, 91 MARQ. L. REV. 381, 393 (2007).
105. COMM. ON LAW AND JUSTICE, NAT'L RESEARCH COUNCIL, DETERRENCE AND
THE DEATH PENALTY 2 (Daniel S. Nagin & John V. Pepper eds., 2012), available at
hitp://www7.nationalacademies.org/claj/ICLAJ_Publications.html.
106. Id.
107. Id.
108. Payne v. Tennessee, 501 U.S. 808, 832 (1990) (O’Connor, J., concurring). Justice
O'Connor in her concurrence in Payne stated, “Murder is the ultimate act of
depersonalization. It transforms a living person with hopes, dreams, and fears into a corpse,
thereby taking away all that is special and unique about the person. The Constitution does
not preclude a State from deciding to give some of that back.” Id.
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mentioned together until 1989 when they were used together once.” In
1993, however, two years after Payne, the association was found more
than 500 times.” This recasting of the rationale for retribution—from
revenge and just deserts to serving constructive ends for the victim’s
healing—has become a core rationale for VIS, preventing undue delays
in legal processes, and witnessing executions."
The rhetoric that binds closure to the death penalty is now being
used for LWOP. The New Jersey Death Penalty Study Commission
stated in their findings “the non-finality of death penalty appeals hurts
victims, drains resources and creates a false sense of justice. Replacing
the death penalty with life without parole would be certain punishment,
not subject to the lengthy delays of capital cases; it would incapacitate
the offenders; and it would provide finality for victims’ families.”"”
The role of family survivors has grown exponentially over the past
three decades. As advocates for themselves, family survivors pushed
forward national legislation for crime victims’ rights, which provided a
platform for state and federal legislation specific to VIS. This
legitimating of their needs was accompanied by recognition from the
therapeutic jurisprudence community, who theretofore had restricted its
territory to the offender. As emerging and powerful stakeholders in the
criminal justice system, proponents of both the death penalty and
LWOP have recognized family survivors and politically advanced their
punishment agendas through claims that the UPS helps bring closure to
survivors. Indeed, in recent efforts to replace the death penalty with
LWOP, proponents have been joined by family survivors as vocal
advocates against capital punishment.'”
109. FRANKLIN E. ZIMRING, THE CONTRADICTIONS OF AMERICAN CAPITAL
PUNISHMENT 58 (2003).
110. See Bandes, supra note 4, at 1-2 n.3.
111. See Jody Lyneé Madeira, “Why Rebottle the Genie?”: Capitalizing on Closure in
Death Penalty Proceedings, 85 IND. L.J. 1477, 1481, 1506 (2010).
112. See N.J. DEATH PENALTY COMM’N, DEATH PENALTY STUDY COMMISSION
REPORT 61 (2007).
113. See E. Brancato, A Murder Victim Family Member Reflects on Repeal of Death
Penalty in Connecticut, MURDER VICTIMS’ FAMILIES FOR RECONCILIATION,
hitp://www.mvfr.org/?p=955 (last visited Oct. 8, 2012) (describing his role as a survivor in the
repeal of the death penalty in Connecticut). See generally WOUNDS THAT Do NOT BIND:
VICTIM-BASED PERSPECTIVES ON THE DEATH PENALTY, supra note 2, at 17-140 (compiling
personal accounts by survivors).
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18 MARQUETTE LAW REVIEW [96:1
D. Evidence of Closure in VIS and Executions
The use of law as an instrument of healing and rehabilitation calls on
criminal justice officials for changes in court procedures to empower
survivors, to create mechanisms to assist survivors in the expression of
what happened to them, to show dignity and respect, and to add
provisions for survivor choice in the decision-making process to advance
survivor self-determination wherever possible. Most of these needs,
which have been legislatively codified as rights, are relatively
uncontroversial. Tensions between the role of VIS in court and criminal
justice principles as well as debates about the power of the defendant’s
sentence to advance closure, however, have taken center stage.
VIS are oral or written statements, which, as part of the judicial legal
process, allow survivors the opportunity to speak during the sentencing
of the defendant."* They are also referred to as “victim-impact
evidence” (VIE) and as “victim allocution” depending on when in the
trial process it is heard.’ They are frequently portrayed as assisting in
survivor healing and closure because they give survivors a “voice” and
allow them to express their pain and sense of loss in a public setting.’
The controversy surrounding victim expressions of harm focuses on the
emotional appeal of VIS to prejudicially influence jurors’ sense of
sympathy for the pain caused by the defendant, thereby interfering with
the due process rights of the defendant. Specifically, VIS are critiqued
based on the fact that their purpose is inconsistent with the principles of
criminal justice, which view crime as an act against the state, not the
specific victim; that they undermine proportionate treatment of
offenders and public interest as the sole and legitimate justification for
increased punishment severity; and that they subject defendants to
114. See Paul G. Cassell, In Defense of Victim Impact Statements, 6 OHIO ST. J. CRIM. L.
611, 611-12 (2009). Cassell noted that the ostensive purpose of VIS, as established under
Payne, is to provide information to the sentencing judge or jury about the impact of the
crime. Id. As an instrument for self-expression, VIS may also help survivors in their healing
process, help educate the defendant about the full consequences of the murder, and ensure,
under the principle of fairness that the survivor along with the state and the defendant have
been heard. Id.
115. Minnesota allows for victim impact evidence. See MINN. STAT. § 611A.037-.038
(2009). Texas provides a right for survivors to make a statement postsentence. See TEX.
CODE CRIM. PROC. ANN. art. 42.03 (West 2006).
116. See Bandes, supra note 4, at 3; see also Edna Erez, Who’s Afraid of The Big Bad
Victim? Victim Impact Statements as Victim Empowerment and Enhancement of Justice, 1999
CRIM. L. REV 545, 551; Mullett, supra note 75, at 1622-23 (noting that VIS are premised on
the victim deserving closure from their presentation in trial or sentencing).
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excessive allegations.’” Although these concerns continue, evidence of
influence on jurors and whether or not VIS lead to harsher,
disproportionate, and inconsistent sentences has not been shown in the
research.’
Whether VIS help survivors heal and achieve closure is another
point of contention. The research is inconclusive. Studies vary, showing
both increased and decreased satisfaction, as well as neither.” Apart
from the lack of evidence showing beneficial effects, proponents of VIS
claim that they have a communicative function’”—they fulfill a need for
expression and provide recognition of survivors’ victim status.
Closure, besides providing justification for the UPS, is also
commonly promoted as the basis of the allocation of an opportunity for
survivors to witness executions. At least thirteen states have made
provisions for survivors to be present when the offender is killed." In
Texas, the option to attend came about as a result of pressure from
survivors and victim advocates who felt it might help the healing
process.” Similar to VIS, there is wide disagreement as to whether the
UPS, generally, and witnessing the execution, specifically, bring closure.
Survivors are resolute that the concept of “closure” bears little or no
relevance to their experience.” A survey conducted in 1999 by the
117. See Erez, supra note 116, at 547.
118. Id. at 547-49 (describing the studies and available evidence disputing concerns
about VIS).
119. See Pemberton & Reynaers, supra note 98, at 235; see also Armour & Umbreit,
supra note 104, at 404-05 (describing how editing of VIS by prosecutors and judges may
influence survivors’ satisfaction since telling their story may no longer have the same
significance).
120. See, eg., Erez, supra note 116, at 550-54; Madeira, supra note 111; Julian V.
Roberts & Edna Erez, Communication in Sentencing: Exploring the Expressive Function of
Victim Impact Statements, 10 INT'L REV. VICTIMOLOGY 223 (2004).
121. See Peter Hodgkinson, Capital Punishment: Meeting the Needs of the Families of the
Homicide Victim and the Condemned, in CAPITAL PUNISHMENT: STRATEGIES FOR
ABOLITION 332, 353 n.63(Peter Hodgkinson & William A. Schabas eds., 2004) (“Oklahoma
and Washington guarantee families the right to watch. In addition, California, Florida,
Illinois, Louisiana, Montana, North Carolina, Ohio, Pennsylvania, Texas, Utah, and Virginia
hold hearings to determine access.”).
122. See Mark Potok, Looking Death in the Eye in Texas: Law Lets Families View
Executions, USA TODAY, Feb. 1, 1996, at 3A; see also Frequently Asked Questions: Victim
Survivors Viewing Executions, TEXAS DEP’T OF CRIM. JUSTICE, http://www.tdcj.state.tx.us/fa
q/faq_victim_viewing_execution.html (last visited Oct. 8, 2012) (noting that in 1995, victim
survivors and victim advocates asked the Texas Department of Criminal Justice for the
opportunity to view executions
123. See Marilyn Peterson Armour, Journey of Family Members of Homicide Victims: A
Qualitative Study of Their Posthomicide Experience, 72 AM. J. ORTHOPSYCHIATRY 372, 380
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20 MARQUETTE LAW REVIEW [96:1
Victim Services Division of the Texas Department of Criminal Justice
found wide variation in survivors’ postexecution responses.” 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. Although survivors wanted to witness the execution of
Timothy McVeigh out of a personal need to see justice done and carried
through to completion, most of them did not expect it to assist them.'”
There is increasing commentary in the literature on survivors and
“closure,” specifically about the ambiguity of the term and a lack of
precision in how it is used. Some scholars advocate for keeping
“closure” but moving its definition from a dichotomous outcome
associated with resolution of grief and pursuit of vengeance to a process
synonymous with restoration of control and accountability as well as
coping and healing.” Others propose that measuring reductions in
anger and anxiety would not only reduce the tension between the
therapeutic and justice paradigms but that these constructs, unlike
closure or healing, are specified well in the psychological literature.”
IV. THERAPEUTIC JURISPRUDENCE, SURVIVORS, AND CONTROL
Aside from the victim rights agenda, concern for the impact of the
criminal justice system on victims’ emotional well-being and the goal of
“closure” are two main reasons behind the push to give victims greater
control over the powerlessness that otherwise accompanies the murder
(2002); Carroll Ann Ellis et al., The Impact of the Death Penalty on Crime Victims and Those
Who Serve Them, in WOUNDS THAT DO NOT BIND: VICTIM-BASED PERSPECTIVES ON THE
DEATH PENALTY, supra note 2, at 436.
124, Fernando J. Galan & Dan R. Guerra, The Impact of Viewing Executions on
Homicide Survivors (1999) (on file with author Marilyn Peterson Armour) (presented before
the Crime Victims Institute 1999 Biennial Symposium on Crime Victimization). Studies using
newspaper accounts of survivor reports report similar results. See Samuel R. Gross & Daniel
J. Matheson, What They Say at the End: Capital Victims’ Families and the Press, 88 CORNELL
L. REV. 486, 489 (2003) (stating that a review of statements to the press after family members
witnessed an execution found that the dominant theme was pain and that the execution
finally happened); see also Thomas J. Mowen & Ryan D. Schroeder, Not In My Name: An
Investigation of Victims’ Family Clemency Movements and Court Appointed Closure, 12
WESTERN CRIMINOLOGY REV. 65 (2011) (examining newspaper coverage about executions
to report responses and sentiments of covictims); Scott Vollum & Dennis R. Longmire,
Covictims of Capital Murder: Statements of Victims’ Family Members and Friends Made at the
Time of Execution, 22 VIOLENCE & VICTIMS 601 (2007) (assessing statements from covictims
by reviewing articles about executions).
125. See Madeira, supra note 111, at 1501-02.
126. Id. at 1494, 1523.
127. See Pemberton & Reynaers, supra note 98, at 237.
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of a loved one. Research repeatedly shows that a sense of personal
control over situations positively affects well-being.” The centrality of
powerlessness and need for control is regularly reflected in the literature
on homicide survivors.” Professor Armour, for example, found that the
question “Who decides?” determines survivors’ lived experience—
survivors are constantly challenged by others’ decisions that impact their
lives.” Indeed, it appears that the restoration of a sense of control may
be an essential element in victim healing.’ There has been discussion
about the necessity for information,'” the making of meaning,’* and the
access to greater participation” as mechanisms to achieve that control.
From the perspective of therapeutic jurisprudence, however, little is
known about the impact of the UPS on that sense of control and on
survivor well-being. Moreover, the linkage between closure and the
actual death of the offender or the finality of the offender spending the
rest of his or her natural life in prison is only a part of the extensive
128. See generally JOHN MIROWSKY & CATHERINE E. Ross, SOCIAL CAUSES OF
PSYCHOLOGICAL DISTRESS 167-68 (1989) (synthesizing data from a decade of their own
surveys and others with community populations on the impact of social problems on
psychological distress and presenting data to suggest that feeling in control of one’s life is the
most critical aspect of well-being).
129. See, e.g., Marilyn Armour, Meaning Making in the Aftermath of Homicide, 27
DEATH STUD. 519, 519 (2003).
130. Marilyn Ruth Peterson [Armour], The Search for Meaning in the Aftermath of
Homicide: A Hermeneutic Phenomenological Study of Families of Homicide Victims 204
(Aug. 1, 2000) (unpublished Ph.D dissertation, University of Minnesota, Minneapolis) (on file
with author Marilyn Peterson Armour) (“Death by murder is also different because it is a
public matter. Consequently, the respect that is usually accorded mourners in the United
States is usurped by the public agenda and the boundary that otherwise protects the privacy
of the family is violated. Moreover, death by murder means that others, outside the family,
take control of what happens and define the social reality for family members. Family
members, therefore, deal with their loved one’s death by having to interface with family,
friends, and social institutions that have their own reactions to the event.”).
131. See Dean G. Kilpatrick & Randy K. Otto, Constitutionally Guaranteed Participation
in Criminal Proceedings for Victims: Potential Effects on Psychological Functioning, 34
WAYNE L. REV. 7 (1987).
132. Paul B. Stretesky et al., Sense-Making and Secondary Victimization Among
Unsolved Homicide Co-Victims, 38 J. CRIM. JUST. 880, 882-84 (2010).
133. See Armour, supra note 129, at 534-35; Shirley A. Murphy et al., Finding Meaning
in a Child’s Violent Death: A Five-Year Prospective Analysis of Parents’ Personal Narratives
and Empirical Data, 27 DEATH STUD. 381, 398 (2003).
134. See Deborah P. Kelly & Edna Erez, Victim Participation in the Criminal Justice
System, in VICTIMS OF CRIME 231, 233-35 (Robert C. Davis et al. eds., 2d ed. 1997); Madeira,
supra note 113, at 1511; Richard P. Wiebe, The Mental Health Implications of Crime Victims’
Rights, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC
JURISPRUDENCE 213, 219-20 (David B. Wexler & Bruce J. Winick eds., 1996).
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22 MARQUETTE LAW REVIEW [96:1
experience survivors have with the criminal justice system.”
Besides anecdotal accounts, several studies have attempted to ferret
out survivors’ responses to the execution and its ability to provide
closure.’ Gross and Matheson analyzed newspaper accounts of
survivors’ statements immediately following executions.’” Vollum and
Longmire examined journalists’ reports of survivors’ remarks after the
reporters attended executions in Texas.'* Mowen and Schroeder
evaluated newspaper coverage of death penalty cases that included
statements by, or on behalf of, survivors with regard to their views on
the death penalty.” Although these studies are secondary accounts and
only concentrate on the beginning or the end of the conviction and
postconviction process, they uniformly conclude that the likelihood of
closure, and by extension an increased sense of control, is highly
variable and colored by the appeals process, expectations about the
murderer’s comments, and feelings of revenge.”
Even less is known about whether LWOP gives survivors back a
sense of control or reduces their suffering." As with the death penalty,
attention has focused principally on societal concerns—including cost-
effectiveness and mistakes in death penalty cases.” Although the
135. Armour & Umbreit, supra note 104, at 422-23.
136. See generally Gross & Matheson, supra note 124 (examining press stories regarding
executions from January 2001 through June 2002); Mowen & Schroeder, supra note 124
(examining newspaper coverage about executions to report responses and sentiments of
covictims); Vollum & Longmire, supra note 124 (assessing statements from covictims by
reviewing articles about executions).
137. Gross & Matheson, supra note 124, at 487-89.
138. Vollum & Longmire, supra note 124, at 603.
139. Mowen & Schroeder, supra note 124, at 70.
140. Gross & Matheson, supra note 124, at 491-94; Mowen & Schroeder, supra note 124,
at 78; Vollum & Longmire, supra note 124, at 604 tbl.1, 607.
141. The term “life sentence” has been used in a variety of ways over time and
consequently there is much public confusion regarding its meaning. MARC MAUER ET AL.,
THE MEANING OF “LIFE”: LONG PRISON SENTENCES IN CONTEXT 4 (2004), available at
http://www prisonterminal.com/documents/The %20Meaning%200f%20Life.pdf. While the
intuitive definition of a life sentence is a prison term for the remainder of one’s natural life, in
fact the term also includes various indeterminate sentences, or sentences whose length can be
reduced by commutation, parole, or pardon. Id.
142. See ROBERT M. BOHM, DEATHQUEST: AN INTRODUCTION TO THE THEORY AND
PRACTICE OF CAPITAL PUNISHMENT IN THE UNITED STATES 202 (4th ed. 2012) (“In sum,
death sentences could be replaced with LWOP at considerable cost savings to the taxpayer,
with negligible impact on the current prison overcrowding crisis. LWOP sentences would
also allow for the correction of miscarriages of justice when they [are] discovered . . ..”); see
also Michael E. Ebert, Weighing the Costs of Capital Punishment v. Life in Prison Without
Parole: An Evaluation of Three States’ Studies and Methodologies Comparing Costs of the
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2012] ULTIMATE PENAL SANCTION 23
reasoning behind LWOP being touted as a victim service is a little
different from the justification of the death penalty, there is still the
suggestion that the LWOP sanction—through the concept of closure—
has the potential to give a sense of control back to survivors.
V. PERCEIVED CONTROL THEORY
Although information is sparse, carrying out the sentence of death
or LWOP, as examples of ultimate justice, reflect hypothetically a
symbolic regaining of control by survivors. This sense of control may
facilitate healing,” but the supposition that any UPS can be remedial
remains speculative without direct evidence obtained in a systematic
way from homicide survivors. The Study reported in this article uses
sense of control theory for its conceptual framework." Perceived sense
of control “refers to the extent to which individuals believe that they can
control events that affect them.”’” This perceived sense of control is
positively associated with physical health, self-esteem, personal
adjustment, coping, decreased stress and depression, and psychological
well-being.” Studies have also found that a strong prior sense of
control may be maladaptive for people who later face situations beyond
their control and whose sense of control over their world is severely
compromised—such as those affected by homicide—leading to a sense
of helplessness or personal failure.” Frazier assessed perceived control
Death Penalty Versus Life in Prison Without Parole (LWOP), 1 NEW VOICES IN PUB. POL’Y 1
(2007) (examining studies noted as non-biased, done in North Carolina (Duke University),
Indiana (Indiana Criminal Law Study Commission), and Tennessee (Tennessee House
Judiciary Committee)).
143. See MIROWSKY & ROSS, supra note 128, at 167-68.
144. See generally 1 RESEARCH WITH LOCUS CONTROL CONSTRUCT (Herbert M.
Lefcourt ed., 1981); Julian B. Rotter, Generalized Expectancies for Internal Versus External
Control of Reinforcement, 80 PSYHOL. MONOGRAPHS 1 (1966).
145. Gregory G. Manley et al., Development of a Personality Biodata Measure to Predict
Ethical Decision Making, 22 J. MANAGERIAL PSYCHOL. 664, 666 (2007).
146. Ellen. A. Skinner, A Guide to Constructs of Control, 71 J. PERSONALITY & SOc.
PSYCHOL. 549, 549 (1996); Suzanne C. Thompson et al., Maintaining Perceptions of Control:
Finding Perceived Control in Low-Control Circumstances, 64 J. PERSONALITY & SOC.
PSYCHOL. 293, 293 (1993); Suzanne C. Thompson & Shirlynn Spacapan, Perceptions of
Control in Vulnerable Populations, 47 J. OF S' S , 3-6 (1991); Deborah L. Volker,
Control and End-of-Life Care: Does Ethnicity Matter?, 22 AM. J. HOSPICE & PALLIATIVE
MED. 442, 442 (2005); see also RICHARD S. LAZARUS & SUSAN FOLKMAN, STRESS,
APPRAISAL, AND COPING 170 (1984); Ute Kunzmann et al., Perceiving Control: A Double-
Edged Sword in Old Age, 57B J. GERONTOLOGY 484, 484, 488 (2002).
147. See Volker, supra note 146, at 442.
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24 MARQUETTE LAW REVIEW [96:1
in terms of past, present, and future control over traumatic events."
Although past and future control had nonsignificant relations with
distress, present control—or control over the healing process—was
associated with better adjustment, which was associated with less
distress, less PTSD, and greater life satisfaction.” According to
Frazier’s temporal model of perceived control theory, “individuals who
believe that they have more control over their [healing] process may
engage in more adaptive, approach-oriented coping strategies.”*”
Is the perception that the symbolic regaining of control enhances the
well-being of homicide survivors actually realized? Does it affect the
healing process of survivors? Is there a differential effect on homicide
survivors depending on which UPS is imposed? This Study seeks
information from homicide survivors about these questions and their
experience of the UPS (whether death penalty or LWOP).
VI. THE PROCESS OF THE ULTIMATE PENAL SANCTION
The purpose of this Study is to examine and compare the conviction
and postconviction experiences of family survivors in two states, namely
Texas and Minnesota. Besides their regional variations geographically
and culturally, the legal proceedings in a capital murder (Texas) or first-
degree felony-murder (Minnesota) case contrast greatly.
A. Texas
Texas Penal Code section 19.02 defines murder as “intentionally or
knowingly caus[ing] the death of an individual.” Section 19.03 of the
Texas Penal Code defines capital murder as a murder which occurs
under certain enumerated circumstances (e.g., murder of a peace officer
or fireman; murder while committing the crime of kidnapping, robbery,
burglary, aggravated sexual assault, terroristic threat, or arson; murder
for remuneration; murder committed while escaping from a penal
institution; or murder of a child under ten years of age). People who
are under the age of eighteen at the time of commission of the capital
crime or who are mentally retarded’ are precluded from being
148. Patricia Frazier et al., Perceived Control and Adjustment to Trauma: A Comparison
Across Events, 23 J. SoC. & CLINICAL PSYCHOL. 303, 303-05 (2004).
149. Id. at 316 tbl.1, 320-22.
150. Id. at 322.
151. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011).
152. Id. § 19.03(a) (West 2011 & Supp. 2012).
153. Roper v. Simmons, 543 U.S. 551, 573-75 (2005).
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executed by the Constitution of the United States. A capital trial is a
bifurcated trial consisting of a guilt-innocence phase and a punishment
phase.'* For a death sentence to be imposed, the jury must determine
that the defendant is a “continuing threat to society” and that the
mitigating evidence is not sufficient to warrant a sentence of life
imprisonment rather than a death sentence.” Until 2005, the only
option available to juries was death or life imprisonment with the
possibility of parole (the offender had to serve forty years before parole
could be considered).’” However, since 2005, with the passage of S.B.
60, juries are allowed to consider LWOP in death penalty cases.'™
A defendant sentenced to death usually goes through the mandatory
processes of review, direct appeal, and postconviction.” Direct appeal
is made to the Texas Court of Criminal Appeals.” If the conviction is
upheld, the defendant may petition the state for a habeas review by the
local federal district court and the Fifth Circuit Court of Appeals—
focused on either errors not fully known at trial or violations of the
defendant’s federal constitutional rights." “At any stage in [direct
[a]ppeal or [p]ost[c]onviction, the case can be remanded to a lower court
or reversed and returned to [the] trial court.”"” At the conclusion of
154. Atkins v. Virginia, 536 U. 104, 321 (2002).
155. TEX. CODE CRIM. PROC. ANN. art. 37.071 (West 2006).
156. Texas Execution Primer, TEX. EXECUTION INFO. CTR.,
http:/www.txexecutions.org/primer.asp (last visited Dec. 29, 2011) [hereinafter Texas
Execution Primer].
157. Bill Habern & David O'Neil, What About the Parole Process When One Has a Life
Sentence on a Capital Murder Charge?, HABERN, O°NEIL & PAWGAN L.L.P. 1-2 (2001),
available at http://www.paroletexas.com/articles/life_sentence_parole2.pdf. The 1999
amendment to Article 37.071 Code of Criminal Procedure requires that, upon the defense’s
request, the jury in a capital case can be instructed as follows: “[I]f the defendant is sentenced
to imprisonment in the institutional division of the Texas Department of Criminal Justice for
life, the defendant will become eligible for release on parole, but not until the actual time
served by the defendant equals 40 years, without consideration of any good conduct
time”). Id.
158. 2005 Tex. Gen. Laws 2705; TEX. PENAL CODE ANN. § 12.31(b) (West 2011).
159. Council for Restorative Justice, Victims and Survivors: Finding Your Way Through
Court Proceedings in Texas Death Capital Cases, GEORGIA ST. U. 53-55 (2009) (on file with
author) [hereinafter Council for Restorative Justice, Victims and Survivors}
160. Texas Execution Primer, supra note 156, at 3.
161. Id. at 3-4.
162. CTR. FOR AM. & INT'L LAW, UNIV. TEX. AUSTIN SCH. SOC. WORK, DEFENSE-
INITIATED VICTIM OUTREACH TRAINING MANUAL 53-55 (2008), available at
http://www.utexas.edu/research/cswr/rji/divo/training.html (requires downloading the Master
Manual) [hereinafter DEFENSE-INITIATED VICTIM OUTREACH TRAINING MANUAL]. John
Niland is the Director of the Capital Trial Project for the Texas Defender Service. Staff,
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26 MARQUETTE LAW REVIEW [96:1
each of these processes of review—direct review and postconviction
review—the defendant is entitled to ask the U.S. Supreme Court to
review the case.” On occasion the Supreme Court will review a capital
case if there are important legal issues."*
The judge presiding over a capital case sets the execution date once
it appears that the offender’s appeals have been exhausted."” Persons in
attendance at the execution can include five relatives or friends of the
condemned.'” In 1996, the Texas Department of Criminal Justice
adopted a board rule allowing victim witnesses to attend as well.” The
average length of time from conviction to execution is 10.8 years.”
“[T]he national average is that only about one in eleven—nine percent
(9%)—of those sentenced to death are executed; most others spend the
rest of their lives in prison, die in prison from other causes, have their
sentences overturned on appeal or escape the death penalty through
executive clemency.”"”
B. Minnesota
In 1989, Minnesota increased sentencing for higher severity crimes,
TEXAS DEFENDER SERVICE, http://www.texasdefender.org/staff (last visited Nov. 5, 2012).
He wrote a chapter (ch. 13, titled Steps in a Death Penalty Case: After the Trial) in Victims and
Survivors: Finding Your Way Through Court Proceedings in Texas Death Capital C "e
Council for Restorative Justice, Victims and Survivors, supra note 159, at 55 (providing a
chart of the Texas death penalty appeals and postconviction procedure).
