Victims: Transforming the Death Penalty Debate
Jeanne Bishop and Mark Osler1
The family members of murder victims should be at the heart of the death penalty debate. They have a unique stake in the sentencing of murderers, because of the irrevocable loss of their loved ones. A mother whose child was abducted and killed, who loses forever the joy and companionship of that child, is invested in the process of justice. A child whose father is murdered, who loses the protection and guidance of a parent, is due nothing less than a voice within the often-discordant chorus which surrounds punishment. If we have capital punishment in part because of this victimization, it is wrong to shut out those voices.
Still, despite this deep investment in the legal process, victims’ real needs and wishes have often been ignored or misunderstood by lawmakers, prosecutors and the public. In an act of gross over-simplification, too often it is assumed that victims’ families want the harshest possible punishment for the offender. In the United States, there is a general belief that those close to murder victims want revenge and need the killer to be killed to achieve ‘closure’ for their grief. That is only sometimes the case. Much as each defendant warrants individualized consideration at trial, so each victim’s family is going to have a unique and often complex set of beliefs related to justice, punishment, faith, redemption and death.
This chapter contends that the voices of victims are crucial in any discussion about the death penalty, and argues that the complexity of these voices must be recognized and heard, rather than presumptively assumed to be a universal cry for retribution through blood.
The first section of this chapter establishes the moral basis for treating the surviving loved ones of a murder victim as voices worth hearing. It tells the story of the killing of family members of Jeanne Bishop, one of the co-authors: Nancy Bishop Langert, her husband, Richard Langert, and their unborn child. The young couple and their baby were murdered in their home in the Chicago suburbs in 1990. The violence of the murders and the loss of three precious lives brought clarity and force to Ms Bishop’s opposition to the death penalty, and confounded the expectations of many death penalty supporters.
The second section examines the over-broad use of victims’ families by prosecutors and death penalty proponents to ensure support for death sentences. The diversity of views held by victims’ family members may not always be convenient to an advocate’s cause (on either side), but need to be seen honestly as part of the broad truth about the death penalty.
The third section sets forth some of the ways the involvement of victims’ families in the debate over whether to abolish the death penalty has transformed that discussion. In the past, prosecutors, defence lawyers and legislators focused almost solely on the crime, the offender and public safety when crafting death penalty laws. Increasingly, as victims against the death penalty have spoken out, that focus is shifting to include other issues: the cost of spending money on the execution of a small number of offenders rather than on helping a large number of victims, or on crime prevention; the length of time between sentence and punishment because of post-trial motions and appeals, and the re-infliction of trauma on victims every time they have to relive their nightmare as court proceedings surrounding the sentence drag on.
Lost in the use of victims’ families as tools of the prosecution is the bare fact that many victims need a variety of services for which government assistance does not exist. Some victims wish to shift the resources spent on the death penalty to victims’ services and law enforcement. Victims’ arguments in favour of this approach were central to the recent abolition of the death penalty in the US States of New Jersey, New York, New Mexico, Illinois, Connecticut and Maryland.
Murder results in one death too many. The value of the voices of victims’ families, in all their diversity, lies close to the core issue of capital punishment: after a murder, is it worthwhile, for any of us, to create more death in the name of justice?
Why the Survivors Matter
The surviving loved ones of a murder victim matter for the same reason that religions and heroes matter: because they carry the emotional weight of a society, the burden of tragedy for which in some way we are all responsible. Like the person killed, they have been dealt an unspeakable injustice, but unlike the deceased, they are left to live with a harm that society can never fully heal. They are symbols and vulnerable people all at once. Only stories can begin to describe the role they are unwillingly given, and the hole that is left in the story of their lives. This is one of many such stories.
On a tree-lined American street, there was a loud, happy house with three girls: Jennifer, Jeanne and Nancy. Of them, Nancy was the fun one, the girl who loved to shop and sing and tease. She was adored by her parents and her community; as a senior in high school, she played the role of Maria in West Side Story, and it was wholly within her personality when she sang ‘I feel charming! I feel charming! It’s alarming how charming I feel!’ She was right, after all: she was charming, and funny, and loving, and sometimes even wise.
One of the people she charmed was a Catholic boy from the South Side of Chicago, Richard, and he married her. He knew things that she didn’t – baseball and barbecue – and soon she was pregnant with a child who could know all of these things. Nearly as soon as she found out she was pregnant, she rushed out to buy baby bottles, and arranged them in a neat row on a shelf. She was 25 years old.
To celebrate the pregnancy, the family gathered the night before Palm Sunday, 1990, at a cosy Italian restaurant in Chicago. It was the kind of place perfect for a celebration – a big table for the family, laughter and light. It was a memorable evening. As they hugged their goodbyes, Jeanne told Nancy, ‘See you tomorrow.’ It is a phrase she has never used again, because you never know if it will be true.
Nancy and Richard returned to their home in one of the most affluent and safe towns in Illinois, the North Shore enclave of Winnetka. At that same moment, a 16-year-old named David Biro was using a glass-cutter to break into their home, and re-checking the loaded gun he had stolen.
Though they both were from well-off Winnetka families, David Biro was the opposite of Nancy in many ways. She was full of light, and he was dark and violent. He had tried, and failed, to kill others before, including members of his own family. One attempt involved lighting another child on fire. He had tried to poison his own family by tainting their milk; he was sent briefly to a psychiatric institution after that incident, and was diagnosed a sociopath.
When Nancy and Richard returned to the house, Biro lay in waiting. He led them to the basement. He put the gun to the back of Richard’s head and fired once, killing him instantly. Nancy, horrified, saw her husband’s body slump to the floor. Biro turned on her. He fired twice, striking her in her side and abdomen, tearing into her pregnant belly. Then he fled, leaving her to die along with the child she carried.
The coroner estimated that Nancy lived for about 15 minutes after that. Marks on her body and the trail of her blood on the basement floor show what she did in the brief moments she had left on Earth.
She dragged herself by her elbows over to a metal shelf and banged on it with a heavy tool, again and again, trying to call for help. She must have realized that no help would come, that she was dying, and so she dragged herself over to where her husband’s body lay. Next to him, in her own blood, she wrote a message: the shape of a heart and the letter ‘u’. Love you. It was how she had signed her letters to him over the years. She died there beside him and her last words, a last message of love. Biro took nothing; he came only to kill.
How could anything be the same after that?
It was Jeanne who packed up the baby bottles that Nancy had bought.
It took a succession of failures to lead to those deaths. Most obviously, it took an almost unimaginable moral failing on the part of David Biro. It took an egregious failure of the legal system in not protecting citizens from the predator that David Biro had already proven himself to be. It took a careless gun owner who left his unlocked weapon where David Biro could find it, and a broad acceptance of loaded guns everywhere.
Those who did not fail were Jeanne Bishop, Jennifer Bishop, their father who found the bodies, or their mother who taught Nancy to sing whenever there was a chance. They were not to blame. Yet, despite the many failures of people and systems, it is they who must live without these beloved people; who sometimes hold the phone in their hand and stop, knowing they cannot call; who now imagine the firstborn grandchild who would have graduated from college and returned to Chicago to join the embrace of that family. There is emptiness, unearned.
That – that is why the surviving loved ones must matter when we talk about the death penalty.
The Past: Using Murder Victims’ Family Members to Support the Death Penalty
Proponents of the death penalty have long used victims as a basis for their support of executions. Their arguments have fallen largely into two categories.
The Lives of Murder Victims Can Only be Vindicated by the Ultimate Punishment: Death
A federal judge in the United States, Alex Kozinski, wrote that he always voted for the death penalty in cases before him because he heard ‘the tortured voices of the victims crying out for vindication’ (Kozinski, 1997).
Newspaper columnist Mike Royko expressed it more bluntly:
It’s because I have so much regard for human life that I favor capital punishment. Murder is the most terrible crime there is and anything less than the death penalty is an insult to the victim and society. It says, in effect, that we don’t value the victim’s life enough to punish the killer fully.2
That notion – that the death penalty is necessary to give meaning to the lost life of the victim – has been used widely by death penalty supporters to justify the punishment. The idea is that if something heinous has been done to the victim, something equally heinous must be done to the perpetrator.
Thus, when Illinois Governor Patrick Quinn was considering whether to sign a bill abolishing capital punishment in the state, Illinois Attorney General Lisa Madigan wrote Quinn a letter on 27 January 2011 setting forth in detail the horrors that murder victims had suffered in some Illinois death penalty cases. Madigan argued that ‘when the facts and the law establish that a defendant has committed a heinous murder or murders, we must seek a just punishment that fits the despicable nature of the crimes’.3
The underlying principle of such thinking – that the life of a murderer must be taken in order to avenge a victim’s death – is rooted in an ancient and wrong idea. There is no punishment that ‘fits’ a crime like the one that took Nancy Bishop Langert’s life. Once we disjoin this bizarre equivalence between the life of a murderer and the life of the victim, we can return to rationality. The best we can do is to incapacitate the killers and honour the memories of those who were lost in a living, breathing, meaningful way by doing our utmost to prevent such tragedies in the future. In other words, the money that could be used to execute David Biro would be more wisely spent to ensure that the next sociopath is correctly identified and incapacitated before he commits such a crime.