listening to victims

M i i r d e r V i c t i m s ' Families

1.2 Victims' families' perspective

LISTENING TO VICTIMS Mickell Bronham^ " A n evil deed is not redeemed by an evil deed o f retaliation. Justice is never advanced i n the taking o f a human Hfe. M o r a l i t y is never upheld by a legaUzed murder." Coretta Scott King^ T h e exorbitant financial cost o f the death penalty i n America is •weU-documented, and there is plenty o f evidence to support the abol i t i o n o f capital punishment o n the basis o f fiscal responsibiHty alone.^ These resources could be directed instead to-ward efforts to reduce, prevent, and solve crimes o f violence as "weU as to provide reparations and restitution to victims. B u t as impressive as the figures are, there is a m u c h greater cost to societies that cling to the death penalty, one that is m u c h more difficult to measure: the loss o f integrity n o t only by perpetuating violence but by increasing it exponentially. A society that respects life does n o t deliberately k i l l h u m a n beings. A n execution is a v i o l e n t spectacle o f official h o m i c i d e , and one that endorses k i l l i n g to solve social problems—the worst possible example to set f o r the citizenry, and especially children. G o v e r n ments w o r l d w i d e have o f t e n attempted to j u s t i f y their lethal f u r y by e x t o l l i n g the p u r p o r t e d benefits that such k i l l i n g w o u l d b r i n g to the rest o f society. T h e benefits o f capital punishment are i l l u sory, b u t the bloodshed and the resulting destruction o f c o m m u n i t y decency are real.'* For the past t w o decades, defense teams i n capital cases have begun to open dialogues w i t h surviving f a m i l y members o f murder victims, and the c o m m u n i t y has learned some extraordinary lessons. W h i l e a 1

Mickell Branham is an attorney w h o specializes i n mitigation and restorative processes. She lives i n Washington, D.C.

2

Coretta Scott King's speech to the National Coalition to Abolish the Death Penalty,Washington, D C , 26 Sept., 1981.

3

Death Penalty Information Center, updated May 12,2016. Available f r o m www.dpic.org. (accessed 24 August 2016).

4

https://www.aclu.org/case-against-death-penalty. (accessed 24 August 2016), p. 5,1 June, 2016.

4')

K4uidei V i c r i n i s ' Families

f e w capital defense teams i n the U n i t e d States had regularly reached out to victims and survivors i n their cases, the vast m a j o r i t y traditionally d i d not. T h a t began to change f o l l o w i n g the O k l a h o m a C i t y b o m b i n g i n 1995, w h i c h p r o m p t e d the community's i n t r o d u c t i o n to principles o f restorative justice and an evolution i n criminal defense practice that was l o n g overdue.^ Listening to and learning f r o m victims'^ since that time, our c o m m u n i t y has become better i n f o r m e d and has broadened its understanding o f h o w victims' needs m i g h t better be met w i t h i n the j u d i c i a l p r o cess. V i c t i m s are forced i n t o a very public f o r u m d u r i n g a p r o f o u n d grieving process. Losing a loved one to severe violence tremendously complicates the struggle individuals face to regain balance and meani n g i n their lives. D a n Levey, w h o lost his brother to homicide i n 1996, described it powerflally: M u r d e r breaks all the sacred rules, knows no fairness, and can never be compensated f o r or undone. I t provokes fear and rage and tempts us to battle i t o n its terms instead o f our o w n . M u r d e r drives even the most l o v i n g and compassionate people to the edge o f that f m e line that separates our respect f o r life f r o m our v i o l e n t potentials. T h e aftermath o f murder takes us straight t h r o u g h hell, where we stand eye to eye w i t h the evil that hides b e h i n d h u m a n faces, and what we do i n the face o f the evil defmes us f o r what lies ahead. T h e afterm a t h o f murder is n o t h i n g less than a f u l l - b l o w n emotional and spiritual struggle.^ That struggle is often compUcated by insensitive and intrusive media coverage, along w i t h pressure placed o n surviving famihes to either support or oppose capital punishment. Again, as M r . Levey described, " W h e n the death penalty spotHght shines o n survivors, they risk getting

5

Mickell Branham & Richard Burr. 2008."Understanding Defense-InitiatedVictim Outreach and W h y I t Is Essential i n Defending a Capital Client." Hofstm Law Review.

