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Vermont has no death penalty. Still, federal prosecutors demanded that Vermont hold a capital punishment trial in a recent federal murder case which crossed a state line. And a jury of twelve Vermonters delivered, on 14 July 2005, the first death sentence in 50 years — another notch in Bush’s belt as the feds contrived to teach liberal Vermont a lesson. There is now a push to bring capital punishment back at the state level.
There are two entrances to the Federal Building in Burlington. One is near the corner of a busy street. It is around that corner — for maximum visibility — where we held our weekly vigils against bringing the death penalty to Vermont.
Yet the press massed itself daily at the other entrance, a smaller, mid-block one, half-hidden by luxuriant trees. Why? Because it was there that “the family” emerged for lunch or dinner. It was there they could be exhaustively interviewed and photographed for their every response to the courtroom events.
In the room itself, one whole side of the public seating was marked off as “reserved.” For whom? The sign didn’t say, but that was where the family and their friends sat, sparsely, compared to the larger public packed into an equal space on the other side. The empty seats around them were treated as sacred space, not for outsiders. It was a rare courtroom visitor who was clueless enough not to take the hint.
The family. The word conjures up Elian Gonzalez and Terri Schiavo. Even the defense counsel, in his summation, chose to praise the family, the very family who insisted on death for their client and whose performance before the jury and in the media did much to condemn him. That family was extolled as a prime example of what their client never had — a loving clan who support one another in hard times and celebrate together in good ones. A model family who had overcome many hardships. If only Donny had had one. . . .
In a country where more than half of marriages end in divorce, where single-parent households are now in the majority, “Family” has become a secular icon. Elections are won on “family values.” All our holidays feature “family fun.” You want to be a bad guy? Target the family. Worse, turn them into victims.
The family played their media hand with skill. I am not suggesting that their pain over the murder was not authentic. I don’t know what they were really feeling or who was advising them on their strategies. Perhaps they were even played by the media more than they played it. But the overall effect was such as to achieve their goal: to get a death verdict from a Vermont jury for the first time in half a century. Perhaps they felt justice was served. Perhaps it was merely revenge. But what they said they wanted was “closure.”
We found much support as we stood Wednesdays at noon against the death penalty. Yet there were still many passers-by who felt otherwise. “An eye for an eye,” they would yell from their cars. Or, “They kill us — we kill them!”
While the rest of the Western world has long put capital punishment behind it, the United States perversely bucks the trend. For years, Amnesty International has indicted the US for its killing of juveniles and the mentally ill, for the wide regional disparities in executions, for the arbitrariness of those selected for execution, for the obvious role of race in those selections, for the systematic exclusion of opponents of the death penalty from juries, for the use of peremptory challenges to exclude blacks from sitting on capital trial juries, especially if the defendant is black, for the assignment of inexperienced, often incompetent counsel to indigent offenders, for a whole array of procedural bars to appeal, for the increasing unwillingness of federal courts to consider new constitutional questions, and for the very narrow view of the role of clemency taken by governors and pardon boards. All these, says AI, put the US outside the norms of international behavior.
No technical or bureaucratic problems were present in the Donald Fell trial. Fell’s guilt was admitted, and his legal representation was competent and strong. The judge was attentive and scrupulously fair. The drama was focused on one question only — would the jury unanimously ask for death? The answer was yes.
Whence the still strong American embrace of the death penalty? I suggest it arises from two spurious needs, both of which have been normalized by a bizarre combination of collateral damage from our war-making and politically correct “sensitivity.” The first is obvious; the second, less so.
One of the hallmarks of our contemporary culture is its curious competition for victim status. In addition, since 9/11, our administration has actively flown the banner of the victimized, crucified, vengeful Christ. Now that we as a nation have suffered so, we have a right to judge and punish. The city on a hill. And our punishment is far from unholy: we kill in order to redeem.
As we continue to victimize others around the globe, it is most convenient to proclaim our American selves as victims. And national claims trickle down to groups and individuals. Whites claim victimization by affirmative action, males by feminism, Republicans by “the liberal media,” the rich by “big government,” and so forth — a whole convenient upsidedownism whereby a dominant group wins a right to victim status and uses victimization as a claim on resources. The competition is fierce.
Think for a moment about the demands of the Victim’s Rights Movement.
First of all, it is now unquestioned that murder victims are more than those killed and include all friends and family affected by the crime. The concept of victimhood is expanded to cover the suffering of those left behind, whose emotional performances seem so persuasive to juries. Hence a new spotlight for “the family.”
For the most part, those who claim victims’ rights insist on vengeance as the only possible “closure” for their distress, a word that has been recently taught them by the American political culture and media — as if the effects of a murder are ever “closed.” Protecting the community via life without parole will simply not serve. Though that would achieve immediate closure — no further appeals, no further media attention to open old wounds — in many cases, still the death of the murderer is sold to us as the only way to achieve “real” closure concerning a murdered loved one. That psychiatry does not support such dynamics is neither here nor there. Life imprisonment just isn’t satisfying.
Concerning the jurisprudence of sentencing, what the Victims’ Rights Movement has done is to substitute private for public justice, normalizing a sense of entitlement to the death penalty. Only a satisfying personal experience will do1, and giving one to the victim is the only adequate gesture for the rest of the community to make. The goal of the Victims’ Rights Movement is to re-personalize criminal justice, so that the public — and potential juries — must declare an alliance with either the victim or the offender. Criminal sentencing thus becomes a test of loyalty to one’s community — a dangerous new test which prejudices us for punishment. Rehabilitative strategies are overlooked, rejected as not sufficiently reparative to the new class of victims. Capital punishment becomes the ultimate assertion of righteous indignation and the highest form of public recognition of victims.
No less a legal figure than former Attorney General Janet Reno has raised victim status to absurd heights:
I draw most of my strength from victims . . . for they represent America to me: people who will not be put down, people who will not be defeated, people who will rise again and stand again for what is right. You are my heroes and heroines. You are but little lower than the angels.2
Is victimhood, then, not a goal worth striving for?
The elevation of extended victims to sub-angelic status has two major consequences. First of all, it normalizes and legitimates revenge, opening society to suffer an unending chain of reciprocal act of vengeance. We see this result playing out overtly in the Middle East and, indeed, around the world. By creating victims, we become the new victims — and victims are beatified.
And in this beatification, legitimate questions of restorative justice are passed over:
- Just what are the real needs of those who have been harmed? What, on deeper questioning, is really important to them? On surveys and in interviews, victims have most often indicated that acknowledgement by the perpetrator of the damage he or she has done is crucial and would go a long way to easing them. Quite often, questions need answering which would otherwise gnaw: Why? How? What were the details of the death? Imaginations haunt; facts set the mind to rest.
- And what about the defendant’s needs? Restorative justice has to “restore” all parties. Again, research shows that perpetrators most often need to acknowledge what has happened and in some way make amends. They don’t know how to do that, and the system does not help them. We are open to helping soldiers psychologically wounded from killing Iraqi innocents, but not a civilian who has killed one of our own.
Aiding both victim and perpetrator would restore what can be restored. Another killing doesn’t.
Embracing the vengeful victim has a political dimension, too: revenge killing by the state becomes part of a strategy of governance that makes us fearful and dependent on the illusion of state protection, that divides rather than unites, that promises simple solutions to complex problems. The number of men and women condemned to die grows each year, and we are treated to the spectacle of people running for public office on the basis of how many they are prepared to kill. Tough on crime, it’s called.
Caught up in the contemporary cultural preoccupation with identifying and paying homage to “real” victims, the idea that criminals can be also victims all but disappears, and deeper social, political, and cultural issues are ignored as the white hats simply execute the black ones. Any mature attempt to respond to society’s most severe problems is shouted down by victims’ claims to lethal “closure.” Even constitutional guarantees of equal treatment under the law are thus overlooked.
The focus on victims functions as a strategy of political legitimation. The centrality of crime to governing, especially in a democratic state, requires citizens who imagine themselves to be victims, potential victims, or those responsible for the care of victims. Increasing fear of others, who are in turn imagined to be criminals or potential criminals, therefore marks the current American condition. As criminals are demonized, many ordinary citizens are enlisted as authorizing agents and appreciative, applauding audience for America’s own brand of lethal violence. To be for capital punishment is to be a defender of traditional morality against permissiveness and of the rights of the innocent over the rights of the guilty. Down with protesters. Up with prosecutors. The fall from grace must be eternal, with no prospect for redemption. In the land of the free and the home of the brave, we are all victims.
And can the land of the free ever evolve to crawl out of such widespread cultural muck? Let’s look at the muck to determine its adhesiveness.
