"Why Rebottle the Genie?": Capitalizing on Closure in Death Penalty Proceedings

Abstract

Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy. For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality. Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant's constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what extent closure is an appropriate adjudicative goal, it is necessary to more thoroughly investigate the concept and develop a theory of closure. This article provides an argument against rebottling the closure genie, a task not only seriously implausible but unsound under principles of communicative theory. Proposing that closure is an authentic cultural and communicative construct that has become indelibly linked to capital proceedings, this article advocates a shift in focus to more practical questions. This article first summarizes how legal scholarship has described closure up to this point, and then examines how courts utilize the rhetoric of closure to effect change for victims' families in a variety of contexts. It then reviews widespread scholarly opposition to utilizing criminal law to pursue therapeutic ends. Thereafter, this article seeks to broaden the contemporary understanding of closure by exploring how members of one victim population - Oklahoma City Bombing victims' families and survivors - have described closure in intensive face-to-face interviews. These reflections provide the foundation for theorizing closure as a communicative concept composed of two interdependent behaviors: intervention and reflexivity. While intervention is an interpersonal component that urges victims' families to take action to effect change and pursue accountability, reflexivity is an intrapersonal component that nudges them to contemplate and work through grief, emotion, and trauma after a loved one's murder. Finally, this article considers the pragmatic ramifications of applying a communicative theory of closure.