The Greater Stigma? Family Visits to the Condemned
Seema Kandelia and Peter Hodgkinson
In Texas, at the instance of being sentenced to death, the condemned’s family become the untouchables – literally – and by implication, the entire constituency of the families of the condemned are marginalized and stigmatized. In a world where there are so many examples of cruel, inhuman and degrading treatment and punishment, Texas’s treatment of the mothers, fathers, husbands, wives, children and grandchildren of its condemned must rank high. How does the Texas Department of Criminal Justice (TGCJ) justify treating citizens with such gratuitous insensitivity?
The death penalty is an emotive topic sparking strong feelings amongst those who support or oppose it. Arguments in favour of the death penalty are often based on its perceived deterrent effect, its retributive value, and its importance in providing some sort of justice for victims and/or their families. On the other hand, opponents of capital punishment tend to argue that there is no convincing evidence to show that the death penalty is an effective deterrent to serious violent crime, that there have been miscarriages of justice resulting in the death of innocent people, and that there are human rights or moral reasons for opposing the death penalty. Lost in this debate, however, is any detailed consideration of the families of the condemned and the effect it has on them. When a person is sentenced to death, many people are affected, not just the condemned – parents, siblings, children, grandparents, aunts, uncles, cousins and significant others. However, those who have a loved one on death row are frequently marginalized, stigmatized and misunderstood due to their association with the offender. There is also very little support – emotional and practical – for the condemned’s family. Perceived as culpable as the offender, most are left to their own devices to survive the entire process, including the execution and its aftermath.
While some attention has been given to the family members who have a loved one on death row, this is in the main from independent researchers and abolitionist groups, not from government bodies (King, 2005; Sharp, 2005; Beck, Britto and Andrews, 2007; Sheffer and Cushing, 2006). Families of the condemned are sometimes recognized in the research literature, along with the families of the victims, as ‘survivors’ or as ‘secondary victims (Hodgkinson, 2004; Hodgkinson, Kandelia and Reddy, 2009). Eschholz et al. (2003) conducted research of a sample of family members of the condemned and applied a restorative justice analysis to their respective experiences of contact. The researchers recognized that the usual participants in restorative justice were absent, in that one party (the victim) was dead, and the other (the condemned) was sentenced to death; in fact, three of the sample of 19 had already been executed. However, they were buoyed by the findings that this sample had accessed and enjoyed support from ‘the restorative justice healing circle. First, family members of offenders experience intense suffering, which is in many ways exacerbated by the criminal justice system and by their treatment within their communities [particularly by the media]. These families are in need of healing.’
This chapter seeks to highlight some of the effects the death penalty can have on the families of the condemned, adding to the limited research that exists on this issue. There are many aspects worthy of evaluation – from the court process which successfully isolates the defendants’ family, to the execution, where the focus is on the process and providing, albeit inadequate, support for the victims’ family witnesses (justified by the completely illusory claim of ‘closure’, itself a fanciful outcome). In particular, though, this chapter will focus on the day-to-day contact the condemned’s families have with their loved ones on death row. Most of the existing literature on the death penalty focuses on its operation in the USA; however, where possible, the procedures in other countries will be highlighted as well.1
There is and has been a paradoxical alliance between the families of the victim and those of the condemned, which lends itself to restorative justice interventions, which continues to be fostered by Murder Victims’ Families for Reconciliation,2 whose founder, Marie Deans, set out some very important principles:
After a murder, victims’ families face two things: a death and a crime. At these times, families need help to cope with their grief and loss, and support to heal their hearts and rebuild their lives. From experience, we know that revenge is not the answer. The answer lies in reducing violence, not causing more death. The answer lies in supporting those who grieve for their lost loved ones, not creating more grieving families. It is time we break the cycle of violence. To those who say society must take a life for a life, we say: ‘not in our name’.
International Standards and the Worldwide Trend on the Death Penalty
The death penalty is permissible under international and regional human rights law as an exception to the right to life, although most of these instruments impose limitations on its operation.3 There are also a number of international and regional instruments explicitly aimed at abolishing the death penalty in times of peace and war; however, many of these are optional, which means that states must voluntarily sign up to these provisions to show their willingness not to implement the death penalty.4 In addition to these binding instruments, a number of international standards on the use of the death penalty have been adopted in an attempt to further limit its operation and to ensure that the penalty is applied in as fair a manner as possible.5
While the death penalty is permissible under international and regional human rights law, there is a worldwide trend towards abolition, with the number of states retaining and using the penalty decreasing year by year. Figures from Amnesty International in 2012 reveal that 97 countries have abolished the death penalty for all crimes, 8 countries have abolished it for ordinary crimes and 35 countries are abolitionist in practice; 58 countries still retain and use the death penalty (Amnesty International, 2012). It is important to note, though, that while a state may be classed as abolitionist because it has not executed anyone for 10 years in most of these countries, the death penalty machinery continues to exist, which means that people can still be sentenced to death and kept on death row in restricted conditions, which in turn affects their families adversely.
