ORGANIZATION RESEARCH PROJECT

(5×5 Research, aka 5 C’s Research)

Overview

This project is designed to give students hands-on experience researching a company from a marketing research perspective. Students will look find five key data points from five marketing perspectives of a company/brand’s business and activities. The goal of the research is to gain a rapid understanding of factors affecting the business’s marketing performance.

Description

Students will study a well-known company of their choosing (approved by the instructor). They will research it, finding five important data points or statistics about five different areas of focus: 1) the company, 2) its customers, 3) its competitors, and 4) its community (market). Once the basic research is done, the student identifies and lists the five most pressing issues (“concerns”) from all these data points with a brief reason for each.

From this data they will identify, select and articulate the most significant marketing “decision problem” affecting the company. This should be in the form of question a marketing manager needs to answer. Once determined/stated, students will identify if it caused by a “planned change/event” or an “unplanned change/event”.

Next, explain whether it is a “discovery-oriented decision problem” or a “strategy-oriented decision problem”. From the decision problem, students will choose one and then identify three research problems (things marketing research can help to drive a marketing action). And lastly, student will select one research problem and find primary or secondary research addressing the research problem.

Here is the project in a step-by-step format:

Step One – Select a major U.S. company and product or service. Post your selection on the class Facebook page. Once a company is selected, no one else may do the same company/product. The instructor will “Like” it as your signal to move forward. Write one paragraph of background information on the company (ex: when founded, where headquartered, mission and vision, etc.)

Step Two – Compile research on the a) company, b) its customers, c) its competitors, and the d) community (its market area). This should be at least five important marketing-related datapoints or statistics for each area. This research is to be “sourced” (who did the research and where you found it).

Step Three – Identify five of the most critical concerns from the research data about the company, customers, competitors, and community research. This becomes your fifth list (hence the name “5×5”).

Step Four – From the list of concerns, formulate (write out) a Decision Problem. There could be many, but you are to choose the one you feel most important from a marketing perspective. Look for something a marketing action could affect. This should be in the form of a question. Identify it as “discovery-oriented” decision problem or a “strategy-oriented decision problem”. The former asks questions beginning with “Why” or What” (See page 18 of the text), whereas the latter asks a “How” question.

Step Five – Once you have determined and written a manager’s Decision Problem, write three “Research Problems” that would include marketing research to help a manager take action. See Exhibit 2.3 in the text to see this process in action and examples. Research Problems are often written in the form of research actions.

Step Six – Selection one Research Problem, and finish by finding primary or secondary research that addresses the research problem and might drive action. This can be brief.

Suggested length: no less than 6 -7 pages (one page for each of the C’s, and approximately 2 pages of summarizing, analysis, and discovery)

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Paper #2 History of Disability

General Studies 420: Disability & Society

Spring 2019

Assignment #2

History of Disability

10 points

For this assignment you are required to write a paper exploring the history of developmental disabilities using the website:

“Parallels in Time: A History of Developmental Disabilities” http://mn.gov/mnddc/parallels/index.html.

You must read these 3 topics/time periods:

· The Ancient Era 1500 BC – 475 AD

· The Middle Ages, Renaissance, & Reformation 475 AD – 1500 AD

· 17th and 18th Centuries

Your written response should include the following entitled sections:

a. The Ancient Era – minimum 250-word summary

b. The Middle Ages, Renaissance, & Reformation – minimum 250-word summary

c. 17th & 18th Centuries – minimum 250-word summary

d. Personal Response – minimum 250-word response addressing what you learned and how you felt learning about the treatment and history of people with developmental disabilities

e. How This Relates to GS 420 – minimum 250-word response addressing how the readings relate to the content of this course as covered so far

Each section is worth 2 points for a total of 10 points.

Formatting your paper:

· Heading: Name (Last, First), Date, GS 420 Section # (1 or 2), RED ID

· Times New Roman, Size 12 font

· Double-Spaced

· 1.0 Margins

· Indent first sentence of each paragraph

· Title for each section

· Be sure to use appropriate, respectful language throughout your paper. Refer to Disability-Related Language Standards on Blackboard.

Failure to follow correct formatting instructions may result in points loss.

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Revise Paragraph In Your Own Words

When discussing the volatility of markets, Stiglitz focuses on the liability of unpredictable change in the global market, especially for the poor. After reading the chapter on legitimacy crisis in the textbook it is clear that in focusing on this concept, Stiglitz means to address global inequality on the basis of “market fundamentalism” that has pushed policies “in ways that have undermined emerging democracies.” Further, Stiglitz states, “globalization itself has been governed in ways that are

undemocratic and have been disadvantageous to developing countries, especially

the poor within those countries.” Often, this undemocratic globalization has been the fault of richer countries while those in a more compromised position are then forced to deal with the consequences. Stiglitz exemplifies this notion with the massive increase in interest rates in Argentina in 1988 that were namely due to Russia’s actions. Even with financial aid, or initial democratic guidance, many of these more compromised countries are liable to become stuck in the cycle given Stiglitz’s small boat analogy where small countries set sail onto rough seas as “small boats,” only to get hit by a large wave or even capsize despite the captain’s abilities or resources in that moment. Overall, “capital – market liberalization is inevitably accompanied by huge volatility, and this volatility impedes growth and increases poverty.”

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Summary Work

Deadline in 40 hours.prepare 2 sets of summaries for each reading. Each summaries should be no less than 300 words. A total of 8 summaries expected.

Duke University School of Law

VICTIMS, “CLOSURE,” AND THE SOCIOLOGY OF EMOTION Author(s): Susan A. Bandes Source: Law and Contemporary Problems, Vol. 72, No. 2, Group-Conflict Resolution: Sources of Resistance to Reconciliation (SPRING 2009), pp. 1-26 Published by: Duke University School of Law Stable URL: https://www.jstor.org/stable/40647733 Accessed: 21-01-2019 18:01 UTC

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VICTIMS, “CLOSURE,” AND THE SOCIOLOGY OF EMOTION

Susan A. Bandes*

I

Introduction

For the families of murder victims, the grief, anger, and pain a murder leaves in its wake must to some degree unfold in public, institutional settings. Grieving is rarely an entirely private, internal experience. In every culture, grief is experienced and expressed against a background of social expectations and, ideally, within a network of social support. The expectations facing murder survivors1 include the grim task of cooperating with the criminal justice system, a task that may include a public trial and intense media scrutiny. Over the last couple of decades, this grim task has undergone a “symbolic transformation,”2 particularly in the death penalty context. Every aspect of the capital system has been recast as serving therapeutic goals – specifically, helping survivors heal and attain closure. This incursion of the language of emotion and healing into the legal realm has been insufficiently examined, especially given its enormous practical and symbolic consequences for the operation of the death penalty.

Closure is a term with no accepted psychological meaning. It is, in fact, an unacknowledged umbrella term for a host of loosely related and often empirically dubious concepts. Nevertheless, it is a concept that has had a meteoric rise, both in the public consciousness and in the legal arena.3 Virtually

Copyright © 2009 by Susan A. Bandes. This Article is also available at http://www.law.duke.edu/journals/lcp.

• Distinguished Research Professor, DePaul University College of Law, Visiting Professor, University of Chicago Law School, 2007-2008. I am grateful to Erin O’Hara for organizing and including me in the conference on Group Conflict Resolution: Sources of Resistance to Apology, Forgiveness, and Reconciliation, for which this paper was written; to Al Alschuler, Jeffrie Murphy, Martha Nussbaum, Erin O’Hara, Carol Sanger, Jeremy Waldron, Noah Zatz, and colleagues at the Ohio State University Moritz College of Law, St. Johns’ Law School, the University of Arizona Law School, the University of Chicago Law School, and Vanderbilt Law School for their incisive comments on earlier drafts of this paper; and to Laura DeMichael of the University of Chicago Law School Class of 2009 for excellent research assistance.

1. The term survivors denotes family members and others bereaved by murder. 2. Frank Zimring, The Contradictions of American Capital Punishment 42 (2003). 3. Prior to 1989, the terms “closure” and “death penalty” were never mentioned together. They

were linked once in 1989. Starting in 1993, the mentions grew geometrically to more than 500 in 2001. For the first time in 2001, an ABC News-Washington Post poll asked whether the death penalty is fair

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2 Law and Contemporary Problems [Vol. 72:1

unmentioned only two decades ago, closure has been enthusiastically embraced not only as a legitimate psychological state but as one that the legal system ought to help victims and survivors attain. In the death penalty context, its rapid embrace has changed the way we talk about the rationale for capital punishment; it has changed the shape of the legal process; it has even changed what both survivors and jurors within the capital system expect to feel.

The term closure has come to connote several different and poorly differentiated concepts, each with separate and quite serious implications for the conduct of the capital trial. Closure is sometimes used to refer to the sense of catharsis that comes of speaking publicly about one’s loss. Advocates of victim impact statements argue that the statements assist with healing and closure because they permit victims and survivors to give voice to their pain and sense of loss in a public setting.4 Closure has also come to stand for the constellation of feelings – peace, relief, a sense of justice, the ability to move on – that comes with finality. The term sometimes refers to the ability to find answers to the terrible questions a murder may leave open – for example, the circumstances of the murder or the identity of the killer.5 This sort of closure might require solving an open crime, but it might also involve some sort of interaction with the killer in an attempt to learn more.6 It might require a verdict and imposition of a sentence. In the capital context, it might require a sentence of death.7 The logical outgrowth of this argument is that only an

because it gives closure to the families of murder victims. Sixty percent agreed with this statement strongly or moderately. ZlMRlNG, supra note 2, at 60.

1. òee, e.g., fcdna lirez, Who s Ajraid of the Big aaa victim! victim impact statements as victim Empowerment and Enhancement of Justice, CRIM. L. Rev. 545, 550-53 (1999) (arguing, in the context of noncapital cases, that the use of victim impact statements is empowering for victims).
2. See, e.g., Chip Brown, The Confessor: Conversations with a Serial Killer, N.Y. TIMES MAG., Apr. 29, 2007, at 39 (discussing a detective who uses the term to describe a motive for his quest to solve open murder cases); see also For the Family ofSneha Anne Philip, Closure, N.Y. MAG., Jan. 31, 2008, available at http://nymag.com/daily/intel/2008/01/for_the_family_of_sneha_ann_ph.html (discussing the efforts of the family of a woman missing since September 10, 2001 to prove that she had died at the World Trade Center, rather than as the victim of a crime in which her own recklessness might have played a role, and their vindication in a Manhattan appellate court).
3. See, e.g., Stephanos Bibas, Forgiveness in Criminal Procedure, 4 OHIO St. CRIM. L.J. 329, 336- 37 (2007) (“[M]any [victims] want to confront offenders face to face, tell their stories, and understand why their crimes happened.”).
4. In their review of news articles about executions that recount the reactions of the victims’

family members, Sam Gross and Daniel Matheson found a broad range of reactions. Among the minority who said they had experienced some sort of closure, the term was given several different meanings, including relief that the long court process had ended, relief that the defendant could not hurt anyone else, and relief that the defendant would stop receiving so much press attention. None claimed that his or her suffering for the loss would be in any way alleviated by the execution. Samuel R. Gross & Daniel J. Matheson, What They Say at the End: Capital Victims’ Families and the Press, 88 Cornell L. Rev. 486, 490-94 (2003); see also Vik Kanwar’s interesting discussion of closure as a “sanitized version” of the more visceral “satisfaction.” Vik Kanwar, Capital Punishment as “Closure”: the Limits of a Victim-Centered Jurisprudence, 27 N.Y.U. REV. L. & SOC. CHANGE 215, 248 (2001).