163. Texas Execution Primer, supra note 156, at 3-4.
164. Id.
165. Jd. at 4 (noting that the prosecution asks the state district judge to set the execution
date with the execution dates generally being set one to six months out).
166. TEX. CODE CRIM. PROC. ANN. art. 43.20 (West 2011).
167. Viewing Executions, VICTIM SERVS. DIv., TEX. DEP’T CRIMINAL JUSTICE,
hitp://www.tdej state.tx.us/divisions/vs/victim_viewing_executions.html (last visited Dec. 29,
2011).
168. SNELL, supra note 39, at 19 tbl.18.
169. Ebert, supra note 142, at 6. “[TJhe best description of our capital punishment
system is that of the 6700 people sentenced to die between 1973 and 1999, only 598—less than
one in eleven—were executed.” James S. Liebman, The Overproduction of Death, 100
COLUM. L. REV. 2030, 2056 (2000). The U.S. Department of Justice stated that “[o]f the
7,879 people under sentence of death between 1977 and 2010...6% died by causes other
than execution,” TRACEY L. SNELL, BUREAU OF JUSTICE STATISTI U.S. DEPT. OF
JUSTICE, CAPITAL PUNISHMENT, 2010-STATISTICAL TABLES 1 (2011). Similarly, the Death
Penalty Information Center found that “[s}ince 1976, 272 death row inmates have been
granted clemency for humanitarian reasons. Clemency, DEATH PENALTY INFO. CENTER,
http:/Mwww.deathpenaltyinfo.org/clemency (last visited Oct. 27, 2012). “Humanitarian
reasons include doubts about the defendant's guilt or conclusions of the governor regarding
the death penalty process.” Id.
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establishing the parameters in use today.” Specifically, the punishment
for first-degree murder was thirty years to life before parole eligibility
(referred to as life without parole)” until 2005 when Minnesota
established “life without release (LWOR) for premeditated first-degree
murder.”'” In 2008, only forty-eight persons, or 0.5% of the prison
population, had been sentenced either under life without parole or
LWOR.” Under Rule 29, convictions of first-degree murder and
decisions in postconviction proceedings involving convictions of first-
degree murder are directly appealable to the Minnesota Supreme Court
within ninety days after the final judgment.”
‘VII. SUMMARY OF ULTIMATE PENAL SYSTEM
Although volumes have been written on the death penalty, survivors
are the ones most directly affected by the crime and society’s response
to it. Apart from arguments about the appropriate role for survivors
during the trial or voyeuristic glimpses into their reactions to the
execution and their need for closure, little if any attention has been
given to survivor experiences unique to capital murder (or its
equivalent) and to the totality of their existence subsequent to the
murder. The striking absence of survivor voices likely contributes to
their marginalized status and the propensity of others to presume and
assign meaning and motive to their journeys. This Study seeks to
expand the focus within the therapeutic jurisprudence community
beyond the therapeutic impact of law enforcement and criminal
proceedings to include the long-range impact of the offender’s
punishment on the physical and mental health of survivors.
VIII. METHODOLOGY
A. Design
This multisite, mixed-methods Study used a cross sectional research
design over four time periods to examine and compare differences in the
170. MINN. DEP’T CORR., MINNESOTA CRIMINAL SENTENCING ENHANCEMENTS:
HIGHLIGHTS FROM 1987 TO 2010, at 1 (2010), available at http://www.doc.state.mn.us/publica
tions/documents/10-10Sentencingenhancements.pdf.
171. Id.
172. Id. at 3.
173. Ashley Nellis, Throwing Away the Key: The Expansion of Life Without Parole
Sentences in the United States, 23 FED. SENT’G REP. 27 app. at 31 (2010).
174. MINN. R. CRIM. P. 29.02(1)(a), .03(3)(a).
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28 MARQUETTE LAW REVIEW [96:1
conviction and postconviction experiences of family survivors of
homicide victims. Because the average length of time from conviction
to execution in Texas is 10.8 years,” a comparable time period was used
to select participants. Participants in both states were selected from
these time periods: sentencing to three years postsentence (Time 1), five
to eight years postsentence (Time 2), ten to twelve years postsentence
(Time 3), and fourteen to sixteen years postsentence (Time 4).
Although it would have been preferable to hold the state context of the
punishment consistent for comparative purposes,” two states were used
because neither Texas nor Minnesota employed both types of UPS over
the 10.8 years covered by the Study.”
This Study used a mixed-methods approach, which is a procedure for
collecting, analyzing, and “mixing” both qualitative and quantitative
data within a single study.” This method helps to obtain a more
complete understanding of human behavior and experience than using
one method alone, and it also provides for a convergence or
corroboration of findings.'” In this regard, the Study asked two
questions, each of which required a different type of data. The
qualitative research question was, What are the conviction and
postconviction experiences of family survivors in capital murder cases?
The quantitative research question was, What is the differential effect of
the death penalty and LWOP on survivor well-being? These questions
provided the framework for the Study. Although qualitative and
175. SNELL, supra note 39, at 19 tbl.18.
176. There are vast differences between Texas and Minnesota including their
geographical location, political history and party affiliation, size and diversity of population,
level of educational attainment, and crime and poverty rates. See Jeffrey M. Jones, State of
the States: Political Party Affiliation, GALLUP (Jan. 28, 2009), http://www.gallup.com/poll/1140
16/state-states-political-party-affiliation.aspx; U.S. Dep't Commerce, Law Enforcement,
Courts, & Prisons imes and Crime Rates, CENSUS.GOV (2012), http://www.census.gov/com
pendia/statab/cats/law_enforcement_courts_prisons/crimes_and_crime_rates.html; U.S. Dep't
Commerce, State and County Estimates for 2010, CENSUS.GOV (June 15, 2012),
http://www.census.gov/did/wwwisaipe/. Compare, e.g., State & County QuickFacts: Texas,
U.S. CENSUS BUREAU, http://quickfacts.census.gov/qfd/states/48000.html (last updated Sept.
18, 2012) (describing Texas population, diversity, and educational statistics), with State &
County QuickFacts: Minnesota, U.S. CENSUS BUREAU, http://quickfacts.census.gov/qfd/states
/27000.html (last updated Sept. 18, 2012) (describing Minnesota population, diversity, and
educational statistics).
177. Texas began using LWOP in 2005. See 2005 Tex. Gen. Laws 2706.
178. JOHN W. CRESWELL & VICKI L. PLANO CLARK, UNIV. NEB.-LINCOLN,
DESIGNING AND CONDUCTING MIXED METHODS RESEARCH 7 (2007).
179. Veronica A. Thurmond, The Point of Triangulation, 33 J. NURSING SCHOLARSHIP
253, 257 (2001).
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quantitative data were collected concurrently, data from the two
methods were analyzed separately, and the results were compared
between the two. The priority in the design was given to the qualitative
method.
B. Measures
1. Demographics
The Demographic Questionnaire (DQ) developed for this Study
measured homicide survivor demographics. Participants reported their
year of birth; gender; race or ethnicity; marital status; education; age of
the victim when killed; relationship to the victim; gender of the victim;
date of the victim’s death; whether the murderer was known by the
victim, the homicide survivor, or both; time since death; time since
sentencing; and, for Texas participants, whether the death sentence had
been carried out and, if so, time since execution.
2. Well-Being
Well-being was measured by the Inventory of Complicated Grief-
Revised (ICG-R)."” The ICG-R is a thirty-seven-item assessment of
complicated grief responses in the month prior to survey
administration." This Study used the composite score of the thirty-two
ordinal-level response items in the scale, with higher scores indicating
180. For a discussion of complicated grief, see generally Holly G. Prigerson & Selby C.
Jacobs, Traumatic Grief as a Distinct Disorder: A Rationale, Consensus Criteria, and a
Preliminary Empirical Test, in HANDBOOK OF BEREAVEMENT RESEARCH 613 (Margaret S.
Stroebe et al. eds., 2001) [hereinafter Prigerson & Jacobs, Traumatic Grief| (discussing
“traumatic grief”). Traumatic grief is synonymous with complicated grief. Id. at 615. For a
discussion of the development of the ICG, see generally Holly G. Prigerson et al., Inventory
of Complicated Grief: A Scale to Measure Maladaptive Symptoms of Loss, 59 PSYCHIATRY
RES. 65 (1995) [hereinafter Prigerson et al., Inventory].
181. See Prigerson et al., Inventory, supra note 180 (establishing the ICG, a nineteen-
criteria assessment); Prigerson & Jacobs, Traumatic Grief, supra note 180 (revising and
expanding the ICG to the Inventory of Traumatic Grief (ITG) a thirty-six-criteria
assessment). The ICG-R is a thirty-seven-criteria assessment which is a modified version of
the original ICG nineteen-criteria assessment. See Kenneth E. Fowler, The Relationship
Between Self Reported Trauma, Complicated Grief, and Depression Among College
Students (Apr. 27, 2006) (unpublished Ph.D. dissertation, Florida State University), available
at http://diginole.lib.fsu.edu/etd/4409/. The ICG-R consists of five items assessing the context
of grieving (two dichotomous questions, two fill-in time period questions, and one short-
answer question) and thirty-two ordinal-level items constituting a grief symptoms severity
scale.
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30 MARQUETTE LAW REVIEW [96:1
greater symptoms.” In this sample, scores ranged from 3 to 100. In
previous studies, ICG-R reliability has been found to be good.” This
Study found that the ICG-R showed good internal consistency with a
Cronbach’s alpha of 0.952."
3. Survey Instrument
A fifty-seven-item survey instrument was developed for this Study
from focus group interviews in Texas and Minnesota with three groups
of homicide survivors and three groups of service providers.”
Individual interviews were also conducted with persons knowledgeable
about the execution process. Individual survey items were derived from
a template analysis” of the data gathered from the focus group and
individual interviews.” Survey items covered (1) perceptions of justice,
182. The thirty-two items are measured on a Likert-type scale and can be summed for a
total composite score. Each Likert-type scale answer was scored 0 to 4. As with a study
about familial grief in physician assisted dying, "[tJ]he items were summed to form a
continuous measure of severity of prolonged grief." See Linda Ganzini et. al., Mental Health
Outcomes of Family Members of Oregonians Who Request Physician Aid in Dying, 38 J. PAIN
& SYMPTOM MGnT. 807, 809 (2009). Because thirty-two items used Likert-scale type
answers, scores on the ICG-R could range from 0 (arrived at by answering 0 for all thirty-two
questions) to 128 (arrived at by answering 4 for all thirty-two questions).
183. Robert A. Neimeyer & Laurie A. Burke, Complicated Grief in the Aftermath of
Homicide: Spiritual Crisis and Distress in an African American Sample, 2 RELIGIONS 145, 153
(2011) (“High internal consistency (Cronbach’s a = 0.95) has been reported for the ICG-R in
samples of both normative and traumatic, premature loss.”); Amy E. Latham & Holly G.
Prigerson, Suicidality and Bereavement: Complicated Grief as Psychiatric Disorder Presenting
Greatest Risk for Suicidality, 34 SUICIDE & LIFE-THREATENING BEHAV. 350, 354 (2004)
(indicating that the ICG-R has a Chronbach’s a of 0.92). Cronbach’s alpha is a coefficient of
reliability. See Lee J. Cronbach, Coefficient Alpha and the Internal Structure of Tests, 16
PSYCHOMETRIKA 297, 307 (1951). It is commonly used as a measure of the internal
consistency or reliability of a psychometric test score for a sample of examinees. Id. at 297-
98.
184. Internal consistency normally ranges between 0 and 1. Joseph A. Gliem & Rosema
ry R. Gliem, Calculating, Interpreting, and Reporting Cronbach's Alpha Reliability Coefficient
for Likert-Type Scales, in 2003 MIDWEST RESEARCH TO PRACTICE CONFERENCE IN ADULT,
CONTINUING, AND COMMUNITY EDUCATION 87 (2003). “The closer Cronbach's alpha
coefficient is to 1.0 the greater the internal consistency of the items in the scale.” Id.
185. See infra Appendix C.
186. See DOING QUALITATIVE RESEARCH 21 (Benjamin F. Crabtree & William L.
Miller eds., 2d ed. 1999). It is appropriate for data collected using semi-structured or
structured questions or categories derived from a specific theory. See id. at 164-65. Data is
coded according to these a priori codes. See id. at 164-65. Additionally, codes representing
themes are defined as these emerge. See id. at 165.
187. See Marilyn Armour & Mark Umbreit, Homicide Survivors: Factors that Influence
Their Well-Being, 2 J. FORENSIC SOC. WORK (forthcoming Dec. 2012) (illustrating a study of
the findings from the focus group and individual interviews).
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(2) attitudes about the UPS, (3) experiences with the criminal justice
system, (4) experiences with the offender, (5) psychological states,
(6) social and psychological support, (7) religion and _ spirituality,
(8) media, and (9) family relationships. In addition, participants from
Texas in Time 2 to Time 4 were asked questions about the appeals
process, execution, and postexecution experience depending on their
individual circumstances (e.g., if the execution had already occurred).
C. Sample Procurement
This Study used random purposive sampling to recruit a
representative sample of homicide survivors whose loved one was killed
in Texas or Minnesota and the offender(s) was tried in the same state
between 1992 and 2007. In order to obtain the survivor sample,
offenders convicted of capital murder (Texas), or first-degree murder
(Minnesota), were randomly selected from offender lists for each of the
four time periods (Time 1 to Time 4). These lists are publically
available on the Texas Department of Criminal Justice website’™ and,
upon request, from the Minnesota Department of Criminal Justice. In
Texas, the names of each offender were given to a victim assistance
coordinator at the Texas State Attorney General’s Office. The victim
assistance coordinator then contacted the homicide survivor on file with
the office (whose loved one had been killed by the randomly selected
offender). In Minnesota, the names of each offender were given to the
Director of Survivor Resources, a Minnesota agency that provides
services to family survivors of victims of violent death. The director
used her extensive network of contacts with victim assistance
coordinators employed at district attorney generals’ offices throughout
Minnesota to find and contact each homicide survivor whose loved one
had been killed by the randomly selected offender. Homicide survivors
were given information about the Study by either the victim assistance
coordinator (Texas) or the Director of Survivor Resources (Minnesota)
and asked if they were interested in participating. Those individuals
who were willing to participate were asked whether they would prefer to
contact the researcher themselves or have the researcher contact them
directly. This procedure was followed until a sample of thirty-nine
participants was procured, consisting of approximately five homicide
188. Death Row Information: Offenders on Death Row, TEXAS DEP’T OF CRIM. JUST.
(Aug. 8, 2012), http://www.tdcj state.tx.us/death_row/dr_offenders_on_dr.html.
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32 MARQUETTE LAW REVIEW [96:1
survivors for each time period per state.”
D. Data Collection
Semistructured interviews were conducted with homicide survivors
between 2008 and 2010 in Minnesota, Texas, Florida, and Tennessee.”
The principal investigator for the Study conducted all the interviews,
which ensured consistency in how the interviews were managed. Each
interview was held at a place and time selected by the participant and
lasted approximately two hours. Participants signed an informed-
consent statement and completed the DQ and ICG-R prior to beginning
the interview. Interviews were digitally recorded and transcribed for
analysis.
E. Data Analysis
Data analysis of the qualitative interviews was conducted by the
principal investigator. Data analysis of the quantitative measures (DQ
and ICG-R) was done concurrently by a statistician.”’ Since the
purpose in triangulating methods is to enhance the completeness and
confirmation of data in research findings through generating more
accurate data,'” the principal investigator and statistician worked
separately to ensure that the findings from their analysis did not
influence the final product.
1. Qualitative Data
Data analysis was done using matrix analysis, which is a
categorization and organization of qualitative data based on
comparisons across cases and across time.'” Matrices are used to lay out
the available data and to facilitate the comparison and the construction
of hypotheses. The analysis consisted of six stages. In Stage 1, each
189. Despite numerous attempts, the fortieth participant in the Study sample could not
be contacted. Consequently, the sample for Texas Time 4 is limited to four rather than five
homicide survivors.
190. Twenty-eight interviews were done in 2008, and eleven were done in 2010. Two of
the Texas participants were interviewed in their current state of residence—one in Florida
and one in Tennessee.
191. The statistician for this Study was Stephanie Rivaux, Ph.D, LMSW who was
employed, for the Study, as an independent contractor by the University of Texas, School of
Social Work.
192. Thurmond, supra note 179, at 257
193, See MATTHEW B. MILES & A. MICHAEL HUBERMAN, QUALITATIVE DATA
AN EXPANDED SOURCEBOOK 93-94 (2d ed. 1994).
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interview transcript was randomly selected and read without regard to
time and state to gain familiarity with the words, descriptions, meanings,
and personal narrative of the participant. A narrative analysis'’’ was
performed on each case based on temporal aspects of the account
including the participant’s personal changes. In Stage 2, cases were
grouped by time (Time 1 to Time 4) and state (Texas or Minnesota) (n =
8 groups). Interviews within each time-by-state group were reread for
identification of event themes specific to the group. Many of the event
themes were common for all groups, but some event themes (e.g.,
appeals) were distinct to either Texas or Minnesota or to particular time
periods. In Stage 3, rating scales, content-based domain typologies, and
experiences or attitudes dichotomized into high-low, present-absent,
and _satisfied—unsatisfied were assigned to the event themes for
comparative purposes. In Stage 4, matrices of event themes by case,
time, and state were constructed. Event themes in each case were
assigned a scale rating, dichotomized ranking, or typology classification.
In Stage 5, quotes from each case were retrieved to substantiate the
assigned rating, ranking, or classification. In Stage 6, scale ratings,
dichotomized rankings, and typology classifications for event themes
were compared as follows: cases nested within the states; cases within
time periods nested in states; groups of cases by time period nested in
states; and groups of cases by time period between states.
Memoranda were written on the definitions of event themes; the
bases for rating scales; rankings of dichotomized variables and typology
categories; the findings for each event theme; and the hypothesized
relationships as a result of the comparisons made between cases (e.g.,
comparing participant reactions to executions) and comparisons made
within and between groups by state and time (e.g., comparing
participant experiences in Texas and Minnesota with the prosecution
team at Time 1). The qualitative software data analysis computer
program NVivo 9 was used to assist with the analysis.
2. Quantitative Data
Analysis was done of descriptive case variables, respondent and
victim demographic variables, and responses to the ICG-R. Case
194, See CATHERINE KOHLER RIESSMAN, NARRATIVE METHODS FOR THE HUMAN
SCIENCES 11 (2008) (noting that a “[nJarrative analysis refers to a family of methods for
interpreting texts that have in common a storied form’ Attention to contingent sequences
of action distinguish the analysis as well as how individuals use narrative to construct who
they are and how they want to be known, ie., their identities. Id. at 5-8.
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34 MARQUETTE LAW REVIEW [96:1
characteristics included state of case, time period of case (Time 1 to
Time 4), number of victims in the case, ongoing engagement with the
murderer, family violence, prior association between the respondent and
the murderer, whether the murderer was known to the victim, and, if the
case was a death penalty case, whether the sentence had been carried
out. Respondent demographic variables included gender, race/ethnicity,
year of birth, marital status, and education level. Victim demographic
variables included relationship of the victim to the respondent, gender,
and age at time of death.
Once descriptive analyses were examined, ICG-R scores were
submitted to a two-way factorial analysis of variance (ANOVA) having
two levels of state (Minnesota and Texas) and four time periods (Time
1, Time 2, Time 3, Time 4). Factorial ANOVA is useful when
examining how two or more grouping variables (in this case, state and
time period) predict a single, normally distributed continuous variable
such as the composite ICG-R score.
To facilitate quantitative analysis of the qualitative data, the
researcher coded event themes into categorical and ranked ordinal
variables (see Stage 5 above). Correlation and regression analyses of
select event themes and ICG-R scores were performed on these data.
Despite adherence to a fairly rigorous blind coding process, the coding
of the data was inherently subjective and was not independently
verified. Therefore, the preliminary quantitative findings should be
treated with caution due to undetermined reliability of the coding
process.
F. Sample Profile
The sample used in the qualitative and quantitative analyses
consisted of thirty-nine individuals who had a loved one murdered and
who had subsequently experienced the perpetrators’ trial and
conviction. Twenty individuals from Minnesota and nineteen from
Texas participated in this Study. Each participant was from a separate
legal case. Cases were split nearly equally between the four time
periods.”
The thirty-nine participants included in the analysis represented
forty-six victims, with most respondents losing one significant other,
195. Despite numerous attempts, the fortieth participant in the Study sample could not
be contacted. Consequently, the sample for Texas Time 4 is limited to four rather than five
homicide survivors.
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four respondents losing two significant others, and one respondent
losing three significant others. Of the thirty-nine participants, eighteen
reported continuing engagement with the murderer or the murderer’s
family either through the criminal justice system or through community
and familial relationships. These participants were divided equally
between states. In 38.5% of cases, the respondent knew the person who
committed the murder (n = 15), while in 61.5% of cases, the respondent
reported that the victim knew the person who committed the murder
(n = 24). Nearly 33% of cases were family violence cases (n = 12). The
time since the homicide ranged from 2.58 to 19.75 years, with a mean of
10.00 years (o = 4.5). The time since sentencing ranged from just over 1
year to 19.25 years, with a mean of 8.8 years (o = 4.9). Of the nineteen
Texas cases where the sentence was the death penalty, the sentence had
not been carried out in fifteen cases (78.9%) and had been in four
cases (21.1%). In cases where the death penalty sentence had been
carried out, the time since execution ranged from 1 to 6.5 years with a
mean of 3.98 years (o = 2.4). Table 1 below shows the counts and valid
percentages of case characteristics for the total sample and for each
state separately. This table shows that case characteristics are fairly
similar between Minnesota and Texas cases with two exceptions: (1) a
much higher proportion of Minnesota victims knew the person who
killed them, and (2) all of the multiple murders occurred in Texas.
Respondents were primarily female (n= 31, 79.5%), and the
majority reported mainly White/Caucasian (n= 31, 79.5%) or
Black/African-American (n = 4, 10.3%) racial/ethnic status. Although
age data was not gathered, data regarding year of birth was available,
and respondents reported years of birth between 1930 and 1979 with a
mean of 1953 (o = 12.6 years).'” Nearly half of the respondents were
married (n = 19, 48.7%), though a significant number were widowed
(n= 8, 20.5%) or divorced (n = 6, 15.4%). The remaining participants
were single (n = 4, 10.3%), separated (n = 1, 2.6%), or in a committed
relationship (n = 1, 2.6%). Regarding education, most respondents had
some college (n = 14, 35.9%) or had a high school degree or equivalent
(n= 8, 20.5%). Table 2 presents full respondent demographic data for
the whole sample broken down by state. Review of this table shows
that, again, Minnesota and Texas respondents were relatively similar
with two minor differing trends: (1) Texas respondents were slightly
196. An offender committed suicide in a Time 2 Texas case.
197. Participants’ ages averaged roughly 54 years, with a range of approximately 29
years to 78 years.
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more diverse racially/ethnically than Minnesota respondents, and (2)
Minnesota respondents showed a slight trend towards higher levels of
education.
Victims were split near equally by gender, with 56.5% female (n =
26) and 43.5% male (n = 20). In relation to the respondent, most of the
murder victims were parents or stepparents (n = 19). Of the remaining
victims, seven were siblings, seven were children or step-children, six
were spouses or partners, two were grandparents, and five were “other”
(which included aunts, mothers-in-law, and daughters-in-law). Table 3
below shows the distributions for relationship and victim gender for the
whole sample and by state. Review of this table shows that participants
from the two states were relatively comparable. Victim ages varied
considerably in this sample, with a range of four months to ninety-three
years. Texas victims showed a wider age range than did Minnesota
victims. Specifically, in Minnesota, victim ages ranged from eighteen to
sixty-one years with a mean of 38.4 (o = 13.6), while Texas victim ages
ranged considerably more, from four months to ninety-three years, with
a mean of 33.6 (o = 24.6).
198
TX. QUALITATIVE FINDINGS
Findings were divided into three categories: impact of the UPS on
the conviction experience in the criminal justice system; impact of the
UPS on the postconviction experience in the criminal justice system; and
impact of murder and the UPS on survivors’ lives.” Each category has
associated tables that consist of event themes and researcher-assigned
response ratings for each participant. Tables 4, 5, and 6 below show the
event themes for each of the three main categories, response options,
and percentage distribution for each option. Discussion of the tables
focuses on key differences between cases, time periods, and states, as
well as commonalities.
198. All quotations in this section come from Study participants and are on file with the
author Marilyn Peterson Armour. The participants were interviewed in a series of twenty-
eight interviews in 2008 and eleven interviews in 2010. Two of the Texas participants were
interviewed in their current state of residence—one in Florida and one in Tennessee. Quotes
from Study participants are written verbatim. They include the vernacular of the speaker and
may not be grammatically correct or precise in meaning.
199. See infra Appendix B. Tables 8a, 8b, 9a, 9b, 10a, 10b, and 10c show the event
themes for each category, rating scales, and the individual participant's response to each
theme by state and time.
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A. Category 1: Impact of the UPS on the Conviction Experience
The conviction experience refers to the initial trial in Minnesota and
the bifurcated trial in Texas (guilt-innocence phase and punishment
phase). It is both a ritualized social drama and communicative forum
that evokes deep emotion and contributes to collective sense-making.”
These legal proceedings, and the preparation for them, are the critical
justice juncture for survivors. Their attendance allows them to stand in
for the victim and to bear witness to justice. Besides scrutinizing the
defendant’s persona and conduct, survivors’ very presence, though
silent, is the fulfillment of their duty to hold the defendant personally
accountable for his monstrous act and their incalculable suffering.
Though bystanders to the main event, their real or mental relationships
with the prosecution and defense teams, as well as giving VIS, gives
them preferential access to and membership in this publically historic
event.
Table 4 below shows the event themes for Category 1. Event themes
include relationships with the court, specifically the prosecution team—
consisting of the prosecutor(s), investigators, and victim advocate—and
the defense team. In addition, event themes focus on procedures such
as giving input to the prosecution about the defendant’s sentence and
making victim-impact statements, as well as on occurrences during the
trial such as incidents with the murderer and interactions with the
defendant’s family.
1. Prosecution Team Contact
Prosecution team contact in preparation for, during, and after the
trial was evaluated on a 4-point scale ranging from 1 (none) to 4
(extensive). Most participants perceived that the prosecution team
consisted of the prosecutors, victim assistance coordinators, detectives,
sometimes the police, and even the judge. The Texas sample for all time
periods was consistently satisfied with the amount and quality of the
interaction they had with team members and had few, if any, complaints
about how they were treated. Participants’ comments focused either on
their interaction with the prosecutor, “He listened to everything about
what I said and told me everything I wanted to know,” or the
prosecutor’s performance,
200. See Jody Lyneé Madeira, Blood Relations: Collective Memory, Cultural Trauma,
and the Prosecution and Execution of Timothy McVeigh, 45 STUD. L., POL., & SOC’Y 75, 84-85
(Austin Sarat ed., 2008).