There is a concept in the Russian language known as poshlust.3 Speech or attitudes or states of soul that are poshlust-y embrace values that are almost, but not quite, kitsch4, containing some level of authentic thought or emotion but, still, more or less phony or false. A quintessential example of poshlust appeal is contained in the defense summation to the jury I described above. For diagnostic purposes, it is worth quoting in full:
We see such devotion and love in [the victim’s] family, that [it] is overwhelming. They have been here every day in support of Terry, because that’s all they have left. That’s — that’s what they, that’s where they have committed as a family and have come together. And, you know, and that doesn’t, that never even came close, close to existing to what the childhood that Donnie had. And isn’t it important? How — and that’s what — that’s what this mitigation is — our mitigation case is all about.
Don’t underestimate the power, the significance of, of a father figure, someone to care, someone to nurture, someone to provide. Don’t underestimate the power and significance of a mother’s love for her children. Look, look at what it’s done, what it’s done for the King family. They will never — and it was poignant when Michael — the grandson’s letter was read, and he said — and he compared it to 9/11, and it definitely — their family will never be the same, and America will never be the same. But America is not destroyed, and when you see their faces and heard their testimony about their love for Mrs. King, their family’s not destroyed. It can’t be because they have too much of those protective, nurturing factors that exist, that are what we all — that makes us who we are.
Surely, overwhelming love, devotion, and commitment are worth rewarding. And yes, nurturing fathers are rare enough. The comparison of a death in the family to the world-shaking 9/11 may have its metaphorical value. And while the assertion that “America is not destroyed” may be somewhat nearsighted, still the co-appeal of both prosecution and defense to the jury’s patriotism (if for opposite purposes) is probably a universally endorsed tactic of the times. The summary, however, bodes ill. For it seems there cannot be “too much of those protective, nurturing factors . . . that are what we all — that make[s] us what we are.”
The Oprah-appeal of this language, this thinking; the culture that feeds on it, that somehow seems to need and support it; the implied be-all, end-all prioritization of untutored emotion which we see amply demonstrated in every facet of contemporary American culture — this is not a likely milieu to transcend the kind of selfish emotionalism with which victims demand harsh penalties “for closure.” That a defense lawyer in a capital case would — buoyed along by these normative phrases, and counting on the jury’s receptivity to them — lionize the very family asking for his client’s death is a self-defeating notion, lethal, as it turned out, to the defendant. What was the defense inhaling? Only air polluted by ubiquitous poshlust could create such confusion.
Not once in my hearing were the non-poshlust-y dimensions seriously presented to the jury as a challenge:
- if they disapproved of murder, should they really be willing to coolly, and premeditatedly, murder someone?
- there is no scientific psychological evidence that “closure” results after a demand for death is met. Indeed, families and jury members often suffer after demanding death.
- the US stands alone among Western nations in exacting the death penalty, and they must question the reasons for such exceptionalism.
- there were likely Rovean political reasons for retracting the government’s previously agreed upon plea bargain — and did they want to further them?5
Instead, the defense strategy focused entirely on the poshlust-y dimensions of Fell’s horrible childhood. Why? Because poshlust is the reigning language and currency of the land, the only dimension one can assume operative in a juror? Or in a voter? Or a consumer? Or a 17-year old wanting to “serve his country” and help “establish democracy and freedom across the world”?
As long as poshlust rules American culture and American hearts, and is offered up to juries as the only horizon, we may have a hard time joining the majority of the world in opposition to the death penalty. In this, we are truly victims.
1 Some family members of victims of the Oklahoma City bombing, after personally witnessing Timothy McVeigh’s execution, complained he did not suffer enough: he just closed his eyes and went to sleep.
2 Qtd. in Austin Sarat, When the State Kills: Capital Punishment and the American Condition, Princeton University Press, 2002, p. 19.
3 See Nabokov’s hilarious — and, for us, ominous — section on poshlust in Chapter 3 of his book on Nicolai Gogol.
4 Poshlust is worse than kitsch because kitsch is obvious: garden gnomes, or a fluorescent Elvis painted on black velvet or “Support the Troops” on magnetic yellow ribbons.
5 A week after the Fell verdict, a Georgia jury sentenced Eric Rudolph, a multiple murderer involved in terrorist attacks on abortion clinics and the Atlanta Olympic games, to life without possibility of release. Unlike Fell, Rudolf was only partially repentant. He apologized to the 1996 Atlanta Olympics bombing victims, with no mention of the abortion clinic victims, whom he seemed glad were killed or wounded. An eye for an eye, after all. But Georgia, unlike Vermont, is already a death-penalty state. And William Sessions is not one of its federal judges. The government did not have to make a point by rejecting his plea bargain.
Mark Estrin is the author of Insect Dreams, The Education of Arnold Hitler, and Golem Song among other publications.
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