A day after that horrible 2016 election I was mourning not only what was to become a national nightmare, but also the failure of California’s Prop 62, which would have abolished the death penalty. I was on the radio talking about it and someone asked me what I would say to the victims’ families. I replied, “first of all, all the sympathy and empathy in the world. And second, if you have lost someone you love, surely you wouldn’t want to revisit this suffering–with a real risk that the person is innocent–on anyone else’s family.”

Some people took offense to that, and I got some hate mail, including a fairly alarming death threat. But I still do feel that the notion that not everyone who has lost a loved one to homicide looks for closure in the form of the death penalty or other severe sentence bears repeating.

I’m writing about this as the verdict has come out in a case involving the murder of my colleague and friend Dan Markel. Sigfredo Garcia was found guilty; there’s a hung jury in Katherine Magbanua’s case; and the people many of us think are the real culprits, the Adelsons, have so far completely escaped the clutches of the criminal justice system.

Susan Bandes has a a few papers about the notion of “closure”, as something that the criminal justice system is supposed to deliver and as something people assume they’ll get out of a conviction and a sentence. Her findings dovetail with what I found when working on the Kavanaugh piece and on the Progressive Punitivism piece: the idea that expressing anger through the criminal justice system will bring some form of cathartic relief is unsupported by behavioral science. In working on Yesterday’s Monsters, one of the things that most filled me with sorrow was how victims who are singlemindedly invested in punitive outcomes against those who killed their loved ones (and the Tate family literally wrote the book on this–it’s called Restless Souls) find so little solace in doing so.

I don’t think that nonretributive, nonpunitive victims are more “saintly” than punitive ones. All emotions, including rancor AND forgiveness, are part of the human experience (as we recently found out, if anything, people find it hard to accept that forgiveness is human, and insist on shining some critical light on it).

Dan, who studied retributive justice (here, here, and here), would have found it interesting that what I most wanted from the criminal justice system was an affirmation of the narrative of What Happened. I’m not at all invested in the Adelsons being  arrested, tried, convicted, and incarcerated, let alone executed–that they have to live with themselves strikes me as the worst possible punishment. Not because I’m some sort of saintly, forgiving creature–I simply found out something about myself and what I want from the criminal justice system. And even if we, Dan’s family and friends, ever get it, it won’t bring our friend back.

Perhaps one of the things that most saddens me in America’s punitive victim rights movement is how it offers you the One and Only Way to be an appropriate victim, without allowing you to sit with your own fresh emotions and feelings–grief? anger? frustration? loss?–and process them with yourself, between you and your soul, without a giant machine of a social narrative to run you over. There’s not nearly enough quiet, be it in the right-wing halls of the anti-superpredator chorus or in the left-wing halls of #metoo, for you to sit with yourself and be whoever you are with your own feelings.

Much love and support to Dan’s family and friends today. What is remembered, lives.

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