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85 Ind. L.J. 1477 (2010)
Why Rebottle the Genie: Capitalizing on Closure in Death Penalty Proceedings

handle is hein.journals/indana85 and id is 1485 raw text is: Why Rebottle the Genie?: Capitalizing on Closure in Death Penalty Proceedingst JODY LYNEE MADEIRA* INTRODUCTION ..................................................................................................... 1478 I. EXISTING PERSPECTIVES ON CLOSURE .............................................................. 1482 A. SCHOLARLY ATTEMPTS TO DEFINE CLOSURE ......................................... 1482 B. THE USE OF CLOSURE IN CASE LAW ...................................................... 1485 C. OPPOSITION TO THE CURRENT ROLE OF CLOSURE .................................. 1489 II. FOUNDATIONS OF A COMMUNICATIVE THEORY OF CLOSURE ........................... 1492 A. THE EMOTIONAL LANDSCAPE OF VICTIMS' FAMILIES ............................. 1492 B. A CASE STUDY: CLOSURE IN THE CONTEXT OF THE OKLAHOMA CITY B O M BIN G .................................................................................................... 1494 III. A NEW, COMMUNICATIVE, THEORY OF CLOSURE ........................................... 1503 A. CLOSURE AS REFLEXIVITY ...................................................................... 1508 B. CLOSURE AS INTERVENTION ................................................................... 1511 C. REFRAMING THE DEBATE OVER VICTIM IMPACT TESTIMONY AS COM M UNICATIVE ........................................................................................ 1516 CONCLUSION: PROVIDING AN OPENING FOR CLOSURE ......................................... 1522 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 aforce with the potential to grant wishes ofpeace andfinality. 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 t Copyright © 2010 Jody Lyne6 Madeira. * Associate Professor of Law, Indiana University Maurer School ofLaw-Bloomington. J.D., University of Pennsylvania, 2003; Ph.D., Annenberg School for Communication, University of Pennsylvania, 2007. The author would like to thank Joanmarie Davoli, Joseph Hoffman, Leandra Lederman, and Ken Levy for their invaluable comments on earlier drafts of this piece.

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