6

The t e r m " v i c t i m " is used i n this article to include surviving family members o f homicide victims, w h o often consider and refer to themselves as victims as well.

7

Levey, Dan. 2006."FeeHngs from the Heart." I n Wounds Tliat Do Not Bind: Victim-Based Perspectives on tlie Death Penalty. Durham, N C : CaroHna Academic Press, p. 36.

511

MiirdtM" V i c t i m s

Fanuhts

ridiculed by either anti-death-penalty advocates or pro-death-penalty advocates. For survivors, it is a n o - w i n situation."^ W i t h o u t question, victims should be treated w i t h sensitivity, respect, and fairness by all w h o w o r k w i t h t h e m regardless o f h o w they feel about the death penalty. T h e political pressure brought to bear by a capital prosecution exacerbates the potential f o r r e - v i c t i m i z a t i o n i n the c o u r t r o o m and can f u r t h e r complicate the g r i e v i n g process. " I t takes victims out o f their o w n j o u r n e y and places t h e m i n the trial game . . . . O n e result is that the v i c t i m is transformed f r o m an o u t sider searching f o r a variety o f answers (spiritual, emotional, financial and legal) to an integral part o f an adversarial process.... H e a l i n g and understanding take a back seat to w i n n i n g . " ' As anyone familiar w i t h the legal system can attest, " I f one set o u t by design to devise a system f o r p r o v o k i n g post-traumatic symptoms, one c o u l d n o t do better than a court o f law."*° V i c t i m s ' experiences and needs can vary greatly, b u t c o m m o n among these needs are those o f safety, i n f o r m a t i o n , validation, v i n d i c a t i o n , and the need to be heard. W h e n we deeply listen to victims, w e have a greater understanding o f the imperative to create systems and methods f o r effective and m e a n i n g f u l resolution o f the harms caused by violent crime. M a n y victims and survivors have needs that have n o t h i n g to do w i t h achieving a sentence o f death and w o u l d be u n d e r m i n e d by i m p o s i t i o n o f the death penalty. C l i f f o r d O ' S u l l i v a n Jr. was o n l y 4 years o l d w h e n his m o t h e r , Kellie O ' S u l l i v a n , was m u r d e r e d i n 1993. A t the tender age o f 6, he was placed o n the witness stand by a C a l i f o r n i a prosecutor to testify i n support o f the death penalty f o r the m a n responsible f o r her death. " A l l I t h i n k is that w h a t the bad m a n d i d to m y m o m should happen to h i m . It's really sad f o r m y f a m i l y 'cause she was one o f the greatest mothers I've met." I n the years that f o l l o w e d , others a r o u n d C l i f f o r d celebrated the death verdict and t o l d h i m this was

8

Ibid., p. 46.

9

Loge, Peter. 2006. "The Process o f HeaUng and the Trial as Product: Incompatibility, Courts, and Murder V i c t i m Family Members." I n Wounds Tliat Do Not Bind: Victim-Based Perspective on the Death Penalty. Durham, N C : Carolina Academic Press, p. 421.

10

Herman.Judith. 1992. Trauma and Recovery.Tlie Aftermath of Violence—from domestic abuse to pohtical terror. N e w York: Harper Collins, p. 72.

