13-July-20 Capital Punishment and Victims

Photo by Tim Mossholder from Pexels

The BBC website reports this morning on the case of Daniel Lewis Lee who will be subject to the first federal execution in the United States in more than 17 years.  Lee and an accomplice were convicted of murdering three members of the same family.

Two details stand out in the report.  First, the murders occurred 24 years ago in 1996. Second, some of the victims’ relatives oppose his execution and have sought to have it delayed.  In a recent petition, they argued that attending the execution could expose them to coronavirus.  However, their appeal was rejected:

The appeal court overturned a decision by a lower court that put the execution of 47-year-old Lee on hold, saying no federal statute or regulation gave the victims the right to attend the execution.  In its ruling, the 7th Circuit Court of Appeals said the family’s claim “lacks any arguable legal basis and is therefore frivolous”. (BBC, 13 July 2020)

Taking first the issue of timing, it is certainly arguable that justice should have no time limit.  We have seen this in the prosecution of historical abuse, murder and rape cases and of war criminals, for example.  The difference here is that Lee was originally sentenced to death in 1998, but has been waiting 22 years for that sentence to be carried out. Death-row prisoners in the U.S. typically spend more than a decade awaiting execution and some prisoners, such as Lee, have been on death-row for well over 20 years.  The time is taken through legal appeals, many of which do lead to exoneration or non-capital re-sentencing (which itself underlines the importance of the appeal process but also the risk of imposing capital punishment on the innocent).  Some argue that those on death-row are subject to double punishment: waiting at least a decade in effective solitary confinement (a punishment used only for limited periods in the general prison population) and then being executed. 

The second issue is the role of victims in the justice process.  In this case, some (though not all) of the victims’ families are against the death penalty being used.  Earlene Branch Peterson, whose daughter, granddaughter and son-in-law were killed by Lee and his accomplice Chevie Kehoe, explains her view in a six-minute video to President Trump, asking for him to grant clemency to Lee:

“I believe you have to pay for what you do,” she said. “But that don’t mean death.”

The 7th Circuit Court of Appeals judgment, that no federal statute or regulation gives the victims the right to attend the execution, makes clear that sentencing is a matter for justice agencies, acting on behalf of the state.  Politically, we talk about justice ‘for victims’ – but in truth, victims have a minor role in the court process as witnesses and observers.  In the US, UK and other countries, victims can explain the impact of the crime through Victim Impact Statements, but this does not generally affect the sentencing tariff (Finland is an exception: here, the victim has a right to recommend a punishment different from the one recommended by the prosecution).  Indeed, we might agree this is a good thing: victim-led justice would lead to disparities of sentencing as different victims of similar crimes may respond differently.  Of course, state justice agencies also perpetuate disparities due to prejudice, politics and error.  Returning to Mrs Peterson, for example:

[She] explains in the video that everyone in the courtroom, including herself, was prejudiced against Daniel Lee — who is missing one eye and has Nazi tattoos on his neck — from the moment they saw him.  In contrast, co-defendant Chevie Kehoe was clean-cut and dressed “like a young businessman,” Mrs. Peterson recalls. The judge described Mr. Kehoe as “the ringleader” in the crime and evidence showed he killed Sarah after Daniel Lee refused to do it, but the jury sentenced him to life imprisonment without parole.

A justice system should also avoid the brutalisation of society and prevent cruel and degrading treatment. It should be guided by human rights, proportionality and justice.  However, some argue that capital punishment meets none of these values: Archbishop Desmond Tutu said that, ‘To take a life when a life has been lost is revenge, it is not justice’.  Others argue that execution is not punishment enough: life imprisonment without the possibility of parole is a tougher sentence.  There is also a moral question of applying execution to those who have had profoundly abusive childhoods, including being indoctrinated as young people into violent extremism, have a diagnosed mental health condition or committed acts while still in their teens.   

From 2015-2018, I worked with colleagues at the Centre for Gender and Violence Research at the University of Bristol on what justice means to victims of gender violence and how it is sought and experienced.  Our work showed that there are many routes to justice, not all of them through the criminal justice system.  Indeed, the lack of control over the process and outcomes of the criminal justice system was a deterrent for some in reporting to the police. Returning also to the issue of timing, the long wait for cases to come to court and the weeks and months spent in trial and possibly later in appeals, is problematic both for victims, their families and defendants.

A justice system must have broad support from the public and victims to maintain legitimacy.  The case of Daniel Lewis Lee raises questions about the appropriate role of victims and who holds authorities accountable for the fair and humane administration of justice.

© Natasha Mulvihill and Criminology Tales, 2020. 

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