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Spring 2009] VICTIMS, “CLOSURE,” AND THE SOCIOLOGY OF EMOTION 3

execution can provide closure, and that delays and impediments to execution deprive survivors of the closure they need.8

Each of the above meanings of the term closure has been offered as the rationale for various initiatives that have helped transform the capital system. The need for closure has become the predominant argument for victim impact testimony. It has become an effective argument for limiting procedural protections that delay conviction, sentencing, final judgment, or execution. It has taken on the authoritative ring of a clinically accepted reason for execution itself. In short, it has transformed expectations about the purposes of a capital trial, offering a promise to survivors and society at large that the legal system may be ill-equipped to keep. And, at the most basic theoretical level, closure has recast the traditional debate about the purposes of capital punishment, suggesting that support for the death penalty can be premised on the urge to offer solace and healing to survivors of murder.

On one level, there is an irony to the success of closure as a legal concept. The phenomenon seems to contradict the conventional wisdom that the legal system abjures emotion as an unwarranted interference with rational deliberation. At first glance it might even seem to be good news for those who argue in favor of recognizing emotion’s role in the deliberative process. To the contrary, the unwarranted embrace of closure should be understood as a consequence of the law’s unwillingness to grapple with the role of emotion. This unwillingness is often expressed as a mistaken belief that it is both possible and desirable to banish emotions – as a class – from the legal realm, except in carefully delineated contexts.9 The closure phenomenon illustrates the converse mistake – a belief that certain emotional claims should be sacrosanct; off limits to the rigors of legal analysis. The better approach is to recognize that emotion influences legal actors and legal institutions in numerous ways, some desirable and some undesirable. Then we can begin the difficult task of evaluating which emotions ought to be encouraged or discouraged in particular legal contexts – and how this might be accomplished. These descriptive and normative questions cannot be addressed as long as emotions are ignored and denied on the one hand, and enshrined and insulated on the other.

The desirability of emotions, or of any particular emotion, cannot be evaluated as an abstract proposition. An emotional process or outcome that

1. For example, closure is cited by lower courts as a value militating against granting defense motions that might delay or reopen a capital case. See, e.g., Grayson v. King, 460 F.3d 1328, 1342 (11th Cir. 2006) (describing the government’s compelling interests, which in this case outweighed the capital defendant’s due process argument for post-conviction access to biological evidence, as including “guarding against a flood of requests, protecting the finality of convictions, and ensuring closure for victims and survivors”); see also Skaggs v. Commonwealth, No. 2002-SC-0436-MR, 2005 WL 2314073, at *5 (Ky. Sept. 22, 2005) (“Surely the family and friends of the two victims are entitled to some consideration as to the closure of these grisly and senseless murders . . . .”); State v. Korsen, 111 P.3d 130, 135 (Idaho 2005) (citing survivor and victim closure as interests weighing against reopening or delaying a verdict).
2. Susan Bandes, The Passions of Law 1-19 (1999).

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4 Law and Contemporary Problems [Vol. 72:1

advances familial, spiritual, or therapeutic goals may be poorly suited for a court of law. For example, when we speak of healing or closure, we ought to attend closely to the emotional outcomes we are trying to facilitate, and to whether a capital proceeding is an appropriate place to facilitate them. The failure to grapple with the role of emotion in law generally, and with the role of particular emotions in specific social settings, has had enormous consequences for capital jurisprudence and the operation of the capital system.10

II

The Sociology of Emotion

Twenty-five years ago, in The Managed Heart, her seminal work on the sociology of emotion, Arlie Hochschild called the tendency to treat emotions as private and internal one of the major barriers to serious inquiry into the nature of emotions.11 This tendency is also a barrier to constructing and maintaining fair and effective legal institutions. When emotions are regarded as acontextual entities rather than dynamic processes, it appears seductively logical to extrapolate from studies of private, internal emotion to contexts involving complex groups, or involving public settings. And the social sciences for too long took precisely this approach: studying individual subjects and their individual emotions,12 and then assuming the findings had broad application to emotions in diverse contexts.13

More recently, a number of disciplines have begun focusing on emotion in social contexts. The sociology of emotion is now a burgeoning field.14 Psychologists are increasingly interested in emotion and social cognition, emotional dynamics in group settings,15 and the interaction between emotion and culture.16 Anthropologists, too, are beginning to incorporate the study of emotion into their cultural analyses.17 Political scientists are beginning to think

1. See infralll-V’l. 11. Arlie Hochschild, The Managed Heart: Commercialization of Human Feeling

201-203 (1983). 12. Ninety-five percent of all studies of emotion involve individual subjects. E-mail from Dächer

Keltner, Psychologist and Director of the Berkeley Social Interaction Laboratory, to Susan Bandes (May 2, 2007) (on file with Law and Contemporary Problems).

1. Psychologist Jerome Kagan observes that social scientists tend to “generate hypotheses from abstract concepts rather than concepts that are closely tied to observed phenomena.” Jerome Kagan, Three Seductive Ideas 78 (1998).
2. Jonathan H. Turner & Jan E. Stets, The Sociology of Emotions 1 (2005). 15. See, e.g., Eliot R. Smith, Charles R. Seger & Diane M. Mackie, Can Emotions Be Truly Group

Level? Evidence Regarding Four Conceptual Criteria, 93 J. PERSONALITY & SOC. PSYCHOL. 431 (2007). 16. see, e.g., paula m. nledenthal et al., psychology of emotion: interpersonal,

Experiential, and Cognitive Approaches 305-342 (2006). 17. See, e.g., Catherine Lutz and Geoffrey M. White, The Anthropology of Emotions, 15 Ann.

Rev. Anthropology 405 (1986) (noting the move away from relegating emotion to the sidelines of culture theory).

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Spring 2009] Victims, “Closure,” and the Sociology of Emotion 5

about the role of emotion in democratic deliberation.18 And most recently, the emerging field of affective neuroscience has been examining the neural dynamics of emotional interchange. One of its founders, Richard Davidson, observes, “You can’t separate the cause of an emotion from the world of relationships – our social interactions are what drive our emotions.”19

In short, we know that emotions are not formed, experienced, or expressed in a vacuum. There are likely some basic emotions that exist across cultures,20 but even as to those, social context shapes not only how they are communicated to others, but how they are formed, experienced, and interpreted by the individual.21 And once intergroup behavior is added to the mix, questions arise both about how the expression and interpretation of emotion change in a group context, and about how an emotional climate may arise in a group – through mechanisms like emotional contagion and synchronization.22

It is becoming increasingly clear that understanding these dynamics is an interdisciplinary project.23 The need for interdisciplinary interchange highlights the importance of specifying context. A neuroscientist seeking to measure fear responses in the amygdalae of lab rats, an anthropologist comparing cultural responses to the approach of strangers, and a psychologist studying fear of maternal separation in infants may have much to learn from one another; but they first have to find a common language. Their uses of the term “fear” describe different agents, targets, contexts, methodologies, and research goals, and the term will be useful only if these are specified.24 The use of the term

1. E.g., Sharon Krause, Civil Passions: Moral Sentiment and Democratic Deliberation (2008); see also George Lakoff, The Political Mind (2008); George E. Marcus, The Sentimental Citizen: Emotion in Democratic Politics (2002); Drew Westen, The Political Brain: The Role of Emotion in Deciding the Fate of the Nation (2007).
2. Daniel Goleman, Social Intelligence: The New Science of Human Relationships 83 (2006) (quoting Richard Davidson, Director of the Laboratory for Affective Neuroscience at the University of Wisconsin); see also Richard J. Davidson & Steven K. Sutton, Affective Neuroscience: The Emergence of a Discipline, 5 CURRENT OPINION IN NEUROBIOLOGY 217 (1995).
3. The extent to which emotions are biologically rooted is also an important and burgeoning area of study. See, e.g., Antonio D amasio, The Feeling of What Happens: Body and Emotion in the Making of Consciousness 51 (1999) (referring to a group of primary or universal emotions- happiness, sadness, fear, anger, surprise, and disgust – and to a larger group of secondary or social emotions, and arguing that although culture and learning can alter the expression and meaning of emotions, all share a biological core); see also Erin O’Hara & Douglas Yarn, On Apology and Consilience, 11 Wash. L. Rev. 1121, 1140-51 (2002) (discussing the biologically rooted taste for apology and forgiveness); Andrew Ortony & Terence J. Turner, What’s Basic About Basic Emotions?, 97 PSYCHOL. Rev. 315 (1990) (raising the possibility that the concept of basic emotions is an article of faith); Peggy Thoits, The Sociology of Emotions, 15 Ann. Rev. SOC. 317, 320 (1989) (noting the ongoing debate about socially constructed versus basic or biologically rooted emotions).
4. See, e.g., Turner & Stets, supra note 14, at 2 (explaining the social construction of emotions). 22. See, e.g., Sigal G. Barsade, The Ripple Effect: Emotional Contagion and Its Influence on Group

Behavior, 47 ADMIN. Sci. Q. 644, 644-75 (2002). 23. See Arvid Kappas, The Science of Emotion as a Multidisciplinary Research Paradigm, 60

Behav. Processes 85 (2002). 24. Kagan, supra note 13, at 14-38; see also Jerome Kagan, What is Emotion?: History,

Measures, and Meanings 4-10 (2007).

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6 Law and Contemporary Problems [Vol. 72:1

“altruism” provides another example of the problem: whereas psychologists puzzle over the motivations for altruism,25 philosophers are divided over whether to define it in terms of a mere willingness to aid others, irrespective of motivation,26 and evolutionary biologists often use it to describe behavior such as helping one’s kin in order to promote replication – in other words, behavior that common parlance is unlikely to classify as strictly altruistic.27 The imprecise use of terms describing emotional states and processes may hinder rather than facilitate interchange. Left undefined or insufficiently contextualized, these terms may serve only to conflate and confuse concepts that diverge in important respects.