51

M u r d e r V i L t i n i s ' Families

his v i c t o r y . B u t C l i f f o r d learned otherwise. " Y o u d o n ' t heal."'' I n January 2014, he explained i n The Contributor

i n Nashville, T e n -

nessee, " I retract the blessing I gave to those w h o once seemed so eager to cast stones i n m y name. H a v i n g been scarred b y personal experience, and having witnessed the w o u n d i n g o f others, sometimes as a result o f m y o w n actions, m y f a i t h n o w resides i n the l a w o f love alone." C l i f f o r d eventually d e t e r m i n e d that his j o u r n e y needed t o include a face-to-face m e e t i n g w i t h the m a n responsible f o r his mother's death. V i c t i m requests f o r dialogue w i t h defendants are increasing. I n d i vidual journeys toward recognizing this need can take many forms. C l i f f o r d began volunteering w i t h Tennessee's death r o w inmates l o n g before meeting his mother's murderer o n CaUfornia's death row. Linda W h i t e , whose daughter Cathy was killed i n Texas i n 1986, began teaching i n t w o Texas prisons, and her Ufe, as she describes, i t , has never been the same. She eventually participated i n a v i c t i m - o f f e n d e r dialogue w i t h one o f the m e n responsible f o r her daughter's murder, calling i t "a p r o f o u n d l y liberating experience." It is t r u l y hard to come to grips w i t h the last moments o f y o u r loved one's life and h o w he or she died—^for me this has always been the most challenging issue. M e e t i n g w i t h h i m gave me some degree o f peace w i t h that aspect o f it, almost as i f she gave us a message i n those last moments, a legacy o f w h o she was and w h a t she wanted to leave behind. A n d i t made me realize that m y w o r k over the last nineteen years was exactly the m e m o r i a l that she deserved.'^ Linda began to reaUze from her research and her o w n experience that prisoners often see themselves as just as worthless as the pubUc does and that efforts to see them and treat them as human beings can have a tremendous impact. A l m o s t aU states i n the U S have v i c t i m - o f f e n d e r dialogue or mediat i o n programs. However, v i c t i m access to these programs i n cases o f serious violence has been l i m i t e d , and non-existent i n federal cases,

11

" A t age 6, he pushed for mom's killer to die. N o w he's not so sure," TIte Teitnessean, May 15,2015.

12

White, Linda. 2006, " A Tiger by the Tail." I n Wounds Tliat Do Not Bind. Durham, N C : Carolina Academic Press, p. 67.

M u r d e r V i c t i m s ' Families

i n spite o f tiie g r o w i n g number o f v i c t i m requests. Meetings between defendants and famii-y members o f victims i n cases o f severe violence require careful planning and preparation and should be facilitated only by trained professionals, but the benefits o f dialogue and mediat i o n to victims are measurable, and avenues to m a k i n g these programs more w i d e l y available need to be explored.'-' T h e victims' rights movement has g r o w n rapidly i n the U S since the 1970s, p r o m p t i n g federal and state legislation broadening the rights o f victims and survivors to participate i n trials o f those accused o f crimes against them. B u t i n one area o f victims' rights, recognition and respect remains elusive i n most cases absent unusual circumstances. W h e n victims articulate needs inconsistent -with or opposed to that o f prosecutors o n the case, victims can feel shut out o f the judicial process. I n the case o f Colorado v. Edward Montour, concerning the killing o f a corrections officer i n 2002, the parents o f the victim, Eric Autobee, opposed the prosecutor's decision to again seek the death penalty after Montour's original sentence was overturned. W h e n the prosecutor chose to ignore the family's decision, B o b Autobee continued to press the prosecutor to drop the death penalty and even picketed outside the courthouse as potential jurors lined up to enter. T h e prosecutor's response was to remove the -victim's family members f r o m his Hst o f witnesses to be caUed during sentencing. W h i l e many -victims i n similar circumstances quietly defer to prosecution decisions, this experience spurred B o b Autobee to acti-vism. Defense counsel asked the court f o r permission to aUow the Autobees to testify at sentencing as defense -witnesses, prompting prosecution objections. T h e Autobee family's reasoning was beautifially articulated i n a court f i l i n g that stated, i n part: Despite the inhumanity he saw around h i m , Eric w o u l d n o t speak disdainfliUy o f inmates, but, instead, recognized their human dignity. T h e crime affected the Autobees not just because o f their beloved son's loss, but also because o f w h o they became after this loss. A f t e r Eric's death, their w a r m feelings o f love that Eric always nurtured turned

13

Rossi, Rachel. 2008. " M e e t M e o n Death R o w ; Post-Sentence V i c t i m - O f f e n d e r Mediation i n Capital Cases." Peppeidiiie Dispute Resolution Law Journal 9(1);185-210.