In a number of retentionist countries, the operation of the death penalty is shrouded in secrecy, going against international standards which require that information about capital punishment be made public.6 In Belarus, China, Mongolia and Vietnam, for example, official figures on its administration are not disclosed to the public. Some countries also refuse to provide basic information about the death sentence to family members of the condemned. States such as Belarus, Vietnam, Taiwan and Japan only notify the prisoners of their impending execution a few hours before, and do not inform family members or legal representatives until after the execution (Amnesty International, n.d.; Johnson, 2006, 70–76; OSCE ODHIR, 2012, 9). When the death penalty was in operation in Uzbekistan, relatives of the condemned were not informed of the date when their loved one was executed, nor was the place of internment revealed as this was considered a state secret. To this day, some family members still cannot visit the graves of their loved ones as the details have not been released (Mothers against the Death Penalty and Torture and the Office for Human Rights and the Rule of Law, 2008). Practices such as these deny family members the opportunity to say goodbye to their loved ones, adding to the pain of having their relative executed. This shows a total absence of compassion for the feelings of the families of the condemned. ‘They’ overlook the fact that the relatives of the condemned are innocent and should not be condemned by association.
The UN Special Rapporteur Extra-judicial, Summary and Arbitrary Executions has stated that:
Refusing to provide convicted persons and family members advance notice of the date and time of execution is a clear human rights violation. In the most extreme instances, prisoners have learned of their impending executions only moments before dying, and families have been informed only later, sometimes by coincidence rather than design. These practices are inhuman and degrading and undermine the procedural safeguards surrounding the right to life.7
The Human Rights Committee has also condemned the practice of withholding information about the execution from the condemned’s family, stating that this has the effect of ‘intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress’, which amounts to inhuman treatment in violation of Article 7 of the International Covenant on Civil and Political Rights.8 While many states claim that such secrecy is necessary, it is not clear for what purpose nor how such measures contribute to crime control or meet the traditional purposes of punishment. In Taiwan, the justification for secrecy is to prevent any likelihood of demonstrations outside the prison. What is clear, though, is that the pain suffered by the family of the executed person is exacerbated by the lack of information about their final moments.
Death Row: Contact with Family Members
The length of time spent on death row varies from country to country. In the Commonwealth Caribbean, the condemned have their sentences commuted if they spend more than five years on death row after sentence,9 whereas in China, executions frequently occur within months of their sentence. In the USA, the lengthy appeals process can lead to decades of awaiting execution (Death Penalty Information Center, n.d.), with family members of both the victim and the condemned enduring years of anguish.
Moreover, in many countries, prisoners on death row are separated from the general prison population and are subjected to more stringent conditions, particularly regarding their movement within the prison and contact with the outside world. This not only impacts on the prisoner’s well-being, but their family members are also adversely affected. Those who oppose the civilizing of the process argue that murder victims’ family members lose any contact with their loved one, therefore the condemned should not be able to see his or her family either – a gratuitous and uncharitable sentiment.
In the USA, death row conditions vary considerably from state to state, but there are some commonalities. Most death row inmates are housed in maximum security units, although where there are only a few people on death row, they may be integrated with other inmates in the general prison population. Most death row prisoners are kept in single cells with little or no contact with other inmates. Many spend up to 23 hours a day in their cells with few facilities. In Arizona, for example, all condemned prisoners are held in single cells which are equipped with a toilet, sink, bed and mattress. They are not allowed contact with any other inmates, and out-of- cell time is limited to outdoor exercise in a secured area (two hours a day, three times a week) and a shower (three times a week). Inmates are not permitted to have meals with other people – their food is served to them in their cells (Arizona Department of Corrections, n.d.). Similar arrangements are in place in other death penalty states. Most death row prisoners do have access to television and other entertainment (books, magazines).