Moreover, there is no accepted definition of the term emotion.28 Indeed, the more light is shed on the dynamics of cognitive processing, the less likely it appears that emotion defines a discrete function or phenomenon. The term will need to be provisionally defined for analytic purposes, but “it should not be reified.”29

Current neurobiological research views emotions as a set of processes, distributed throughout the brain, that assist us in appraising and reacting to stimuli, and that are very sensitive to context.30 Recent work in psychology and sociology also portrays emotions as processes formed, interpreted, and communicated in social context.31 They influence the way we screen, categorize, and interpret information. They influence our evaluations of the intentions and credibility of others. They help us decide what is important or valuable. Perhaps most important, they drive us to care about the outcome of our decisionmaking, and motivate us to take action, or refrain from taking action, on the situations

1. See, e.g., C. Daniel Batson, Prosocial Motivation: Is It Ever Truly Altruistic?, 20 ADVANCES IN Experimental Soc. Psychol. 65 (1987).
2. There is no unanimity about the meaning of altruism in the philosophical literature. See, e.g., Symposium, 10 SOC. Phil. & POL’Y, Winter 1993, at 1 (devoting an entire issue to the philosophy of altruism).
3. The classic behavioral definition of altruism is “behavior that benefits another organism, not closely related, while being apparently detrimental to the organism performing the behavior, benefit and detriment being defined in terms of contribution to inclusive fitness.” Robert L. Trivers, The Evolution of Reciprocal Altruism, 46 Q. REV. BIOLOGY 1, 35 (1971). The adaptationist view, however, focuses on evolved design rather than on behavior; processes such as “kin selection” and “reciprocal altruism” lead to the evolution of mechanisms designed to deliver benefits to other organisms because such behaviors lead to the replication of the genes that underlie them. Robert Kurzban, Biological Foundations of Reciprocity, in TRUST, RECIPROCITY, AND GAINS FROM ASSOCIATION: Interdisciplinary Lessons from Experimental Research 105-27 (E. Ostrom and J. Walker eds., 2003); John Tooby & Leda Cosmides, Friendship and the Banker’s Paradox: Other Pathways to the Evolution of Adaptations for Altruism, PROC. Brit. Acad. 88, 119-43 (1996). I am grateful to Rob Kurzban for his guidance on these issues.
4. See generally 22 EMOTION RESEARCHER (2006-2007) (the definition issue, which contains a dizzy ingly wide array of suggested definitions). The Emotion Researcher is the Official Newsletter for the International Society for Research on Emotion.
5. Id. at 9 (definition of Anna Wierzbicka). 30. Id. at 7 (definition of Arvid Kappas), 12 (definition of Manfred Holodynski). 31. Turner & Stets, supra note 14, at 1.

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Spring 2009] Victims, “Closure,” and the Sociology of Emotion 7

we evaluate.32 All these processes are shaped, refined, and communicated in a social and cultural context.

The insight that emotional experience and expression vary across contexts and cultures has to some degree entered conventional wisdom. We commonly speak, for example, about shame cultures and guilt cultures,33 or about honor cultures – the vigilante tradition34 in certain southern states, for example. My focus here is on the fact that emotion norms vary not only across geographic lines, but among other more subtly drawn “emotion cultures” as well. The distinctions among these emotion cultures are in part about the acceptable expression of emotion. Display rules,35 or expression norms, regulate the acceptable range of emotional behavior and provide scripts for socially appropriate enactment of emotion. Sociologists have been investigating the means by which emotion cultures transmit not only display rules, but also feeling rules (emotion norms), which “specify the emotions that individuals should feel in a situation.”36 For example, sociologist Candace Clark’s influential study of sympathy norms describes implicit rules governing both the feeling and expression of sympathy – rules that vary across cultures, across time, and by class and gender.37 Sociologists argue that these implicit rules and norms teach us what we ought to be feeling, and in doing so, guide the way we shape and experience our inchoate emotions.38 The investigation of feeling rules is a complex topic, comprising a wide range of sociological approaches too

1. The precise means by which emotion and cognition interact are very much a matter of debate. See, e.g., Antonio R. D amasio, Descartes’ Error: Emotion, Reason, and the Human Brain (1994) (exploring the somatic marker hypothesis); Joseph Forgas, Mood and Judgment: The Affect Infusion Model, 117 PSYCHOL. BULL. 39 (1995) (presenting a model of affective states as influences on social judgment); Oliver Goodenough & Kristin Prehn, A Neuroscientific Approach to Normative Judgment in Law and Justice, PHIL. TRANSACTIONS ROYAL SOC’Y LONDON SERIES B 359, 1717 (2004) (considering the impact of findings of cognitive neuroscience about moral reasoning on legal reasoning); Elizabeth A. Phelps, The Interaction of Emotion and Cognition: Insights from Studies of the Human Amygdala, in EMOTIONS and CONSCIOUSNESS (Lisa Feldman Barrett et al. eds., 2005) (exploring the role of the human amygdala in regulating emotion and cognition).
2. See, e.g., Linda Seward, Shame and Guilt Cultures, http://mtsu32.mtsu.edu: 11283/shame_guilt. htm (last visited Oct. 19, 2008) (charting the differences between shame cultures and guilt cultures for the benefit of students planning to study abroad).
3. ZIMRING, supra note 2, at 89. 35. See, e.g., Thoits, supra note 20, at 322. The work of Erving Goffman on interaction rituals is

seminal to the study of cultural scripts for performing and interpreting emotions. See Erving Goffman, Frame Analysis: An Essay on the Organization of Experience (1974); Erving Goffman, Interaction Ritual: Essays on Face-to-Face Behavior (1967) [hereinafter Goffman, Interaction Ritual]; Erving Goffman, The Presentation of Self in Everyday Life (1959).

1. Thoits, supra note 20, at 323. 37. See Candace Clark, Misery and Company: Sympathy in Everyday Life (1998),

discussed in Thoits, supra note 20, at 323.

1. See Thoits, supra note 20, at 323 (examining “sympathy norms and the rules of sympathy exchange”).

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8 Law and Contemporary Problems [Vol. 72:1

numerous to fully explore here.39 The emotion cultures that develop these rules may be geographical, such as shame and guilt cultures. They may be temporal.40 Notions of romantic love – what it feels like, when one ought to feel it, and for whom, whether it is important – shift over time and among cultures.41

Some emotion cultures are quite localized and specific. An early and seminal investigation of an emotion culture and its feeling rules was Arlie Hochschild’s study of feeling management among flight attendants.42 As Hochschild showed, emotion cultures may be identified by gender and status hierarchy, among other variables.43 Legal institutions contain and comprise many overlapping “micro” emotion cultures – the culture of the courtroom or the jury room, for example.44

Ill

The Reciprocal Relationship Between Emotion and Social

Structure

When we use internal emotional processes or reciprocal private exchanges as the model for all emotional dynamics, we lose essential information about how emotion and law interact. We proceed on faulty assumptions about human behavior in the legal context, and about how to structure legal institutions in light of that behavior. These institutions, as Martha Nussbaum observes, “can either promote or discourage [emotions], and can [even] shape [emotions] in various ways.”45 This is not solely a top-down process.46 Institutional structure is influenced by assumptions about what people feel and ought to feel.

For example, we have developed a thriving set of “grief industries” in the United States that are premised on certain assumptions (many of them empirically dubious) about when and how grief needs to be managed, or even

1. For excellent summaries of the work in this area, see generally id. and Turner & Stets, supra note 14.
2. For example, American Studies professor Joel Pfister has noted that “some Western emotions, once deemed vital to human essence, are now obsolete (the medieval notion of “accide” or losing one’s zeal for praying, the Renaissance notion of melancholy).” Joel Pfister, On Conceptualizing the Cultural History of Emotional and Psychological Life in America, in INVENTING THE PSYCHOLOGICAL: Toward a Cultural History of Emotional Life in America 17, 22 (Joel Pfister & Nancy Schnog eds., 1997).
3. Cheshire Calhoun, Making Up Emotional People: The Case of Romantic Love, in The Passions of Law, supra note 9, at 217.
4. Hochschild, supra note 11, at 201-03. 43. Id.
5. No single institution operates independently, of course. To study the culture of the capital system implicates a web of interlocking institutions, including the criminal justice system, the jury system, police and prosecutors, the prison system, and the media.
6. Martha C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions 405 (2001) (discussing the power of institutions to influence emotions that impede appropriate compassion).
7. Id.

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Spring 2009] Victims, “Closure,” and the Sociology of Emotion 9

left behind.47 Similarly thriving are anger management programs, some of them flourishing because of referrals from the judicial system,48 though the premises of anger management are quite controversial generally, and particularly dubious in certain legal contexts.49

On a more basic level, institutions both reflect and shape our emotional commitments.50 For example, institutional structures and expectations can channel victims’ complex and evolving needs in various directions, reflecting a range of attitudes toward criminality, victimization, and community.51 We should carefully scrutinize the costs of importing the language and assumptions of private, dyadic emotion into institutional contexts, rife with their own peculiar rules for the display and feeling of emotion, and their own range of influence, both practical and symbolic.

IV

Victim Impact Statements and the Public Expression of Grief

The incursion of the concept of closure into the legal system illustrates the dangers of failing to evaluate emotions and their dynamics in particular contexts. Closure has been imported into the legal realm without regard for the differences between the therapeutic, spiritual, or familial contexts and the legal context, or between the private and public realms. The concept has fueled the reshaping of the institution of capital punishment52 in significant ways: it has

1. E.g., Jerome Groopman, The Grief Industry -, New YORKER, Jan. 26, 2004, at 30 (discussing the controversy over grief counseling with specific reference to families of victims of the September 11, 2001 terrorist attacks).
2. See, e.g., United States v. Bull, 214 F.3d 1275 (11th Cir. 2000) (upholding the district court’s imposition of anger-control treatment and a requirement that the defendant pay for the treatment as properly falling within the statutory authorization to impose “special conditions of supervised release” in a case involving the unauthorized use of a VISA card); State v. Kline, 963 P.2d 697 (Or. Ct. App. 1998) (upholding the trial court’s imposition, at a parole revocation hearing, of a condition that the abusive father refrain from fathering any additional children until he had completed drug treatment and anger management programs).
3. See Molly Butler Bailey, Improving the Sentencing of Domestic Violence Offenders in Maine: A Proposal to Prohibit Anger Management Therapy, 21 MAINE B.J. 140 (2006) (noting that in Maine the three approved sentences for domestic violence offenders are jail time, batterer’s intervention, and anger management therapy; and arguing that anger management therapy is dangerous and ineffective in this context and should be prohibited as a sentence); Benedict Carey, Anger Management May Not Help at All, N.Y. Times, Nov. 24, 2004, at D3 (noting that state and county programs have been set up without supporting research on the effectiveness of anger management, even though studies show that the programs are often ineffective and sometimes exacerbate anger).
4. “Compassionate individuals construct institutions that embody what they imagine; and institutions, in turn, influence the development of compassion in individuals.” Nussbaum, supra note 45, at 405.
5. See infra text accompanying notes 52-55. sz. Aitnougn tne concept is usea in noncapital contexts as wen, ine iocus nere is soieiy on us use in

capital cases. Every legal context raises certain unique issues for victims and their role in the justice system. For example, one study of victim impact statements and their reception by judges in noncapital cases found that judges exhibited very different attitudes toward the appropriate expression of emotion by rape victims and by domestic violence victims. See generally Mary Schuster & Amy Propen, Victim

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10 Law and Contemporary Problems [Vol. 72:1

transformed the debate about the legitimacy of capital punishment, and it has led to significant changes in the administration of the capital system. These changes are part of a feedback loop. Survivors have been promised that they will feel closure, and come to expect that they will and should feel it. Legal actors have come to believe they should help deliver it. And it has become conventional wisdom that the capital system must be perpetuated in order to continue to provide it.