M u i d c T V i c t i m s ' Families

into cold feelings o f vengeance and violence. Originally, the Autobees fervently supported the prosecution's efforts to seek absolute r e t r i b u tion. Over time, ho^wever, and w i t h reflection, they realized that Eric w o u l d not have wanted this f o r himself or f o r them; Eric w o u l d not have wanted someone killed i n his name, nor w o u l d he have wanted his family to Hve i n the darkness o f hatred. T h e Autobees k n o w this because they k n o w h o w Eric Uved: by loving Hfe, saving Hves, and extending mercy to the merciless.''^ A l t h o u g h victims are not aUowed to testify o n their views o f punishment either f o r or against the death penalty, victims w h o are opposed to capital punishment should not be prohibited f r o m participating i n the judicial process. A striking example o f empowering these victims occurred d u r i n g the sentencing phase o f the trial o f Zacarias Moussaoui i n 2006, where family members w h o lost loved ones o n September 11, 2001, testified o n behalf o f the defense. Federal prosecutors strenuously objected to any -victim family members being aUowed to testify d u r i n g the defense presentation. Described i n the press as "noble and generous," 9 / 1 1 family members t o o k the stand one by one to teU stories about their loved ones and stories o f compassion, tolerance, and peace-building to educate thej urors and the c o m m u n i t y o f their values. D o n a l d Bane, whose son M i c h a e l was kiUed i n the n o r t h tower o f the W o r l d Trade Center, testified,"! thought what was needed were bridges o f understanding w i t h the people w h o w o u l d do this k i n d o f thing." I n his community, he began organizing meetings between Christians and MusHms. M a r i l y n Rosenthal, whose son Josh was kiUed, wanted to testify out o f a sense o f patriotic duty. "Everybody . . . wants something good and positive to come out o f what happened. For me that meant finding out everything." A n t h o n y Aversano told the j u r y o f his struggle to deal w i t h his anger o f September 11 after losing his father that day."I saw i f I went d o w n the path o f wanting retaliation . . . I w o u l d give m y Hfe over to them. I f I was to succumb to fear, to succumb to the terror . . . I give up m y Hfe. I can't possibly have an open heart and stiU be afraid or angry or vengeful."''

14

Cohen,Andrew. 2014. " W h e n Victims Speak U p i n C o u r t — I n Defense o f the Criminals," Available f r o m http://www.theatlantic.com/national/archive/2014/01/when-victims-speak-upin-court-in-defense-of-the-criminals/283345/ (accessed 24 August 2016).

15

"Families o f 9/11 Victims Testify for Moussaoui Defense," Renters, A p r i l 19,2006.

54

M u r d e r V i c t i m s ' Fanulies

I n other cases, f a m i l y members -who disagreed -with the prosecution's pursuit o f the death penalty have taken their case to the press. U p o n a conviction i n federal district court arising f r o m the Boston M a r a t h o n bombings, surviving f a m i l y members B i l l and Denise Richards published i n the Boston Globe their plea f o r prosecutors to drop the death penalty. We understand all too -well the heinousness and brutality o f the crimes c o m m i t t e d . W e were there. We lived i t . T h e defendant murdered our 8-year-old son and m a i m e d our 7-year-old daughter, and stole part o f our soul. We k n o w that the government has its reasons f o r seeking the death penalty, but the continued pursuit o f that punishment c o u l d b r i n g years o f appeals and p r o l o n g reliving the most p a i n f u l day o f our lives. W e hope our t w o remaining children do n o t have to g r o w up w i t h the lingering, p a i n f u l reminder o f w h a t the defendant t o o k f r o m t h e m , w h i c h years o f appeals w o u l d undoubtedly b r i n g . I n spite o f their plea, the U n i t e d States A t t o r n e y proceeded to obtain a death verdict. Last year i n Charleston, S o u t h

