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March 29, 2006

Closure, pop psychology, and the death penalty

I am deeply suspicious of the concept of closure. The general public and policy-makers take it as an article of faith that there is something called closure that the criminal justice system can help provide. Even Dalia Lithwick takes it more or less for granted that closure is real. She just questions whether executions are the best way to help survivors achieve it.

Intuitively, we all know more or less what closure is supposed to be. At first grief is overwhelming and all-consuming, but eventually it fades enough for the bereaved person to get on with life.  Closure has something to do with that transition.

Upon closer examination, the concept of closure turns out to be much more elusive that we might have supposed.

Closure might refer the emotional shift from acute grief to emotional healing. Alternatively, might to describe some psychological or practical prerequisites that must be in place in order for a person to transcend acute grief (e.g., time, insight, restitution...).

Sometimes we speak of closure as a property of circumstance rather than  a psychological state. Executions are sometimes said to provide closure because the the murderer's death expunges the criminal. Once an offender has been put to death, survivors know that the process has reached a final and definitive end. The perp is gone. There will be no more appeals, no possiblity of clemency, and no more nagging awareness that the killer still alive. Some people call that definitive resolution "closure" and say that survivors have a right to see these loose ends tied up.

Conceptual confusions aside, the problem with closure is that it medicalizes retributivism. Closure has almost no scientific currency, but it has a psychological/psychiatric ring to it. Allegedly, closure is the healthy resolution for grief. On this view, people who won't rest until they see a killer executed are lacking something that they need for mental health. By appealing to their need for closure, we cast them as sick people who need something in order to get better.

If closure is a psychological process, you can't argue about what ought to enable people to come to terms with their loss. Medicalization masks the moral dimensions of the desire for retribution. According the medical model, it's just a fact that some people need to see an execution in order to get better. By reifying closure, we exempt survivors from moral judgement. Wanting to see someone executed reflects one's character in a way that needing one would not. For all its faults, retributivism demands proportionality. It is only considered fair to demand what you are owed. Retributivists think that proportionate demands are morally worthy but that excessive demands for vengance are morally suspect in and of themselves.

Medicalization sidesteps questions of justice. According to old fashioned retributivism, victims are entitled to see their loved ones avenged. This concept of entitlement is rooted in justice, not benificence. Retributivists say that victims have a right to see offenders punished fairly, not to whatever punishment makes them feel the best. Once we start talking about providing closure for survivors, we ellide the questions of justice. Closure is supposed to be something that survivors need for their mental health. Closure is about what makes someone feel better, not about what is just. By assigning such overwhelming importance to the nebulous idea of closure, we are outsourcing retributivism. We are saying that survivors need to exact retribution in order to heal, perhaps because they regard a particular punishment as the only acceptable outcome. Appeals to closure are an excuse to ignore the question of whether we think what they want is just.


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The reference in your post the other day prompted me to discuss closure as well.

I focus particularly on the pursuit of closure as a defense mechanism that inhibts grief -> resolution.


I'm always reminded of The Myth of Sisyphus when I think about this idea of closure. Maybe I'm just a pretentious git, but I've always thought that closure was not only a suspect idea, but one we should actively reject. The unsettled state of openness (opposite of closure?) is uncomfortable, but it is the only authentic state.

The idea that a second person's death would close the loop on a first person's death, even if the second killed the first, seems absurd to me. Unless I feel personally threatened by the killer, I see no reason that his death undoes the pain of my relation's death.

In fact, it only makes sense in terms of a stranger. A friend's life is not valuable because he is alive; it is valuable because he adds to my life directly. The death of the killer does not fill that gap.

Conversely, a stranger adds nothing to me and has value only in the sense that we all have value. A killer removed that value. Removing the life of the killer might make sense in some sort of zero-sum way (although even this is questionable).

I hate to dissent from all the plaudits, but it doesn't seem like you've argued anything very substantial. Retributivism isn't consistent with arguments justifying punishment in terms of psychological benefits to community members. That's pretty obvious. Luckily, I'm not a retributivist, and I doubt you are, either (although you're free to correct me).

Of course, retributivism isn't compatible with arguments about rehabilitation, either. Once again, thank God I'm no retributivist.

If being a progressive currently means justifying the use of violent state power in terms of amorphous concepts of what we think is "just" or "civilized," you can count me out.

I'm saying that medicalization is a way of masking a retributivist agenda. It's easier to justify executions by claiming that survivors need them in order to get well.

It's much less palatable to go right out and say that survivors are entitled to an execution because they deserve the satisfaction of seeing their loved one's killer put to death.

The closure argument is weak if it's just a consequentialist appeal to the emotional well-being of the survivors.

The concept of closure is too confused to actually measure the marginal emotional benefits of execution vs. a life sentence without parole.

Even if we had a working defintion of closure, we'd still have to take into account the fact that different survivors have different needs. The emotional benefit of executions for some survivors would have to be weighed against the emotional costs for others who didn't want to see the murderer executed. We'd also have to take into account the very long gap between crime and execution. If you hold up execution as the gold standard for closure, you will inevitably disappoint a lot of families whose victimizers won't get executed. How do we quantify their frustration at getting "only" LWOP for their child's killer when other families are getting executions? Then there's long gap between loss and execution. If you set execution up as the gold standard of closure, you're also forcing people to wait a long time before they actually get it. Whereas, if we set up LWOP as the standard, people could achieve practical closure much sooner.

Of course, a consequentialist argument would also have to take balance the satisfaction of survivors vs. the increased suffering of the perpetrator's loved ones.

Closure arguments smuggle in retributivist presuppositions. Most people who advance them assume that the survivors are in fact entitled to a just execution. They just won't come right out and say so.

If being a progressive currently means justifying the use of violent state power in terms of amorphous concepts of what we think is "just" or "civilized," you can count me out.

I think the criminal justice system should be concerned with what's just.

I don't know the hidden motivations of "most people" who make closure arguments. I make consequentialist arguments about emotional benefits to families of survivors and other community members, and I know I'm not a super secret retributivist.

You point out some very real issues about the differing needs of families and communities of victims. All that establishes is that we need to do a better job of taking these different needs into account - maybe by requiring prosecutors to allow interested immediate family who oppose the death penalty to speak at sentencing. That seems doable.

What's your rubric for determining justness?

So, if emotional benefits to survivors can be shown, they are at best as small consequentialist bonus for the death penalty. The emotional benefits aren't sufficient to justify executions by themselves unless you presuppose that the survivors' preferences are morally justifiable.

Suppose that some rape victims need to see their assailants killed in order to achieve closure. In and of itself, their psychological need wouldn't be sufficient to justify the execution of rapists.

Catering to the emotional needs of specific survivors also presupposes that these individuals have a special moral authority to determine punishment. Otherwise, the families of the victim and the murderer should have an equal say in what happens to the criminal. The only way to privilege the emotional satisfaction of the survivors over the grief of those who care about the criminal is to say that the survivors are owed something in virtue of their loss.

I don't have an overarching theory of justice. I just think that questions of justice are more than appropriate in debates over capital punishment. We're comfortable talking about which laws, policies, and punishments are just in every other context. I don't see why justice should be off limits in death penalty arguments.

Disagreements about what is fair/just/morally acceptable have an entirely different status than debates about what's "civilized."

Something related to the topic at hand, which I found interesting, focusing on the question of punishment.

The only way to privilege the emotional satisfaction of the survivors over the grief of those who care about the criminal is to say that the survivors are owed something in virtue of their loss.

This is only true for a small subset of family members - specifically children and, to a certain extent, maybe more distant relatives.

No one just kills out of the blue. Parents, friends, and spouses were part of the social environment that created someone who was capable of aggravated murder. There's deterrence value in attaching some anguish to that. If you don't want your child executed, do your best not to raise a murderer. Some families certainly did their best, and if I were making a justness argument, that would be a major problem. But from the perspective of encouraging friends and family to discourage violent behavior, it's fine.

Is there any empirical evidence to suggest that the death penalty influences parenting styles?

With respect to victim's emotions, they aren't as simple as retributivists need. If retributivism is the position that all and only the guilty should be punished as much as they deserve (and no more), then we find far too much variation in victim responses to support that universal thesis. Some victims want the death penalty. Some don't. Many want the death penalty as some points in the process but reject it at another point. Think about your own experiences. Strong emotions are rarely steady in the way retributivists need them to be. Why privilege one moment over another?

And this problem only gets worse when you consider the various reactions family members of victims, perps, and others might give. Finding a universal reaction won’t be easy, and I suspect that any pattern found will be so general and vague as to be useless for prescribing punishment.

None that I know of. There's no hard empirical evidence for most of our deterrent policies - just the assumption that people will alter their behavior to avoid outcomes they don't want. There are smatterings studies here or there, but most of our governmental social engineering is speculative. It'd be inefficient to the point of being nearly impossible to require empirical evidence for every new incentive/disncentive-based policy

But there's no reason to think that the death penalty wouldn't encourage parents to be especially ardent in their efforts to steer their children away from crime, fighting, excessive drinking, or other factors that contribute to the choice to commit aggravated murder. There are already incentives to do so, but the death penalty strengthens those incentives precisely because it is so dramatic and final.

If you don't want your child executed, do your best not to raise a murderer.

Focus on the Family may have a new slogan.

Do you advocate other forms of collective punishment, Eli? Basically, you're saying that the suffering of the innocent family members of an executed murderer matters just as much as the suffering of the family of his victim (as it should in consequentialist calculus). Then you say that their suffering shouldn't count because it is outweighed by the fact that we all work harder to prevent violence because we don't want to end up like these innocent people.

Remember, we're talking about marginal deterrent value. Would you teach your kid differently if you were raising him in an LWOP jurisdiction than in a death penalty state?

I'm no retributivist, but I do temper my utilitarianism with the stricture that we should punish only the guilty and only the extent that they deserve it.

You seem to be approaching the death penalty as a special justice-free zone. I don't understand it. Normally you acknowledge that there are ethical constraints on public policies, even if those policies would unarguably serve the greater good.

I don't have any categorial opposition to collective punishment. For example:

My law school apparently doesn't want to allow military recruiters to have the same kind of access to students and resources that other potential employers have. The federal government, unsurprisingly, dislikes this policy. In order to get us to abandon that policy, they've threatened to withdraw funding to projects throughout the university. This would, for the most part, not harm the law school at all, but would harm researchers who never did anything to violate the government's interests quite a bit. But these research projects are essential to the university, so our policy will be changed. I don't agree with the government's end goal here, but I have no moral obligation to how they went about it - even though it meant threatening harm to individuals who did nothing "wrong."

Similarly, I have no problem taking privileges away from entire classes of students because one or two have misbehaved - as long as that possibility is known beforehand. Peers are powerful norm generators, and that's one way to access them.

If there's policy we want to discourage, I don't see any problem using tools that involve manipulating people who are well-situated to prevent it.

And to add: I don't think the death penalty is a special justice-free zone. My justice-free zone is pretty much boundless. The term may be helpful on the campaign trail, but I've never found it to be anything but useless analytically, and I don't think it reflects any ideal that I subscribe to.

Which isn't to say that government policies aren't constrained by ethical considerations. But those ethical considerations I'm concerned with are all pretty much run-of-the-mill utilitarian ones.

I can't even begin to tell you what the "just" response is when someone beats his girlfriend to death with a claw hammer, or tortures a classmate to death with an exacto knife over the course of several hours, or kidnaps someone and shoots him in the back of the head because it seems like it'd be funny. It's hard for me to imagine some ethical rule that would conclude, on non-consequentialist grounds: "Duh! Put him in a horrible, violent, hepatitis-filled hole for the rest of his life, but for God's sake, don't inject him with poison!"

There, that's better

"According to old fashioned retributivism, victims are entitled to see their loved ones avenged. ...Retributivists say that victims have a right to see offenders punished fairly..."
As I understand criminal punishment, the sovereign punishes offenders not in the first place for the hurt they have done their victims but for the affront of their deeds to its sovereignty. The point of judical retribution is to revenge not the injury to individuals but to the sovereign.
The common law superseded the primitive law of self-help and vendettas as that was circumscribed over centuries into nothing by successive "peaces" -- of G-d, of the King's Highway, of the Gemot (my favorite -- you couldn't kill a freeman on his way to or from the assembly, i.e. in exercising his voting rights.)
In the end we have the "peace of the realm" in which killing anyone was punishable by the sovereign (all right, it wasn't consummate until the abolition of dueling), and if anyone is to be killed, the sovereign will do it -- or not.
When the barbaric blood runs hot and atavistic, you hear deranged calls for e.g. a victim's surviving relatives to have a right to trip the execution switch. Such measures would be a relapse into primitive law, and those who call for them would do better to get used to the overall benefits of the sovereign monopoly on violence. That should be more salve than feeling good from making punishment a ceremony of personal revenge.
As for "closure," it always reminds me of how, in the first half of the last century, the funeral home industry sold the public like Tom Sawyer sold fence whitewashing privileges on the proposition that we needed to display and look at embalmed corpses if we were to succeed in mourning our dead (IIRC, the story was told by Jessica Mitford in The American Way of Death .) Both evocations of "closure" figure in sales pitches for barbaric institutions: open-casket funerals and capital punishment. I would not look for closure in measures that affront human dignity.

How is "closure" a more nebulous concept than "justice"?

I'm not saying that nobody arrives at anything we would describe as closure. I'm just saying that the concept of closure is way too be used for serious policy debates. It's a pop psych construct with zero scientific currency.

The concept of closure isn't incoherent, it's just unacceptably vague. I have no assurance that people who use "closure" in general conversation are talking about the same thing. Perhaps that's why the concept of emotional closure is almost never operationalized for psychological or psychiatric research. I was surprised to learn that neither MEDLINE nor PsychInfo even bothers to include "closure" as a subject/thesaurus term. Closure strikes me as a non-natural kind. I have no evidence that there is any single thing that constitutes closure. The word doesn't refer to anything in particular. It's just a gloss we put on all instances of someone being saddened, grieving, and then getting over it.

Just to be clear, I don't believe in anything like the abstract form of Justice any more than I believe in the forms of Goodness, Truth, or Beauty. However, I think concepts like justice/fairness/ethics are integral to all of our discussions about law and policy. If you want to say these ideas are bogus, I'm prepared to hear you out.

However, I have noticed that most of the people who participate in policy debates tend to implicitly or explicitly accept that there is something to our intuitive ideas of justice/fairness/ethics/rightness (e,g., that these are approximations of the idea of maximal utility, or decisions under the Veil of Ignorance, or products of the Categorical Imperative, or whatever...).

I think intuitions about justice often do approximate either utility-maximizing norms or behavior that would make sense in accordance with a veil of ignorance framework - and that they also often fall far, far from the mark.

Justice-coded intuition isn't incredibly useful, though, if we're trying to figure out if the death penalty is smart policy. People's good-faith intuitive responses to the death penalty differ greatly and correlate very strongly with culture. Your Made in Canada intuition tells you one thing, and my Made in Tennessee intuition tells me another. I think that makes the constant use of "civilized," "barabarian," etc very revealing. If any intuition is clouded by culture too much to be reliable, it's got to be intuition about the death penalty. So I say fie on Justice as far as this question goes.

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