In the capital context, the shift to the therapeutic is identifiable in changes both ideological and concrete. It began with the efforts of victims’ rights advocates to gain reforms in the treatment of victims and survivors.53 When crime victims organize to combat their marginalized status and the lack of dignity they are accorded in the criminal justice system, they might pursue a number of goals. Reform of the treatment of victims in court is the most obvious place to begin. Beyond that, there is much divergence. Organizers’ efforts might coalesce around restorative efforts like counseling and support programs, crime prevention initiatives, or victim-offender mediation. Alternatively (or in addition), they might coalesce around demands for retributive measures, such as more punitive sanctions and restrictions of defendants’ civil liberties.54 As criminologist Vanessa Barker found in a recent comparative study of victims’ rights movements in California and Washington,55 the directions such reform movements take and the goals they seek are heavily influenced by the political and institutional structure in which they take shape.56

Impact Statements in Domestic Violence and Sexual Assault Cases; Judicial Reaction (presented at Law and Society Association Annual Conference, July 8, 2006) (unpublished manuscript, on file with Law and Contemporary Problems). The capital system raises a number of unique issues, most obviously the role of survivors in the system and the fact that the defendant may be executed.

1. See generally Douglas E. Beloof et al., Constitutional Implications of Crime Victims as Participants, 88 CORNELL L. Rev. 282 (2003). See also Elizabeth Beck et al., Seeking Sanctuary: Interviews with Family Members of Capital Defendants, 88 CORNELL L. REV. 382, 387-90 (2003) (describing the victims’ rights movement).
2. I have argued elsewhere that although victims often set out to gain the former set of goals, in our current adversary structure they tend to succeed mostly in attaining the latter. Susan Bandes, Victim Standing, 1999 Utah L. Rev. 331 (1999).
3. Vanessa Barker, The Politics of Pain: A Political Institutional Analysis of Crime Victims’ Moral Protests, 41 Law & SOC’Y Rev. 619 (2007). Barker concludes that political structures that were intensively polarized tended to deepen crime victims’ demands for vengeance and provide legal expression for those demands, whereas political contexts with intensive civic engagement and well developed norms of social trust and reciprocity tended to bring about pragmatic measures mixing restorative and restrictive approaches. Id. at 638.
4. It is beyond the scope of this article to consider fully the complex interaction of social, cultural, political, and legal forces that account for the evolution of the capital system in the United States generally, or the increasing influence of the victims’ rights movement in particular. For influential explorations of these issues, see generally Stuart Banner, The Death Penalty: An American History (2003); David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001); Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear

(2007); James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe (2005); Zimring, supra note 2.

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Spring 2009] Victims, “Closure,” and the Sociology of Emotion 1 1

The most significant reform attained by the nascent victims’ rights movement in the United States in the early 1980s was the introduction of the victim impact statement, a vehicle now in use in federal capital trials and in thirty-one of the thirty-five57 capital states, which allows survivors to testify to the harm caused by the murder. In Payne v. Tennessee,58 the Supreme Court upheld the use of these statements in capital cases in the face of an Eighth Amendment challenge, concluding that they provide useful information to the jury at the sentencing phase.59 The Court held that the statements give juries a fuller picture of the harm caused,60 and make salient the unique individuality of the victim, illustrating why his death represented “a unique loss to society and in particular to his family.”61

Gradually, the public act of conveying information about the victim, remembering the uniqueness of the victim, and describing the pain of the victim’s loss, has been recast as a way for the survivor to move toward healing and closure.62 The theme of the courtroom as a place for closure or catharsis has become explicit in the years since Payne. Lower courts explicitly invoke the importance of closure.63 Victim assistance programs often advise survivors to testify as part of the healing process.64 Once survivors are promised this

1. Compare Death Penalty Information Center, Facts About the Death Penalty, http://www.death penaltyinfo.org/documents/FactSheet.pdf (last visited June 27, 2009), with Death Penalty Information Center, States That Allow Victim Impact Statements, http://www.deathpenaltyinfo.org/legal-issues- states-allow-victim-impact-statements (last visited June 27, 2009).
2. 501 U.S. 808 (1991) (overruling Booth v. Maryland, 482 U.S. 496 (1987)). 59. Id. at 822. This is a topic I’ve visited before. See Susan Bandes, Empathy, Narrative, and Victim

Impact Statements, 63 U. CHI. L. REV. 361 (1996). In that article I examined the arguments against the original premise for upholding the use of victim impact statements – specifically, their informational value. The question that concerned the Court then was whether these statements would allow death sentences to be imposed based on improper or irrelevant factors. My focus in this article is mainly on the shift in rationales, and the use of the healing and closure rationale. But it is also on what we have learned in the nearly twenty years since Payne was decided, and on what we still need to learn, both about the actual workings of victim impact statements, and about emotion, cognition, and institutions.

1. Payne, 501 U.S. at 825. 61. Id.
2. Justice O’Connor touched on the idea that the statement is for the benefit of the victim in her

concurrence in Payne when she said, “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.” M at 832 (O’Connor, J., concurring). As Robert Mosteller observes, “The argument is styled in terms of returning something to the murder victims themselves, but obviously that action is symbolic. Its impact is for the benefit of the victims’ families and friends

Evidence: Hard to Find the Real Rules, 88 CORNELL L. Rev. 543, 550 (2003). 63. See cases cited supra note 8. As I will discuss in detail below, attaining closure has come to

implicate not only the survivor’s ability to be heard, but also the need for a sentence of death and an execution. See infra text accompanying notes 100-110.

1. See, e.g., Victim Impact Statements, http://www.letswrap.com/legal/impact.htm (last visited Oct. 19, 2008). This website, a summary of information on victim impact statements from the Minnesota Center for Crime Victim Services, argues that statements provide victims a right to address the court prior to sentencing, allow them to express the impact of the crime on them and their families, and may aid victims in their emotional recovery. See also Mary Lay Schuster & Amy Propen, 2006 WATCH

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12 Law and Contemporary Problems [Vol. 72:1

opportunity to heal, the decision to exclude their testimony becomes, not merely an evaluation of the information value of the statement, but an act fraught with emotional meaning.65

We are witnessing a confusion or conflation of cultures – the therapeutic and the legal; a mapping of the language of private grief onto an entirely different sort of emotion culture – collective, public, hierarchical, adversarial, coercive. The emotional dynamics of the capital trial in fact bear little resemblance to those of private expressions of grief. The dynamics of this emotional interchange are comprehensible only in light of its social and institutional context. If we read out the social and collective aspects of these dynamics, we miss information that is crucial to the operation of the capital system and to its ability to provide just processes and outcomes for survivors, defendants, and the community.

To treat the victim impact statement like a private or familial expression of grief is to ignore the ways in which the survivor’s message is channeled, translated, even transformed in light of the expression rules and role expectations of the forum. The extrapolation from the private realm also elides the competing agendas that come into play when a survivor gives victim impact testimony in a capital trial. Specifically, the survivor may find herself in conflict with or in reluctant collaboration with a prosecutorial agenda that affects her own autonomy. Moreover, the audience for the victim impact statement – at least the only audience with any power to act on the information conveyed – is a collective entity: the penalty-phase jury.

To understand how each individual juror reads the emotional content of the testimony, how these interpretations change once the jury deliberates, and how the jury as a collective body translates its responses into action requires an understanding of how emotions develop in group settings in general, and in the particular setting of the capital trial. And if we confuse the expression of grief at a capital trial with the grief expressed in a familial or therapeutic setting, we miss the point of the whole exercise. The penalty-phase capital jury has only two possible ways to respond to the expression of grief – it can sentence the defendant to death, or not.

Finally, if we view victim impact evidence apart from its institutional context, we miss the feedback loop. We fail to consider the ways in which assumptions about grief, healing, and closure are affected by the capital system, and the ways in which the system in turn is shaped by assumptions about these emotions.

To have an informed and constructive debate about the use of victim impact statements or the role of the justice system in promoting closure, it is essential to focus on how context affects the meaning of psychological terms. It is also

Victim Impact Statement Study 6, http://www.watchmn.org/pdf/watch-vis%20Final%20.pdf (last visited Oct. 19, 2008) (“Judges and advocates were generally in agreement that the impact statement can be a powerful ‘part of the healing process’ for the victim.”).

1. See discussion of the McVeigh case infra text accompanying notes 111-19.

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Spring 2009] Victims, “Closure,” and the Sociology of Emotion 13

essential not to lose sight of the particular requisites of the legal context at hand – a system of capital punishment governed by constitutional standards. The capital context gives rise to a particular and in some respects unique set of risks, which cannot be weighed solely in light of the possible therapeutic value of victim impact statements to survivors. There are risks to survivors. Some survivors may benefit from the ability to participate, and some may feel co- opted or re-victimized by the process.66 There are also significant risks to the capital defendant, who is entitled to a jury whose decision about whether to take or spare his life is based on constitutionally acceptable criteria.67

V

The Role of the Survivor in the Capital System

For the survivor, the trial is a poor vehicle for authentic expression of emotion.68 It is, unavoidably, a ritualized public performance, with particular scripts, conventions, and role expectations. For example, there are pressures for the statement to conform to certain stock expectations69 about victimhood. Murder survivors are not a monolithic group with identical emotions and perspectives.70 Moreover, individual survivors may find that while some emotions will never abate, others might diminish or intensify over time.71

1. See Susan Bandes, Reply to Paul Cassell: What We Know About Victim Impact Statements, 2 Utah L. Rev. 545, 551-52 (1999) (citing studies on victim satisfaction and noting a lack of studies on the psychological effects of victim impact statements on murder survivors); Robert C. Davis & Barbara E. Smith, Victim Impact Statements and Victim Satisfaction: An Unfulfilled Promise?, 22 J. Crim. JUST. 1 (1994) (analyzing noncapital felony cases and finding little evidence that victim impact statements promote victim satisfaction); Robert Elias, The Law of Personhood: A Review of Markus Dirk Dubber’s Victims in the War on Crime: The Use and Abuse of Victims’ Rights, 52 BUFF. L. Rev. 225, 246 (2004) (arguing that encouraging victims and survivors to voice hatred may increase the sense of victimization).
2. This is not to suggest that the constitutional criteria are clear, or that their interpretation is free of controversy – quite the contrary.
3. In general the extent to which it is possible to discern the authentic emotional states of others is itself a “formidable epistemological problem.” See Jeffrie G. Murphy, Moral Epistemology, the Retributive Emotions, and the ‘Clumsy Moral Philosophy’ of Jesus Christ, in BANDES, supra note 9, at 157 (discussing the problem of other minds); see also Jeffrie G. Murphy, Remorse, Apology, and Mercy, 4 Ohio St. J. Crim. L. 423, 437 (2007) (“[I]issues of deep character are matters about which the state is probably incompetent to judge.”).
4. See, e.g., GOFFMAN, INTERACTION RITUAL, supra note 35, at 48-50 (discussing the rules of conduct for the presentation of self in particular roles); see also Markus Dirk Dubber, Victims in the War on Crime: The Use and Abuse of Victims’ Rights 188-92 (2002) (discussing stock images of victims).
5. For discussions of the many variations among victims and survivors, see, for example, WOUNDS That Do Not Bind: Victim-Based Perspectives on the Death Penalty 17-140 (James R. Acker & David R. Karp eds., 2006); Bandes, supra note 59, at 405-08; Susan Bandes, When Victims Seek Closure: Forgiveness, Vengeance and the Role of Government, 27 FORDHAM URB. LJ. 1599 (2000); Wayne A. Logan, Declaring Life at the Crossroads of Death: Victims’ Anti-Death Penalty Views and Prosecutors’ Charging Decisions, 19 Crim. Just. ETHICS 41, 48 (1999). For discussions of murder survivors who oppose the death penalty, see, for example, Robert Renny Cushing & Susannah Sheffer, Dignity Denied: The Experience of Murder Victims’ Family Members Who Oppose the