Carolina, f a m i l y members

of

parishioners slain d u r i n g t h e i r B i b l e study appeared at the i n i t i a l hearing to speak directly to the y o u n g m a n w h o k i l l e d t h e i r loved ones. Felicia Sanders said to h i m , " W e w e l c o m e d y o u Wednesday n i g h t i n o u r B i b l e study w i t h w e l c o m e arms.You have k i l l e d some o f the most b e a u t i f u l people that I k n o w . E v e r y f i b e r i n m y b o d y hurts and I ' l l , I ' l l never be the same. Tywanza Sanders was m y son. B u t Tywanza Sanders was m y hero. Tywanza was m y hero . . . . May

G o d have

mercy

on

y o u . " Wanda

Simmons

told h i m ,

" A l t h o u g h m y grandfather and the o t h e r victims d i e d at the hands o f hate, this is p r o o f , everyone's plea f o r y o u r soul, is p r o o f that they lived i n love and their legacies w i l l live i n love. So hate w o n ' t w i n . A n d I j u s t w a n t to t h a n k the c o u r t f o r m a k i n g sure that hate doesn't w i n . " ' ^

16

"To End the Anguish, Drop the Death Penalty," Tlie Boston G/ofc, A p r i l 16,2015.

17

" T h e Powerflil Words o f Forgiveness Delivered to Dylan R o o f by Victims' Relatives," Tlie Washington Post,]une 19,2015.

M u r d e r V i c t i m s Families

President Obama d u r i n g liis eulogy f o r the Reverend Clementa C. Pinckney called o n the nation to emulate the grace that the reverend displayed i n his w o r k and that the people o f South Carolina d e m o n strated after the massacre o f the nine worshippers at their church. I n the spring o f 2015, the U S Department o f j u s t i c e announced its intention to seek the death penalty i n the case, p r o m p t i n g Ta-Nehisi Coates to w r i t e , " T h e hammer o f criminaljustice is the preferred tool o f a society that has r u n out o f ideas. I n this sense, R o o f is Httle more than a human sacrifice to T h e Gods o f D o i n g Nothing."'^ Seeking vengeance is c o m m o n l y accepted as the n o r m f o r "justice" i n our culture even as the evidence grows that it may have a negative impact o n b o t h victims and the c o m m u n i t y . A report from the N e w Jersey Death Penalty Study Commission f o u n d that "the non-finahty o f death penalty appeals hurts victims, drains resources, and creates a false sense o f j u s t i c e . Replacing the death penalty w i t h Hfe w i t h o u t parole w o u l d be certain punishment, not subject to the lengthy delays o f capital cases; i t w o u l d incapacitate the offenders; and i t w o u l d p r o vide finaHty f o r victims' famiHes."^° So many victims, even foUowing such extraordinary loss and pain, refuse to dismiss the inherent potential w o r t h o f the Hfe o f the individual w h o took everything away f r o m them.This is not weakness but something that i n itself stands as a f i r m rejection and condemnation o f the insidious action o f murder perpetrated against them.This is ancient wisdom, that we are aU interconnected. I n our web o f relationships, crime represents a tear i n the web, a sign o f imbalance. I t caUs to us to put things right. Because we are aU interconnected, this can be accompHshed only by engaging all o f those impacted by the crime: the victims, those w h o harmed them, and the community—addressing the c o m m u n i t y and offender obHgations along w i t h the needs o f everyone.^' C r i m e does not occur i n a vacuum. Those w h o inflict harm on others are often p r i o r victims o f violence themselves. W h e n trauma is

18

Ta-Nehisi Coates. 2016."Killing Dylan Roof."77ic/l//m/fic available f r o m http://www.theadantic. com/pohtics/archive/2016/05/dylann-roof-death-penalty/484274/. (accessed 24 August 2016).

