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Sunday, February 12, 2006

Death Penalty Reconsidered

The recent delay of execution for Michael Morales raises lots of fun questions.

California was temporarily stopped from completing a trifecta: 3 whacks - a Black man (Stanley "Tookie" Williams), a White man (Clarence Ray Allen) and a Hispanic (Morales), thereby reaffirming California as the foremost equal opportunity state.

Morales' snuff party was halted by the inability of the state to comply with a federal judge's concern that the "lethal injection" procedure was "cruel & unusual." The judge was nervous about reports that previous deaths were too painful for the inmate. The state has the power and right to terminate a life, but not to torture or inflict extreme pain. Doctors he ordered to be present to insure that Morales was unconscious when he was administered the lethal cocktail balked, citing their own ethical qualms about their role.

The upshot was an "indefinite" stay of execution while the judge conducts a full hearing. The family and friends of the victim, a 17 year old girl who was beaten, raped and murdered by Morales in 1983, were quoted as being extremely upset with "the system" because they couldn't achieve closure.

My own point of view, as a lawyer who defends capital clients in trials, is a bit different. First, I am a bit amused by the debate over the form of death. Trial lawyers (with our own gallows humor) used to bemoan our futile efforts in bad cases by muttering that the best we could get for a client was a seat on the shady side of the bus to prison.

Personally, I think the worry over a painless death penalty is a sick joke. Why not make it painful and, while we're at it, let's make it public. If it is designed to deter others, to extract vengeance, and to "satisfy" the victim's family, let's see what televised drawing and quartering would accomplish. It would be a surefire reality show hit and some of the proceeds could be given as restitution for the victims.

Secondly, I'm not opposed to Capital Punishment - in theory. Some people have committed such horrible crimes that they simply deserve to die.
Executing some people might deter others from killing; at least it will deter that person from killing again. I am not sure that respect for the value of life doesn't justify the forfeiture of one who takes a life. I have sympathy for the victim and loved ones who demand swift justice and closure.

Of all the reasons set forth for death, the hardest for me to deal with as a human and as a lawyer (not yet mutually exclusive, I hope), is the last one above, that the suffering of the victim's family should be vindicated. That one bothered me for a long time.

The evidence of "victim impact" which is now permitted in capital trials is the toughest for defense lawyers to deal with. The victim who was mother, father, son, brother, or friend to someone is gone and it hurts to see the photos and hear the stories of the holes left in the hearts of loved ones.

But then I thought about someone I loved who was killed some years ago. She was tortured for 16 months, in almost constant pain and fear. She was completely innocent, and didn't deserve to die. She was only 46 and she had parents who had survived the Holocaust, a sister, me, her 12 year old son. We all needed her, and I was furious with her killer. It was so unfair; so -- unjust.

But I had no one to focus my vengeful desire on; her killer was cancer. I couldn't even sue the doctors who had tried everything to save her life. Does that mean that I can never have "closure?"

No, while the idea of "closure" by legal system is a powerful emotional argument by death penalty proponents, it is not only a lie, it is a cruel hoax abetted by so-called "therapists." To permit one's grief to be dependent upon any institution is useless and mean. The legal system is not designed for that purpose, nor should it be.

Of course, there can be no justice, no "closure" if the wrong person is executed. Experience has shown that a lengthy, expensive, and thorough appellate process is needed. Closure is thus necessarily delayed for 10 or more years.

Closure is essential no matter the cause of the death of your loved one. Are you less bereaved if you lose someone to disease, accident, negligence, or the many acts of violence that our laws do not categorize as death penalty eligible killings?

Do we want a system that executes people based on the passions of victims? What if the victim or loved ones were opposed to capital punishment? Should that “wish” be honored?

In fact, there are many victims who do not want this result. (See Murder Victims Families For Reconciliation:

By the way, contrary to common sense, the evidence is now clear that the death penalty does not deter others from killing. In Texas, executions are commonplace (355 since 1982), yet the murder rate is higher than New York’s which has 0 executions (6.1 murders per 100,000 population vs. 4.6 in N.Y.). See Death Penalty Information Center and compare the facts. (


  1. great post - great comments on the radio this morning!

  2. Dear Mr. Borenstein,

    Fantastic post. I would like to answer (my views) on some of the questions you pose on here and debate the Morales issue, if I would be assured of answers. No mud-slinging, no crude and unwanted comments, etc, etc. Just clean and respectful debate. Would you be so kind as to indicate if you are willing? Your other readers can also participate, should they so wish. Other than that, I find your posts hillarious but also very refreshing! Have a super day!

  3. This post is an interesting discussion of an alternative system of implementing the death penalty. It doesn't discuss methods (lethal injection, etc.) but it does discuss why and when it should be used.