DEATH PENALTY (2002). See also Brief for Murder Victims’ Families for Reconciliation as Amici

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14 Law and Contemporary Problems [Vol. 72:1

At most, the victim impact statement is a snapshot of feeling at a particular juncture. But it is a distorted snapshot of that feeling. Ambiguity is not easily accommodated. The statement is often drafted from a template. For example, the Mothers Against Drunk Driving (MADD) victim impact statement workbook provides both a template for drafting the statement and a set of guidelines on the acceptable expression of emotion.72 It instructs victims and survivors to “write and speak from the heart about . . . [their] pain.”73 Yet it also instructs them not to vent their anger: “Your goal is to express your hurt and your pain; not to blame.”74 Like ambiguity, evolution of feeling is also difficult to accommodate. The emotions the survivor expresses during capital sentencing may change over time, but it is unlikely there will be another forum in which to express these changed feelings. Sometimes survivors come to regret their role in the imposition of a capital sentence.75

Moreover, as sociologist Nick Tavuchis observed in the context of apology, once the speech goes public, it implicates others with interests and commitments of their own.76 The survivor preparing to give victim impact testimony generally works with the prosecutor’s office, or with victim-mediation

Curiae Supporting Respondents at *8, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1588549 (discussing survivors’ views on the juvenile death penalty).

1. See Lynne N. Henderson, The Wrongs of Victims’ Rights, 37 STAN. L. Rev. 937, 964-66 (1985) (discussing the evolution of emotions after victimization).
2. The MADD workbook asks a series of questions to assist victims in drafting their statements. Here is one example:

The Emotional Impact How do you feel emotionally when you wake up in the morning? What do you think about? How often do you cry? Describe the last time you cried. What do you think about when you go to bed at night? How difficult is it for you to sleep? How long do you sleep? Do you have nightmares? About how much of every day do you feel sad? Do you feel more tired than you did before the crime? Have you been diagnosed with depression, anxiety, post-traumatic stress disorder, or any other stress-related illness since the crime? Are you on any medications for those conditions? Have you considered suicide since the crime? Have you had difficulties with relationships since the crime? How has it affected your family life? Has your view of the world as a safe and fair place changed since the crime? Has your spirituality changed since the crime?

Mothers Against Drunk Driving, Your Victim Impact Statement 9 (2003), available at http://www.madd.org/docsmctim%20Impact%20Statement%20Workbook.pdf.

1. M at 28.
2. M at 5.
3. See Robert Jay LiFTON & Greg Mitchell, Who Owns Death?: Capital Punishment, the American Conscience, and the End of Executions 204-10 (2002) (describing some cases in which survivors who began by supporting a death sentence came, for a variety of complex reasons, to oppose or regret the execution of the condemned man); see also Brief for Murder Victims’ Families for Reconciliation as Amici Curiae, supra note 70, at *8 (“Execution of the offender causes some victims to feel implicated in another person’s death.”); Jeff Goodell, Letting Go of McVeigh, N.Y. Times Mag., May 13, 2001, at 40 (recounting the change of heart of Patrick Reeder, who lost his wife and mother-in- law in the Oklahoma City bombing).
4. Nicholas Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation 51 (1991).

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Spring 2009] Victims, “Closure,” and the Sociology of Emotion 15

agencies that are themselves working with the prosecutor.77 The prosecutor has traditionally possessed tremendous and often unbridled discretion about who may give such a statement. Thus, for example, prosecutors have on a number of occasions barred survivors who oppose the death penalty78 from testifying,79 as the McVeigh prosecutors did when they refused to allow the testimony of several such survivors, including Marsha Kight, whose daughter was killed in the Oklahoma City bombing.80 Even when prosecutors do not silence survivors, they may explicitly or implicitly communicate their own views about which emotions are appropriate to the occasion.81 Often these “appropriate” emotions, such as anger and a desire for vengeance, may increase the possibility of a death sentence.82 To assume that the survivor’s testimony is an authentic and therapeutic expression of emotion is to discount the real possibility that the prosecution’s agenda may overwhelm the survivor’s voice.

1. Sheri Lynn Johnson, Speeding in Reverse: An Anecdotal View of Why Victim Impact Testimony Should Not Be Driving Capital Prosecutions, 88 CORNELL L. Rev. 555, 559 (2003).
2. In Payne, the Supreme Court did not rule on the admissibility of survivor opinion testimony about the proper sentence in capital cases, a type of testimony that was previously held unconstitutional. Although the denial of survivor opinion testimony might appear to apply to both pro- and anti-death penalty opinions, there are two reasons why this may not be so. First, judges appear more willing to allow “thinly veiled pro-death-penalty opinions,” such as exhortations to the jury to “show no mercy,” testimony that the Nevada Supreme Court allowed, characterizing it as “a request that the jury return the most serious sentence it found appropriate.” Wayne Logan, Victim Impact Evidence in Federal Capital Trials, 19 Fed. Sent’G Rep. 8 (citing Witter v. State, 921 P.2d 885, 895-96 (Nev. 1996)). Compare this with Robison v. Maynard, 943 F. 2d 1216 (10th Cir. 1991), in which the Tenth Circuit upheld the exclusion of testimony of a survivor who planned to ask for mercy, characterizing it as opinion testimony. Second, as discussed below, testimony that does not bear the hallmarks of a death penalty opponent, such as a plea for mercy or forgiveness, tends to be received by the jury as a plea to impose a death sentence. See infra text accompanying notes 127-30.
3. Bandes, supra note 54, at 341 & n.45. Charles Baird and Elizabeth McGinn describe several such cases, including one in which the prosecutor sought to bar the mother of a murdered six-year-old boy both from giving a victim impact statement and from taking the stand at all, though he put her brother, a death penalty supporter, on the stand. 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).
4. The federal Crime Victims’ Rights Act, 18 U.S.C. § 3771 (2006), was passed to address this problem and to protect federal crime victims’ rights to be heard. See A Proposed Constitutional Amendment to Protect Victims of Crime: Hearing Before the U.S. Senate Comm. on the Judiciary on S. J. Res. 6, 105th Cong. 70 (1997) (testimony of Marsha Kight). There are numerous unresolved questions about the scope and operation of the Act. However, it specifically states that it does not establish grounds for an independent cause of action based on its violation. 18 U.S.C. § 3771 (d)(6). It further states that “nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.” Id.
5. See, e.g., Cushing & Sheffer, supra note 70, at 12-13 (discussing implicit messages to survivors that their feelings are inappropriate); see also Lifton & Mitchell, supra note 75, at 204 (discussing the impact on a survivor of prosecution encouragement of her “anger and hatred”).
6. See Kelly v. California, 555 U.S. _, No. 07-11073, slip op. at 5 (2008) (Stevens, J., dissenting from denial of certiorari) (observing that victim impact statements elicit emotions that are likely to increase the chance of a death sentence); Dubber, supra note 69, at 188-89 (analyzing the role of victims’ emotions in prosecution strategy); Baird & McGinn, supra note 79, at 464-65 (discussing concern about the ability of judges to withstand victim impact testimony at sentencing).

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16 Law and Contemporary Problems [Vol. 72:1

In a private setting, moreover, an outpouring of sorrow would elicit a reaction, such as comfort or sympathy. In a truly therapeutic setting, it would elicit a response from someone trained to help. In a social setting it would be strange and cruel for such an expression to be met with silence, yet in the courtroom there is usually no response. Indeed, when judges do attempt to respond, they often prove ill-equipped to do so. For example, they may display discomfort or, on occasion, inappropriate reactions in response to the display of emotion, or particular emotions.83 The victim impact statement, then, is quite unlike a private outpouring of grief. It is better likened to a cathartic public ritual. Yet for the survivor, there is no good evidence that giving victim impact testimony provides catharsis, healing, or closure.84

VI

Closure and the Culture of the Capital Trial

The legal use of the concept of closure raises all the aforementioned problems about importing concepts from the therapeutic to the legal context. However, even in the therapeutic context, the term “closure” has no accepted clinical psychological meaning. As I noted earlier, despite its lack of bona fides, closure has been enthusiastically embraced as a legitimate psychological state and, moreover, as a state that the legal system ought to help victims and survivors attain.

Most of us cannot know how we would react if we were to lose a loved one

to murder, and therefore

we ought to be very slow to judge what any particular individual in that position ought to feel or want.

1. See Schuster & Propen, supra note 64, at 9-10. Schuster and Propen reported, in the context of victim impact testimony in noncapital cases, that judges were often uncomfortable with negative emotions like anger and hatred, for example. Id. They stated,

While we observed several sentencing hearings in which judges made an extra effort to welcome, thank, or even praise the victim, we did see one in which we wished the judge had made more effort. The court waited a long time for the defendant, who was in custody for murdering his wife, to be brought into court, and the judge was clearly concerned about getting back to a trial that he was conducting. After the advocate read statements from the step-father and mother of the victim, the judge’s only comment was “ok.” The attack was particularly brutal, so much so that the sentence was an upward departure from the guidelines. We imagined that it would be hard for the victim’s family, who sat in the gallery, to interpret just what that “ok” meant. Id.

They also recounted instances in which judges were inattentive or rude to victims. Id. at 21-23; see also Wayne Logan, Confronting Evil: Victims’ Rights in an Age of Terror, 96 Geo. L.J. 721, 769 (2008) (recounting disturbing stories of patronizing and dismissive judicial reactions to accounts of victim suffering).

1. Lifton & MITCHELL, supra note 75, at 204; Marilyn Peterson Armour & Mark S. Umbreit, Exploring “Closure” and the Ultimate Penal Sanction for Survivors of Homicide Victims, 19 FED. Sent’g Rep. 105, 110 (2006); Article 3, Newsl. Murder Victims’ Fams. for Hum. Rts. (Murder Victims’ Fams. for Hum. Rts., Cambridge, Mass.), Newsletter 7, Fall 2008/Winter 2009 (issue on “closure”).