When permitted out of their cells, death row inmates may be subjected to considerable security measures regardless of whether they are deemed dangerous or not. In Delaware, for example, condemned prisoners are kept in restraints except when they are in their cells, the exercise area or the shower (Delaware Department of Corrections, n.d.). Similarly, in Colorado, when moving around the prison, death row inmates are in full restraints, accompanied by a minimum of two correctional officers (Colorado Department of Corrections, n.d.). It is clear from such measures that death row inmates have acquired a special status whereby they are all considered dangerous individuals. While this may be true of some offenders, it does not necessarily apply to all individuals on death row. In a recent doctoral thesis Mark Pettigrew argues that with fewer executions in the USA incarceration on death row has become the punishment and it is for this reason that death row conditions have become increasingly harsh and restrictive.10
Being on death row also means being subjected to more restricted visiting arrangements than those in the general prison population. In the USA, visits with family members and friends are considered a privilege and not a right, with visiting policies varying from state to state and prison to prison. Although the importance of maintaining family ties is recognized in the goals and objectives of most prison policies, not all prison environments are conducive to this. Less than half of death penalty states allow contact visits (Death Penalty Information Center, 2011; Babcock, 2008), the prisoners’ families being separated by glass or another dividing mechanism with no possibility of physical contact with them. In some states, they may only talk to their loved one via a telephone link.
In North Carolina, for example, male death row inmates receive one visit a week with a maximum of two people. These are non-contact visits where inmates may see and talk with their visitors, but no physical contact is permissible. Women prisoners’ visits take place in the communal dayroom in the unit under the supervision of correctional staff, although it is not clear whether contact is permitted for condemned females (North Carolina Department of Public Safety, 2012).
In California, prisoners in the general prison population are eligible for ‘family visits’, which take place in private, apartment-like facilities on prison grounds for approximately 30 to 40 hours – a privilege denied prisoners on death row (California Department of Corrections and Rehabilitation, n.d., 2).
Restrictions on the context and culture of visits adversely affect both the prisoner and the family. Research on the experience of death row families shows that they suffer a great deal of hardship having a loved one on death row. There is no guarantee that their relative will be housed in a prison close to home, resulting in considerable time and costs travelling to see their loved one on death row, which most can ill afford. Some family members have also complained about the extortionate costs of telephone calls, which may limit the contact they have with their relative (Sharp, 2005, 173).
Furthermore, the prison environment and visiting regime often serve as another forum to label and shame capital offenders’ families. Participants in one study remarked that the glass partition separating them from their loved ones caused them emotional and physical pain. One mother spoke of her frustration at not being able to hold her son when she had to tell him that his father had committed suicide. Other participants spoke of the physical pain of bending down so that they could hear their loved one through the small waist-high opening, as the glass partition restricted their conversation (Beck, Britto and Andrews, 2007, 71).
In another study, one family member described Oklahoma’s death row as:
this building is built half underground. Solid concrete. And the waiting area is about as wide as this room here is. Maybe not quite so wide. There are four stations, two feet square with windows. Quarter-inch glass with steel wire reinforcing it -in that glass. On [the prisoner’s] side of this glass, there are six one-inch bars in this window, with two cross pieces of steel, this wide and that thick, that these bars go down through. Anyway, and then you talk to him on the phone – he’s in a little cubicle over there about three and a half feet wide and eight feet long. No air, no ventilation comes into this room at all. And it’s blocked off, and so, in the hot part of summer, his shirt will be wringing wet. So we’ve cut our visits short sometimes just so he can get out of there and get some fresh air. (Sharp, 2005, 173–4)
To compound the indignity, the restraints used in some states to move offenders around the prison add to the emotional heartache of death row families. A father in another study reported:
They treat them like dogs. I mean, you do not treat human beings like you do in prison. They were bound, everything feet and leg, walking in to see us. [When] they closed the visits, a lot of parents would stand there and look at the[m,] I did not. I left immediately. I could not stand to look at him in chains. (Beck et al., 2002–2003, 401)
Similarly, a mother stated: ‘They chain and shackle him when they bring him out. It is hard to sit there and look at your child’ (Beck et al., 2002–2003, 402).
Upon receiving a death warrant, offenders in certain states may be granted special visiting privileges at the discretion of the warden. In Idaho, for example, non-contact visits are the norm, but once a death warrant is served, then in the seven days prior to execution, approved family members and a spiritual adviser may be granted a contact visit with the prisoner (Idaho Department of Corrections, 2012, 20). Not all states allow contact at the end.
As one relative explains: