The past few weeks have been rife with accusations of closure denied. The families of Slobodan Milosevic's tens of thousands of victims were ostensibly denied closure when he died before the conclusion of his war-crimes tribunal. Decisions over where to try exiled Liberian ruler Charles Taylor turn largely on how to afford closure to his victims. And the families of those killed in the 9/11 attacks despaired that government misconduct had ended not only the prosecution of Zacharias Moussaoui but also their one chance at closure. "I felt like my heart had been ripped out," said Rosemary Dillard, whose husband died in the attack on the Pentagon. "I felt like my husband had been killed again."
The Moussaoui death-penalty trial has been touted by the government as a way to bring resolution to bereft families. Hundreds watch the proceedings on remote, closed-circuit televisions. Tens will testify about their losses. This will be their "day in court." Since John Ashcroft announced in 2002 that he'd seek the death penalty for Moussaoui to "carry out justice," the assumption has been that justice demands an execution. Ashcroft said something similar in 2001 when he decided that family members of the Oklahoma City bombing victims could witness the execution of Timothy McVeigh on closed-circuit television, insisting it would "meet their need for closure."
Why? What's the empirical basis for the government assumption that all, or even most, victims of terrible tragedy will find "closure" through protracted trials and executions?
To the extent the data on the needs of victims suggest anything, it says there is no magical solution, no one-size-fits-all mechanism to afford closure to the victims and survivors of violent crime. That makes the Justice Department's message that healing requires victim participation in a Moussaoui trial and execution an illusion. It offers government-approved "closure" to thousands of people who desperately seek it but may not find it here.
In a seminal 1985 law review article, Lynne Henderson (now of the William S. Boyd School of Law at the University of Nevada, Las Vegas *) examined the relationship between victims' rights and criminal-justice policy. Looking carefully at the existing psychological data on the needs of victims, Henderson discovered a wide array of victim responses to tragedy, responses that differ from victim to victim and that change significantly over a victim's lifetime. "In light of the existing psychological evidence," Henderson concludes, "common assumptions about crime victims—that they are all 'outraged' and want revenge and tougher law enforcement … fail to address the experience and real needs of past victims."
Criminal trials and the promise of an execution offer a seemingly appealing mechanism to assign blame and channel rage. But many crime victims have reported that the endless repetition of their stories, the formal legal rules, and the years lost between appeals only serve to increase stress and delay healing.
This isn't to say that many victims of 9/11 don't want to see Moussaoui executed. As the mother of one victim told ABC News last week, "I was looking to this trial to see if we could eradicate one evil person, to remove one force of evil from this beautiful world." But in promoting the notion that only a death penalty can afford closure, the prosecution is disregarding the wants and needs of many others. This is not the first time we have seen this phenomenon: The survivors of the Oklahoma City bombings who didn't want to see Timothy McVeigh executed were not permitted to offer victim-impact statements at his sentencing. As Bruce Shapiro pointed out in this 1997 essay in Salon, the terror trial that made "victim closure" a national buzzword was structured such that "any victim or relative who wanted to play a part in the sentencing phase of the trial first had to pass a death-penalty loyalty test."
Many, many victims of violent tragedy object to this assumption that their interest in justice is congruent with that of state prosecutors seeking the death penalty. Just last month, Vicki Schieber, the mother of Shannon Schieber, a Wharton Business School student murdered in 1998 by a serial rapist, testified before the U.S. Senate's Subcommittee on the Constitution, Civil Rights, and Property Rights. As she told the committee: "The word 'closure' is invoked so frequently in discussions of victims and the death penalty that victims' family members jokingly refer to it as 'the c word.' But I can tell you with all seriousness that there is no such thing as closure when a violent crime rips away the life of someone dear to you." Schieber testified that a single-minded government focus on executions shifts attention away from other, more meaningful legal reforms that might better honor victims and support their families.
This jibes with Henderson's empirical data, which suggest that more than anything—maybe even executions—the families of tragedy victims ultimately need answers. They need to know "why." And in the case of the 9/11 families, that "why" is exceedingly complicated. It includes questions about why the terrorists hate us and why their loved ones were targeted but also encompasses hard questions of why their government failed to protect them.
Perhaps it's no accident, then, that so many of the 9/11 families following the Moussaoui trial say they are not doing so in the hopes of a death sentence. Some don't want to give Moussaoui the martyr status that he craves. Many others just seem to be looking for answers. As Blake Allison, who lost his wife on American Airlines Flight 11, told the Washington Post last week: "I felt the government wasn't telling us all that it knew." Fiona Havlish, who lost her husband, echoed that anxiety: "I think what all of us are looking for is the truth, and the truth has not been forthcoming out of Washington."