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Spring 2009] Victims, “Closure,” and the Sociology of Emotion 17

But there is a separate question: the question of the law’s proper role in helping victims or survivors achieve the closure they need. This is where we do need to judge, and to decide. And where it becomes important to at least try to untangle what one’s religion might urge, from what psychiatry might try to achieve, from what politics might dictate, and all of those from what the law can . . . even attempt to accomplish.

When the capital system is conscripted as a means of providing the elusive state of closure, the ambiguities of the term become dangerous. If it refers to catharsis only, then perhaps the mere giving of a victim impact statement is enough. If it is aided by information from the defendant about what happened and why, a different set of questions is posed. In the courtroom, this quest for answers might be reduced to watching the defendant’s demeanor and trying to read his reactions.86 If it requires a reaction from third parties, it becomes important to clarify what sort of reaction is required, and from whom, and whether it is the sort of reaction a capital trial can or should provide. If it requires a more expeditious verdict, sentence, or execution, this raises a host of questions about due process.

Placing this emotional exchange in its institutional context is crucial. In the particular context of the capital trial, the response to the survivor’s outpouring of grief can come from only one source: the penalty-phase jury. And how does the jury interpret what it hears? This question cannot be usefully considered if the jury is treated as a collection of individuals, each reacting to the survivor’s story. The jury becomes its own micro emotion culture, with its own ideologies about appropriate attitudes, feelings, and responses. As psychologist Craig Haney observed about the capital jury,

The courtroom becomes the jurors’ separate reality, and they spend weeks or months in this legal world, amateurs in an arena of experts. Like all people in unfamiliar and threatening situations, they become acutely sensitive to – and highly dependent upon – the social cues and implicit messages they receive from the legal experts around them.87

Emotion is deeply implicated in decisionmaking. It helps us choose which sources of information we will emphasize. It assists us in evaluating the intentions or credibility of others. It helps us decide what is important and valuable. It motivates us to take action.88 Jurors make all these judgments in a collective context, in which they use emotion to assess not only the trial

1. Bandes, supra note 70, at 1601-02. 86. Similarly, survivors may seek understanding from watching the defendant’s demeanor as he is

executed, as occurred during the execution of Timothy McVeigh. See CNN.com, Witnesses Describe McVeigh’s Last Moments, http://premium.edition.cnn.com/2001/LAW/06/ll/mcveigh.witnesses/ (last visited Oct. 20, 2008). See generally Jody Lynnee Madeira, Blood Relations: Collective Memory, Cultural Trauma, and the Prosecution and Execution of Timothy McVeigh, 45 STUD. L. POL. & SOC’Y 75 (analyzing the importance to survivors and others of watching Timothy McVeigh’s face as he was executed). Another possible venue for this attempt to gain understanding is victim-offender mediation. The difficult questions that arise from a survivor’s attempt to gain understanding in this way deserve in- depth treatment that is beyond the scope of this article.

1. Craig Haney, Lorelie Sontag & Sally Constanzo, Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death, 50 J. SOC. ISSUES 149, 151 (1994).
2. See supra text accompanying notes 28-32.

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18 Law and Contemporary Problems [Vol. 72:1

unfolding before them, but the dynamics of the jury room itself. Jurors make judgments about whom to trust, whom to attend to, and with whom to empathize, and they make these judgments as a collective body. They appraise witnesses, they watch the defendant’s demeanor carefully – trying to assess his level of remorse, for example, or the fear he elicits in them. They appraise one another, and they often make these appraisals across racial, ethnic, and other divides, without realizing that these divides may cause them to misread demeanor and to misjudge emotion.89 They form social bonds, cliques, and out- groups.90 They experience a very intense form of emotional contagion: they enter into collective moods,91 some more amenable to open and effective deliberation than others.92 We miss all of these variables if we think about emotion shorn of its social context.

The emotional dynamics of victim impact statements are only beginning to receive careful study. We need more information about the emotions these statements evoke in both survivors and jurors and the effect of these emotions on sentencing. Given how much there is to learn generally about group emotion, there is a particular need to focus on how victim impact statements affect the emotions of the jury as a collective entity. There is some evidence that victim impact evidence, particularly when it conveys intense emotional pain, evokes sympathy and anger in jurors.93 Jurors perceive greater suffering after hearing such statements, and hear the emotional intensity of the statements as

1. For example, one study found that white jurors interpreted the demeanor of black defendants quite differently (and more harshly) than black jurors did: where a black juror saw remorse and sincerity, a white juror saw incorrigibility and deceptiveness. Black and white jurors displayed similar differences in reading one another’s demeanors, with both black and white jurors reading more negative emotions across racial lines. William J. Bowers, Benjamin D. Steiner & Maria Sandys, Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors’ Race and Jury Racial Composition, 3 J. Const. L. 171, 244-52 (2001); see also Michael E. Antonio, Arbitrariness and the Death Penalty: How the Defendant’s Appearance During Trial Influences Capital Jurors’ Punishment Decision, 24 Behav. Sci. & L. 215 (2006).
2. A recent, rather colorful example of this dynamic occurred in the Lewis Scooter Libby trial, in which all but one juror arrived in court on Valentine’s Day wearing “bright red T-shirts with a white valentine heart over their clothes …. [in order] to express their fondness for the judge and the court staff.” Neil A. Lewis, Saying He Was Misled by Defense, Judge in Libby Case Puts Some Evidence Off- Limits, N.Y. Times, Feb. 15, 2007, at A27. The lone T-shirt holdout was later dismissed from the jury on the ground that she had been exposed to trial-related information over the weekend. Michael J. Sniffen, No Verdict Yet From Remaining Libby Jury, WASH. POST, Feb. 26, 2007, http://www. washingtonpost.com/wp-dyn/content/article/2007/02/26/AR2007022600586.html.
3. Barsade, supra note 22, at 644-75. 92. See generally SCOTT SUNDBY, A LIFE AND DEATH DECISION: A JURY WEIGHS THE DEATH

Penalty (2003) (illustrating group dynamics in the context of three actual capital jury deliberations); Sunwolf, Practical Jury Dynamics: From One Juror’s Trial Perceptions to the Group’s Decision-Making Process (2004) (discussing the psychological and neurological components of group dynamics in the jury context). See also Barsade, supra note 22, at 644-75 (discussing emotional contagion generally).

1. Janice Nadler & Mary R. Rose, Victim Impact Testimony and the Psychology of Punishment, 88 Cornell L. Rev. 419, 447 (2003) (mock jury study conducted through questionnaires gauging participant reactions to varying victim impact statements).

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“a cry for help or relief.”94 There is some evidence that the anger they feel upon hearing victim impact statements translates into feelings of punitiveness.95 There is also evidence, more generally, that anger tends to interfere with sound judgment – it inhibits detailed information processing, increases tendencies to blame (including misattributions of blame), and exacerbates the urge to punish. In other words, it makes people want to punish more harshly, and makes them less careful about whether they are punishing the correct person.96 And there is some evidence, albeit far from conclusive, that this punitiveness translates into harsher sentences, including more death sentences,97 and that this desire to mete out harsh sentences is most discernible after group deliberation.98

Thus, although the Court in Payne did not permit survivor opinion testimony about the appropriate sentence in capital cases,99 the actual dynamics of victim impact testimony reveal what message is, in fact, conveyed.100 A capital jury faced with pain and grief, overcome with anger, does not have many social options at its disposal. If it wishes to take action on its empathy toward the survivor, its grief at the loss of the victim, and its anger toward the defendant, its only apparent option is to vote for a sentence of death.

In this way, the survivor’s expression of pain becomes implicated in the prosecution’s message to the jury – the message that jurors who truly feel this survivor’s pain, and who agree that the person he lost was unique and valuable, will vote to execute the defendant.101 And thus it seems to follow, according to this macabre logic, that for survivors, true closure will come when the defendant is executed, and anything that stands in the way of a speedy execution denies them the closure to which they are entitled. This valuation scheme may push survivors into a distressing dilemma. Survivors who do not support the death penalty may feel the need to stay off the witness stand rather than be

1. Id.
2. Id. at 444.
3. Id. at 443-45; Brian Myers, Emalee Weidamen & Gregory Pierce, Psychology Weighs in on the Debate Surrounding Victim Impact Statements and Capital Sentencing: Are Emotional Jurors Really Irrational?, 19 FED. SENT’G Rep. 13, 16 (2006).
4. See Theodore Eisenberg, Stephen P. Garvey & Martin T. Wells, Victim Characteristics and Victim Impact Evidence in South Carolina Capital Cases, 88 CORNELL L. Rev. 306, 321-22 (2003) (summarizing studies).
5. Id. at 319 (citing Bryan Myers & Jack Arbuthnot, The Effects of Victim Impact Evidence on the Verdicts and Sentencing Judgments of Mock Jurors, 29 J. OFFENDER REHABILITATION 95, 99-100 (Ì999ÌÌ.
6. In Payne, the Supreme Court overruled Booth v. Maryland, 482 U.S. 496 (1987), to the extent Booth held the Eighth Amendment acted as a per se bar on the introduction of two types of victim impact evidence: evidence characterizing the victim and evidence of the impact of the killing on the victim’s family. It did not discuss the admissibility of opinion evidence regarding sentence, and some commentators contend that therefore Booth’s bar on opinion evidence remains undisturbed. See Linda E. Carter & Ellen Kreitzberg, Understanding Capital Punishment Law 127 n.47, 129 (2004).
7. See supra notes 77-82 and accompanying text (suggesting that the ban on opinion testimony tends to advantage the state, rather than affect both parties equally).
8. Nadler & Rose, supra note 93, at 447.

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20 Law and Contemporary Problems [Vol. 72:1

conscripted onto the prosecution team, but in doing so may be painted as (or may feel themselves to be) disloyal to the victim’s memory.102 For survivors who do believe the system’s promises about closure, another type of distress may occur. Survivors who do not experience the promised closure after giving testimony, seeing the defendant receive a death sentence, or even watching the defendant die (as happened, for example, to some of those who watched Timothy McVeigh die, watching his face in vain for a hint of the “meaning” of their loved ones’ deaths),103 may suffer the pain of empty promises and dashed hopes.104

The valuation scheme described above exerts a profound influence on the structure of the capital system. It exerts pressure on legal actors down the line. It exerts pressure on legislators to expand the list of death eligible crimes, or risk showing disrespect for certain classes of victims.105 It exerts pressure on politicians to “streamline” the capital system, for example by closing or truncating avenues of appeal.106 It exerts pressure on prosecutors to bring capital charges, particularly in high-profile cases,107 and even to resist reopening a case based on evidence tending to exonerate the defendant.108 It exerts pressure on jurors to impose a death sentence. It exerts pressure on judges to deny

1. John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 CORNELL L. Rev. 257, 280 (2003); see also Annalise Acorn, Compulsory Compassion: A Critique of Restorative Justice 59 (2004) (noting that performance rituals may amount to “a demonstration of power relations … [in which] everyone is forced to either participate or watch silently”).
2. See sources cited supra note 86; see also Susan Jacoby, Watching McVeigh Die Helps No One, Newsday, Apr. 17, 2001, at A33.
3. Some have called this experience “secondary victimization” by the criminal justice system. E.g., Deborah Kelley, Victim Participation in the Criminal Justice System, in VICTIMS OF CRIME: PROBLEMS, Policies, and Programs 172, 182 (Arthur J. Lurigio et al. eds., 1990); Deborah Spungen, Homicide: The Hidden Victims 10-11 (1998).
4. Scott Turow, To Kill or Not to Kill: Coming to Terms with Capital Punishment, NEW YORKER, Jan. 6, 2003, at 40 (“[T]he fundamental equality of each survivor’s loss creates an inevitable emotional momentum to expand the categories for death penalty eligibility.”).
5. Former Florida governor Jeb Bush stated that by introducing lethal injection and truncating certain procedural avenues to speed up appeals, “we can finally put an end to the unnecessary and endless delays long associated with death penalty cases in Florida. It is time to bring justice to the families of victims who have suffered and died at the hands of the most heinous criminals.” Amnesty Int’l, USA (Florida): Further Information on Death Penalty, A.I. Index 51/016/2000, Jan. 24, 2000 (quoting Governor Jeb Bush); see also Governor Jeb Bush’s Statements Before the Special Session of the Florida State Legislature, N.Y. TIMES, Jan. 6, 2001, at A22.
6. For example, when District Attorney Jim Brazelton announced that he was bringing capital charges against Scott Peterson, he said: “I owe it to Laci, Conner, the community, and especially the family, who are the most important people here.” Harriet Chiang, How Prosecutors Choose Death Penalty, San. Fran. Chron. April 24, 2003, at Al. For studies documenting wide disparities in capital charging decisions, see State of Illinois Ryan Commission, Report of the Governor’s Commission on Capital Punishment, Recommendation 30 (April 15, 2002); James Liebman et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases and What Can Be Done About It, http://www2.law.columbia.edu/brokensystem2/updatedinfo.html (last visited Nov. 11, 2008).
7. See generally Susan Bandes, Loyalty to One’s Convictions: The Prosecutor and Tunnel Vision, 49 HOWARD L.J. 475 (2006).

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Spring 2009] Victims, “Closure,” and the Sociology of Emotion 21

continuances or appeals.109 In general, it casts closure as an entitlement the court is eager to protect and casts appeals, stays, post-conviction petitions, and other procedural safeguards, as well as grants of clemency,110 as cruel barriers to closure.

VII

Survivor Evidence in Mass Killing Cases

The use of victim impact evidence in criminal cases arising from terrorist attacks in which large numbers of people have been killed (mass killing cases) raises another set of questions about the effect of context on emotional dynamics. Many of the difficult issues that arose during the McVeigh111 and Moussaoui112 trials, among others, were the result of ambiguities about victim impact testimony that courts have struggled with in capital trials generally: What is its purpose? Who counts as a victim? What sorts of harm are admissible? What is the court’s role in ensuring the testimony is not unduly prejudicial? These issues have generated a voluminous literature, which will not be revisited here. The focus in this section is on how the mass killing context not only amplifies or exacerbates existing ambiguities about victim testimony, but affects the emotional dynamics of the capital trial in ways that pose unique institutional challenges.

As a general matter, high-profile and politically charged mass killing prosecutions, like the McVeigh and Moussaoui trials, vividly showcase the public, performative aspects of victim impact testimony. Likewise, these trials demonstrate the host of often-conflicting legal, social, and political interests, pressures, and agendas implicated in the struggle over who gets to shape the presentation of victim impact testimony, and what form it will take. More specifically, the mass killing cases place in sharp relief the basic question raised

1. See., e.g., cases cited supra note 8. For discussions of the political pressures on judges in capital cases more generally, and the effects of those pressures on judicial behavior, see Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759 (1995); Susan Bandes, Fear Factor: The Role of Media in Covering and Shaping the Death Penalty, 1 OHIO St. J. Crim. L. 585 (2004). 110. Former Illinois Governor George Ryan’s commutation of the sentences of all but four

(pardoned) death-row inmates to life in prison followed a series of highly emotional hearings on the prisoners’ clemency petitions. The hearings were requested by the Illinois State’s Attorney’s Office. The issue of closure was raised often: both murder victims’ families and the press decried the hearings themselves for reopening painful wounds, and pled with the governor not to deprive survivors and the public of the closure of execution. See John Patterson, Clemency Hearings Open Old Wounds, CHI. DAILY Herald, Oct. 15, 2002, at 1; Editorial, Ryan’s Hearings Cruel and Unusual, Chi. Sun-Times, Oct. 22, 2002, at 27; see also Deadline (Home Vision Entertainment 2004) (chronicling the Ryan clemency hearings). The film includes the testimony of Robert Jones, father of a murdered girl: “It would be a grave insult to our daughter for the governor to grant clemency.” See generally Austin Sarat, Mercy on Trial: What It Means to Stop an Execution (2005).

1. United States v. McVeigh, 958 F. Supp. 512 (D. Colo. 1997), affd 153 F.3d 1166 (10th Cir. 1998).
2. United States v. Moussaoui, 282 F. Supp. 2d 480 (E.D. Va. 2003).

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22 Law and Contemporary Problems [Vol. 72:1

earlier: What purpose are victim impact statements meant to serve? The ambiguity about their proper role complicates the effort to use them wisely in these highly charged cases.

Perhaps, as Payne itself held, victim impact statements are meant to transmit information.113 If so, courts should guard against redundant testimony. However, to determine redundancy it is necessary to discuss what sorts of information victim impact statements are meant to convey. Victim impact testimony is not meant to convey the fact of the murder – that is established in the guilt phase. It conveys the emotional impact of losing the particular victim. The informational value of this sort of testimony is difficult to assess. Payne premises the right to give victim impact testimony on the importance of conveying the uniqueness of each victim,114 and the Court has more generally acknowledged the informational importance of narrative accounts.115 Thus, arguably, since each victim is unique, and each narrative account will convey information more vividly than a cold evidentiary record, each survivor should be permitted to give a statement. Defense attorneys have argued in response that every loss of life is terrible and leaves devastation, and that at some point the testimony becomes duplicative.116 This argument has been predictably futile. But in these cases it is administratively impractical to permit each of those affected to testify. In the Moussaoui case, for example, the government created a database of 8000 persons adversely affected by the attacks of September 11th, and several hundred of them expressed an interest in testifying at the sentencing hearing.117 Ultimately the government had to confine itself to what it called “a reasonable sample … to convey properly the devastation.”118 Three dozen people were permitted to give victim impact statements.119

The mass killing cases highlight difficulties of drawing the line between informational and prejudicial victim impact statements. The distinction borders on the incoherent in the victim impact context generally, given that the value of the information is its ability to evoke pain and make grief salient. The Supreme Court recently declined an opportunity to clarify this distinction, denying certiorari in a case involving victim impact testimony in the form of an emotionally powerful film about the life of the victim, including music, a

1. See Payne v. Tennessee, 501 U.S. 808, 825 (1991) (describing victim impact evidence as “simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question”).
2. Id.
3. See, e.g., Old Chief v. United States, 519 U.S. 172, 188-89 (1997) (recognizing the power of narrative).
4. Logan, supra note 83, at 744 (citing Transcript of Record at 6809-11, United States v. Usama Bin Laden, 126 F. Supp. 2d 290 (S.D.N.Y. 2001)).
5. Logan, supra note 83, at 750 (discussing victim impact statements in the Moussaoui case). 118. Id.
6. Id. As Logan notes, in order to exclude all but three dozen impact witnesses, the government needed to obtain an exception to the Justice for All Act, which normally allows crime victims to be reasonably heard at any public proceeding concerning sentence. Id.; see also 18 U.S.C. § 3771 (a)-(d).

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Spring 2009] Victims, “Closure,” and the Sociology of Emotion 23

voiceover by the victim’s mother, and a concluding shot of wild horses running free. Justices Breyer and Stevens, in their separate opinions dissenting from the denial of certiorari, each quoted a federal district court judge who said:

I cannot help but wonder if Payne would have been decided the same way if the Supreme Court Justices in the majority had ever sat as trial judges in a federal death penalty case and had observed first hand, rather than through review of a cold record, the unsurpassed emotional power of victim impact testimony on a jury. It has now been over four months since I heard this testimony and the juror’s sobbing during the victim impact testimony still rings in my ears.

In mass killing trials, it is difficult to imagine a metric for determining the point at which the possible prejudicial effect of the emotions evoked by the information outweighs the value of the information.121 Payne and its progeny assume that victim testimony will not interfere with the jury’s constitutional duty to consider the defendant’s mitigating evidence122 before determining whether he deserves to die.123 But as Judge Matsch learned in McVeigh, it is immensely difficult to regulate the emotional climate of the courtroom in a high-profile, mass killing case. Despite his expressed intention to limit victim impact evidence to “facts rather than emotional impact,”124 he eventually permitted more than three dozen victim impact statements. As one commentator noted, “The ‘grieving process’ . . . and the compelling emotional need for witnesses to pay homage to their loved ones and to find some way of sharing their intense pain – rolled over everyone.”125 The effect of the testimony was so powerful that even the judge and the reporters wept.126

1. United States v. Johnson, 362 F. Supp. 2d 1043, 1107 (N.D. Iowa 2005), cited in Kelly v. California, 555 U.S. _, No. 07-11073, slip op. at 2 (2008) (Breyer, J., dissenting from denial of certiorari) and at 6 n.3 (Stevens, J., dissenting from denial of certiorari).
2. The very difficulty of raising the issue of prejudice without appearing heartless illustrates the challenge of regulating impact testimony, particularly in mass killing cases. In an exchange from one mass murder trial, the defense counsel, seeking to limit victim testimony, apologized for “seeking to minimize in a legal sense what cannot be minimized in a human sense.” The judge dismissed his plea for balance, saying “What is a fair balance? Two hundred killed and 5,000 injured and what is the calculus of that?” Logan, supra note 70, at 743-44 (citing Transcript of Record at 6809-11, United States v. Usama Bin Laden, 126 F. Supp. 2d 290 (S.D.N.Y. 2001)).
3. Penry v. Lynaugh, 492 U.S. 302 (1989) (holding that sentencing structure must give effect to mitigating evidence); Hitchcock v. Dugger, 481 U.S. 393 (1987) (holding that a sentencer must consider mitigation testimony); Lockett v. Ohio, 438 U.S. 586 (1978) (holding that individualized sentencing in capital cases is constitutionally required); see also Bandes, supra note 59, at 402-05 (discussing the influence of victim impact testimony on a jury’s ability to consider mitigation evidence).
4. See Payne v. Tennessee, 501 U.S. 808, 825 (1991) (assuming that the due process clause would provide a mechanism for relief in the event of unduly prejudicial testimony); see also John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 CORNELL L. Rev. 257 (2003) (reviewing posi-Payne cases and finding little meaningful effort to regulate victim impact testimony).
5. Richard Burr, Litigating with Victim Impact Testimony: The Serendipity that Has Come from Payne v. Tennessee, 88 Cornell L. Rev. 517, 520 (2003) (quoting statements made by Judge Matsch during an in-chambers conference on proposed victim impact testimony).
6. Id. at 521; see also Susan Bandes, Letter to the Editor: For McVeigh’s Victims, A Spectrum of Pain, N.Y. TIMES, Apr. 26, 2001, at A22.
7. Burr, supra note 124, at 521; see also Logan, supra note 83, at 743. Although McVeigh was sentenced to death, Moussaoui was not. There is no definitive explanation for the Moussaoui

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24 Law and Contemporary Problems [Vol. 72:1

If, on the other hand, victim impact statements are meant to serve as a vehicle for healing and catharsis, the exclusion of any single survivor’s testimony becomes problematic for a different reason. Once the ability to make a statement is held out as a gesture of respect for victims and a means toward healing for survivors, the exclusion of any survivor comes to seem a cruel withholding – both of respect for the value of the victim’s life, and of the survivor’s means of achieving closure.