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[She] was better than anyone you see on TV. Best prosecutor
ever. She told us to just be patient and let her build the story, fill
in the missing puzzle pieces. She was telling us not to get upset
about the public defender. She did a really good job.
Minnesotans varied more with 25% of participants having minimal
contact throughout the process. The majority of these participants,
however, were peripheral to the main family members impacted by the
murder so it is not surprising that contact with the prosecution may have
been less frequent, if it occurred at all.
As shown in Figure 1, Time 1 in Texas stands out because, in
contrast to Minnesota and other time periods in Texas, all participants
had extensive contact with the prosecutorial team. Moreover, the tenor
of the contact was different from contact described by the Minnesota
participants. With one exception,” in Texas participants felt either
partnered with or protected by the prosecution who developed close,
personal ties with them. Prosecutors visited them in their homes, took
them to lunch, made sidebar comments to them during the trial, shared
inside information about the criminal justice system, and gave guidance
and direction to participants’ decisions. A participant described how
she became friends with several detectives who set her up with an
author who wanted to do a book on her case:
I was scared about that. Then I talked to them and they said,
“You know, she’s going to do the book anyway. Don’t you want
to be cast in a better light than these other people?” So I called
her and I said, “Okay, this is the deal. I will talk to you.” Well in
the course of that she and I have become friends .... She has
seen [the murderer] and interviewed him and it’s strange. I think
she gets pleasure from his discomfort too.
Another participant described the quality of the interaction she had
with prosecutors during a two-hour phone call:
They were talking about the fact that they’d like to go for the
death penalty. And I said to them [that] I wasn’t real
comfortable with the death penalty. But, yet I thought if anyone
deserved it he did. And I hadn’t been to the trial yet and I didn’t
know what all had happened. I said, “Well wouldn’t it be better
to shut him in a cage somewhere and leave him there without
parole?” [T]hey started telling me all the benefits to people in
201. In one case, a family member was being prosecuted for a familial homicide and the
participant had extensive—but negative—contact with the prosecution team.
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prison in the general public. They can get a college degree.
They get their teeth fixed at no charge. They get all this medical
coverage. I mean they get everything. I mean we provide them
with the best.... I’m sitting here going, “Oh my God!” So,
finally in conclusion after we talked about all of that and what
could and couldn’t happen and how strong we felt their case was,
I just in my heart said, “You know what? This guy doesn’t need
to be walking on this earth anymore.” And that’s when I told
them, “You go for the death penalty. Can you get it?” And they
said, “We feel like we can.”
Similarly, Time 1 Minnesotans relayed that the prosecution was
supportive, informative, and hard working. In speaking about one of
the prosecutors, a participant said,
She was very nice. She explained everything to us, what we don’t
know about. My sister doesn’t understand that much English
and she understood everything they were saying.... [They]
contacted me every time something happened or they were going
to do something. They’d ask me what we want and we’d always
say we wanted the death penalty.
Overall, for Time 1, relationships between homicide survivors and
prosecutorial team members in Minnesota seemed more formal and less
personal than those experienced by survivors in Texas.
2. Sanction Input
Input from homicide survivors into the decision about the
murderer’s punishment was rated from none (1) to a lot (3). With one
exception, participants in both states indicated that they generally had
no input (Texans during Time 1 reported they had a lot (60%) or some
(40%) input). In one instance, the father of a son who was killed pushed
on the district attorney saying, “Don’t disrespect my son. This guy
needs to die,” which resulted in his finding “a law [that] could be used
and followed. And they did it.” Input, however, did not necessarily
mean that participants got what they wanted. A participant whose son
had killed members of the family expressed that “[w]e argued
vehemently and effectively or at least passionately and I think argued
well that [the death penalty] wasn’t necessary in this case and nobody
wanted it. And to my knowledge there has never been a case where
both sides of the victims’ [family] asked the DA not to pursue the death
penalty and yet they did.”
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3. Input Satisfaction
Regardless of whether they had input into the decision making, most
of the participants, in both states for all time periods, felt satisfied with
the process. In Texas, some participants pointed out that they were
content that the decision was not in their hands: “I got the justice that I
so desired. I really did. I felt guilty about that too for a while, but then I
wasn’t the jury. I did not make the decision. The decision just
happened to fall where I wanted it to fall.” They might have felt
relieved when the murderer got the death penalty, but they did not want
to live with the responsibility for deciding someone’s life or death.
Moreover, some Texans felt their input was not relevant because if the
murderer met the prerequisites for the death penalty, he’d likely end up
on death row anyway: “I just assumed he’d get the death penalty
because he’d killed two people.”
In Minnesota, participants also seemed to feel that LWOP, or a life
sentence with no eligibility for parole for at least thirty years, was the
best a homicide survivor could get. In most instances, participants felt
that their preference for the death penalty carried no weight and they
best accept what was possible as “good enough.” A mother whose
daughter was killed by her former husband said,
At the time if we’d had the death sentence, I probably would
have been very happy that he would have gotten it. But like I
say, I don’t know. That wouldn’t have solved anything. I guess
just knowing he’s in jail for life. He can’t get out. He can’t enjoy
the privilege of saying when he’s gonna go to lunch or whatever.
I guess that’s [it]. I accept it. I don’t fight against it.
Many Minnesotans, however, were confused by the sentence and
expressed consternation at their discovery that “life” with parole is
sometimes merely thirty years. “I was surprised to find out he’d be
eligible for parole in twenty-seven years. I thought he’d just get life
without the possibility of parole. I didn’t think it was quite right.”
Along with expressing either their personal preference for the death
penalty or not understanding the sentencing rules, Minnesotans
generally expressed satisfaction that the murderer had gotten the
maximum sentence: “I left [the courtroom] with a sense of there really is
justice as much as can be given in Minnesota. It felt like as much justice
as Minnesota was going to allow had been accomplished.”
4. Defense Attorney’s Behavior
Participants’ reports of defense attorneys’ behavior during the trial
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ranged from negative (1) to positive (3). Most homicide survivors in
both states and for all time periods had either negative or neutral
reactions. In comparing the defense attorneys for the two offenders
who took her son’s life, a mother shared the criteria she used for seeing
one negatively and the other neutrally:
The [first] attorney made me very angry. I can remember
thinking he had a big round head. I wanted to take it off and roll
it down a bowling alley. And at the end [of the trial] he just did
all this, “Oh, he’s coming to Jesus thing.” I found him very
upsetting.... The other seemed like he was quite a decent
[man]. He did his job but he did it respectfully. He didn’t try to
tear [my son’s] character down. And he said after he came up [to
me],...“He’s guilty.” He believed [the murderer] was scum and
guilty... I guess I feel he was doing his job, but I don’t feel the
kind of animosity towards him that I do with the other one.
Because he didn’t play dirty.
Time 3 Texans were a slight exception to the general negative trend.
Except for one participant, homicide survivors made positive comments
about the defense of the murderer. Comments focused on the
competence of the defense attorneys and their sense of fairness: “They
were doing their best for a reason—because they wanted to be sure no
mistakes were made.”
5. Contact with the Defense Attorney
Contact with the defense attorney or others associated with the
defense attorney was either negative (1) or positive (3); no contact was
rated as neutral (2). As depicted in Figure 2, participants in Minnesota
rarely had interaction with defense attorneys. Those that did engage
with the defense felt positively about their brief interaction:
“Afterwards she talked to us and said, ‘I’m really sorry.” In response,
the homicide survivor praised her saying, “You know what. You really
did a great job for your client. You didn’t win, but you did everything
you had to do.” Similar encounters happened in Texas but more
frequently. Indeed, 32% of the sample had positive contact with the
defense. Contact included asking a homicide survivor if a defense team
member could send her a condolence card, acknowledging the homicide
survivor every day in court, apologizing for representing the defendant
because “he had to be represented by the state,” or making comments
that indicated an empathic identification with the participant. Contact
sometimes happened between a participant and a member of the
defense attorney’s family. In one instance, the defense attorney and his
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wife came to the cemetery. The wife followed the homicide survivor
into the bathroom at the trial to express her sorrow for the loss, and
after the trial was over, told the survivor she was in their prayers. In
another instance, the defense attorney’s parents sat with the
participant’s parents during the trial.
Participants attached various meanings to these contacts.
Sometimes the outreach was taken as an expression of kindness:
I didn’t feel, “Oh, they’re all against me.” It felt nice. I think she
felt sympathy. She was African-American as was the defendant
and I’m different.” I think she knew that I was in pain.... I
think it helped me that saying hello to me. Just to feel, “Okay.
Wait a minute. She knows who I am. She knows there is a
victim involved.”
In some instances, interactions were interpreted as telling the homicide
survivor that the defense was really on the participant’s side: “I think it
says, ‘We’re on your side.’ I think that is basically what is said, ‘I’m on
your side but I gotta give this man a defense.” Participants also
construed defense attorneys’ comments to be indicators of their
humanity. A participant whose baby had been killed shared that the
[defense said it was hard for him to defend [the murderer]
because he saw my baby’s high chair in the courtroom and it
made him think about his baby. ... It showed he had feelings
and emotions too.... He’s thinking, “What if the same thing
happened to one of [my] kids?”
Participants who had positive contact with defense-related
individuals tended to make neutral or even positive comments about
their performance. One homicide survivor remarked that “[w]hen they
came up and apologized, I felt a little better, and felt like saying ‘Well,
you know they’re just doing their job and this is what they have to do.’”
Another person commented that “[s]he did a very good job defending
him and really did try to give him life instead of the death penalty.”
6. VIS/Testimony
The majority of participants in both states gave victim-impact
testimony or made statements after sentencing was completed. Some of
the participants from Time 4 who did not give statements indicated that
the practice of making them was not standardized at the time their
202. Referring to the fact that she is not being a person of color.
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offender’s case was adjudicated. Others could not remember if they
made statements or not. Several participants decided not to make
statements because of their feelings, at the time, toward the murderer.
One person said, “I didn’t want to waste my breath on him.” Another
person claimed, “It wouldn’t have fazed him. I didn’t want to give him
any more of me.”
7. Satisfaction with Giving VIS
Participants’ levels of satisfaction with giving VIS ranged from
unsatisfied (1) to satisfied (3). If participants reported that they gave
their VIS without emotion, they were rated as neutral (2). Most
homicide survivors in Minnesota and Texas were satisfied with what
they said or how they said it. In relating what happened, most
participants would comment on preparing the statement, what they said,
how the murderer responded, how they felt giving the VIS, and what
they felt having done it. Writing the statement often took time and, for
some, was as important as giving it in court. One participant remarked,
“Over the year [before the trial] I must have wrote that thing ten times
and tore it up and started over. It’s like, ‘Oh, I forgot this part’ or ‘Oh, I
forgot that part.’” Many homicide survivors were surprised at the
intensity of their emotions when they gave their statement: “I broke
down. I couldn’t stop it. I found myself shouting and he [the murderer]
tried to stare me down. I had my speech all ready and I never got to say
a word of it because it left my mind completely.” Participants took close
note of how the murderer responded. Often the murderer seemed
indifferent to them: “He would not look at me which meant he just
didn’t care what he did, emotionless. Nothing that I said reached him.”
When the murderer did respond, participants felt they had made an
impact: “[It had] a huge impact cause I made him cry. It gave me hope
that somehow he learned something from what happened....” Some,
however, reminded themselves that having an impact did not necessarily
mean much: “I got to give my VIS to him and he was shaking and he
was crying and I was like, ‘Whatever.’”
8. Trial Disruption by Murderer
Participants in both states reported that the murderers’ behaviors in
court were upsetting to them.” Sometimes the behaviors were
203. In Texas, 39% (n= 7) of participants reported disruption by the murderer. In
Minnesota, 46% (n= 7) reported disruption. Percentages are based on total cases that
provided information about behaviors of the murderer, the murderer’s family during the trial,
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nonverbal but held significance in the eyes of the family member:
He looked at me when he got upset in court one day and they
ushered him out. He glared at me and his eyes were so black it
was like looking into the pits of hell. I’ve never seen anybody’s
eyes look like that, but I didn’t waver and then they moved me
one row back.
Other times, what the murderer said or did was more explicit. A mother
talked about the lasting impact of the murderer’s response after
receiving the death sentence:
[T]hey brought him down the aisle... of course, I was crying.
My mother was crying. Everybody else was crying. Because
thank God. [H]e’s going to be put behind bars. Well he decides
to yell out. “This ain’t over yet.” [T]hat boy was looking at us
like the devil himself. “It’s not over yet. It’s not over yet.” He
just kept telling us, “this is not over yet.” We took it like he
wasn’t finished with us, like a threat.
The mother later explained that she fears for her son’s life because her
husband’s and the murderer’s families are from the same small town and
know each other: “I hear those words over and over and over.” For
some participants, even the murderer’s neutral appearance was
disturbing:
He behaved really good in court. He don’t say a word.... He
was just being innocent like nothing happened.... That
affected us because we know in his mind, he’s the one guilty of
what he did and still sitting there pretending like nothing
happened.
9. Contact with the Murderer’s Family
Interactions with the murderer’s family at the trial were rated from
negative (1) to positive (3). A neutral response (2) meant that the
family was referenced but only descriptively and that the participant did
not indicate that their presence or absence made any difference to their
emotional well-being. For example, “[The murderer] had nobody there.
He had some little bimbo that showed up, not his wife. And sat in the
back row with leather and chains and she was there a couple of days.
But there was never anybody else.”
or both. This information was not volunteered during two of the interviews with participants
in Texas and seven cases in Minnesota.
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Negative interactions were initiated by both the homicide survivor
participants and their family members as well as members of the
murderer’s family. Negative interactions directed at participants
included the murderer’s family making comments about needing to “get
over it” or “needing to forgive the murderer”; cussing at homicide
survivors in the elevator at the courthouse; making threatening
comments and stalking homicide survivors outside the courthouse;
giving them the finger in the courtroom; etc. Similarly, some family
members of the person who had been murdered also had difficulty
containing their feelings and reactions. A participant stared so
relentlessly at the murderer that the murderer asked his attorney to
intervene. In another instance, a participant jumped at the murderer as
he passed by him. A father described how a bailiff stopped him from
acting on his impulse to kill the murderer:
I looked around and saw where the bailiffs were. There wasn’t
one who could stop me before I got there. Just smash his face
into that table, pull him up, and rip his Adam’s apple out. And I
looked around and this bailiff looked at me ... and shook his
head. And he said at the break, “I watched you light up. Your
body tensed. Your eyes got real wide open ... I saw your
muscles just start. I know what you were thinking and I would
have had to shoot ya. I don’t think I could have stopped you
from getting to him.”
Interactions between the participant and murderer’s families were
not always hostile. A participant described the significance of the
connection made between her daughter and the sister of the murderer:
My daughter had told me, “Mom I went to school with his
sister.” We were out in the hallway (outside the courtroom) and
his sister told me. She said, “Ms. Bullingham,™ I am so sorry.” I
said, “Baby it’s not your fault. You’re not accountable for him
... it’s him.” It made a lot of difference. It meant a lot to me
that she apologized and that she and my daughter were close at
the end, that she and my daughter were hugging each other,
together.
Positive contacts between family members of the homicide victim and
the murderer’s family were usually initiated by the victim’s family:
I walked up to his father [as] we were leaving and I said, “I’m
204, Names have been replaced by pseudonyms and any identifying references to places
have been redacted.
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really sorry for you and your family cause I know this has got to
be devastating.” And he looked at me and I could tell by the
way he was looking at me that he wanted to tell me he was sorry.
But he was afraid to, because it would be like he was owning up
to it. But I wanted him to know that I was sorry for him. I told
him, “I know what you’re going through.” Because he’s a
parent. I know what I’ve gone through with my daughter.
These kinds of exchanges were more frequent in Texas and reported by
slightly over 20% (n = 4) of participants. Information about interactions
with the murderer’s family during the trial was not given by 40% (n = 8)
of Minnesotans. Some of the murders, however, were familial
homicides, and negative interaction between these family members
occurred in other contexts.
10. Satisfaction with the Criminal Justice System
There were 65% of Minnesotans (n = 13) who were very satisfied or
satisfied with the criminal justice system compared to 42% of Texans
(n = 8). Moreover, as indicated in Figure 3, 53% of Texans were very
dissatisfied, dissatisfied, or somewhat satisfied compared to only 20% of
Minnesotans. Higher levels of satisfaction were associated with the
outcome of the case or the effort people in the system expended in
bringing the murderer to justice. A participant concluded, for example,
“Based off what laws we have and the limitations they did everything
they could. They did a fabulous job.” Another participant echoed the
same sentiment: “We were happy with it because we figure we got an
outcome. He didn’t get away with it.... I’ve got probably more faith in
the justice system. I guess because of the way we were treated and the
lengths they went, to prove [the case].”
In Texas, lower levels of satisfaction were associated with general
comments about the convictions of innocent people and quality of
performance. A woman explained, for example, “[H]ere lately there
have been cases especially here in Monteray where people have been
exonerated after years of being penalized. How could that have
happened? Somebody didn’t do their job.” Other participants based
their assessments on their direct experience: “The judge during the trial
is fixing to go on vacation after the trial. He’s flipping through a
freaking magazine for his vacation. You could see him doing it. So, ’'m
still at the point where I ain’t got no faith in the system at all.” Some
participants included the police and detectives in making their
evaluations. A daughter commented on the fact that apprehending the
murderer was due to involvement from the local city’s Pakistani
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community:
The Pakistani community really came forward and put pressure
on the city. They had a rally downtown. They asked us to come.
We came, we went. They caught the guy that same week ....
The politics helped find the criminal and I’m happy it came in
one year. But, I’m unhappy that it’s still dragging, that he gets so
much appeal process.
In Minnesota, lower levels of satisfaction were clustered in Time 4
and were associated with disappointment in the case outcome or
interactions with the police. In one instance, for example, the
participant wanted the death penalty. This participant was upset
because the murderer’s wife was alleged to be involved but was never
charged. This participant also worried about the murderer’s release
after his thirty-year sentence. Because the participant feared
retribution, she relentlessly pondered what she might do to delay the
murderer’s parole. In another instance, a father was irate because right
after he was allowed back into his home following his daughter’s
murder, an argument with the next-door neighbor ensued. The police,
based on the neighbor’s report, came in droves to his home, handcuffed
him, and threw him on the ground: “They supported this moron next
door to me and I hated the ... police. I still do. That’s one of the
reasons I left from [there]. Couldn’t stand the place.”
11. Category 1 Summary
Event themes specific to the impact of the UPS on participants
during the conviction process in the criminal justice system point to key
players in the minds and memories of participants—criminal justice
representatives, the defense attorney, the murderer and his family, and
the homicide survivor’s position and power. Findings indicate little
difference between Texas and Minnesota participants, except at
particular points in time including: extensive engagement with the
prosecutorial team in Texas during Time 1; positive reactions to the
defense attorney in Texas during Time 3; more instances of positive
contact in Texas between participants with defense team members or
their families; and more instances of positive contact in Texas between
participants and members of the murderer’s family. Although the
numbers are small, it appears that there may be some subtle differences
between the two states in the quality of the interaction between
participants and key players during the conviction process. For
example, Texas participants’ descriptions of engagement with the
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prosecutorial team during Time 1 is marked by less rigid boundaries;
stronger and more frequent expression by the prosecutorial team of
personal feelings and attitudes toward the murderer, what he did, and
what he deserves; and more explicit commitment to the homicide
survivor and personal involvement even to the point of friendship. By
contrast, descriptions by Minnesota participants of their interactions
with the prosecutorial team suggest that team members, though
sensitive and empathic, are less revealing of their private responses and
have limited personal engagement with homicide survivors, thereby
making most visible behaviors reflective of their official role.
A similar trend is evident in the quality of the interactions between
participants and the defense team. In Texas, nearly 32% of the
participants reported that the defense team members or relatives of
defense team members felt compelled to express their condolences to
homicide survivors for their loss or lend them support during the trial.
These exchanges went beyond what was expected; were evaluated as
authentic by participants; and clearly helped survivors to feel
acknowledged, valued, and appreciated. Texas participants’ receptivity
to these interactions may be due to their perceptions of the defense
attorney’s ambiguous commitment to representing the murderer. That
ambiguity may relate to the fact that Texas, in contrast to Minnesota
and many other states, depends on a rotation system of court appointed
defense attorneys in capital cases—pulling from attorneys who arguably
have limited experience in capital murder defenses.”” Based on that
reality, Texas participants tended to reason that the outreach they
experienced was actually a way for the defense to convey that their
empathy was with the homicide survivor and that representing the
murderer was only a job. In contrast, Minnesota participants rarely had
interaction or positive engagement with the defense team,” who are not
205. See 2001 Tex. Gen. Laws 1800-01, 1803-07. Minnesota uses a well-established
public defender system to represent defendants in capital cases. See 1981 Minn. Laws 1982.
206. The contrast between the two states in how defense attorneys or their family
members engage with survivors might be explained by how much defense attorneys identify
with their role, which is to represent the defendant. In Texas, many, if not most, defense
attorneys are in private practice, serve the indigent on a rotation or “wheel” system, and are
appointed by a judge. See 2001 Tex. Gen. Laws 1800-01, 1803. Under the Texas Fair
Defense Act passed in 2001, defense attorneys’ representations of the defendant in a capital
case, though credible, may be somewhat “involuntary” and more of a service. Id. In
Minnesota, defense attorneys are part of the public defender system. See 1981 Minn. Laws
1982. These attorneys may view their representation of the indigent as a “calling” rather than
ajob. Although speculative, this difference in professional identification could influence how
a defense attorney perceives and interacts with victim-survivors in the courtroom.
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on a rotation system. In that vacuum, the feelings participants
expressed toward the defense were based on the conversations they had
with them in their minds and consisted primarily of negative reactions
about how the defense maligned the victim, kept participants out of the
trial courtroom, among others.
These state-identified differences in engagement emerge again in
some of the interactions between participants and members of the
murderer’s family. Although 33% of the participants in both states had
negative contact with the murderer’s family during the trial, the majority
of Minnesotans made no reference to these individuals, which suggests
they were not present physically at the trial or psychologically in the
minds of participants. For Texans, the relationship with the murderer’s
family may be more evident as shown by the fact that 33% of them
made neutral comments and 25% had empathic exchanges initiated by
the participants themselves.
Together, these contrasts suggest a state-based differentiation in
how participants experience some aspects of the conviction process and
in how they and other key players engage during that time. It is possible
that in Texas the recognition some participants felt from the
prosecution, the support they experienced from the defense team, and
the compassion they expressed directly to members of the murderer’s
family reflect feeling a part of the system as well as empowered by the
quality of attention they receive from people in authority. This sense of
involvement and association with the system was also evident in the
criticisms made by Texas participants about their criminal justice
system. Rather than focus on their personal case outcome as the basis
for their assessment, Texans critiqued the criminal justice system as if it
were accountable to them as state citizens with decidedly vested
interests given their status as homicide survivors.
B. Category 2: Impact of the UPS on the Postconviction Experience
After the initial trial and sentencing, survivors enter a no-man’s land.
They have no role other than to wait for the culmination of the legal
proceedings and the enactment of the sentence, whether life
imprisonment or execution. For many, the unknowing outcome of the
murderer’s continued existence is an ongoing reminder of the injustice
they have to bear. Without finality, there is no resolution of the trauma.
Though rarely acknowledged, this involuntary and subjectively created
relationship is taken as real and survivors feel they know the murderer,
whether or not they actually do. Survivors have scores of unanswered
questions and actively fantasize about the murderer’s life and feelings,
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or lack thereof. In Texas, survivors frequently rehearse the upcoming
execution, debate whether or not they will attend, and consider what it
will be like and whether the murderer will do or say something that tips
the emotional scale.
Table 5 below shows the event themes for Category 2. Besides the
emphasis on the appeals and how participants felt about the process,
event themes include civil actions initiated during the postconviction
period. As well, event themes focus on the relationship with the
murderer and consist of participants’ attitudes and desires for his
suffering and remorse as well as their remaining questions. In Texas,
this phase also includes the execution process.
1. Civil Actions
Many participants considered the possibility of civil suits to redress
some of the injustices associated with the murder. Less than 5% of
Texans, however, implemented such actions. As shown in Figure 4, the
Minnesota sample was more active, particularly during Time 2 when
80% of participants brought lawsuits. Although most of the actions filed
were for monies from insurance companies and contested estates or
from wrongful death suits, the most substantive motivation was to right
the wrongs participants had endured due to the loss of their loved ones.
Part of rebalancing the ledger of justice was to correct
manifestations of unfairness that accompanied or were the consequence
of the murder. A daughter whose father was ambushed and shot by a
neighbor sued the murderer for his assets. She explained the injustice
and her decision to take legal action saying:
Why should he be able to take care of his kids now and we don’t
have our dad to help us? His kids love him now. And my dad
didn’t have a chance to help us do anything or be there for my
son to take on vacation or do things with. So I always felt
cheated. So, we sued him.
Sometimes survivors filed wrongful death suits against others who
were responsible for the conditions that led to the murder. Survivors
explained these suits as tools they could use to ensure inclusion of the
significant players in their efforts to achieve a stronger sense of
accountability and recompense for the injustice they and their loved
ones had suffered. In one case, survivors sued a group home because of
their failure to appropriately manage the violent behavior and
whereabouts of the adolescent boy who killed their daughter after he
broke curfew. In another case, after a domestic homicide, the parents
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(who were raising the children of their murdered daughter) filed suit
against the Internal Revenue Service (IRS) because when the IRS agent
was interviewing their daughter’s ex-husband (regarding his fraudulent
tax statements), the agent left the room briefly and left the case file
open on the table. This blunder gave the husband the chance to look at
the report and to see that his ex-wife had turned him in to the IRS.
Shortly thereafter, he murdered her. Although the out-of-court
settlement provided monies to pay for the children’s college and dental
work, the victim’s mother talked about how this action shifted some
emotional baggage associated with the injustice of her daughter’s
murder: “I felt vindicated, kind of, cause I felt it was their fault ... I
proved my point... and after that we could get on with our life.”
Many, if not most, of the participants who brought legal actions
described what happened and what they did about it with a greater
sense of righteous anger than they expressed about going through the
criminal trial. The intensity of the anger seemed related to their
recognition that their loved one’s death could have been prevented if
others had not made such grievous errors or had been more
conscientious. It was also related to the fact that, on top of losing their
loved one, survivors had to endure situations where the murderer, or
others who were undeserving, gained while they lost.
2. The Appeals Process and Survivors’ Reactions
The movement of a case through the appeals process was assigned a
rating of stuck, moving, or completed. Figure 5 shows that, in
Minnesota, 90% of twenty-one cases pled or had completed the appeals
process. The remaining 10% were moving through the process
unimpeded. Minnesotans’ reactions to the process by case were rated as
satisfied (48%), neutral (10%), or dissatisfied (10%). The rating of
neutral was used if the appeals process was acknowledged but no
emotional response was given. Information on reactions was not
available for 33% of cases because the cases had pled out or participants
made no reference to the appeals process itself.