  4. Great job on the piece!

    "Closure" is a complex concept; it alludes to the practical need families/advocates obviously feel to shepherd their loved one's case through the legal quagmire (and, thus, to eventually be free of that perceived responsibility and burden) as well as to an imagined progess through a grieving process. Of these two meanings (practical and psychological), I am much more skeptical about the latter than the former, and I think your beautiful argument here is perfect (why pretend that we can get pyschological closure just because there is a human agent of our bereavement - how would that compensate for, or help us even come to terms with, our emotional loss?).

    Yet, even the practical side has its contradictions. It seems like our legal system has oscillated between:

    (1) a basic disregard for "victims' rights" (or those of their survivors) as essentially irrelevent because we are not so much concerned with the crime itself as with the pathology of the criminal ("broken" people that are inherently dangerous need to be quarantined from society, combined with the notion that the crime was an attack on public order and civilization as well as on a specific individual) and

    (2) an "eye for an eye" notion of direct compensation (that an aggrieved family should, in some way, be offered disposal of the life of the criminal to recompense the loss of their own loved one).

    The trouble with concept (1) is that peole do, occasionally, change in prison (as we have seen in several recent cases), providing the possibility that they are no longer dangerous to society. Yet the crime was comitted and the reform of the criminal does not remove the harm already inflicted. The trouble with concept (2) is that some families may, as you hint at the end of your piece, decide to forgive rather than exact vengeance, if given the chance. This forgiveness would conflict with the state's desire to quarantine the anti-social criminal and punish the attack on social order, and, since this forgiveness is so arbitrary (depending on the hearts of specific loved ones), could lead to differing punishments for similar crimes (i.e., its best to hurt forgiving types, or at least their loved ones). I suppose this is why, despite all the rhetoric about victims' rights, we don't see much actual attention paid to their potential implications.

    Perhaps it would be better, all in all, if we separate these very different, but often conflated, concepts and make their relative merits a subject of public discourse.


  5. I can agree that "closure" is a complex process. It differs from person to person and the methodology to achieve this is different in every person. There is no "quick fix" formula or solution.

    In my view, the "closure" reason used by many to justify the death penalty, is a picture they paint for themselves, in the hope that they will "feel better". It is my view that the undelying reason, behind the facade of "closure" is pure revenge.

    It is my view that victim support services should be predominant during such times, instead of being used as an agent to fuel the revenge issue, which I have seen happen.

    Yes, "broken" people should be quarantined for the good of all. Even should they "change" during incarceration and conform to societal norms once again, it should not give them carte blanche to be released into society again. They can continue serving society from where they are.

  6. Hello Doct and everyone. I think that revenge is a motivation for pro execution people, but also a sense of duty to a loved one lost is seen. Otherwise I just cannot see any argument for more brutality. I lost my brother to murder, but what "closure" would happen from yet another killing? What, revenge? A sense of duty? Won't bring my brother back. (Group psychotherapy was what gave me "closure"). How can "closure" happen with execution?? And with DNA seeing 122 innocent people taken off death row recently, what if the guy in front of me, being fried with 2,000 volts banged through them, is actually innocent, and the real killer out in the streets because the legal case was closed with execution?? The loss is still there. Deterrent? In Europe, where there is no death penalty, the murder rate is lower than the U.S. (and gun access is restricted too) Where is the definitive argument for more killing? In most cases anyway, the killers are mentally disturbed. They are damaged people themselves with childhood abuse histories. So when does the chain of violence stop? By the state continuing the violence machine?

  7. A therapy process should not direct a person to go in any direction. It is an exploration of, and testing out of feelings in a group feedback environment. So any "therapy" that incites people or directs them to want revenge is not doing its job. Closure is an internal process, not external. Execution is external. I don't see how it resolves the grieving process. In fact, in one sense, execution is counter-productive from a closure sense. "Right, you can stop suffering now, because we have just killed the killer !!" Being "allowed" to grieve for as long as it needs is vital. For me, the justice process alone was sufficient in that the killer had to face it. But my grieving was internal.

  8. Mr. Borenstein,

    thank you so much for your thoughtful essay on the death penalty.

    I was so glad that you dared mention disease as a killer, too. During discussions on another forum, I was afraid to mention that fact.
    My mother died of Alzheimer's disease: humiliated and tormented, completely stripped of her dignity. While we were watching that cruel punishment, we also had to put up with a host of brainless Alzheimer's jokes (of which you all may have heard a few, too.) More than two years after her death, I still feel tempted to slap people who poke fun of Alzheimer's victims.
    Whenever I see an elderly white-haired lady in a wheel-chair, I travel right down memory lane. I know there will never, ever be closure for me.
    No matter what, the loss is permanent. So, I would like to tell the family members of muder victims not to expect closure at all -- not from the verdict, not from the execution of the murderer, not from justice having been served. There is no such thing as closure because feelings and emotions cannot be closed like a folder that contains the files of your and your loved one's sufferings.
    We can only heal to a point where the pain becomes bearable, where a cruel Alzheimer's joke can't hurt us no longer, and where the images of the agony our loved ones may have suffered have just faded enough to somehow accommodate them in our daily lives.
    Thanks again for your article.