The alternative to letting all survivors testify is to choose among survivors. There is an irony here. “[The] victims’ rights movement revives the concept of privatized justice, by portraying the criminal case as a struggle between the defendant and the victim’s family and by seeming to erase the role of the state.”127 One perhaps unintended consequence of viewing the crime as a harm to individuals rather than to the community as a whole is that it raises the question of which individuals will be given a forum. If only some survivors will be permitted to testify, which victims will get to be remembered, and which survivors will get to be heard? The situation is rife with pitfalls. In McVeigh, the prosecutors excluded several survivors who opposed a death sentence, whereas in Moussaoui, survivors with a range of attitudes toward the death penalty were permitted to testify.128 Nevertheless, even in the latter case, hundreds of survivors who wanted to testify were precluded from taking the stand.129

More basically, the very question of who qualifies as a victim or a survivor is ambiguous. This ambiguity is not confined to the mass killing cases,130 but their circumstances do exacerbate it. For example, Moussaui made liberal use of the anthropomorphic notion of “institutional victims,” permitting medical rescue workers, police, fire personnel, and former New York Mayor Rudolph Giuliani to talk about harms to their workplaces, to the City of New York, to the U.S. government, and to the nation as a whole.131 One survivor who lost her husband asked, “Why Mayor Giuliani? I don’t think he needs closure, and he didn’t lose

sentencing decision. Several jurors attributed it to the government’s weak case. Three of the jurors attributed it to Moussaoui’s limited knowledge of the September 11th plot, and three to his minor role in the attacks. See Moussaoui Spared Execution but Is Sentenced to Life in Prison, CHI. TRIB., May 4, 2006, at 3. Nine of the jurors found that Moussaoui’s unstable and violent early childhood was a mitigating factor. See Richard A. Serrano, Jurors Give Moussaoui Life Term, L.A. TIMES, May 4, 2006> at Al. Several jurors talked about their determination to put their emotions aside and focus on the law. See Jerry Markon & Timothy Dwyer, Some Saw Moussaoui as Bit Player, Juror Says, WASH. POST, May 5, 2006, at A01. Defense lawyers attributed the verdict in part to the fact that some of the victim impact testimony came from family members opposed to the death penalty. Neil A. Lewis, Moussaoui Gets Life: Jury’s Verdict Surprises Prosecutors, CHI. TRIB., May 4, 2006, at Cl. 127. Bandes, supra note 59, at 406-07; see also Barton Poulson, A Third Voice: A Review of

Empirical Research on the Psychological Outcomes of Restorative Justice, 2003 UTAH L. REV. 167, 167 (2002) (defining restorative justice as viewing crime as a violation against the person rather than the abstract entity).

1. Logan, supra note 83, at 28-30. 129. Id.
2. See Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Testimony in Capital Trials, 41 ARIZ. L. REV. 143 (1999).
3. Logan, supra note 83, at 30.

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Spring 2009] Victims, “Closure,” and the Sociology of Emotion 25

loved ones.”132 The notion of institutional victims compounds the irony: the privatized-harm perspective, which was meant to supplement the notion of crime as harm to the community at large, is here supplemented by a notion of crimes against the community. Those who wish to speak for the community are required to demonstrate the bona fides of their victimhood.

Courts, unsurprisingly, are ill-equipped to make decisions about healing and catharsis and often seem stymied by the complex emotional dynamics survivor testimony engenders in capital cases. Mass killing cases raise unique challenges that cannot be usefully understood without inquiry into the particular emotional dynamics of these trials and how these dynamics affect – and are affected by – the operation and goals of the capital system.

VIII

Conclusion: The Feedback Loop

Legal institutions inevitably rely upon implicit and explicit assumptions about human behavior, and often these assumptions fail to reflect growing knowledge about how institutional actors do in fact behave. It may not always be possible, or even desirable, for legal institutions to incorporate evolving behavioral knowledge. It may not always be possible, because legal institutions do not tend to have reliable mechanisms for incorporating the findings of relevant fields, such as the sciences or social sciences. It may not always be desirable, because there may be countervailing considerations at play. Accurate behavioral knowledge promotes many important goals in a system that relies on predicting and channeling human behavior, but the legal system has other requisites as well, including predictability, consistency, and equality of treatment.133 Sometimes these conflicting goals will require tradeoffs – it is not always necessary or advisable to act on knowledge about how emotion affects legal actors and legal institutions. But to make these decisions intelligently requires knowledge about what is being weighed. Proceeding in ignorance will not make the difficult choices disappear; it will simply ensure that they are made without sufficient information.

Although there is increasing recognition that cognition and emotion act in concert, there is still a tendency to approach emotions as if they remain fixed across time, place, and social setting. Emotions are not static entities; they exist in dynamic, reciprocal relationships with social structure. To create and maintain effective and just legal institutions requires a continuing effort to

1. Id.
2. This tension is evident in the death penalty context, in which the Eighth Amendment requires both individualized consideration and guided discretion. See Lockett v. Ohio, 438 U.S. 586, 606 (1978) (invalidating an Ohio law as not requiring individualized consideration of mitigating factors); Scott E. Sundby, The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L. Rev. 1147, 1150 (1991) (examining the tension between individualized consideration and equal treatment).

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26 Law and Contemporary Problems [Vol. 72:1

clarify institutional goals and to create institutional structures that help legal actors facilitate those goals.

I have used the concept of closure to illustrate the pitfalls and consequences of using emotion language in the legal context without sufficient attention to the content of the emotional categories employed or to the institutional goals at stake. The term has a constellation of meanings, each of which has its own implications for institutional structure. In the death penalty context, too often the term is used not only without clarity, but without regard for the constitutional requisites of the capital trial.

The theme of closure has reframed the entire death penalty debate. For many years, support for the death penalty was premised on its deterrent function. More recently, the weight of empirical evidence has rendered the deterrence rationale increasingly tenuous.134 Retribution, the major alternative rationale, has always been a harder sell. Retribution at one time sounded too close to revenge, and made people uncomfortable. The language of healing and closure has provided a way to soften the retribution rationale. If the death penalty can help survivors heal, then retribution can be viewed as therapy rather than bloodlust. Thus the notion of closure provides a rationale for our continuing commitment to the capital system. At the same time, the perceived requisites of closure have fueled changes in the structure of the capital system, including victim impact statements, truncated appeals, and broadened categories of death eligibility. In this way the feedback loop perpetuates itself. We have promised survivors that the system can give them closure, and capital punishment is now compelled by our promise of closure. Unfortunately, this therapeutic promise has little to do with the actual workings of our capital system: it is a poster child for the dangers of engrafting the private language of emotion onto a complex, hierarchical, and coercive governmental entity.

1. Susan Bandes, The Heart Has Its Reasons: Examining the Strange Persistence of the American Death Penalty, 42 STUD. L. POL. & SOC’Y 21, 30-31 (2008) (discussing the current state of the empirical debate); John Donahue & Justin Wolfers, Uses and Abuses of Statistical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791, 791 (2005) (a meta-analysis of empirical studies of deterrence).

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Issue Table of Contents
Law and Contemporary Problems, Vol. 72, No. 2 (SPRING 2009) pp. i-xix, 1-276
Front Matter
Introduction [pp. i-xix]
VICTIMS, “CLOSURE,” AND THE SOCIOLOGY OF EMOTION [pp. 1-26]
POLARIZATION: THE ROLE OF EMOTIONS IN RECONCILIATION EFFORTS [pp. 27-31]
THE UNFORGIVING: REFLECTIONS ON THE RESISTANCE TO FORGIVENESS AFTER ATROCITY [pp. 33-49]
INSTITUTIONS FROM ABOVE AND VOICES FROM BELOW: A COMMENT ON CHALLENGES TO GROUP-CONFLICT RESOLUTION AND RECONCILIATION [pp. 51-55]
TRUTH, UNDERSTANDING, AND REPAIR [pp. 57-61]
A BIOLOGICAL APPROACH TO UNDERSTANDING RESISTANCE TO APOLOGY, FORGIVENESS, AND RECONCILIATION IN GROUP CONFLICT [pp. 63-81]
UNLEARNING FEAR OF OUT-GROUP OTHERS [pp. 83-88]
ENCOUNTERING AND COUNTERING TRIBAL CONFLICT WITH FILM AND DIALOGUE [pp. 89-93]
SKIRMISHES ON THE TEMPORAL BOUNDARIES OF STATES [pp. 95-114]
COMMENT ON MEIR DAN-COHEN, SKIRMISHES ON THE TEMPORAL BOUNDARIES OF STATES [pp. 115-122]
ON LEGITIMACY THEORY AND THE EFFECTIVENESS OF TRUTH COMMISSIONS [pp. 123-141]
LEGITIMACY AND EFFECTIVENESS OF A GRASSROOTS TRUTH AND RECONCILIATION COMMISSION [pp. 143-149]
PERSISTENT NONVIOLENT CONFLICT WITH NO RECONCILIATION: THE FLEMISH AND WALLOONS IN BELGIUM [pp. 151-186]
GOVERNING PLURALISTIC SOCIETIES [pp. 187-191]
EXAMINING THE APPLICABILITY OF THE CONCEPTS OF APOLOGY, FORGIVENESS, AND RECONCILIATION TO MULTI-STAKEHOLDER, COLLABORATIVE PROBLEM-SOLVING PROCESSES [pp. 193-198]
USING CRIMINAL PUNISHMENT TO SERVE BOTH VICTIM AND SOCIAL NEEDS [pp. 199-217]
COMMENT ON USING CRIMINAL PUNISHMENT TO SERVE BOTH VICTIM AND SOCIAL NEEDS [pp. 219-225]
A REFLECTION AND RESPONSE TO USING CRIMINAL PUNISHMENT TO SERVE BOTH VICTIM AND SOCIAL NEEDS [pp. 227-231]
NEVER BEING ABLE TO SAY YOU’RE SORRY: BARRIERS TO APOLOGY BY LEADERS IN GROUP CONFLICTS [pp. 233-260]
SAVING FACE: THE BENEFITS OF NOT SAYING I’M SORRY [pp. 261-269]
CAN EFFECTIVE APOLOGY EMERGE THROUGH LITIGATION? [pp. 271-276]
Back Matter

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