For most participants, the murderer’s automatic direct appeal to the
Minnesota Supreme Court was concluded within two years after
conviction and sentencing. Only one murderer received a second trial
that reduced his sentence, which he is now appealing. In this case, the
appeals process has lasted eight years. The survivor had a hard time
reconciling the loss after having achieved the maximum sentence:
The first time around ... I left with a sense of there is justice as
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much as can be given in Minnesota.... The second trial
completely tore that to shreds. I don’t believe in it anymore. It’s
kind of like they gave us this and then they just kicked us in the
gut and threw us off the curb.
All other cases were moving through or had completed the automatic
appeals process without incident. With one exception, survivors whose
case convictions and sentences were upheld by the Minnesota Supreme
Court indicated satisfaction with the process. Indeed, most of the
satisfied survivors expressed only mild apprehension over a possible
change in the outcome. A mother whose daughter was killed reported,
There’s an automatic appeal on first-degree murder and ... I
worry about that. They did have a couple of minor things that
they said were not handled properly, but not enough to overturn
the verdict ... the minor things they did bring up were things
that I wouldn’t have even thought of.
The relative insignificance of the appeal outcome is arguably manifest in
the responses of half of the survivors during Time 3 and Time 4 who did
not even mention the appeals process.
A very different picture emerged in Texas, where the appeals
process involves a number of different state and federal proceedings.
During Time 1 and Time 2, 70% of cases were moving through the
process unimpeded. However, one case was stuck because of the
possibility that the murderer might be found mentally retarded and,
therefore, ineligible for the death penalty.”” The other two cases were
rated as completed, based on the fact that one murderer elected to forgo
his appeals and had been executed, and the other committed suicide in
prison. During Time 3 and Time 4, all cases still in the appeals process
(n = 6) were stuck because the murderer was appealing based either on
the argument that he was mentally retarded or the contention that the
murderer was a Mexican national and was tried in the U.S. without his
being informed of his consular rights and without having notification to
the Mexican consulate of his situation. The appeals for the remaining
cases (n = 3) were completed and the murderers had been executed.
Differences in state reactions to the appeals process are shown in
Figure 6a and Figure 6b. Texans’ reactions to the appeals process were
rated as follows: 11% were satisfied, 53% were worried, and 37% were
207. In Atkins v. Virginia, the Supreme Court held that the execution of mentally
retarded criminals violated the Eighth Amendment’s prohibition on cruel and unusual
punishment. 536 U.S. 304, 321 (2002).
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nonapprehensive."* The two participants who were satisfied with the
process had a shortened experience as noted above. Two participants
were dissatisfied. In one of those situations, the participant’s son had
murdered family members, and the son was his only remaining relative.
The survivor was hopeful that future appeals might be successful, but he
was nevertheless dissatisfied with the sentence and outcome of the
appeals already heard.
About a third of Texas participants were nonapprehensive about the
appeals process. Those who were nonapprehensive during Time 1 and
Time 2 considered the process to be moving smoothly through its
various stages. Those who were nonapprehensive during Time 3 and
Time 4 were participants in cases where the murderer had been
executed, and they were describing the appeals process retrospectively:
I wasn’t worried if they were going to get out or anything like
that. I was being informed ... whenever an appeal came up...
that they were going for this, but most likely they were going to
be denied.... And they were denied. Every one of them was
denied.
Specifically, over half of Texas participants, however, were mildly to
exceedingly worried about the future. In cases that were successfully
proceeding without delay, participants voiced concerns that the offender
might get off due to a finding of mental retardation, only having
circumstantial evidence, or the possibility that someone other than the
person convicted might actually have been the responsible party.
Although these concerns had some validity, participants principally
worried that the victory gained in obtaining the death penalty might be
lost if certain circumstances invalidated their win.
In cases that were stuck, participants voiced extreme apprehension
and fear about the unpredictability and possible outcome of the appeals
process. Moreover, because the case was stuck, some participants had
endured unbearable circumstances. For example, in a twelve-year-old
case, a murderer received a stay of execution, which the family learned
about as they were within an hour of arriving at the prison for the
execution. The case has been suspended since 2006 because the judge in
the most recent appeal has not rendered a judgment so that the case can
move forward. The participant and his wife are elderly and desperate
for a decision regardless of its direction:
208. Percentages do not add up to 100% because of rounding.
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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 be it. Render that
decision.
In another case, the lengthy appeals process plus the delay caused
first by waiting for a hearing to determine the offender’s mental status
and now by the murderer’s successful claim that he was not adequately
represented by the psychologist and deserves yet another hearing has in
some ways imprisoned the family. In this situation, a mother whose
mother-in-law and young daughter were murdered had since had three
children who knew nothing about their sister’s death. The mother kept
the three children close to her at all times, fearful that something might
happen to them. Moreover, the mother never visited the community
her husband was from because her husband knew the offender’s family;
consequently, she was fearful that the offender’s family would seek
retribution once the murderer was executed. She was most concerned
that with the new hearing there would be media coverage and her
children might find out what happened:
T have to protect my children. Because I don’t want anybody at
my doorstep, my school where my kids go . . . the media going to
the schools, just to take a picture of my children. If anything
happens the first thing we’re gonna do is get the kids. We have
to have them in one place. I feel like everybody is going to have
to go into seclusion.
The mother went on to describe the intensity of her aggravation with the
system:
We haven’t had a sense of justice. I feel like my life is on hold
because it just hasn’t been carried out.... When is it gonna be
over? ...[T]here are other murders that happened in 1995 that
they have already been put to death. And ours is still lingering?
Why aren’t things moving on? Why is everything at a standstill?
Why are we, cause my children don’t even know. And I’m
thinking, “How am I going to?”
As shown in Figure 6a, the majority of Texans who were worried
about the appeals process were from Times 3 and 4, where cases were
stuck in the appeals process. Participants’ stories about their appeals
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varied little except that Time 4 Texans’ stories seemed more despairing.
Participants from both time periods tended to agonize over how long
the process took and having limited to no communication about the
legal proceedings. In some instances, they voiced fear and a reluctance
to contact officials about the length of time or what was happening in
the process. This ambivalence over knowing was accompanied by
comments about not being sure what was believable or who to believe:
Now it’s just waiting. I get frustrated at that. In my mind there’s
a possibility he might be set free if they’ve lost the evidence.
[Prosecutor] Joe Michales says, “Oh no, they won’t do the whole
trial. They do pieces.” I don’t trust him because they haven’t
told me the same story as the D.A.’s office.
Survivors were frustrated watching other cases go through the system
that were not as old as theirs. They reassured themselves about the
future in a variety of ways, including turning the outcome over to God
or reminding others that if the murderer did not get the death penalty
and ended up in the general inmate population, other inmates would
undoubtedly torture or kill him.
3. Relationship with the Murderer
Although there are few direct encounters between participants and
the person who killed their loved one, participants mentally engaged
with the murderer to varying degrees. The range of engagement was
rated as none, minimal, or more extensive. Conversations with oneself
focused on the injustice of what the murderer did, questions about how
the murderer could have done it, imaginings about the murderer’s life in
prison, memories of events during the trial, following what is posted on
the murderer’s web pages, etc. There were few differences between the
states, except for the fact that 30% of Minnesotans had no actual or
mental relationship with the murderer compared to 5% of Texans. No
mental relationship refers to participant efforts that included conscious
decisions not to think about the murderer, the lack of reference to the
murderer by name or inability to remember the murderer’s name, or
commentary that suggested that the murderer was completely irrelevant
to the survivor’s life: “He’s in Oak Park Heights. I rarely think about
him. I just don’t.” Minnesotans with no relationship to the murderer
were generally from Times 3 and 4.
In both Minnesota (45%) and Texas (47%), participants had more
extensive direct or mental involvement because of some actual
association with the murderer. This is due to the fact that the murder
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was a domestic fatality and there were enduring relationships between
family members; new hearings where both the survivor and murderer
were present; or ongoing community ties between the families of the
murderer and the survivor. In Minnesota, some of these relationships
involved actual meetings between the survivor and murderer in prison.
4. Attitude Toward the Murderer
In Texas, 79% of participants held negative attitudes toward the
murderer, compared to 57% of participants in Minnesota. Although
these attitudes occurred in every time period, they were most evident
during Time 2. Although negative attitudes usually referred to
participants’ feelings of anger, rage, and vengeance, participants’
comments also indicated that many survivors were struggling to resolve
these emotions or move beyond them. The tenor of negative feelings,
however, remained constant even when individuals and groups were
compared across the four time periods.
In some instances, participants focused on the intensity of their
dislike and hatred of the murderer: “I hate those guys beyond belief.
And even now when I see boys that kind of look like them, I want to go
up and punch them. And I can’t help that. I just feel so much rage
inside. Because of what they did to my brother.” Participants also
expressed their feelings by noting that the murderer deserved the life he
was living now. When describing the prison conditions, a survivor
noted,
[H]e’s living like a freaking animal, like he ought to be. He’s not
being coddled. When I said something [to a guard] about his
parents being able to hug him, he says, “His parents will never be
able to touch him until we kill him.” And that’s the way [the
guard] put it. And I don’t mind telling you that made me feel
good. Because I can’t touch my son. And the last time I touched
my son, he’s dead.
Negative attitudes seemed to increase when participants reminded
themselves that prison conditions were not as bad as they believed
should be for the murderer. A survivor from another country
commented,
He’s living a happy life in there. Because we were told that he
was going to be in a room, have TV, a toilet, everything in the
room . [In our country] he don’t have to have food every
day. Like one meal a day, don’t even have bed to sleep. Two,
three times in the night they give you a bucket of water so you
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are in the cold all the time. Over here they have everything,
comfort.
Participants got some satisfaction recounting stories about what
happened to the murderer in prison: “When he was stabbed by the other
prisoners, I felt good because I thought that they were doing it for us
because of what he had done to our baby. I felt good and I’m not going
to deny that. That was justice.” Besides revenge, however, participants
struggled with their negative reactions in an effort to find resolution or
peace. A mother described wrestling with conflicting reactions to the
murderer:
The last time I saw him he just looked like a normal person.
And I didn’t feel like when I saw him at the trial [where] I just
saw the devil...taking that picture away from my mind, I
probably could have said, “Maybe I could forgive him.” But
then I see another vision. I see the paper. I see [other things].
There’s no way. I can’t, I cannot forgive. I will not forgive
because he took everything, everything that ever meant anything
to me.
Not all participants had such volatile reactions. There were 38% of
Minnesotans and 21% of Texans that had neutral or even positive
attitudes toward the murderer. After learning that the murderer could
not sleep because he was having nightmares that her deceased father
was sitting at the edge of his bed watching him, a daughter remarked,
There is something [in that story] that humanized [the murderer]
in a way nothing else had.... It means my Dad has moved on.
My Dad always tried to pull the best out of people. He’s trying
to pull the best out of [the murderer] at this point. [The
murderer] hasn’t got a lot of life left. He’s an old man. I can see
my Dad reaching. ... [So now] it was more about [the murderer]
as a person than as a perpetrator.
5. The Murderer’s Suffering and Remorse
Interspersed with survivors’ attitudes toward the murderer were
comments about their desires that the murderer suffer and that the
murderer feel remorse for what he had done. The concept of suffering
for the pain the murderer has inflicted on others, or feeling remorse for
that pain, is likely related to participants’ efforts to find some way to
resolve the injustice either through the murderer’s suffering as the
victim did or through the murderer’s recognition, deep sorrow, and
torment associated with having to forever bear the responsibility for
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taking life away from another person.
Approximately half of the participants in both states indicated a
desire that the murderer suffer profoundly for what he or she had done.
In Texas, 47% of survivors made statements like: “It makes me feel
good that he is suffering, I don’t want to be the only one suffering.”
They also felt that suffering was a way to help the murderer realize what
he had done: “I just want him to linger on there until it’s his time. That
way he can have a lot of time to think about it.” For some Texans,
suffering indicated that the murderer was, in fact, being punished. A
survivor compared a murderer’s current suffering to his being executed:
The way they do it now, they just put them to sleep. That ain’t
cruel to me ... he’s getting a better death than he gave my
daughter.... I’ve been told that he don’t like being [at the
prison] where he’s at. He’s being punished right where he’s at
now.
In Minnesota, 50% of survivors made similar comments. A survivor
whose little sister was raped and murdered offered additional insight by
invoking a racial stereotype as part of her fantasy about the murderer’s
suffering and how it could help even the score: “Some big black dude
would find him and use him as a little girl toy. That would give me a
sense of delight because he could suffer the way she had to suffer.”
As depicted in Figure 7, the states showed some difference in the
percentage of participants who expressed a need to know if the
murderer was remorseful for what he or she had done. In Texas, 32% of
survivors indicated that the murderer’s remorse was important to their
healing, compared to 50% of survivors in Minnesota. Moreover, none
of the Texas participants in Time 1 made reference to the murderer’s
remorse or their need for it.
For survivors, the concept of remorse had a number of dimensions.
For example, some survivors felt strongly that even if the murderer was
remorseful, they either would not believe it or it would make no
difference because the opportunity for it mattering passed long ago: “It
would do nothing for me whatsoever .... I would doubt it was sincere.
Because I heard about his behavior in jail. How he bragged about [what
he did].” Other participants felt that they might feel differently toward
the murderer if he was truly remorseful because being remorseful would
mean that the murderer had learned something or had realized he did
wrong, or it might even mean that what he did was not intentional.
Some participants were interested in doing a face-to-face dialogue in
prison with the murderer. However, they were waiting because an
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apology or sense of remorse was a prerequisite. A woman whose father
was killed by his friend explained: “I’m wanting to meet with him and
I’m hoping and I hadn’t even said this out loud, that he would have
some remorse.” Another participant decided to meet with the murderer
after he had expressed some remorse in his testimony against a
codefendant:
I guess we want to talk to him to see if what we believe is
remorse is really remorse. Is he really feeling this? ... You
know people say you forgive somebody. I know for a fact I
never will.... He definitely needs to be responsible and
acknowledge his part in what happened. I guess I want that.
And I think if he does that, if they let him out well . . . there’s less
chance that he’s going to land back in some prison again. That’s
what I hope.
Besides seeing the murderer differently, some participants expressed
that the murderer’s remorse could aid their own healing:
Knowing that he has remorse could be different ... that the
person actually felt remorse would get to a next level. You’re
never going to have complete closure, but it would be a step that
would give you back a little of the hate that’s there. I’ve got all
this hate and I don’t want to hate people. I’m not that way, but
T'll never forgive him. I'll probably always dislike but I'd like to
get rid of some of that [hate].
6. Opinion About the Ultimate Penal Sanction
Participants’ attitudes about the UPS centered on the issue of time,
regardless of their state affiliation. Texans were principally concerned
with the amount of time it took to get from being sentenced to death to
when the murderer would be executed. Minnesotans were principally
concerned that the concept of “life without parole” was confusing, and
in many cases, meant only thirty years before the murderer would be
eligible for parole.
As Figure 8 shows, in Texas, 37% of participants felt positive about
the murderer receiving the death penalty. Most of these survivors, for
various reasons, were okay with the length of time it took. A survivor,
for example, calculated that the murderer’s execution and her plan to
witness it would likely happen when her children were old enough to
leave with a housekeeper: “It’s much better than if we went a year ago
even or two years ago or ... when I was pregnant or just having babies
and all that. So whenever it’s time to go to hell is when he’s gonna go to
hell.” Others felt that the murderer’s lengthy suffering prior to being
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executed was an important part of the death penalty punishment:
I don’t want it to be an immediate death for him. I’d like him to
at least be on death row for at least five to ten years and then...
stay in solitary confinement all the time, no interaction with
people whatsoever because he’s the type of person that
flourishes in prison.
In two instances where the murderer had already been executed and
survivors had a positive response, neither mentioned difficulties with the
prolonged wait. A participant shared that “we could start working on
putting our life back together and trying to figure out what’s normal.”
An additional 37% were more ambivalent or neutral about the death
penalty, in part, because of the time factor: “[The prosecutor] told us
they changed all those rules and now it only took eight years to get to
the execution and the appeals went real fast and all that. And here
fourteen years later it’s sitting.” A survivor described his feelings after
waiting seventeen years for the murderer’s death:
I’m just right on the border. I think it’s what he deserves. I
think it’s a bad thing but I don’t think it’s justice if he doesn’t get
executed. So it’s almost as though I really don’t care but I know
it’s gotta be done. It really has to be done.
Only 11% of survivors were negative about the death penalty. In
one instance, the participant who had witnessed the execution was very
disappointed by the results:
TI guess I was looking for some kind of pain, not so much pain. I
was looking for him to at least turn around and say, “Hey, I’m
sorry I killed your [older] brother. I don’t know who he was but
I’m sorry this happened.” I think I would have accepted that,
just that. But, he didn’t even say that. He didn’t even look at
us.... Not a word, nothing. I didn’t see any justice in it. My
[youngest] brother was there ... as well and we were all looking
at each other. What? Are you kidding me? That’s it?
In Minnesota, 71% of participants felt positive about the sentence
the murderer received, often because it was the most he could get.
Some of the participants’ reactions were based on the fact that survivors
were against the death penalty or the murderer actually received a full
LWOP sentence. Others preferred a lifetime of suffering over death:
“Rather him suffer than take the easy way out with the lethal injection.”
Although many had concerns about the length of the sentence or
confusion about the meaning of life without parole, they seemed to find
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ways to reduce their concerns. For example, a survivor shared how little
apprehension she had about the future because of the unpredictability
of the murderer’s mental state, the parole board’s discretionary power,
and the offender’s age:
In Minnesota after thirty years you can get paroled.... There
was an arrangement made. They wanted to put him in a mental
hospital first until he’s healthy. Jf he gets well enough, he will go
to prison... you can have probation in thirty years, if the
probation board agrees to that. He will be sixty years old then.”
Another survivor described her reasoning, which enabled her to accept
the reality in Minnesota:
I kind of questioned it at first because I didn’t know what they
meant by life, how many years that actually is... you don’t have
another option. There’s no other option that would be better
because you don’t have another option. You’ve either got A or
B and that’s all you’ve got, so you make B be okay. So, that’s the
best I’m gonna get and I’m thinking, “Well, at least he’s in
there.”
No one was neutral in Minnesota about the sanction. However, 29%
of participants were negative about the sentencing outcome. For
example, one participant explained:
He’ll [the murderer] be forty-nine when he gets out. When
you're forty-nine nowadays that’s young. This boy has his
whole life ahead of him and he just took a life. And every day,
there’s not a moment. I wake up, it’s the first thing I think about
and going to bed, it’s the last thing I think about. It angers me
beyond belief.
For some, the lack of death as an option was irresolvable: “I'd just as
soon he was wiped off the face of the earth and that’s an honest feeling.
Justice, justice was not done in my estimation.”
7. Execution Completed
Executions have been carried out in 26% of cases (n= 4). In
addition to four executions, a murderer died because he committed
suicide in prison. In two of the execution cases, the murderers forfeited
their appeals and were executed within four and fourteen years,
209, Emphasis has been added.
210. See Table 5.
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respectively. The other two cases took five and ten years, respectively.
Two of the survivors felt that the murderer’s death was a positive
experience because they were then able to reclaim their lives. A mother
whose daughter had been killed maintained,
It took a long time for us to, for me, to get back on track where I
should be. And the execution, it just helped me to know that
okay now, he’s gone now. He’s not going to get out there and
hurt somebody else and just start focusing on healing.
A grandmother whose five-year-old granddaughter was raped and
murdered felt that the execution had a profound effect on her and the
rest of the family:
I felt like it was over. It was actually over. He could not hurt
anyone else .... I would have nightmares that he had escaped. I
would wake up just petrified.... When they said that he was
dead, the dreams stopped. My son (the victim’s father) quit
drinking. He does not have one drink. And he is doing so good.
I see 100% turnaround in him. I’m thankful that they did
execute him, because my son’s at peace now.
The three other survivors had different responses. In the case where
the murderer committed suicide, the participant felt somewhat cheated
because she had fantasized about possibly meeting with him in prison to
find out her husband’s last words: “I would have loved to have known
what my husband’s last words were or his last thoughts. But, I’ll never
get that.” In another case, the participant indicated she had a “neutral”
response to the murderer’s death:
It doesn’t bring closure because even though the person is
executed even still to this day, we don’t know why he did it. On
the tape [he made] he said some reasons why he did it but [these]
could just be bologna. To really just tell you the truth like for me
I don’t really have closure.
In the third case, the survivor had a negative reaction that increased his
distress because the murderer, at the execution, was humorous about it:
His remarks were, “What is everybody doing here? What’s the
big deal?” And then he says, “Where is the stunt double when
you need one?” ... He couldn’t care less even at the last
moment ... he got out easy. Cause all he did was lay there,
relaxed, joked. His last words were that and he just took a deep
breath and he stopped. Did he suffer? No, he didn’t feel
anything. He went to sleep. It’s unfair.... It was like a slap in
the face. I don’t know, I guess all those events even with the
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execution just .. . blocked my feelings more.
8. Execution Witnessing
In those cases where the murderer had already been executed or
otherwise died, all but one survivor witnessed the execution.” Of the
fourteen remaining cases, 64% intended to witness the execution, and
14% did not so intend. Information on the intent to witness was not
available for 21% of the participants. As shown in Figure 9, participants
differed somewhat by time period. Survivors from Time 1 said little
about attending the execution, and only two of them volunteered that
they would go.
Survivors from Time 2 actively rehearsed what it would be like to go
to the execution. Although one of them did not intend to go, she
planned “for [the family] to get together and wait till that time and just
be glad that it’s over and then we can say our true feelings. That’s what
Iplan.” Another participant hoped that the murderer would apologize:
T still think that maybe when I see him for the execution he’ll
turn around and say, “I’m sorry I did it.” At least he’s
remorseful or say something that my mom said or say something
to us. “I realize now what I did was wrong.” Something. I just
want him to say something to me.
Excitement was apparent for a participant who had already driven
hundreds of miles to the prison to preview where she thought the
execution would take place:
I can’t even imagine how bizarre it’s gonna be and surreal. And
so I’m going to go there and I’m going to... have a couple of
friends with me.... And my old trainer wants to go that used to
train me... and maybe the detective that did my assault deal.
Survivors from Time 3 planned to attend but did not expect it would
make much difference. A participant noted that
The best thing about it I guess is just to be there to look him in
the eye.... The actual execution to me is really so insignificant.
Viewing is not... I know people fought for it, so by no means do
T ever want to make it seem like it’s not a big issue because for
some people it probably is. Viewing the execution is not a big
deal for me. I could just sit outside and just know that he’s dead.
A father shared that he had already gone to the execution once only
211. See Table 5.
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to have it called off. It was no longer an active issue for him. A mother
originally planned not to go, but after thirteen years, she changed her
mind. She explained to her husband, “I need to see it through. I’ve
done all this. I’ve gone through all this. I need to see it through. And I
don’t want to but it’s something that is gonna finish it.”
Survivors from Time 4 also felt that the execution and attending it
would not change much for them: “I won’t be in there clapping or
anything like that. I'll just be there. I'll just close the book on that and
T'll come home. There won’t be any jubilation like that or anything.”
Indeed, a mother who once had wanted to witness the execution to hear
the murderer say he was sorry now said,
I just don’t want to be a party to that. I don’t want to hear his
last words anymore because they’d be meaningless to me now.
Cause he’s had all this time if he wanted to say, “I’m sorry.” I
don’t want to see anybody killed. I’ve heard them say they
gurgle. I don’t want to hear any of that. I’ve had enough of
them. I’m bleeding every day.
These sentiments were echoed by another participant who claimed,
“T’ve already been too close to death. I don’t want to go and watch
somebody die. No ... I don’t feel like I'll get anything out of it. It
might depress me.”
9. Death Penalty Aim
For Texas participants, the purpose of carrying out the death
sentence varied, but it included the need to bring an end to the criminal
justice process and the murderer’s existence in their lives, as well as the
need to honor the victim through an outcome that resulted in the same
ending for the murderer as the victim had involuntarily undergone.
Information was not available for 26% of participants, and in one case,
the survivor was adamantly against the use of the death penalty for his
son.
Approximately 42% of participants felt that the aim of the death
penalty for them was to finish the chapter in their lives that pertained
specifically to the murderer and his punishment. Survivors described
the relief they felt they would gain and how their lives would be
different once the murderer was gone. A mother who has given birth to
children since the ex-husband was sentenced noted that she would no
longer have to keep their existence a secret for fear of what he might do
to them or her even from prison:
He’ll get newspaper articles and he’ll scratch out other people’s
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names... and put my name or my friend’s names or my mother’s
name.... He’s written these stories about how he was forced
into marriage with me and just these bizarre . . . he’s still stalking
me in his mind. It never stopped ... I’ll just be glad when we’re
not breathing the same air. Then I won’t worry about putting a
picture of my kids on Facebook ... or worry about keeping it a
secret that I have them.
Many participants expressed that they could move forward with their
lives:
It will give total peace of mind. It keeps me bitter. I have a lot
of bitter thoughts. Sometimes I can cut them off and other times
it just all comes up. That’s why when he is no more . . . things are
going to get better once we know this guy is no longer in the
world.
There were 21% of Texans who felt that the murderer’s death would
help satisfy the vow they made to their loved one, both as a pledge of
their love and as their representative that their death was avenged. For
some, fulfillment of the death sentence would help even the score. A
father whose son died in his arms said, “I want that son of a bitch to die
like I had to see my son die.” For others, it would complete their
obligation:
I need to represent my mother through every step of this all the
way to the end, regardless of what that is, if I’m still alive. I’m
almost seventy years old. I’m in pretty good health. I anticipate
being around when he gets his. And that’s because I’m
representing my mother. She would do that for me.
10. Remaining Questions
Participants in both states had unanswered questions about their
loved one’s murder. In Minnesota, 65% had things they wanted to
know, and in Texas, 68% had remaining concerns. Those survivors who
had no questions either had received answers because of meeting or
corresponding with the murderer, or did not feel compelled to have
answers.
Most survivors’ questions had to do with various versions of “Why?”
Some participants’ questions were more rhetorical statements of
disbelief than actual questions. For example, an aunt whose niece was
killed by her (the niece’s) husband proclaimed, “Why did he do what he
did? Because she had everything [for him] in her house. She bought
him a Caravan to go to work. Bought him a navigator so he could read
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the road and why did he have to do that?” Much of the time,
participants’ questions had to do with wanting to understand the
murderer’s mind or motive:
I don’t understand how somebody’s state of mind can be such
that they feel they have the right to take somebody else’s life.
That will never make sense to me. I don’t get it. If [the
murderer] had been crazy I might understand it better. But he’s
a rational human being with no mental illness on which to blame
this. I don’t get it.
Sometimes survivors’ efforts to understand the mentality of the
murderer transferred to others, like the defense attorney. A mother
exclaimed, “I don’t see how people can back up somebody like that.
People actually have feelings for people like [the murderer] that are on
death row. Why? Why?” In some instances, survivors’ “why”
questions focused on the particulars, almost as if getting exact
information would help explain the circumstances. A father posed the
questions he would like to have asked the murderer:
What made you do this? What was the trigger? Did [my
daughter] do something? What was the thing that just made you
go nuts? Or did you predetermine that you just wanted to kill
her? We had two dogs. Where were the dogs, the pit bull and
the cocker spaniel? Where were they?
In addition to having questions about the victim’s last words or if the
murderer had any remorse, participants’ “why” questions also
encompassed God and how God could have allowed the murder to
happen: “I thought to myself gosh, why didn’t you [God] intervene?
Why didn’t you come to help her?” Sometimes survivors provided their
own answers: “I think to be perfectly honest and this may sound really
stupid that the devil sent his advocates to take [my nephew] away and
God took his soul because I think that’s what the devil really wanted.”
11. Category 2 Summary
The analysis of event themes specific to the impact of the UPS on
participants during the postconviction process suggests important
differences between the two states in dealing with the criminal justice
system, some distinctions in response to the murderer, and some
similarities in the questions that remain unanswered. Many of the
findings have implications for participants and their sense of control
over their lives.
The percentage of Minnesotans who filed civil suits after the
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murderer’s conviction is noteworthy because, in comparison, only one
Texas survivor planned to do so. Moreover, the majority of legal action
occurred for participants in Time 2. The suits filed in Minnesota
represented efforts by participants to redress injustices that emerged
after the criminal proceedings were completed, including the personal
appeals. It is assumed that this trend in participant-initiated civil
litigation may reflect participants’ efforts to gain additional control over
the outcome of their loved one’s death. The fact that civil litigation did
not occur at the same level in Texas suggests that the experience of the
criminal justice process may be different. Although speculative, it is
possible that the criminal justice process in these cases, and others,
continues to override civil considerations due to the ongoing appeals.
Moreover, because the odds of winning a suit increase once the finding
of guilt and the associated sentence are upheld, Minnesotans may feel
more confident than Texans whose cases are still in process. Texans,
however, may feel less need to pursue other avenues for justice. Rather
than feeling dropped because the process is finished, Texans may feel
less isolation, experience a closer connection to the state, or perhaps
have a stronger sense of control due to achieving a death sentence for
the murderer.
The difference in the appeals process is particularly striking in terms
of time, potential for delay, reversal of the verdict, and participants’
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 were stuck. Indeed, 10% of
Minnesotans were dissatisfied with the appeals process in comparison to
over 50% of Texans who were clearly worried that the gain they had
attained in the death sentence might be undone by a new trial,
resentencing, or a determination by the U.S. 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.
Although not necessarily tied to the appeals process, this difference
between the states was replicated in certain trends. Texans had more
active mental relationships with the murderer (only 5% of Texans have
no relationship vs. 30% of Minnesotans). A larger percentage of Texans
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had negative responses to the murderer (79% vs. 57%). Texans placed
lesser importance on remorse (32% vs. 50%). Texans had less positive
opinions about the UPS (37% vs. 71%). It is possible, however, that the
brevity of the appeals process in Minnesota might have lessened the
ongoing centrality of the murderer in survivors’ lives as well as the
volatility of possible changes in the outcome of the original trial
sentence. In reverse, the extensiveness of the appeals may have stymied
participants’ ability to remove the murderer from their thoughts, and
impacted the potential for further anger against the murderer caused by
feeling victimized by additional and, in some participants’ minds,
“unnecessary” legal processes. The reality may also have affected their
hope for remorse, and perhaps swayed, for some, a less than desirable
acceptance of the UPS as the state’s maximum possible sentence.
A clear difference between the states was that Texans had the
likelihood of execution and the option of witnessing the execution as
possible mechanisms for experiencing some sense of control. For
survivors where the murderer’s execution had already occurred, their
experience vacillated from feeling they had regained control over their
lives to feeling that the murderer’s death made little difference to
feeling that the execution created additional distress due to how the
murderer behaved in the execution chamber. Time between murderers’
deaths and the research interviews were six months, two years, three
years, five years, and six years. It is possible that, with more time, these
reactions would shift in direction.
The same variation was evident in participants’ responses to
witnessing the executions. Although 64% of survivors planned to attend
the execution, survivors from Time 3 and Time 4 were uncertain about
the impact of witnessing or the actuality of the murderer’s death on their
ability to get on with their lives. It is possible, therefore, that the
opportunity to witness the murderer’s death might not increase
survivors’ sense of control. That assumption, however, must be weighed
against the fact that just having the option to make the decision for
themselves, that is the option to witness the execution, provides an
increased sense of control that would be reduced if that option were not
available.
There were similarities between participants from both states in
their desire for the murderer to suffer or to hear his or her remorse and
answer questions that remain. At least half the participants from each
state hoped that the murderer’s life in prison was arduous and created
suffering tantamount to what their loved one had experienced. This
yearning suggested that if the murderer suffered at least his punishment
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would be impactful and, as such, provide participants with some
measure of power over the murderer. Likewise, the hope for remorse
may also be predicated on the belief that accepting responsibility for the
murder would reduce participants’ sense of continued victimization by
the murderer and lessen their powerlessness because their plight would
become more visible to the murderer.
The why questions asked by survivors showed no differences over
time or between states. Regardless of the meaning behind the
questions, the lack of answers continued to leave participants
unknowing, which reinforces not having control. Participants who had
answers or no longer needed to know conveyed finality about what they
knew, as if there was no more to be done.
C. Category 3: Aftermath of Murder and the UPS on Survivors’ Lives
The murder of a loved one wreaks havoc in survivors’ lives. The
core injustice created by the unexpected, willful, and involuntary death
of a loved one gets compounded by a host of additional wrongs that
continue to emanate unpredictably from all sides. Survivors repeatedly
re-experience their initial helplessness as they watch the fallout from the
murder and, over the years, it takes away still more of their existence.
Ironically, some of the life-altering change creates new growth adding
heretofore-unrealized opportunities. In general, however, there are far-
reaching consequences that vastly alter who survivors know themselves
to be as well as how they function in the aftermath of their loss.
Table 6 shows the event themes for Category 3 that focused on the
consequences of both the murder of a loved one and the UPS on
participants and their families. Event themes consisted of injustices
survivors endured besides the murder; negative fallout beyond the
murder itself; positive consequences in survivors’ lives; current physical
reactions associated with the murder; psychological change.
1. Injustices Associated with the Criminal Justice System
In addition to the murder of their loved one, some participants felt
they suffered additional injustice because of the criminal justice system.
In Texas, 42% reported one or more instances where they did not feel
well-served, for example, by police who missed the chance to apprehend
the murderer before he killed the survivor’s loved one, or by crime
victim’s assistance, which only paid a pittance for the rape counseling
needed by the participant’s daughters.
In Minnesota, 50% of survivors also experienced injustices
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associated with the criminal justice system. In one instance, a survivor
who previously had celebrated getting a first-degree murder conviction
with thirty years before parole sentence watched a jury settle on second-
degree murder after the murderer was awarded a new trial: “We got a
jury that didn’t want to be there [in court] cause Christmas was coming.
We found out after [the trial was over] they just wanted to go home so
they kind of settled on second-degree.” The lasting sting of injustice
was also evident in a mother’s comments about how her daughter was
portrayed during the trial by the defense:
T don’t understand why we have to vilify the person that’s dead.
He was trying to make her out to be .... How do I put it, that
she was promiscuous and things like that. We couldn’t say that
after they got married and she was pregnant, he was dating
another woman. We couldn’t say anything bad about him, but
they could sure try to knock her down.
2. Injustices Not Associated with the Criminal Justice System
The sense of unfairness felt by participants also included injustices
that were unrelated to the criminal justice system. In Texas, 21% of
survivors described incidents that upset them greatly. A father relayed
that his son, who was a housing inspector, was killed when he went to
serve a ticket on a house that already had five different citations. The
father discovered that no one had followed up on the citations because
the city manager was afraid of the current owner: “It didn’t matter that
my son was dead at all. My son dies for nothing. They can’t even finish
a $50.00 ticket...” In another instance, a woman felt blamed by her
family for the murder of her brother because she had asked him to look
in on her children while she was at work:
I feel like they blamed me a lot because he died, because he was
killed, because I worked and I asked him to come watch the kids
because I was always having to ask somebody to babysit. If I had
been able to handle my business he wouldn’t have died.
In Minnesota, 50% of participants shared similar injustices. A
brother whose sister had been killed by her husband was incensed that
his seventy-year-old mother got nothing from the estate because the
murderer’s family claimed it all. Similarly, the grandparents of a young
woman whose mother was murdered spent her social security allotment
on themselves:
[My grandparents] claimed I was living with them. The $50,000
was meant to supplement. You don’t have any parents left.
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You're an orphan essentially. And that money is to help try to
fill the void of what they could have done for you. And it’s all
gone and I couldn’t tell you where it is and they’ll never fess up
to it.
The accumulation of additional injustices—whether associated with
the criminal justice system or not—compounded the central injustice,
which was the murder of a loved one, and tended to intensify the sense
of powerlessness and anger that accompanied the murder.
3. Negative Consequences
Participants in both Texas and Minnesota reported numerous
instances of negative fallout on themselves and family members from
the murder or experiences associated with the murder. In Texas, 26%
made no reference to negative results, but the remaining participants
indicated destructive impact of the events on themselves (42%), family
members (26%), or both (5%). In Minnesota, 35% made no reference
to negative results, but the remaining participants indicated destructive
impact of the events on themselves (10%), family members (40%), or
both (15%).
Fallout from the murder included both psychological disasters, such
as suicides and drug addictions, and changes in life circumstances, such
as fighting for custody of children, rifts between family members, school
problems, lack of financial resources, etc. These consequences had
reshaped participants’ lives, setting many of them on downward, crisis-
ridden trajectories that did not exist prior to the murder. A mother
talked about what happened to her daughters, both of whom were
violently raped while their uncle was forced to watch before the
murderer killed him:
It became a big black white issue, a big racial thing. The girls
could not listen to a black person talk. When they heard that
voice, that way of speaking, it just flooded them with
emotion. ... The school by then was probably 50/50. And the
black kids were really going at them because they thought it was
a racial issue. “Yall knew that guy. Y’all invited him in and
then y’all made [him rape you].” My oldest decided she didn’t
want to stay in Drummond anymore and went to Nebraska to
live with my cousin. The following year my youngest daughter
went up there and my cousin home schooled her but then she
came back home and she’d been in and out of every different
school. We finally sent her to a neighboring town because I
knew the principal. I went over there and she was in a room by
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herself. [Teachers] came in and she did her studies by herself.
She had shaved her head. The boy who was with them that night
was killed at work six months later. He was electrocuted.
In addition to drug problems and depression, there were five suicides by
participants’ family members related to the murder of a loved one.
Some of the suicides set off more fallout for families, creating a chain
reaction of events. In one instance, a woman’s brother committed
suicide after his parents were murdered at the convenience store they
ran. Because he did not bring his father dinner where his father worked,
his mother had to:
He always felt I should have gone. I think he felt he would have
protected papa too.... My other sister [has] written emails
where she feels she wants to commit suicide.... My younger
sister I’m very worried about. I’m scared she’s going to follow
the same path as my brother.
In another case, a woman explained that after killing her mother-in-law,
her father-in-law blamed his dead wife’s son: “Aaron is William’s
second victim. He started using drugs. We filed a wrongful death suit
because he was beneficiary to everything. So he had money to buy all
those drugs.” He eventually died of an overdose. Then the survivor
found out her sixteen-year-old had leukemia:
He looks at me. [His younger brother] starts crying and he looks
at me and goes, “Am I gonna die?” I couldn’t say no. I didn’t
know. ... Both of the boys are at an alternative school ... they
weren't getting in trouble at school. But, they just weren’t going.
They didn’t care.
4. Positive Consequences
Although survivors were well aware of the negative fallout on them
and others they loved, they also experienced positive spinoff because of
what they went through and the ways that the murder impacted their
lives. Figure 10 shows the differences between states. In Texas, 35% of
participants made no reference to positive results, but the remaining
survivors indicated positive activities/positive life changes (30%),
personal growth/meaning system development (10%), or both (20%).
In Minnesota, 20% made no reference to positive results, but the
remaining participants indicated positive activities/positive life changes
(30%), personal growth/meaning system development (5%), or both
(45%). Minnesotans who claimed positive spinoff impacting both their
activities/life changes and personal growth/meaning system development
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came from Time 2, Time 3, and Time 4. Indeed, 60% of participants
(n = 3) in each of those time periods claimed positive consequences in
both areas. Moreover, more Texans than Minnesotans claimed no
positive impact. They also made fewer references to personal
growth/meaning system development.
Constructive activities and life changes included caregiving and
closer connections with children, decisions to leave abusive
relationships, returning to school, becoming more religious, and
changing jobs. Some of the changes were subtle, but the activities held
important meaning to the survivor. A mother who bemoaned the fact
that her daughter’s death meant there would be no grandchildren
discovered an unexpected source of nourishment: “I served in the
children’s ministry for nine years, loving and hugging those babies and
giving them my full attention. I credit a lot of my healing to that, just
being able to love those babies.” Others did a complete life overhaul.
A survivor whose son murdered family members made the decision to
turn everything over to God: “Once I made the decision to give up and
let God take this if that’s what he wanted to do, it was wonderful. It was
liberating. I saw insights I hadn’t seen before.” Realizing God’s
purpose, this survivor wrote a book about the murders, his experience,
and forgiveness, and became a nationally recognized speaker:
I was allowed to live for a purpose and the purpose is to tell my
story. ... I gave away the white flag. “Okay God, I give up. I’m
going to stop hiding from all this.” It’s been exciting. It’s a
powerful positive thing in my life to talk in front of an audience
to tell them about what happened that night and tell them how
God works.
Still others found avenues for life changes that were unusual but fitting
for them. A young woman who lost her baby, mother, and niece began
visiting funeral homes after school:
When I go there it’s my safe place. ... I can go there and gather
my thoughts ... like a clear head it changes my whole attitude.
The guy there tells me, “You're going to be a help to a lot of
people by what [you’ve] been through.” I have a little notebook
that I carry around and if I have questions I write them down.
And when I go I ask him (the funeral director) the questions and
whatever he tells me I just write them down there.... I
understand some of [how of why] the stuff with my mom was
harder to do [to prepare for the funeral] because of the trauma
her body had taken.
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The young woman eventually decided to become a mortician and has
since graduated with a degree in mortuary science.
Positive spinoffs also include personal growth and meaning-making
that helped participants to integrate the loss of their loved one, related
events, and the way the victim’s death happened. A survivor described
her perspective about new challenges, safety, and control:
I'd never been anywhere. I didn’t even have a passport. And I
just started traveling. I remember my son standing in front of me
with that smile saying, “Mom quit talking about it and just do it
or it’s never going to happen.” I feel like my son’s part of me
and I’m part of him. So the part of me that’s him is going to
Africa. I know too though no matter where you are, no matter
where you go, who you’re with you are never safe.... There just
isn’t.... And yet, I think all of us has this part that likes to feel
you have a little bit of control over your life. I know there isn’t
that. Never was. Never is.
A teacher explained what she has learned from the murder of her father
and how she uses these lessons in her teaching:
I can choose my attitude. ... I have more control and more, I
think about it more. Over how I handle things and frankly, I
teach my students that if you think you have control over your
life forget it. You don’t. You have control over how you
respond to the things that happen in your life ... and therefore,
you ultimately control the outcome by your choices. I had a
choice when dad died. I could become bitter and angry and live
my life that way. I could become productive and use it, use what
I learned, use the experience to become more empathic, to
become more knowledgeable, to become more of who I could
be.
These personal changes often had a celebratory or freeing quality to
them: “All of a sudden you have this new outlook on life because you
realize how tenuous it really is and so then you say, ‘Okay, I’m going to
live life to the fullest.’”
5. Current Physical Reactions
Survivors’ responses to the murder and its aftermath were frequently
expressed in physical problems as depicted in Figure 11. Although it
was common for participants to report difficulties with issues such as
concentration, memory lapses, sleep, nightmares, eating, and endurance,
some of them found that the toll from the murder, related stressors, and
accumulated stress were long-lasting. In Texas, 42% of participants
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indicated no current physical manifestations. The remainder
experienced current sleep problems (16%); disease or illness associated
with the extreme stress (26%); or both sleep and illness or disease (5%).
Information was not available in two cases (11%). In Minnesota, 60%
of participants indicated no current physical manifestations. The
remainder experienced current sleep problems (25%); disease or illness
associated with the extreme stress (10%); or both sleep and illness or
disease (5%). The contrast between the states is most notable in the
percentage of participants who had no current physical reactions and in
the higher percentage of participants with self-diagnosed murder-related
disease or illness in Texas.
Ongoing sleep disturbance included a range of conditions, including
inability to fall asleep, terminal insomnia so survivors could not get back
to sleep, nightmares, and light sleeping because of startle reactions.
Survivors reported hearing noises in the house, recurrent pictures of
finding their loved one dead, and rumination over their difficulties:
If I wake in the middle of the night, which is very, very often, I
can’t fall back to sleep. And the problem is that I start thinking.
It doesn’t even matter what. But I start thinking about
something and almost play scenarios out in my head. [They]
haven’t happened yet, but somehow I know.
Participants had a variety of physical conditions that they self-
diagnosed as related to the murder. Many of the conditions are
commonly associated with stress, such as high blood pressure. A
survivor related the gradual onset of her physical problems:
I gained weight in the ten years. I became a diabetic. I have
thyroid problems. I have high blood pressure and I’m losing my
hair. And it was like my health went down, just down, down,
down. And like right now I’m still trying to control my diabetes
and it’s all down deep in there.
Besides chronic conditions such as neck problems, migraines, high
cholesterol, and problems regulating menstrual bleeding, some survivors
had life-threatening reactions:
I didn’t know I was experiencing heart attacks. Right after the
trial, I experienced something with my body like it was on fire.
And my breath, felt like they had filled up with milk and
somebody just lit me on fire. [The doctor told me,] “You're
walking dead. You have 8% [iron in your blood] when you
should have 180%.” I was just dying. I was bleeding to death.
I’m taking iron pills. They want to give me a transfusion but I’m
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scared of the blood. They say it’s one in a million, might get bad
blood. I told them, “I’m not fixing to be that percent, nope.”
6. Psychological Changes
The murder of their loved one and subsequent challenges produced
permanent psychological change in participants. Some had ongoing
trauma reactions that consisted of sleep problems, fear and anxiety,
crying jags, and responses triggered by reminders of the trauma.
Survivors also indicated that they were self- or professionally diagnosed
as depressed and emotionally shut down. The majority reported
significant issues with trusting others. Participants also described
posttraumatic growth as a result of the murder.
There were striking differences between the states on the
percentages of survivors who suffered from ongoing trauma reactions.
Specifically, 42% of Texans described persistent struggles, compared to
20% of Minnesotans. Some of the struggles were periodic:
I still have nightmares occasionally. Sometime the nightmare is
I’m actually there and see him get shot. Sometimes the
nightmare is I’m in his place and being shot and then my kids are
left orphaned. Sometimes I wake up and don’t remember what
the nightmare was and I just wake up in tears. Maybe once a
month or every couple of months I may have one [a dream].
Other struggles interrupted survivors’ daily functioning:
I don’t know if I’m scared of people or I don’t trust myself to be
alone, but I am really scared as long as it’s dark. I never had that
before. And I always have the TV on, not to hear any sound
anywhere else. Because if anything knocked hard, I am scared.
So I always have the TV on or the music playing. If I go upstairs,
T have to have the light on. If I am alone in the house, I have a
mattress in front of the chair. As long as it gets dark I just be in
one place until somebody gets home.
A similar contrast between the states also applied to the percentage
of participants, shown in Figure 12, who reported themselves as
depressed or emotionally dulled. In Texas, 63% of survivors fit this
profile, compared to 25% of Minnesotans. Many participants described
classic symptoms of depression: “I’m just going through life, through the
motions. Okay, I’m forced to go to the baseball game. Okay, I need to
go to open house. So, life is moving me as it goes because of my three
children. Without that, I think I would be stagnant.” Others noted
permanent shifts in their ability to respond to emotional highs and lows.
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They described themselves as not being present, being unemotional,
empty, hardened, existing with a cloud over everything, and as realizing
that a part of them was gone that they would not get back: “Sometimes I
can be happy. But, I am not able to reach the extent of happy that I
could before that day. It’s not there anymore. It’s like if it was way up
on a scale you can’t go up to the top of the scale anymore.”
The contrast between the states reversed itself in the percentage of
participants who had difficulty trusting others. In Texas, 37% of
survivors indicated that they had trust issues, whereas 55% of
Minnesotans volunteered that their ability to trust was severely
hampered as a result of their loved one’s murder. All Minnesotans from
Time 1 and 80% from Time 4 had problems with trust. Moreover, in
describing their difficulties, Minnesotans gave lengthier and more
detailed descriptions. A wife shared,
[T]ell you the truth, I don’t trust anybody anymore. Even my
own husband.... The only person I can trust is my son. I can
tell him anything, not my husband.... You could see a person
but you don’t know what is in their mind. Sometime they look
very innocent to you, but they could do you harm. That’s why I
don’t trust anybody.... I protect myself and keep [a] far
distance from those I don’t trust.
Another survivor declared,
I don’t trust people. I’m very leery or wondering what it is
they’re after or what they’re up to. It’s like I know going down
the street that you can look at people—and it’s more men—and
they can look normal, but they’re not. How am I supposed to
know this man is okay and this man isn’t. I think it shatters a lot
of your belief in the goodness of humanity. That some human
could do this for nothing.
There was a pronounced difference between the states, shown in
Figure 13, in the percentage of survivors who made reference to their
psychological growth because of what they had endured. Only 5% of
Texans indicated positive psychological changes in comparison to 55%
of survivors in Minnesota. Most of the Minnesota participants came
from Time 3 and Time 4. In noting their changes, survivors made
reference to their strength, accomplishments, realizations, and
outspokenness. For example, a woman exclaimed, “It has made me
stronger. It has made me. Going through this, I know I can get through
anything.” A woman whose mother was killed when she was an
adolescent described who she had become, compared to who she likely
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would have been: “I think I’m a better person in general than I would
have been. I think had things been the same, I was so rebellious and so
not wanting to have the way things were, that I probably would have
been pregnant in high school.” A survivor described what she saw as
she surveyed what had happened to her over the years:
All of a sudden I had to make the decisions and I didn’t have
anyone I could talk it over with. And it was scary because I had
some big decisions to make and know what to do, didn’t trust
myself to do the right thing. ... I probably gained a lot more
self-confidence than I had. I’ve changed a lot from what I was
twelve years ago. So that’s probably a good thing that’s come
out of it. And growing into myself. It gave me that other
purpose to go and finish and get this degree. That made me a
different person too that I could get through these classes and
get good grades and still manage the farm and the kids. All of it.
I guess I felt like a super woman for a while. So that maybe was
a good thing.
7. Behavioral Changes
Participants noted ways that the murder of their loved one, and
related events, impacted their lives and the actions they took to manage
their feelings. Stress-reducing behaviors included making sure doors
were locked or staying away from situations that could trigger panic
reactions. Refocusing behaviors consisted of moving away from the
home where the murder happened or throwing oneself into work. Some
participants found themselves doing things to preserve memories or
keep themselves close to physical reminders of their loved one.
Survivors also described behaviors that developed or reinforced a sense
of agency in terms of controlling outcomes related to the murder.
As shown in Figure 14, Texas and Minnesota differed on the
percentage of participants using different types of stress-reducing
behaviors. In Texas, survivors principally used avoidant/distancing
behaviors (37%), whereas in Minnesota survivors preferred self-
protective behaviors (40%). Moreover, Texans were more likely than
Minnesotans to use both avoidant/distancing and _self-protective
behaviors (26% vs. 15%). Self-protective actions included having guns
readily available, checking on family members to be sure they were all
right, or taking extra safety precautions. A grandmother who had to
fight her son-in-law’s parents for custody of her granddaughters after he
had killed their mother decided not to put an announcement in the
paper that one of the granddaughters was getting married: “I didn’t trust
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that if the grandparents saw it that they might have come and tried to
push their way into the wedding and made it uncomfortable. I never
was real guarded but that has definitely changed. That’s the major
change I see in myself.” Avoidant/distancing actions were done usually
in reference to triggers that could create strong emotional responses. A
survivor whose daughter was killed by her husband decided to stay away
from family members who tended to fight. A man who was harassed by
the police in conjunction with his daughter’s murder declared, “I can’t
think of a reason I would ever call a cop.” A survivor shared her
internal struggle with going out among people:
Sometimes I be like I get dressed. I fix myself up. I try to talk to
myself about going. ... I’ll probably dress five times before I go
out the door. I'll be like, “Oh, what am I doing?” I look at the
clock. “Let me get out of here,” so I know I got to go. “Oh no,
this don’t look good.” I use excuses. “Oh, this don’t look good.”
T just sit down. ... I used to go out a lot. Now I can’t find two
friends.
Although 75% of Minnesotans used refocusing behaviors, as shown
in Figure 15, to deal with their reactions to the murder, only 37% of
Texans did. Refocusing behaviors included busyness to divert survivors
from thinking about the murder as well as lifestyle changes to mitigate
some of their suffering. The preponderance of participants from
Minnesota used either lifestyle changes (30%) or both types of
refocusing behaviors (35%). In terms of busyness, a woman who had
lost her son explained, “I’d go out and I would dig the yard up. And I’d
just work myself to the point where you’d be exhausted. I had to just
ride myself to the point that I had to go, go, go.” When asked how he
was different since his sister was murdered, a survivor answered, “Guess
with me being busy and active, takes your mind away from things.”
Lifestyle changes allowed survivors to reduce stressors that otherwise
kept the murder fresh or made it difficult to manage their emotions. A
participant who was a school bus driver described crying whenever she
was by herself: “So I figured that wasn’t a good thing for me to be doing
with other people on the bus. ... So I went into the school. I worked as
a janitor and that was better for me because I didn’t have time to think.”
A man recounted making the decision to sell his home in order to get
further away from disturbing memories:
I tried to stay in the house because I didn’t want to be chased
out. But it was hard to sit back in that room where she was
murdered. Eventually I just surrendered and left, sold the house
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and moved. It was hard to leave but it was the right thing to
do.... You weren’t constantly looking down there and
imagining where she was laying.... Didn’t have to deal with
that jerk next door [either].
In Texas, 32% of participants engaged in behaviors to preserve
memories or physical reminders of their loved ones, compared to 5% of
Minnesotans. A father shared what he did to keep his son close: “He’s
been gone three and a half years and my cell phone has still got his
answering message because I had it transferred so that I could play it
anytime I wanted it. I could hear his voice.” A mother remembered the
time she has spent in her daughter’s room: “I locked myself in that
bedroom right there a lot. That was Missy’s room. And I slept in that
room a lot. I guess because I felt closer to Missy.”
Sense of agency refers to the subjective awareness that one is
initiating, executing, and controlling one’s own volitional actions in the
world. Sense-of-agency behaviors included controlling thoughts about
the murder and being assertive about making murder-related decisions
that affected participants’ well-being. As shown in Figure 16, Texas and
Minnesota varied in the percentage of participants who engaged in
sense-of-agency behaviors (47% vs. 85%), as well as the proportion of
participants who engaged in being self-assertive (32% vs. 20%),
controlling of thought (10% vs. 25%), or both (5% vs. 40%). A survivor
talked about the decision she and her husband consciously made not to
follow the media coverage of their son’s death because of the debate
about whether or not, as a police officer, he had followed protocol and
perhaps caused his own death:
We didn’t want to believe it. We didn’t watch TV because they
would flash his picture when we didn’t know it. We didn’t read
the papers so we really didn’t know what happened to him. My
brother, he’s a policeman in Connecticut ... [h]e wanted to tell
me and I said, “I just don’t want to know. I just want you to
leave me alone. I don’t want to hear it.” ... For me it was the
right thing cause I don’t think I could have handled knowing.
A woman explained what she did to take charge of her own healing:
At some point along the line, I started taking control, making
choices. Some of those choices were very, very hard because of
expectations placed from elsewhere. .. . I hate these grief groups
were we sit around and we rehash it all over again... but Mom
is feeling the healing or help from this and thinking that’s the
cure for everyone. And finally I just said, “I hate these.” Taking
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control in those ways was healthy for me. Now did it mean that
those issues that typically get worked through in those situations
had gone away? No. It just meant that I had to deal with them
in my own time, in my own way, in my own pace.
Sense-of-agency behaviors often required extra energy because
survivors had to push against their emotional proclivities or go against
the grain of what was considered normal. The drive that pushed them to
act often had a strong sense of intention or purpose behind it.
8. Category 3 Summary
In contrast to Categories 1 and 2, the focus in Category 3 moves
beyond specific topics associated with the criminal justice process and
relationship with the murderer to consider the cumulative impact of the
UPS on survivors physically, emotionally, and behaviorally; the negative
and positive consequences on themselves and others over time; and the
decisions they made about how to live with what had happened to their
lives. The findings cover a wide time spectrum ranging from two to
nineteen years after the death of participants’ loved ones. Aside from
the similarity in the percentage of participants reporting injustices
associated with the criminal justice system, findings from the other event
themes consistently show considerable variation between Texas and
Minnesota.
A higher percentage of Minnesotans than Texans, for example,
noted additional injustices not associated with the criminal justice
system (50% vs. 21%). Although speculative, this contrast may reflect
the fact that Minnesotans, particularly from Time 2, were more likely to
concentrate on injustices outside of the criminal justice because the
criminal justice process was finished.
Compared to Texans, fewer Minnesotans referenced negative fallout
from the murder (65% vs. 74%). Moreover, Texans, when compared to
Minnesotans, indicated that they, rather than other family members,
were principally affected (42% vs. 10%), whereas for Minnesotans, the
ripple effect on others was more prominent than it was for Texans (40%
vs. 26%), as was the impact on both themselves and other family
members (15% vs. 5%).
Minnesotans also reported more positive results than Texans (80%
vs. 65%). In Texas, the preponderance of positive spinoff tended to
concentrate on the more recent murders (Time 1 and Time 2), whereas
in Minnesota, the positive spinoff was more evident in the later time
periods (Time 1, Time 2, and Time 3). There was also a substantial
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difference between the states in terms of the greater frequency of
Minnesotan’s references to their personal growth/meaning system
development in combination with positive activities/lifestyle changes
(45% vs. 20%). The higher percentage of references from Minnesota
participants may reflect integration of the murder, possibly as a result of
the fact that the criminal justice process was finished earlier than in
Texas.
More Minnesotans indicated no lasting physical reactions compared
to Texans (60% vs. 42%). Moreover, more Texans than Minnesotans
reported disease or illness (26% vs. 10%). The nature and frequency of
their physical issues indicate that Texans may have experienced more
ongoing stress.
Texans had more ongoing trauma reactions (42% vs. 20%) and
depression/emotional dulling (63% vs. 25%) than Minnesotans.
Psychological changes also included posttraumatic growth, which was
less for Texans (5%) than for Minnesotans (55%) who were
concentrated in Time 3 and Time 4. A seemingly paradoxical
development was evident in the higher percentage of Minnesotans who
reported trust issues compared to Texans (55% vs. 37%). It is possible
that this finding reflects a regional difference in that there may have
been a core shift in trusting others, but that change may not have been
perceived as a loss or negative result. It is also important to note that
variation in this percentage comes primarily from Time 1 participants in
Texas and Minnesota. The percentage of those with trust issues is the
same in both states otherwise.
In regard to the impact of the murder on changes in participants’
behavior, both Minnesotans and Texans used stress-reducing behaviors.
Minnesotans, however, had higher percentages of self-protective
behaviors (40% vs. 11%) and Texans had more avoidant/distancing
behaviors (37% vs. 15%). A higher percentage of Minnesotans than
Texans used both types of behaviors (26% vs. 15%). Participants also
described “refocusing efforts” to move away from the impact of the
murder. Refocusing efforts included busyness and lifestyle changes.
More Minnesotans than Texans used refocusing behaviors (75% vs.
25%). More Minnesotans than Texans also used lifestyle changes solely
(30% vs. 21%) or both busyness and lifestyle changes (35% vs. 5%).
Minnesotans and Texans were similar in their use of busyness only (10%
vs. 11%). Many more Texans than Minnesotans employed behaviors to
preserve their closeness to the immediate presence of their loved one
(32% vs. 5%). This finding may reflect a difference in the progress of
the bereavement process and may be explained by the extent to which
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the criminal justice process had been completed. Finally, more
Minnesotans than Texans reported instances of using self-agency—using
self-assertion and thought control to impact the direction of their lives
(85% vs. 47%).
Although the contrast between Texas and Minnesota for each
separate finding associated with negative and positive consequences,
physical reactions, and psychological and behavioral changes may not
individually be particularly important, the accumulation and clustering
of the differences between the states for almost all the event themes is
suggestive of something beyond randomness. Moreover, the state
differences are supported by the consistency in the direction of the
findings.
X. QUANTITATIVE RESULTS
Multivariate analysis was conducted for both the ICG-R scores by
state and time and for select event themes as predictors of ICG-R
scores. A two-way factorial ANOVA was used to assess the interaction
and main effects in predicting the grief scores. Event themes were
quantitatively coded and analyzed using correlation and regression
techniques.
A. ICG-R Scores by State and Time
The two-way factorial ANOVA yielded a statistically significant
interaction effect for state by time period (F (3, 31) = 4.268, p = .012;
partial €° = .292), as well as a statistically significant effect for time (F (3,
31) = 3.859, .019; partial €* = .272). The main effect of state was not
statistically significant (F (1, 31) = 0.701, p = .409; partial €° = .022). As
seen in Figure 17 and Table 7 below, ICG-R scores remained relatively
stable across time for Texas participants, but Minnesota participants
showed higher initial scores and a marked decrease in grief symptom
severity from Time | to Time 3. Tukey post-hoc analyses showed that
the statistically significant findings for time period were due to
differences between Time 1 and Time 3 only.
B. Select Event Themes and ICG-R Scores
Four Category 1 event themes were examined to see if they
predicted grief scores as measured by the ICG-R. These themes
included prosecutor contact, defense attorney contact, defense attorney
behavior, and contact with the murderer’s family. The Spearman’s rank
order correlation coefficient (i.e., Spearman’s rho) was used for these
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analyses. The Spearman’s rho tests showed a statistically significant,
moderate, negative relationship between ICG-R scores and contact with
the murderer’s family (r =- 0.445, p= 0.014). Specifically, increased
contact with the murderer’s family predicted lower ICG-R scores, and
therefore, a lower level of unresolved grief. The other three event
themes did not predict ICG-R scores at a statistically significant level.
To further examine the relationship of these themes with grief
scores, multivariate regression models were run with state and time
period as covariates, using dummy-coded variables for the themes. In
these models, prosecutor contact did not significantly predict ICG-R
scores (F (3, 34) = 2.635, p= 0.065). Defense attorney contact did
significantly predict ICG-R scores (F (3, 28)= 5.646, p= 0.004),
specifically, more positive contact with the defense attorney predicted
lower grief scores. Similarly, more positive defense attorney behavior
also predicted lower grief scores at a statistically significant level (F (3,
28) = 4.296, p= 0.013). More positive contact with the murderer’s
family likewise predicted lower grief scores (F (3, 26) = 4.544, p = 0.011).
Some of the Category 3 event themes were also examined in light of
ICG-R scores. Participant symptoms were examined—specifically,
whether the participant had physical reactions, trauma reactions,
depression or dulling symptoms, or posttraumatic growth. Changes in
behavior were also examined as possible predictors of ICG-R scores,
such as whether the respondent reported stress-reducing behaviors,
lifestyle changes, busyness, preserving behaviors, or self-assertion.
Before presenting the findings from these analyses, it is important to
note a caveat—that multiple comparisons like those done here may
inflate Type I errors (i.e., that with an alpha of .05, one of every twenty
tests will be significant by chance alone). One way to address this is to
use a Bonferroni-corrected alpha level. If, however, a Bonferroni-
corrected alpha level is used to interpret findings, none of the
comparisons would be statistically significant. Given that this is a
preliminary study, the following discussion presents findings using an
alpha of .0S and asks that the reader keep the issue of possible
inferential error in mind. Findings were that physical reactions
predicted statistically significant higher grief scores (t (35) = -2.886, p=
0.007), and posttraumatic growth predicted statistically significant lower
grief scores (t(36)= 2.481, p= 0.018). Trauma reactions and
depression/dulling did not predict grief scores at a statistically significant
level (t (36) = -1.989, p = 0.054 for trauma and t (36) = -1.091, p = .283
for depression/dulling). When examining behavioral responses, only
self-assertion was found to predict grief scores at a_ statistically
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significant level (t (37) = 2.148, p = 0.38), specifically, that self-assertion
predicted lower grief scores.
XI. DISCUSSION OF FINDINGS
The intent of this research is to examine homicide survivor
experience in the context of the harshest of punishments allowed by law.
Conventional wisdom presumes the harshest punishment available will
provide survivors with the utmost in justice, vindication, and
satisfaction.”” What we know about homicide survivor experience,
however, is that “violent, intentional death is linked inextricably with
images of powerlessness—the powerlessness of the victim to resist, and
the powerlessness of the bereaved to intervene at the time of the killing
and to control events thereafter.” The Study demonstrates that
although the UPS does provide a sense of justice and satisfaction in the
punishment of the murderer, the punishment, by itself, is limited in its
healing potential for survivors. Furthermore, the Study indicates that
other factors are necessary to aid survivors in their ability to integrate
the trauma of the murder, find the psychological space to grieve, and
locate the supports that facilitate rebuilding their lives. The Study
provides evidence that survivors’ well-being is enhanced if they have a
greater sense of control over their lives and this sense of control
contributes to a higher level of satisfaction with the justice system and
its processes. The Study identifies core factors that offer survivors a
stronger sense of control.
A. Outreach and VIS
Study results suggest that outreach to survivors, respectful
interactions, and positive relationships with key stakeholders (e.g., the
prosecution team, defense attorneys, and members of the murderer’s
family) during the pretrial and conviction stage may be associated with
lower ICG-R scores. The personal and intense nature of these
memorable associations, however brief, makes these associations
participative opportunities for survivors. Although speculative, these
associations are likely to build survivors’ self-esteem and serve as
testament to their special identity as crime victims and deep mourners.
These associations were particularly evident in Texas for Time 1
212. See, ¢.g., Bandes, supra note 4, at 1-4.
213. PAUL ROCK, AFTER HOMICIDE: PRACTICAL AND POLITICAL RESPONSES TO
BEREAVEMENT 53 (1998).
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survivors. In contrast to Time 1 survivors in Minnesota, Texans
expressed no issues with trust, which, according to Study participants,
was majorly damaged by the murder and associated events. This
dynamic suggests that survivors may have felt relatively confident about
their criminal justice experience and a part of, rather than victimized by,
courtroom events. Although these survivors were the youngest in the
Study in terms of time since conviction, it is possible that these positive
associations with pivotal figures could inoculate them somewhat from
the upcoming stress and lengthiness of the appeal processes.
Therapeutic jurisprudence asserts that the giving of victim-impact
statements empower survivors with an opportunity to participate.”
Nowhere, however, is the debate about crime victim rights greater than
in the literature about due process, procedural justice, VIS, and
closure.’ The Study found that survivors were satisfied with the VIS
experience but varied substantially in their reactions. Some felt
exuberant, for example, that the murderer cried. Others felt out of
control emotionally or upset that the murderer did not look at them or
show expression while they were making their statement. Although
Minnesotans gave VIS at sentencing, and Texans made allocution after
sentencing, the placement of VIS in the trial proceedings seemed to
make no difference. Moreover, survivors said little that could link VIS
to victim healing other than it serving an expressive function. Based on
these findings, its therapeutic impact in capital murder cases will likely
remain questionable. It may be more important, therefore, to consider
instead the injustice and negative consequences to survivors if the right,
which is now institutionalized, were taken from them.”
B. Social Expectations, Ambiguous Loss, and Closure
Social expectation theory proposes that institutional structures are
214. See Erez, supra note 116, at 551.
215. See, e.g., Bandes, supra note 4, at 3; Cassell, supra note 114, at 612; Erez, supra note
116.
216. Victims already experience some injustice because they have limited control over
their VIS. See Tracey Booth, ‘Cooling Out’ Victims of Crime: Managing Victim Participation
in the Sentencing Process in a Superior Sentencing Court, 45 AUSTR. & N.Z. J. CRIMINOLOGY
214, 217 (2012) (noting that not only can the VIS be edited by the court before the sentencing
hearing but also that once in court, the defendant can object to the content of VIS and, if it
does not comply with the law, it may be edited and parts deleted altogether in open court);
see also Charles F. Baird & Elizabeth E. McGinn, Re-Victimizing the Victim: How
Prosecutorial and Judicial Discretion Are Being Exercised to Silence Victims Who Oppose
Capital Punishment, 15 STAN. L. & POL’Y REV. 447, 466 (2004) (commenting on the fact that
VIS that oppose the death penalty are barred from being given).
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influenced by assumptions or social norms about what people feel and
ought to feel.” Social expectations play a role in how we see and
maneuver our social worlds.”* Socially received expectations also
motivate our behavior. The social construction of closure, what it is
supposed to accomplish for survivors, and how institutional structures
provide for it, is a prime example of how social expectations condition
our beliefs and actions. What happens when social expectations are
unrealized? How does this disjuncture impact survivors’ sense of
control and well-being? Survivors in Texas were particularly susceptible
to this distortion because of the length of the appeals process. Survivors
whose cases were stuck during Time 3 and Time 4 (ten to sixteen years
postsentencing) faced a heretofore-permanent state of suspension, not
knowing if and when the case would move forward or move forward in
their lifetimes. The impact of having achieved the ultimate sentence
while living under threat of losing it, coupled with a sustained and
undeviating lack of resolution, clearly undermines any control that
survivors might have initially attained through the guilty verdict.
The concept of ambiguous loss provides a framework for
understanding the meaning of this indeterminate reality in survivors’
lives. It refers to an “unclear loss that defies closure.””” The concept
was first formulated by Pauline Boss after interviewing wives whose
husbands were missing in action (MIA) in Vietnam and Southeast Asia
and later applied to family members whose loved one had
Alzheimer’s.” The inability to resolve ambiguous loss is due to the
outside situation but is considered the most devastating of all losses
because the ambiguity prevents people from adjusting.” In the Study,
the survivors with stuck cases appeared to be suffering from ambiguous
loss, which was marked, as noted by Boss, by their fluctuating between
hope and hopelessness, a deadening of emotion, and stagnation in
personal movement waiting for some resolution and relief.”
Texas survivors also seemed to be at odds with the social expectation
217. See, e.g., Bandes, supra note 4, at 10.
218. Koichi Hasegawa et al., The Effects of ‘Social Expectation’ on the Development of
Civil Society in Japan, 3 J. C1V. SOC’Y 179, 180-81 (2007).
219. See About Pauline Boss: Personal Statement, | AMBIGUOUSLOSS.COM,
http://)www.ambiguousloss.com/personal_statement.php (last visited Oct. 8, 2012); see also
PAULINE BOSss, AMBIGUOUS Loss: LEARNING TO LIVE WITH UNRESOLVED GRIEF 26-44
(1999).
220. Id. at 12-15.
221. Id. at 6.
222. Id. at 11.
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that the execution would bring closure. Besides a mixture of responses
in cases where executions had been completed, survivors’ anticipation
about the positive impact of any upcoming execution was gradually
reduced the longer they had to wait for its finality. Regardless of the
circumstances, however, most survivors focused on the execution as the
pivotal event and gave strong consideration to the issue of attending and
the fantasy of what might happen in the death chamber.
The social expectation of closure newly associated with LWOP
seemed absent in Minnesota. The endpoint was the sentencing. The
appeals process was sparsely referenced except for one case where the
sentence had been reduced on appeal. Although Minnesotans were
finished with the criminal justice process sooner and theoretically got
control back over their lives earlier, survivors did not appear to notice
or value the difference. Instead, many Minnesota survivors wished for
the death penalty believing that the murderer’s death would be more
satisfying than LWOP. This reality may demonstrate that, without a
collectively held and valued social expectation about what LWOP is
supposed to give to survivors, there remains a void that is predictably
trumped by the belief, for some, that the death penalty remains the
ultimate and preferred outcome.
C. The Involuntary Relationship
Besides the element of time, the postconviction phase was marked
by survivors’ mental relationship with the murderer, holding him
unrelentingly accountable for what he did. Regardless of the sentence,
most survivors felt negatively, wanting the murderer to suffer as they
did. Survivors’ concentration on the murderer was present and intense
as well in the conviction stage during the trial. Besides having rage and
contempt for the murderer, survivors observed defense attorneys closely
for how they handled the case, watched the courtroom behaviors and
reactions to testimony of defendant’s and persons’ associated with the
murderer, and others in the courtroom, and frequently directed their
VIS to the murderer, hoping that he would never forget what they had
said.
There is an emerging literature on this mental relationship due to
the recognition that a situationally induced relationship is forced on the
survivor as a consequence of the murder. The inextricable tie between
223. See MARK UMBREIT & MARILYN PETERSON ARMOUR, RESTORATIVE JUSTICE
DIALOGUE: AN ESSENTIAL GUIDE FOR RESEARCH AND PRACTICE 315 (2010); Mickell
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the survivor and murderer is based on the fact that the murderer was the
last person to be with the survivor’s loved one.” This involuntary
relationship is filled with anger and hostility and kept alive either until
the offender is executed or no longer pervades the survivor’s life
through appeals outcomes or efforts to resurface.” Madeira contends
that the potency of the relationship is maintained because social
expectations disallow it, which, in effect, pushes it into the background
where it functions at a subliminal level and is given little attention.” It
is also furthered through the survivor’s subjective creation of who the
murderer is—subjective because there is no contact, so little ongoing
information available to the survivor, and no give-and-take.”’ Madeira
suggests that the relationship is most harmful when the offender
“appears defiant, remorseless and unemotional” and when the
survivor’s subjective creation is taken as real.” Besides keeping the
trauma alive, the lack of social recognition about the relationship’s
formation and effects contributes to the survivor’s suffering.”
D. Rumination and Vengeance
The inextricable and ongoing negative connection with the murderer
in the Study seemed tied to some survivors’ ruminations and their
powerlessness over circumstances beyond their control. For many, their
inability to control this ruminating generated ledgers of unresolved
injustices accompanied by anger and frustration. Clearly, the delay in
stuck appeals processes fostered rumination, but so did non-stranger
homicides in both states that involved ongoing contact with people who
knew the murderer. The seeming delight in fantasizing the murderer’s
suffering, or a wish fulfillment for the murderer’s remorse, also fed out-
of-control thinking that led nowhere.
Branham & Richard Burr, Understanding Defense-Initiated Victim Outreach and Why it is
Essential in Defending a Capital Client, 36 HOFSTRA L. REV. 1019, 1023, 1026 (2008); Richard
Burr, Expanding the Horizons of Capital Defense: Why Defense Teams Should Be Concerned
About Victims and Survivors, CHAMPION, Dec. 2006, at 4447 (discussing the relationship
formed between offenders and survivors).
224. Burr, supra note 223.
225. Several survivors commented on offender websites that they visited. They were
incensed by material on the website—including pictures of children killed, and requests for
friendship.
226. Jody Lyneé Madeira, When I
Trauma of Victim-Offender Relationships
227. Id. at 443.
228. Id. at 405-06.
229. Id. at 406.
0 Hard to Relate: Can the Legal System Mitigate the
46 Hous. L. REV. 401, 437 (2009).
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Survivors seeking vengeance for the grievous wrong of murder lies at
the conceptual base of justice.”” Vengeance is commonly accepted as a
morally worthy attempt to undo evil." 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.’ A study on punishment found that the dorsal striatum, the
brain region that is closely related to pleasure,”* was activated when
participants decided to punish a violator of a social norm, but a
subsequent study showed that the predicted and experienced emotion
were substantially different.” Specifically, after the punishment was
administered, these participants were substantially less happy than those
who did not punish.”* This is because these participants who punished
continued to ruminate about the violator.”
To some extent, the Study findings mirror these conclusions.
Approximately half of the survivors in both states wanted the murderer
to suffer. However, the Minnesota survivors had more neutral attitudes
toward the murderer, or no mental relationship with him, particularly
for survivors from Time 3 and Time 4. It is possible that the
interminable waiting and stuck status of cases in Texas make it more
difficult for survivors to control their ruminations.
E. Civil Actions and Accumulated Injustices
The role of civil lawsuits in the postconviction phase has been
curiously absent in the literature on homicide bereavement. In addition
to the criminal justice system, civil actions provide an important
mechanism for survivors to seek justice, in part because the initiative
emanates from them as plaintiffs rather than the state and is centered
specifically on the wrongs done according to the survivors’ perspective.
Nearly all the civil lawsuits were brought by Minnesotans and occurred
before Time 2 (5 to 7 years after the sentencing or punishment trial).
230. Bas van Stokkom, Victims’ Needs, Well-Being and ‘Closure’: Is Revenge
Therapeutic?, in THERAPEUTIC JURISPRUDENCE AND VICTIM PARTICIPATION IN JUSTICE:
INTERNATIONAL PERSPECTIVES, supra note 87, at 207, 212-13.
231. Id.
232. See Kevin M. Carlsmith et al., The Paradoxical Consequences of Revenge, 95 J.
PERSONALITY & Si HOL. 1316, 1316 (2008).
233. See Dominique J.-F. de Quervain et al., The Neural Basis of Altruistic Punishment,
305 SCIENCE 1254, 1254 (2004),
234. See Carlsmith et al., supra note 232, at 1323.
235. Id. at 1322-23.
236. Id. at 1319.
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These survivors often spent as much time describing the civil suit that
they themselves brought as they did the criminal trial. Their accounts
were frequently accompanied by a sense of vindication and
righteousness even when the civil suit outcomes were disappointing.
Only one survivor in Texas had considered a civil action. In homicide
cases, civil action may rest on obtaining the criminal justice conviction
and having it upheld on appeal. The lengthiness of the appeal process in
death penalty cases, therefore, may act as a disincentive against civil
suits. Moreover, while a criminal case is pending or on appeal or in
habeas corpus proceedings, the case is not over and the defendant
cannot speak without having what he says used against him.
Regardless of whether survivors brought civil suits, they experienced
additional injustices, which fed their tendencies to ruminate and
reinforced their sense of victimization. Indeed, survivors often had a
stronger visceral sense of injustice done than any sense of what justice
meant other than relief that the murderer had been caught, convicted
and sentenced. Though speculative, this expansion of injustices created
by outside circumstances may have undermined their ability to re-
establish a sense of control.
F. Satisfaction with the Criminal Justice System
Crime victims’ satisfaction with the criminal justice system has been
found to be related to their perception of a sense of fairness,” which is
affected by feeling interest from key stakeholders (e.g., police and
public prosecutors); a chance to express the victims’ wishes and have
those wishes considered, recognized, and respected. These same
elements are also associated with posttrauma adjustment.” Research
also shows that anger rumination and motivation to seek revenge are
associated with “greater levels of negative affect and lower levels of life
satisfaction.”*” Although the Study did not examine relationships
between event themes (e.g., VIS and criminal justice satisfaction), there
were higher levels of satisfaction with the criminal justice system for
237. See generally JO-ANNE WEMMERS, VICTIMS IN THE CRIMINAL JUSTICE SYSTEM 4
(1996) (laying out the need to research the treatment of victims by the criminal justice system
and how it affects their attitudes toward criminal justice authorities and the law). For a
discussion of the findings, see id. at 198-214.
238. Id. at 4.
239. See Jo-Anne Wemmers, Victims in the Criminal Justice System and Therapeutic
Jurisprudence: A Canadian Perspective, in THERAPEUTIC JURISPRUDENCE AND VICTIM
PARTICIPATION IN JUSTICE: INTERNATIONAL PERPECTIVE, supra note 87, at 80.
240. van Stokkom, supra note 230, at 220-21.
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Minnesota participants compared to Texans. Survivor comments
suggest that this difference reflects less confidence in the system. The
difference may also be a product of uncompleted cases and the
uncertainty and lack of control many Texas survivors experience. This
reality may make it difficult for Texas survivors to experience a
perceived sense of control, which is essential to emotional well-being.”
G. Physical and Mental Health of Survivors
A perceived sense of control has been found in numerous studies to
be positively associated with physical health, self-esteem, personal
adjustment, coping, decreased stress and depression and psychological
well-being. The Study found less physical and emotional distress and
more health-oriented behaviors (e.g., posttraumatic growth, healthier
stress-reducing activities,’ refocusing behaviors, and sense of agency
behaviors) in Minnesota participants. Based on the perceived control
theory, there may be a positive relationship between these indices of
well-being and perceived control suggesting that these survivors more
likely believe that they have some control over the events that affect
them. There is some support for this supposition in the quantitative
findings. Besides the fact that Minnesotans during Time 2, Time 3, and
Time 4 had lower ICG-R scores, lower ICG-R scores predicted less
illness/disease and more posttraumatic growth and _ self-assertive
behaviors.
The trauma and victimization caused by murder challenges the
fundamental components of the assumptive world, including
assumptions about benevolence, predictability, and controllability.”
Part of survivors’ struggle is to rebuild a meaning system as a base for
moving their lives forward.’ Although this construction is exceedingly
241. See BRUCE J. WINICK, THERAPEUTIC JURISPRUDENCE APPLIED: ESSAYS ON
MENTAL HEALTH LAW 68, 70-71 (1997); Bruce J. Winick, On Autonomy: Legal and
Psychological Perspectives, 37 VILL. L. REV. 1705, 1755 (1992); see also Armour & Umbreit,
supra note 187 (describing that homicide survivor well-being is assessed, in part, through a
survivor's ability to move forward, as opposed to remaining stuck in the aftermath of their
loss).
242. See Todd B. Kashdan & Jennifer Q. Kane, Post-Traumatic Distress and the Presence
of Post-Traumatic Growth and Meaning in Life: Experiential Avoidance as a Moderator, 50
PERSONALITY & INDIVIDUAL DIFFERENCES 84, 87 (2011) (finding that less reliance on
experiential avoidance predicts greater PTG and meaning in life). In this Study, Texas
survivors used more avoidant/distancing behaviors more than Minnesota survivors.
243. RONNIE JANOFF-BULMAN, SHATTERED ASSUMPTIONS: TOWARDS A NEW
PSYCHOLOGY OF TRAUMA 4-25 (1992).
244. Armour, supra note 129 (describing how meaning making grounded in action gives
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difficult, studies on the relationship between complicated bereavement
and meaning-making find that sense-making is the explanatory
mechanism for the association between violent loss and complications in
grieving, suggesting that the ability to create meaning may impact
complicated bereavement.” In the Study, more Minnesotans than
Texans referenced meaning-making as part of the positive consequences
from the tragedy. This state difference surfaced again for posttraumatic
growth (PTG) both in the percentage of Minnesotans who make
reference to their strength, accomplishments, realizations and
outspokenness and in the quantitative findings that showed ICG-R
scores predicting posttraumatic growth and self-assertive behavior. The
fact that perceptions of present control over the “recovery” process
relate to lower levels of psychological distress” is likely reflected in
these relationships.
Increasingly, the evidence shows that posttraumatic growth (PTG)—
growing psychologically from traumatic events—happens alongside and
is positively correlated with PTSD.“* However, over time the
relationship attenuates and becomes more negative.” This shift is
explained by the fact that PTG has a short-term illusory side related to
short-term compensatory coping mechanisms (e.g. busyness) and a long-
term constructive, self-transcending side related to action” for a more
genuine and lasting growth (e.g. sense-of-agency behaviors).*' This
homicide survivors avenues for re-establishing a sense of coherence, self-continuity and a new
sense of social identity).
245. See Murphy et al., supra note 133, at 397 (finding that 43% of parents whose child
suffered a violent death from accident, suicide, or homicide were not able to find meaning
after five years).
246. Joseph M. Currier et al., Sense-Making, Grief, and the Experience of Violent Loss:
Toward a Mediational Model, 30 DEATH STUD. 403, 403 (2006).
247. See Ryan M. Walsh & Steven E. Bruce, The Relationships Between Perceived Levels
of Control, Psychological Distress, and Legal System Variables in a Sample of Sexual Assault
Survivors, 17 VIOLENCE AGAINST WOMEN 603, 603 (2011).
248. Dinu-Stefan Teodorescu et al., Posttraumatic Growth, Depressive Symptoms,
Posttraumatic Stress Symptoms, Post-Migration Stressors and Quality of Life in Multi-
Traumatized Psychiatric Outpatients with a Refugee Background in Norway, 10 HEALTH &
QUALITY OF LIFE OUTCOMES 84, 85 (2012).
249. Id.; Richard G. Tedeschi & Lawrence G. Calhoun, The Posttraumatic Growth
Inventory: Measuring the Positive Legacy of Trauma, 9 J. TRAUMATIC STRESS 455 (1996);
Vicki S. Helgeson et al., A Meta-Analytic Review of Benefit Finding and Growth, 74 J.
CONSULTING & CLINICAL PSYCHOL. 797, 797-98 (2006); Floortje Mols et al., Well-Being,
Posttraumatic Growth and Benefit Finding in Long-Term Breast Cancer Survivors, 24
PSYCHOL. & HEALTH 583, 584 (2009).
250. See Armour, supra note 129, at 525.
251. Tanja Zoellner & Andreas Maercker, Posttraumatic Growth in Clinical
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trend is reflected in the Study findings for Minnesotans, the majority of
whom indicated PTG during the later time periods (Time 3 and Time 4)
as well as behaviors aimed at thought control and self-assertion.
H. Summary of Findings
The need to assess the impact of event themes on survivors’ sense of
control and well-being is supported by current research on traumatic
events and the temporal model of control, which shows that control over
the present is associated with better adjustment.” The findings from
this Study reflect the relative sense of control survivors felt they had
over a spectrum of events that collectively comprised their conviction
and postconviction experience and the relationship between that control
and indicators of their well-being. For example, issues during the
conviction process such as giving input to the prosecution about the
murderer’s sanction, feeling blocked from responding to the defense
attorney’s portrayal of the victim, being recognized by the defense,
whether the murderer was present or attentive to the survivor’s VIS,
feeling helpless to stop the murderer’s derisive nonverbal behaviors, or
feeling powerless over efforts by the murderer’s family to even the score
influence survivors’ sense of control. Likewise the bringing of civil
actions, lack of information or unpredictability about what is happening
with the appeals, delays in the appeal process caused by external forces
such as crime labs losing evidence or Supreme Court decisions, negative
experiences associated with the execution, and unanswered questions
that restrict comprehensibility of the murder impact on the survivors’
sense of control. The consequences, as shown in this Study, of having
more or less control over their own healing process impacts survivors’
well-being. Indeed, the issue with control is complex in that survivors
reported more situations that denied or removed control than instances
that were empowering.
XII. LIMITATIONS
This investigation of survivors and the UPS is a pilot study with a
small sample from two states. The inquiry is limited by the fact that
qualitative findings cannot be generalized beyond survivors who
participated in this research or the socio-historic time when they were
Psychology—A Critical Review and Introduction of a Two Component Model, 26 CLINICAL
PSYCHOL. REV. 626, 640 (2006).
252. Frazier, supra note 148, at 304-05.
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interviewed. Moreover, because the two states selected for comparison
differ significantly, it is possible that the state differences noted in the
findings reflect regional variations rather than differences in the UPS.
Although the Minnesota cases were randomly selected from state’s
listings of first-degree felony murders, there was variation in the
sentence received ranging from LWOR to twenty-seven years before
consideration of parole. Consequently, the assignment of the LWOP
designation to Minnesota is questionable since the maximum sentence
of LWOR for first-degree felony murder was not legislated until 2005.
Except for the analysis of the quantitative data, only the principal
investigator was involved in doing the Study. Although this reality
heightened consistency in the interviewing process and control over the
analysis, there was no corroboration of the event themes or ratings
assigned to the event themes except through triangulation of the
quantitative results.
XII. IMPLICATIONS
The findings from the Study have implications for therapeutic
jurisprudence and its response to survivors. As a movement and field of
study that is concerned with the therapeutic and anti-therapeutic effects
of the law and legal system on crime victims, it has the power to guide
thinking about many of the issues raised in the Study. Most central is
the misguided justification for either the death penalty or LWOP that
the UPS brings closure. As repeatedly shown in the literature and again
in the Study, survivor well-being is associated with a perceived sense of
control, not the lofty or political ideal of closure that is ill-defined and
has multiple meanings or is insulting to or in disrepute among survivors
themselves. Rather than throwing closure out, we suggest that closure
be reconfigured to convey a regained sense of control and that it be
considered a sense-making process, synonymous with meaning-making,
rather than a destination.” Within this framework, the criminal justice
system can then provide footholds in a variety of areas to encourage
agency and the development of strengths rather than an external focus
on the finality of the punishment.
Part of regaining control rests on the survivors’ ability to create a
personal narrative as a sense-making instrument that pulls together
253. Armour has made this argument before. See Armour, supra note 129, at 534-35.
This suggestion has also been made by Jody Lyneé Madeira. Madeira, supra note 111, at
1503, 1506.
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96 MARQUETTE LAW REVIEW [96:1
what happened and can assist in interpreting events and comprehending
oneself. Narrative resolution, however, is often blocked by ongoing
and disruptive circumstances and limited information about the
murderer, the murder, and what actually happened. Several of the
survivors had the opportunity to meet with the murderer for a
restorative dialogue.** Survivors, in these cases, had moved far ahead of
others in their resolution of feelings toward the murderer and in having
a fuller, more credible picture that they, rather than the criminal justice
system, had obtained. This Study found that the involuntary
relationship with the murderer was omnipresent and especially so for
survivors waiting for the murderer’s execution. The ability of survivors
to dialogue directly might help complete their narrative so they could
move forward earlier.
Similarly, there are prescribed barriers between survivors and the
defense team and between survivors and members of the defendant’s
family. The findings suggest that the possibility for respectful
interaction is empowering and puts the survivor in charge. Defense-
initiated victim outreach (DIVO) is a recent addition to death penalty
litigation that offers survivors the opportunity, through an independent
victim specialist, for a relationship with the defense team to get needs
met as determined by the survivor.** Mechanisms like DIVO act on the
reality of the involuntary relationship through the defense team as proxy
for the defendant. Mechanisms like DIVO, or other programs that
carefully and sensitively bring together members of the victims and
defendant’s families, can be empowering, help provide information, and
perhaps reduce some of the rumination that otherwise impedes
movement.
A major implication is the need for survivors to have access to the
Study findings. Homicide survivors are thrust into the criminal justice
254. Madeira, supra note 111, at 1509-11.
255. Both Minnesota and Texas offer restorative justice programs to homicide survivors
for a mediated dialogue with the murderer—even in cases involving the death penalty, For a
description and evaluation of the program in Texas, see MARK S. UMBREIT ET AL., FACING
VIOLENCE: THE PATH OF RESTORATIVE JUSTICE AND DIALOGUE 11-12 (2003). The
humanistic approach used in the Minnesota program is described as well. Id. at 16-17. For a
brief description of the Minnesota program, see Victim Offender Dialogue, MIN
DEPT OF CORRECTIONS, _https://www.minnesotachoice.com/web/guest/victim-offender-
dialogue (last visited Oct. 27, 2012); see also Madeira, supra note 111, at 1516 (noting that
eleven out of twenty-seven survivors in her study wanted to meet with McVeigh and another
five were willing but unsure of the meeting’s productivity).
256. See Branham & Burr, supra note 223, at 1023-25.
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system and the public light with little or no knowledge about the process
and what to expect. Survivors who are part of UPS proceedings have
the additional burden of navigating complex layers of legal proceedings
that hold huge implications for their futures. Knowledge of the
information in the Study, which was gleaned from survivors like
themselves, would aid them in their decision making and leave them less
dependent on other well-meaning legal representatives whose political
agendas might serve to filter out important information that could be
healing for the survivor.
From a therapeutic jurisprudence perspective, the Study findings
also have implications for prosecutors and defense attorneys. While
maintaining their objectivity, prosecutors need to be mindful that
providing information as well as solid and consistent support helps
inoculate survivors against some of the stressors in the courtroom. The
establishment of a partnered relationship achieved through consultation
with survivors and making room for their input elevates their diminished
status as crime victims in their own eyes thereby providing the building
blocks for a stronger sense of participation and control. The findings
confirm the need for defense attorneys not to avoid survivors but to
engage with them in a respectful, compassionate manner. Defense
attorneys do not need to show empathy by conveying an ambivalent
commitment to the defendant as purported to have happened to some
of the survivors in this study. Rather, the defense outreach must be
sincere and responsive to survivor needs. Defense attorneys might also
work with their clients, where appropriate, to better understand the
enormity of the survivor’s loss and what they did to their lives. Many
survivors hunger for genuine remorse as part of what they need to
complete, even resolve, the narrative of the murder so they can move
forward.
XIV. CONCLUSION
Although a causal relationship between court-generated closure and
survivor well-being has been hypothesized, it has never been tested.
Media reports of survivor comments at the time of execution, or made
immediately following it, and studies based on those comments, have
been the best evidence to date but represent partial or indirectly derived
approximations of the impact of the UPS on survivors.” This Study
257. See generally Gross & Matheson, supra note 124 (examining press stories regarding
executions from January 2001 through June 2002); Mowen & Schroeder, supra note 124
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98 MARQUETTE LAW REVIEW [96:1
used in-person interviews with a randomly selected sample of survivors
from four time periods about the entire UPS process and its longitudinal
impact on their lives. Moreover, it assessed the impact of different types
of UPS on survivors by comparing their experiences in two different
states, namely Texas and Minnesota. Findings include designation of
UPS-related event themes at time of conviction and postconviction, as
well as event themes associated with the consequences of the homicide
on survivor's lives. State comparisons show differences primarily during
postconviction (specific to the appeals process) and in survivor well-
being, with Minnesotans having higher levels of physical, psychological,
and behavioral health. Quantitative results support these state
differences between Time 1 and Time 3 as well as predictive
relationships between grief scores and event themes of well-being. The
issue of survivor’s perceived control over present-day circumstances is a
critical factor reflected in the event themes as well as the researcher-
assigned ratings, of survivors’ reactions. Although the UPS is
promulgated as the ultimate justice, this Study found that the critical
dynamic was the control survivors felt they had over the process of
getting to the end. In Minnesota, survivors had greater control, likely
because the appeals process was successful, predictable, and completed
within two years after conviction; whereas, the finality of the appeals
process in Texas was drawn out, elusive, delayed, and unpredictable. It
generated layers of injustice, powerlessness, and in some instances,
despair. Although the grief and depth of sorrow remained high for
Minnesotans, no longer having to deal with the murderer, his outcome,
or the criminal justice system allowed survivors’ control and energy to
be put into the present to be used for personal healing.
(examining newspaper coverage about executions to report responses and sentiments of
covictims); Vollum & Longmire, supra note 124 (assessing statements from covictims by
reviewing articles about executions).
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APPENDIX A: FIGURES
Figure 1. Percentage Distribution of Prosecution Contact at Time 1 by
State
100
80
60
40
20
0 ;
Minnesota Texas
@Minimal @Average BExtensive
Figure 2. Percentage Distribution of Defense Attorney Contact by State
100
80
60
40
20
0 r
Minnesota Texas
Negative mNeutral Positive
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100 MARQUETTE LAW REVIEW [96:1
Figure 3. Percentage Distribution of Criminal Justice Satisfaction by
State
100
80
60
40
20
Minnesota Texas
w Very dissatisfied @ Dissatisfied Somewhat satisfied
@ Satisfied @ Very satisfied
Figure 4. Percentage Distribution of Civil Actions by Time and State
100 4
80
60 +
40 +
20 4
0
] Time 1 Time 2 Time 3 Time 4 | Time 1 | Time 2 Time 3 Time 4
Minnesota Texas
@No wYes
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Figure 5. Percentage Distribution of Case Status by State
100
80
60
40
20
Minnesota Texas
Stuck Moving &Completed
Figure 6a. Percentage Distribution of Reaction to Appeal Process by
State—Texas
100
80
60
40
20
0
Time 1 Time 2 Time 3 Time 4
@ Dissatisfied Worried MNon-apprehensive Satisfied
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102 MARQUETTE LAW REVIEW [96:1
Figure 6b. Percentage Distribution of Reaction to Appeal Process by
State—Minnesota
100
80
60
40
20
0 r
Time 1 Time 2 Time 3 Time 4
Dissatisfied mNeutral Satisfied
Figure 7. Percentage Distribution of Desire for Murderer Remorse by
State
100
80
60
40
20
0 r
Minnesota Texas
@No WYes
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Figure 8. Percentage Distribution of Opinion of UPS by State
100
80
60
40
20
Minnesota Texas
@Negative Neutral Positive
Figure 9. Percentage Distribution of Execution Witnessing/Plan to
Witness by Time
100
80
60
40
20
0 T T T
Time 1 Time 2 Time 3 Time 4
@No wYes
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104 MARQUETTE LAW REVIEW [96:1
Figure 10. Percentage Distribution of Positive Spinoff by State
100
80
60
40
20
0 T
Minnesota Texas
mNone B Activities / Life changes
@ Personal growth / Meaning system m Both
Figure 11. Percentage Distribution of Physical Reactions by State
100
80
60
40
20
0
Minnesota Texas
@None Currentsleep problems Disease/illness mBoth
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Figure 12. Percentage Distribution of Depression/Emotional Dulling by
State
100
80
60
40
20
0
Minnesota Texas
@No wYes
Figure 13. Percentage Distribution of Posttraumatic Growth by State
100
80
60
40
20
0
Minnesota
@No wYes
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106 MARQUETTE LAW REVIEW [96:1
Figure 14. Percentage Distribution of Stress-Reducing Behaviors by
State
100
80
60
40
20
Minnesota Texas
None @ Protective behaviors Avoidant / Distancing behaviors B Both
Figure 15. Percentage Distribution of Refocusing Behaviors by State
100
80
60
40
20
Minnesota Texas
BNo mBusyness B Life style change wBoth
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Figure 16. Percentage Distribution of Sense-of-Agency Behaviors by
State
100
80
60
40
20
0
Minnesota Texas
wNone @Self-assertion Thought control mw Both
Figure 17. Mean ICG-R Scores by Time and State
90
75 <
60
Time 1 Time 2 Time 3 Time 4
Time
—Minnesota —#-Texas
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APPENDIX B: TABLES
Table 1: Case Characteristics of UPS Sample
All Cases Minnesota Texas
Fy Valid 7 Valid 7 Valid
Percentage Percentage Percentage
, Minnesota 20 513 20 100.0 NA NIA
State
Texas 19 48.7 NA 19 100.0
Time 1 (1992
1994) 10 25.6 5 25.0 5 263
Time 2 (1996
napa 1998) 10 25.6 5 25.0 5 263
es Time 3 (2000—
2002) 10 25.46 5 25.0 5 263
Time 4 (2004
2006) 9 Ba 5 25.0 4 21.4
Continuing Yes 18 46.2 9 45.0 9 474
cagagement No 21 53.8 u 55.0 10 52.6
Family violence _Yes 12 308 1 35.0 5 263
case 5 5
No 20 692 B 65.0 4 BI
Participant Yes 15 38.5 9 45.0 6 31.6
knew murderer No 24 61.5 u 55.0 1B 684
Victim knew Yes 24 61s 15 15.0 9 474
munderse No 15 38.5 5 25.0 10 52.6
Ifdeath penalty _ Yes 4 103 NIA NIA 4 21.4
‘case; Has No 15 38.5 N/A NA 15 789
sentence been —S5-
icommed out applicable 20 513 20 100.0 NA NA
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Table 2: Respondent Characteristics of USP Sample
All Cases Minnesota Texas
7 Valid 7 Valid 7 Valid
Percentage Percentage Percentage
a Female 31 79.5 etd 85.0 14 73.7
Gender
Male 8 20.5 3: 15.0 5 263
Black / African-American 4 10.3 2 10.0 2 10.5
Hispanic / Mexican
American / Chicano 2 51 oO 0.0 2 10.5
Hace Rihuely White / Caucasian 31 79.5 17 85.0 14 33.7
Asian / Pacific Islander 1 26 0 0.0 £ 53
Other 1 26 - 5.0 0 0.0
Single 4 10.3 1 5.0 3 15.8
Married 19 48.7. 8 40.0 u 57.9
Marital Status —SeParated 1 2.6 1 5.0 0 0.0
Divorced 6 15.4 4 20.0 2 10.5
Widowed 8 20.5 6 30.0 2 10.5
Committed relationship 1 26 0 0.0 1 53
Grades 7-9 1 26 1 5.0 0 0.0
Grades 10-12 6 15.4 4 20.0 2 10.5
High school graduate / GED. 8 20.5 2 10.0 6 31.6
Some college or an
Education associate's degree 14 35.9. 7 35.0 1 36.8
Bachelor's degree 4 10.3 2 10.0 2 10.5
Some graduate school 1 2.6 oO 0.0 1 5S:
Graduate degree / other
professional program 5 12.8 4 20.0 1 53
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110 MARQUETTE LAW REVIEW [96:1
Table 3: Victim Characteristics of UPS Sample
Al Cases Minnesota Texas
7 Valid Fy Valid ry Valid
Percentage Percentage Percentage
Parent/Step-parent___19 413 6 300 13 50.0
Spouse / Partner 6 13.0 4 20.0 2 11
Bi Child / Step-child 7 152 3 150 4 154
Participant —_ Sibling 152 3 15.0 4 15.4
Grandparent 2 43 0 00 2 1
Other 5 109 4 200 1 39
Gender Female 26 56.5 10 500 16 615
Male 20 43.5 10 50.0 10 38.5
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11
Table 4. Percentage Distributions of Category 1 Event Themes by State
and Time Period
MINNESOTA Texas
Time Time Time Time Time Time ‘Time ‘Time
1 2 3 4 1 Z 3 4
‘Theme Remonte
Categories
None 00 00 0000000
Prosecution Minimal 200 200 600 000.0000
Team Contact average 60.0 800 400 500 0.0 100.0 1000 75.0
Extensive 20000 0.0500 1000.0 00_——280
None 80.0 60.0 80.0 1000 _00_—75.0_——75.0__—1000
Sanction Input Some 200 200 200 004005025000
Alot 0020000 0.00000 0.0—00
Input Notsatisfied 200 00.000 2000020000
Satisfaction
Satisfied 80.0 1000 100.0 100.0 80.0 __100.0__80.0__1000
‘Scheme Negative 80.0 66.7 750 333500. 20.0 100.0
‘Attorney, Neutral 20.0 33.3 0.0 66.7 50.0 20.0 0.0
Behavior
Positive 00 00 500.0000”
SSERRE, Negative 200 00 0000005020000
Attorney Neutral 80.0 100.075. 66.7 50.0 50.0 20.0 100.0
Contact
Positive 0000 250 333500250 60.000
ictmelmpact: ig 00 00 250 500200 00200500
Statements
(VIS) Yes 100.0 100.0 75.0 50.0 80.0 100.0 80.0 50.0
Notsatisfied 00-200 000200000000
vis
Satisfaction Neutral 200 00 33300200200 2505.0
Satisfied 80.0 80.0 66.7 __ 100.0600 80.0 750-250
eal Yes 80.0 50000 005.040 _—5S00—_—500
Disruption by
Murderer No 200 50.0 1000 1000 75.0 60.0 50.0 500
Negative 1000 500 0066.7 50.0 400 «60.000
Family Contact Neutral 0.0500 33300 —400——40.0 750
Positive 00 0050000500200 0.0250
Very
dissatisfied 0000 000040020000 333
cial Dissatisfied 00 00 0040000040000
justice ‘Somewhat
Satisfaction satistied 200 000.0 2200 200200400 —00
Satisfied 20000 0000220000000
Very satisfied 60.0 100.0__100.0__-40.0__—-20.0 0.0200 66.7
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Table 5. Percentage Distributions of Category 2 Event Themes by State
and Time Period
Minnesota Texas
Time Time Time ‘Time Time Time Time Time
1 2 3 4 1 2 3 4
Theme Response Categories
No 100.0 20.0 80.0 80.0 80.0 _ 100.0 100.0 __ 100.0
Civil Action
Yes 0.0 80.0 200 200 200000000
Stuck 00 00 00.0200 0.0.0 75.0
Appeal
Process Moving 250 000.000 8006000000
Completed 75.0 100.0 100.0 1000 0.0 40.0 _-40.0_-25.0
Reaction to _Dissatisfied 00 3330000 NANA N/A__NIA
Appeal
Process— Neutral 5000000 00 NANA NIA NIA
Minnesota Satisfied 50.0 66.7 100.0 1000 N/A__N/A_N/A__N/A
Dissatisfied NIA NIA NIA N/A 200 00__—-200__—0.0
Reaction to
Appeal Worried NIA NIA NIA N/A 40.0 40.0 40.0 100.0
a Non-apprehensive NA NIA NIA NIA__40.0 60.0 400 _00
NIA NIA NIA N/A 0.000000
Mental 00 200 400 60.0 0.00000 —5.0
Relationship
with Some 60.0 40.0400 0.00.0 60.0 _—400__—75.0
Murderer Much 40.0 40.0 200 40.0 40.0 40.0 «60.000
auitaae Negative 40.0 80.0 25.0 60.0 __ 80.0 1000 80.0 _50.0
Toward Neutral 60.0 0.0 75.0 2000.00.20 50.0
Murderer
Positive 00 200 00-200 2000.0 00—i00
Dente ioe No 40.0 40.0 500 60.0 400 80.0 «0.0 __—-25.0
Murderer to
Sutter Yes 60.0 60.0 50.0 40.0 60.0200 400750
Desitotor No 40.0 60.0 200 80.0 100.0 40.0 60.0 __75.0
Murderer
Remorse Yes 60.0 40.0 80.0 200 0.0 60.0 4002250
Negative 40.0 400 0.0 200333 0.0200 00
Opinion
Toward UPS _Neutral oo 00000383250 40.0 75.0
Positive 60.0 60.0 100.0 800 333 75.0 40.0250
Execution No NIA NIA__NIA__N/A__100.0 80.0 600 75.0
Done Yes NA NA NA NA 0.0200 40.0250
Exeeation No NANA N/A NIA__0.0 00.20.0500
Witnessed /
Plan to
Witness Yes NIA N/A NIA__N/A__ 100.0 100.0 80.0 50.0
Anending NIA NIA N/A NIA__0.0 1000 75.0 333
Death Penalty
‘Aim Equity/honoring victim N/A N/A NIA__NIA__ 66.7 0.0, —25.0__—33.3
Other NANA NA NA 3330.00.00, 33.3
Remaining No 20.0 0.0 60.0 50.0 40.0 40.0 40.0 __—0.0
Questions, Yes 80.0 100.0__40.0___ 50.0 60.0 60.0__60.0__ 100.0
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Table 6. Percentage Distributions of Category 3 Event Themes by State
and Time Period
Minnesota Texas
Time 1_Time2 Time3 Time4 Time1 Time2 Time3 Time4
Theme Response Categories
None 40 20 100 8S
Criminal
Justice 1 60 60 0 6020 0 4025
Injustices / ae = 9
Resentments 2203 0 20 0 0 2 20085
4or more 0 0 0 0 0 0 0 0
None 80 2 tS
Non-Criminal
Justice 1 20 40 40400 0 0 0
Injustices / ak 5 4
Resentments 2203 0 40 0 0 0 0 20 50
4or more 0 0 0 0 0 0 0 0
None 40 40 400 0 2025
On self 20 0 0 2 20 S80
Negative
Fallout On other 40 60 60 0 20 40 20 25
On both self
and other 0 0 0 60 0 0 20 0
None 40 20 20 0 2 20,50.
Activities /
Life changes 60 20 0 40 2040050
Positive Spinoff —Personal
growth /
Meaning 0 0 20 0 2020 0 0
Both of the
above 0 oC 0
None 40 80 60. 0 650
Current Current sleep
Physical problems 40 20 0 4020 0 2025
Reactions
0 0 40 0 0 1002025
above 20 0 0 0 20 0 0 0
Trauma No 401008000800
Reactions
Yes 60 0 20 0 6600. 0
Emotional
Dulling No 60 so 8000 SCS
Depressive
Symptoms 5
Yes 40 so 20 0 40 80 8050
Ne 5 5
Lack of Trust io 0 z so 2080S
Yes 1002520
Post Traumatic _ No. 100020 0 80100 _—-100——*100
Growth
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114 MARQUETTE LAW REVIEW [96:1
None 0 40 oS
Sree Protective
Stress: behaviors 60 20 0 80 0 0 20 25
Reducing 7
AG ‘Avoidant /
Distancing behaviors 0 4020 0 40 4085
Both of the
above 40 0 20 0 40 202085
No 40 4020 0 6408S
Business 0 40 0 0 0 20 0 25
Refocusing
Behaviors Taestyle
change 60 0 4020 0 0
Both of the
above 0 2 408020 0 0 0
Preserving No 10080100, 1006080100
Behaviors
Yes 0 20 0 0 40 60 20 0
None 20 20 20 0 so 605
Sense of Self-assertion 20 0 2040 0 2 60 50
Agency
Behaviors ‘Thought control 40 60 0 0 0 20 0 25
Both of the
above 20 2 20 0 0 0
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Table 7: ICG-R Score Means and Standard Deviations by Time and
State
Time 1 Time2 Time 3 Time 4
ea 2 3 21.6 26.4
wisi Mean 16. 7.6 1.6 16.4
sD 24.4 22.5 86 13.2
Mean 44.0 46.4 412 513
Texas
sD 23.8 18.7 15.9 24.3
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Table 8a: Category 1 Texas Cases: Impact of UPS on Conviction
Experience
Pros Sanction Input DelANt DefAW vig) VIS Murd Fam
Contact’ Input” Satis Beh“ Contact” Satis’ _Disrp" Contact!
Time T
7 3 2 T 3 2 3 T 3 3
7 z 2 7] 3 2 T 2 T 3
a 3 z z z 2 z 2 T T
a 3 TNA NA 2 3 NA NIA T
Casi q 2 2 H z H 3 2 3 q
Time2
Case 3 NA 2 NA NA 2 3 z 3 7
Casez 3 T 2 z z T T q
Cases 3 T 2 z z 2 3 z z T
Case 4 3 2 2 7 T 2 3 T H 3
Cases 3 T 2 7] 3 2 3 2 7
Times
CaseT 3 NA 2 3 3 2 z T T z
3 T T z 3 TNA D 3
Cased 3 T 2 3 3 2 3 NIA 2 2
Cased 3 2 z 3 z z 3 z T 3
Cases 3 T 2 T T z 3 T T 5
Time 4
Case T 3 T z T z T 3 2 3 3
Cased 3 T 2 T z 2 zi T T
Cases a T z T z T z T z NA
Cased 3 T 2 T z 2 z 2 2 3
* Prosecution Team Contact: (1) None (2) Minimal (3) Average (4) Extensive
" Sanction Input: (1) None (2) Some (3) A lot
“ Input Satisfaction: (1) Not Satisfied (2) Satisfied
“Defense Attorney Behavior: (1) Negative (2) Neutral (3) Positive
“Defense Attorney Contact: (1) Negative (2) Neutral (3) Positive
(1) No (2) Yes
* Victim-Impact Statement/Testimony Satisfaction: (1) Not satisfied (2) Neutral (3) Satisfied
“Trial Disruption by Murderer: (1) Yes (2) No
‘Family Contact: (1) Negative (2) Neutral (3) Positive
' Criminal Justice Satisfaction: (1) Very Dissatisfied (2) Dissatisfied (3) Somewhat (4) Satisfied (5) Very
Satisfied
1 5
Victim-Impact Statement/Testimomy
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Table 8b: Category 1 Minnesota Cases: Impact of UPS on Conviction
Experience
Pros Sanction Input” DefAW Def Aw Mord Fam CI
Contact’ Input” Satis’ Beh" Contact” Satis* _Disrp" Contact’ _ Satis!
Time
Case 3 z z zi z 2 z z 7
z i z i 2 2 3 T NA q
Cased 7 7 z T 2 2 3 i i
Cased 3 i z r T 2 3 T T
Case 5 3 T T T z 2 3 T NA 3
Time 2
Casel z 7 z z 2 z 3 z z
3 z 2 @l @2e 2 3 2 2
(b)2 2
3 r 2 NANA z TNA NA
3 T 2 NANA z 3 T T NA
3 3 z r z 2 3 T T
Time 3
3 T 2 3 3 NA NIA__NIA 3 3
3 z 2 T 3 NANA
2 7 2 NANA 2 z z NA NIA
z T z r z 1 NA 2 z 3
Cas B T z T 2 2 3 NA
Time 4
Casel 7 T 2 NANA z 3 NA T z
Case 2 3 T z T z TNA NA NA 3
Case3 7 7 2 2 z TNA NA T z
Case4 3 i z 2 3 2 3 2 2 5
Cases NIA 2 NA Ni NA NIA__NA NIA 3
" Prosecution Team Contact: (1) None (2) Minimal (3) Average (4) Extensive
Sanction Input: (1) None (2) Some (3) A lot
“Input Satisfaction: (1) Not Satisfied (2) Satisfied
“Defense Attorney Behavior: (1) Negative (2) Neutral (3) Positive
“Defense Attorney Contact: (1) Negative (2) Neutral (3) Positive
‘Victim-Impact Statement/Testimony: (1) No (2) Yes
* Victim-Impact Statement/Testimony: (1) Not satisfied (2) Neutral (3) Satisfied
“Trial Disruption by Murderer: (1) Yes (2) No
‘Family Contact: (1) Negative (2) Neutral (3) Positive
Satisfaction: (1) Very Dissatisfied (2) Dissatisfied (3) Somewhat (4) Satisfied (5) Very
Criminal Justice $
Satisfied
“Death Penalty Attitude: (1) Non Death Penalty (2) Ambivalent (3) Pro Death Penalty
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Table 9a: Category 2 Texas Cases—Impact of UPS on Postconviction
Experience
Giil_Appeal_Appeal_Murd__Murd_Murd-Murd UPS Exec Eee DP Gage
Act’_Proc’ React’ __Rela’__ Att’ uff’ Rem’ Opin’ Pomel wit__aim’
Time 1
CaseT 1 T 2; 3 T r T 2 I 2 2 1
1 2 2 T r T NA NA 2
Cases 2 2 3 2 T 2 T 3 I 2 2 T
Cased 7 2 T 3 3 I T T T NA 3. 2
Cases T 2 3 2 T T T NA NA 2
Time?
I 3 3 2 T T T 3 2 2 T 2
Case T 3 3 2 T T NA I* NA NA 2
T 2 Bi 3 T 2 2 3 T 2 T 2
Cased 7 2 2; 3 T r T 3 I 2 T 1
aes I 2 2 2 T T 2 2 I 2 I I
Times
CaseT 1 T T 3 T 2 T 3 T 2 T 2
Cael T 3 3 T 2 2 I 2 z 2 T
Cases T T 2 3 2 I 2 2 I 2 T I
Cased T 3 3 2 T T T 2 2 rT NA 2
CaseS 1 1 2 3 1 1 1 3 1 2 1 2
Times
CaseT 1 T 2; I 2 r T 2 I 2 3 2
T T 2 2 2 2 2 2 I I I 2
T 3 2 2 T T 3 2 2 2 2
Cased 1 1 2 2 1 2 1 2 1 I NA 2
¥ Murdered committed suicide
* Civil Legal Action: (1) No (2) Yes
* Appeal Process: (1) Stuck (2) Moving (3) Completed
© Reaction to Appeal Process: (1) Dissatisfied (2) Worried (3) Non Apprehensive (4) Satisfied
“ Mental Relationship with Murderer: (1) None (2) Some (3) Much
* Attitude Toward Murderer: (1) Negative (2) Neutral (3) Positive
Desire for Murderer to Suffer: (1) No (2) Yes
* Desire for Murderer Remorse: (1) No (2) Yes
“Opinion Toward UPS: (1) Negative (2) Neutral (3) Positive
‘Execution Done: (1) No (2) Yes
’ Execution Witnessed/Plan to Witness: (1) No (2) Yes
“Death Penalty Aim: (1) An Ending (2) Equity/Honoring of Victim (3) Other
' Remaining Questions: (1) No (2) Yes
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Table 9b: Category 2 Minnesota Cases—Impact of UPS on
Postconviction Experience
Civil Appeal Appeal Murd Murd Murd Murd UPS Ques.
Act® Proc’ React® Rela’ Att’ Sutff! Rem’ Opin’
Time 1
Case 1 1 a 3 2 1 2 1 3 2
Case 2 1 NIA NIA 3 2 2 2 3 2
Case 3 1 3 2 2 2 2 1 3 2
Case 4 1 2 2 3 1 1 2 1 2
Case 5 1 a 3 2 BS 4 2 4 1
Time 2
Case 1 2 3 3 1 T 1 1 3
Case 2 T (a2 @lb) (@3b) @ 2 2 @l
(b)3 3 3 (b)3 (b)3
Case 3 z 3 1 FE 1 2 2 3 2
Case 4 2 3 NIA 2 1 2 1 1 2
Case 5 2 3 3 2 1 1 1 1 2
Time 3
Case 1 1 NIA NIA 2 2 NIA 2 3 1
Case 2 1 3 a 2 2 1 2 3 2
Case 3 1 3 NIA 1 2 1 2 3 2
Case 4 2 3 3 3 1 2 2 3 1
Case 5 1 NIA 3 1 2 1 3 1
Time 4
Case 1 7 3 NA 3 3 T 2 3 T
Case 2 2 3 3 1 2 cg 1 3 1
Cases 7 3 NA 3 T T T T NA
Case 4 1 2 3 1 1 1 1 3 2
Cc 1 3 NIA 1 T 2 1 3 2
* Civil Legal Action: (1) No (2) Yes
Appeal Process: (1) Stuck (2) Moving (3) Completed
“ Reaction to Appeal Process: (1) Dissatisfied (2) Neutral (3) Satisfied
“Mental Relationship with Murderer: (1) None (2) Some (3) Much
* Attitude Toward Murderer: (1) Negative (2) Neutral (3) Positive
* Desire for Murderer to Suffer: (1) No (2) Yes
* Desire for Murderer Remorse: (1) No (2) Yes
" Opinion Toward UPS: (1) Negative (2) Neutral (3) Positive
* Remaining Questions: (1) No (2) Yes
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Table 10a: Category 3—Impact of Murder and UPS on Survivors’ Lives
TEXAS MINNESOTA
CNC) Neg Post Phy Cl) NG) Neg Post Phy
Injus’_Injus’ Cons’ Cons’ React’ _Injus’_Injus’ Cons’ Cons’ React”
Time
Case T T T 7 T T T T 2 2
Casez 2 T T z 7 2 7 3 2 T
CaseS T 2 z i z T T T T r
Cased 3 i T 7 7 2 z z T 2
Cases T T 3 3 7 z T 3 2 7
Time 2
Case T T 2 z i 7 T i
Case2 7 T 2 3 3 2 z 3 7 i
Cases 3 T 2 2 NIA 3 3 3 7 T
Cased T T T 3 T 2 T 2 i
CaseS 7 T 3 7 3 2 3 3 7 z
Time 3
Case 3 3 z r T 3 3
Cased z T 2 T T T 2 T 7 T
Cases 2 T 2 T T T T 3 i i
Cased T T T 7 i i 2 4 3
Case 5 7 T 7 r 3 r T T 7 i
Time 4
Case T T 2 T 3 z 2 7 2
Casez 3 3 2 z 7 z T 4 7 T
CaseS T T 3 z T z z 7 7 T
Cased z 3 7 r z r T 7 z r
GaeS NIA. NIA NIA_NIA_NIA i T 2 2 z
* Criminal Justice Injustices/Resentments: (1) None (2)1 (3) 2-3 (4) More than 4
" Non-Criminal Justice Injustices/Resentments: (1) None (2) 1 (3) 2-3 (4) More than 4
“Negative Fallout: (1) None (2) On Self (3) On Other (4) On Both Self and Other
“Positive Spinoff : (1) None (2) Activities/Life Changes (3) Personal Gi
Activities/Life Changes and Personal Growth/Meaning S$
“Current Physical Reactions: (1) None (2) Current Sleep Problems (3) Disease/lllness (4) Both Sleep and
Disease/
ywth/Meaning System (4) Both
ystems
lines
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Table 10b: Category 3—Psychological Changes in Survivors’ Lives
TEXAS MINNESOTA
Trauma Emo Dullingy Trust Pr Trauma Emo Dullingy Trust Pr
Reaction’ Depression’ Issues’ _ Growth" Reaction” _Depr : Growth"
Time T
CaseT z T T z z T z T
Case2 1 T 2 H H z 2 H
Cases T z T T z T H
Cased 2 2 T 7 z 2 z H
Cases z T T T T T 2 T
Time2
CaseT z T T T T T T T
Case2 T 2 2 T T 2 2 2
Cased T z T T T T T z
Cased z 2 T 7 NA NA NIA NIA
Cases 2 z 2 H H z 7 H
Times
CaseT 2 2 2 7 7 T 7 z
Casez T z 2 T T T T z
Cases T T T 7 7 T T 7
Cased T z T H 2 2 2 2
2 2 2 T T T T 2
Time 4
CaseT T z T 7 7 T z
Casez T z z T T T z z
1 T T T T i Zi 2
T T T 7 7 T z
Cases NIA NA NA NIA T H T 2
“Trauma Reactions: (1) No (2) Yes
* Emotional Dulling/Depressive Symptoms: (1) No (2) Yes
“ Lack of Trust: (1) No (2) Yes
“PT Growth: (1) No (2) Yes
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Table 10c: Category 3—Behavioral Changes in Survivors’ Lives
TEXAS MINNESOTA,
Stress. Refocus Preserve Sense Stress. Refocus Preserve Sense
Reduce’ Behav’ Behav" of | Reduce” Behav’ Behav of
Agency’ Agency’
Time 1
Case 1 4 1 1 1 4 1 1 1
Case 2 1 4 2 1 m 3 1 4
Case 3 3 1 2 1 2 £ 1 3
Case 4 3 3 1 4 2, 3 1 2
Case 5 4 1 1 1 4 3 1 3
Time 2
Case 1 1 3 2 1 1 2 1 £
Case 2 1 3 2 2 2, 2 2 3
4 1 1 1 3 1 1 4
3 1 1 1 1 1 1 3
3 2 = 4 3 4 1 3
Time 3
Case 1 2 1 1 2 3 3 1 4
ey 1 2 1 1 4 1 2
1 1 1 2 1 1 1 1
3 3 1 2 4 4 1 4
Case 5 4 1 1 1 1 3 1 4
Time 4
Case 1 3 1 1 1 1 4 1 4
se 2 4 1 1 2 m 4 1 2
se3 2 2 1 2 2 3 1 2
4 1 1 1 3 2 4 1 4
Case 5 NIA NIA NIA NIA 2 4 1 4
" Stress Reducing Activities: (1) No (2) Protective Behaviors (3) Avoidant/Distancing Behaviors (4) Protective
and Avoidant/Distancing Behaviors
" Refocusing Behaviors: (1) None (2) Busyness (3) Life Style Change (4) Both Busyness and Life Style Change
“ Preserving Behaviors: (1) No (2) Yes
© Sense of Agency Behaviors: (1) No (2) Self Assertion (3) Thought Control (4) Self Assertion and Thought
Control
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APPENDIX C: UPS INTERVIEW GUIDE
Preface: A lot of terrible things have happened to you related to
your loved one’s death. These things are all very important and we want
to honor them. However, what we really want to know about and what
hasn’t been studied are answers to the question: What has been helpful
in getting you through this process?
This interview is completely voluntary and confidential. If I ask you
any question you do not want to answer, say “pass” and we’ll go on to
the next question. Please also feel free to ask for clarification. This
interview could take anywhere from two to three hours, depending on
how much you have to say. Also before we begin the interview I am
going to ask you to fill out three forms. One is a form that gives me
information on things like your age, your gender, and your marital
status. The second one is about your reactions to your loved one’s death
in the past month. The third one is about your sense of social support.
The interview itself is divided into nine parts. The first four parts
ask you about your sense of justice, your experience with the criminal
justice system, your definition of movement, and your experience with
the murderer. The fifth part asks you about personal changes to you
since the death of your loved one. The sixth and seventh parts ask you
about social and psychological support as well as the role of religion and
spirituality in your healing process. The eighth part asks you about the
role of the media. The ninth part asks you about changes in your family
relationships
OPENER
Let’s take 10-15 minutes for you to familiarize me with your story.
JUSTICE
1. Where is your case now in the criminal justice process?
2. What criminal justice officials and what parts of the criminal
justice process have you had contact with?
3. Please check the events that you have experienced.
(a) Offender was apprehended (caught)
(b) Offender was convicted, ete.
(c) Offender was given the ultimate penal sanction (Death
Penalty or LWOP)
(d) The ultimate penal sanction has been carried out
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(e) The sentence has been upheld during the appeal process
(f) The appeal process is complete
(g) The execution date has been set
(h) The execution was witnessed by me
(i) The execution is completed
(j) The offender is suffering in prison
(k) The offender will never get out/put away for life.
Describe your relationship with the prosecutor?
What does justice mean to you?
What does injustice mean to you?
What events, if any, made you feel that justice was furthered?
Although the murderer was charged and sentenced at the
highest level, what more would increase your sense that justice
was furthered?
What events increased your sense of injustice?
How satisfied are you with the outcome of the criminal
proceedings?
(a) Very Dissatisfied 3
(b) Dissatisfied 2
(c) Somewhat Dissatisfied -l
(d) Neutral 0
(e) Somewhat Satisfied +1
(f) Satisfied +2
(g) Very Satisfied 43
Attitudes About Death Penalty and LWOP
11.
12.
What was your attitude about the prior to the murder
of your loved one? What impact has the death of your loved
one had on your attitude?
(a) Death Penalty
(b) LWOP
How much faith did you have in the criminal justice system prior
to the murder of your loved one? How much faith in the
criminal justice system do you have now?
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14.
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People argue that brings closure. What has been
your experience?
(a) Death Penalty
(b) LWOP
What does your religion say about responding to someone who
has taken the life of another person? Is your religion morally at
odds with the ultimate penal sanction? If yes, how have you
dealt with that conflict?
Sentencing to One Year Out: Death Notification, Investigation and Trial
Als.
Al6.
Al7.
Als.
Some people tell us that the way they are notified about their
loved one’s murder makes it harder or easier to cope with their
loss. What things about the notification process made it harder
to cope with your loss? What things helped you to cope with
your loss?
Some people tell us that their experience with the coroner’s
office makes it harder or easier to cope with their loss. What
things did the coroner’s office do that made it harder to cope
with your loss? What things did the coroner’s office do to help
you cope with your loss?
Some people tell us that there are things about the criminal
justice system’s management of their loved one’s homicide case
that makes it harder or easier to cope with their loss. What
things did the do that made it harder to cope
with your loss? How did you get through that time? What
things did the do that helped you to cope with
your loss?
(a) Police Department
(b) DA’s Office
(c) Judge / Trial
(d) Anything else
Comment on the following events and how they made it harder
or easier to cope with your loss.
(a) Finding out that the D.A. would go for the ultimate penal
sanction
(b) Attendance (lack of attendance) at the pretrial hearings and
the trial
(c) Viewing of the crime scene and autopsy photos
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(d) Participation in the decision-making about the sentencing
and penalty phases of the trial
(e) Information given about the case and/or court proceedings,
including incorrect or incomplete information
(f) Behavior by the defense
(g) Preparation and delivery of the victim-impact statement
(h) Information about the offender’s life
What was your reaction when the offender received
2? What did it mean to you? How did others,
including the offender, react? How did their reactions impact
you?
(a) the conviction
(b) the punishment
Five to Seven Years Out: Appeal Process
BIS.
B16.
B17.
Describe your life since the offender received
What postsentence events have occurred that have made it
harder to cope with your loss? What helped you during that
time?
(a) Death Penalty
(b) LWOP
Some people tell us that there are things that happen during the
appellate process that make it harder or easier to cope with their
loss. How did affect you?
(a) Waiting for the appeal process to be over
(b) Hearing about an offender’s successful appeal in a death
penalty case
(c) The extent or lack of information given to you about an
appeal when it is filed in your case
(d) Learning the decision after an appeal has been heard
(e) Other
What changes, if any, have (did) you noticed in yourself since
the offender received (sleep patterns, eating patterns,
energy level, physical health, feelings of anxiety, feelings of
anger, etc.)? What changes did you notice in other family
members?
(a) Death Penalty
(b) LWOP
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B18.
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How did you react after all the appeals were finished? Rate the
degree to which the end of the appeal process impeded or
assisted your journey?
(a) Significantly Impeded -3
b) Impeded 2
( p
(c) Somewhat Impeded -l1
(d) Neutral 0
(e) Somewhat Assisted +1
(f) Assisted +2
Significantly Assisted 43
(g) Sig y
Nine to Eleven Years Out: Execution
Cis.
Clo.
C17.
cls.
C19.
C20.
C21.
[After the appeal process was over] Describe your experience
leading up to the execution. What is (was) the meaning of the
execution for you? What hopes do (did) you have for how the
execution will (would) make a difference in your life?
Do (did) you plan to view the execution? Why is (was) it
important to view (not view) the execution? What do (did) you
expect the execution will be (would be) like? What will be
(was) the best thing about viewing/not viewing the execution?
What will be (was) the hardest thing about viewing/not viewing
the execution?
What changes, if any, have (did) you noticed in yourself leading
up to the execution (sleep patterns, eating patterns, energy level,
physical health, feelings of anxiety, feelings of anger, etc.)?
What changes did you notice in other family members?
How do (did) others within and outside the family react to the
offender being executed? What is (was) your response to their
reactions?
Who else will attend (attended) the execution besides you?
What is (was) the nature of the relationship(s) between you?
What are (were) your thoughts about the offender’s family?
What are (were) your reactions to the presence of the offender’s
family at the execution? Did the offender’s family apologize?
What was that like for you?
What did the offender say, if anything, at the execution? What
was your reaction to the offender’s statements?
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Thirteen to Fifteen Years Out: Post Execution
D1S5.
D16.
D17.
D18.
What changes, if any, did you notice in yourself in the first
several months after the execution (sleep patterns, eating
patterns, energy level, physical health, feelings of anxiety,
feelings of anger, etc.)? What changes did you notice in other
family members?
Did the execution give you what you wanted? Did it resolve or
complete anything about the grief you feel for the loss of your
loved one? If yes, what did it resolve or complete for you?
How did the execution impact your sense of justice served?
Did the execution change any of your views about the murder of
your loved one? Do you have any regrets about the execution?
What is the meaning you give to the offender’s death? Rate the
degree to which the completed execution impeded or assisted
your journey?
(a) Significantly Impeded -3
(b) Impeded 2
(c) Somewhat Impeded -1
(d) Neutral 0
(e) Somewhat Assisted +1
(f) Assisted +2
(g) Significantly Assisted $3
MOVEMENT
Preface: Because this is a study about your healing process, Id like to
ask you a few more general questions. Certain things have happened to
you that give you a sense of progress. Other things have happened that
make you feel that you are just standing in place. Some things seem to
push you back.
22. Lots of survivors don’t like the words healing and closure. How
do you see the process you’ve gone through?
23. What does movement mean to you? How do you know you
moved?
24. Tell me about a recent experience of movement?
25. What would you hope would happen for you as a result of
movement?
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26. What would you wish for other survivors in terms of a positive
outcome for them?
Murderer
27. Describe your relationship with the murderer prior to the
murder? How, if at all, have your feelings about the murder or
the offender changed over time? How do you feel about the
murder or the offender now?
28. How did the murderer behave during the trial? How did that
behavior affect you then? How does that behavior affect you
today?
29. How did you react when you learned about the murderer’s life?
30. Has there been any acknowledgment of your pain from the
murderer or any member the murderer’s family? What
difference does it make/would it make that the murderer or
member of the murderer’s family feels sorry for what he did?
31. What difference does it/would it make that the offender is
suffering?
Psychological States
32. Some people find that the loss of a loved one changes the way
they see the world and how it functions. What, if anything, has
changed about how you see the world? What difficulties, if any,
has that change created for you?
33. What concerns, if any, have others expressed about your
ongoing reaction to the murder and the loss of your loved one?
34. Some people try to hold onto things or keep things the way they
were before their loved one was murdered? What has remained
the same and what has changed?
35. Some people feel guilty about the past or guilty if they feel
happy. What, if anything, causes you to feel guilty?
36. What positive changes, if any, have you made in your life as a
result of the murder?
37. What experiences, if any, have helped you feel safe and secure
in the world again?
38. What questions, if any, remain unanswered about the homicide?
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39.
40.
41.
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MARQUETTE LAW REVIEW [96:1
What important questions about the homicide, if any, have been
answered for you?
Have you been able to make some sense out of the murder? If
not, do you expect to make sense out of the murder? Rate the
degree to which the ability to make some sense out of the
murder impeded or assisted your journey?
(a) Significantly Impeded -3
(b) Impeded 2
(c) Somewhat Impeded -1
(d) Neutral 0
(e) Somewhat Assisted +1
(f) Assisted +2
(g) Significantly Assisted +3
What experiences, if any, created uncertainty about the
offender’s outcome? What did you do to cope with the
uncertainty?
What experiences, if any, have given you back a sense of
control?
Social & Psychological Support
43.
People have different experiences with people following this
type of loss. I’m interested in what happened to you. To start,
who are the main people that you have turned to for help with
your loss?
Briefly describe the quality of your relationship with
What did this person do to help you cope with your loss?
In what ways has your support system changed, if at all, since
the loss of your loved one?
Some people find that other people treat them differently after
this type of loss. What was your experience?
What did people do that made it harder for you to cope with
your loss?
Some people keep to themselves because they feel that other
people do not understand their loss. What was your
experience?
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50. Some people join a bereavement support group or get
psychological/pastoral counseling after a loved one dies. What
was your experience?
Religion/Spirituality
51. Some people experience changes in their relationship with God
or in their religious beliefs or practices. What changes have you
experienced over time?
52. What religious/spiritual practices, if any, have you used to help
you cope with the loss of your loved one?
53. What does your religion say about forgiveness? Do you
experience a conflict between your personal or religious beliefs
about forgiveness and your current feelings toward the
murderer?
54. What do you believe about forgiving the murderer? What
would it take to forgive him? How did you come to forgive
him?
Media
55. Describe the significant positive or negative experiences with
the media.
Family Relationships
56. How did your react to the death of your loved one?
(a) Spouse/partner
(b) Child(ren)
(c) Sibling(s)
(d) Parent(s)
(e) Other
57. What changes, if any, have occurred in your relationship with
your since your loss?
(a) Spouse/partner
(b) Child(ren)
(c) Sibling(s)
(d) Parent(s)
(e) Other