19

See M a r i l y n A r m o u r & M a r k Unbreit. 2012. "Assessing the Impact o f the Ultimate Penal Sanction on Homicide Survivors: A Two State Comparison."Mrtiqi(e(fe Law Review 96(1):1-123.

20

See N e w Jersey Death Penalty Commission. 2007. Deatli Penalty Study Commission Report, p. 6 1 .

21

For an in-depth discussion o f this, see Howard Zehr. 1990. Changing Lenses: A New Focus for Crime and Justice. Scottdale PA: Herald Press.

56


unhealed, its impact has a ripple effect as those -who have suffered h a r m may evolve into aggressors t h e m s e l v e s . W h e n

this is exacerbated

by c o m m o n societal problems o f racism, poverty, institutional failure, addiction, abuse, negligence, mental illness, or intellectual disabiHty, i t can produce a perfect storm f o r a violent crime that could Hkely have been prevented and never should have occurred. B u d W e l c h , -whose 23-year-old daughter, Julie, -was killed i n the O k l a h o m a C i t y b o m b i n g , described this p a i n f u l realization: A t first I was i n absolute pain. A l l I wanted was to see those people f r i e d . I was s m o k i n g three packs o f cigarettes a day and d r i n k i n g heavily. I was physically and mentally sick. I was stuck o n A p r i l 19, 1995. L o o k i n g back, I call that the temporary insanity p e r i o d . I w e n t d o w n to the b o m b site and stood right underneath the survivor tree. A statement that Julie made got to echoing i n m y m i n d . W e were d r i v i n g across Iowa and heard a radio story about an execution i n Texas. Julie's reaction was, " D a d , all they're d o i n g is teaching hate to their children." I didn't really t h i n k a hell o f a l o t about i t at the time, but then, after she was dead, 1 got to t h i n k i n g about i t . I k n e w that the death penalty wasn't g o i n g to b r i n g her back, and I realized that i t was about revenge and hate. A n d the reason Julie and 167 others were dead was because o f the very same t h i n g : revenge and hate. I t was M c V e i g h and N i c h o l s ' hate against the federal government. T h e y w o u l d never have p e r f o r m e d that act i f they hadn't felt j u s t i f i e d that they were d o i n g the r i g h t t h i n g f o r their cause, just like we t h i n k we're d o i n g the r i g h t t h i n g f o r our cause w h e n w e execute prisoners.^-' Systems that impose the death penalty o n citizens ignore the very human stories o f the individuals charged w i t h these crimes and 22

Scc,^f»cr(i//}'Yocler, Carolyn. 2005. Tlie Little Book oJTmtiina Healing: Wlieii Violence Strikes and CoiiinninitY Security is Tlireatened. Intercourse, PA: Good Books.

23

Welch, Bud. 2001. "1 Was Stuck on AprU 19,1995." I n Transcending: Reflections of Crime Victims, Portraits and Interniews by Howard Zehr. Intercourse PA: G o o d B o o b . p. 60.


often ignore tlie voices o f victims themselves. Victims and defendants have complex, po-werful stories that teach us ho-w m u c h -we have i n c o m m o n . I n their stories, i n our c o m m o n ground, we f m d the i n f o r mation relevant to effectively address violence. T h e adversarial nature o f our criminaljustice system does not lend itself to a deep understandi n g o f these complex dynamics, but effective, l o n g - t e r m solutions to the problem o f violent crime require just that. We are Hving i n a time o f extraordinary uncivil discourse. Fear and anxiety contribute to a climate o f di-vision and dehumanization o f "the other." I t wiU require courageous and positive leadership to b r i n g us back to remembering our c o m m o n humanity. These victims can show us the way forward.

5S