Thou Shalt Not Kill Any Nice People: The Problem of Victim Impact Statements in Capital Sentencing

Beginning of article

I. INTRODUCTION II. THE LAW OF VICTIM IMPACT STATEMENTS IN CAPITAL SENTENCING

A. The Constitutionality of Victim Impact Statements in Capital

Sentencing

1. Booth v. Maryland and South Carolina v. Gathers

2. Payne v. Tennessee

B. The Admissibility of Victim Impact Statements in Capital

Sentencing Under State Laws III. THE TENDENCY OF CAPITAL JURIES TO CONSIDER IMPROPER

FACTORS IN SENTENCING

A. Even Absent Victim Impact Statements, Juries Consider

Improper Factors in Capital Sentencing

B. Victim Impact Statements Exaggerate the Extent to Which

Improper Factors Influence Capital Sentencing

1. Victim Impact Statements Focus the Jury's Attention on

Victim Characteristics

a. Personal Characteristics

b. "Victimhood" Characteristics

2. The Power of Victim Impact Statements Will Influence

Prosecutorial Decisions IV. ARGUABLE BENEFITS OF VICTIM IMPACT STATEMENTS DO NOT

OUTWEIGH THEIR COSTS

A. The Victim's Role in the Sentencing Process

B. The Prosecution's Advantage in a Capital Murder Trial V. CONCLUSION

I. INTRODUCTION

The victim' rights movement has gained tremendous momentum in recent years, receiving political, media, and legal attention, and successfully lobbying for victims' rights legislation in the states and in Congress.(1) One type of this legislation allows victim impact statements in capital sentencing hearings.(2) Victim impact statement legislation generally allows the victim's family members to testify orally at the sentencing hearing, describing the characteristics of the victim and the financial and emotional impact of the crime on the family.(3)

In 1991, in Payne v. Tennessee,(4) the Supreme Court upheld the admission of victim impact statements in capital sentencing hearings, reasoning that victim impact evidence demonstrated the harm of the crime and that harm was a proper factor to consider in deciding whether a defendant should die for his crimes. Since that time, virtually all of the states that impose the death penalty have adopted legislation or interpreted previous legislation to allow victim impact statements in death penalty cases.(5) Due to current political pressures to remain "tough on crime," it is unlikely that these laws will be repealed in the near future. Nevertheless, many states leave the admission of victim impact evidence to the discretion of the trial judge.(6) This Note presents evidence that victim impact evidence encourages juries to impose the death penalty based on the perceived worth of the victim, in the hopes that judges will exercise their discretion to limit victim impact statements as much as possible.

This Note begins by describing the current state of the law regarding victim impact statements in capital sentencing. First, it chronicles the Supreme Court's vacillating jurisprudence regarding the admissibility of victim impact statements under the Eighth Amendment. Next, it summarizes state laws allowing victim impact statements in capital sentencing hearings. Part III addresses the problems posed by victim impact statements that should cause judges to exercise their discretion to minimize the statements' scope. It begins by explaining jurors' tendencies to consider victim characteristics in sentencing. Next, it demonstrates that victim impact statements will likely exaggerate that tendency by explicitly presenting the jury with the victim's characteristics. Lastly, it argues that the increasing influence of victim impact statements will encourage prosecutors to adjust their decisions on plea bargaining and seeking the death penalty based on the character of the victim. Part IV presents the major arguments in favor of victim impact statements, and concludes that none of these arguments justifies incorporating victim evidence into the sentencing proceeding.

II. THE LAW OF VICTIM IMPACT STATEMENTS IN CAPITAL SENTENCING

A. The Constitutionality of Victim Impact Statements in Capital Sentencing

1. Booth v. Maryland(7) and South Carolina v. Gathers(8)

John Booth was convicted of two counts of first degree murder in Maryland and sentenced to death.(9) Pursuant to a state statute,(10) the prosecution introduced at Booth's sentencing hearing a victim impact statement, which was based on interviews with the victims' family.(11) The victim impact statement described the impact of the murders on the victims' family, detailing physical and psychological consequences such as sleeplessness and fear,(12) and the family's "characterizations of the crimes and the defendant,"(13) such as statements that the victims were "butchered like animals"(14) and that the "murders show the viciousness of the killers' anger."(15)

The United States Supreme Court, in an opinion written by Justice Powell in 1987, declared that neither of these categories of victim impact evidence was permissible under the Eighth Amendment.(16) The Court first addressed the issue of victim impact evidence describing the effect of the crimes on the victim's family. The Court noted that the effectiveness of victim impact statements would vary depending on how articulate and persuasive the victim's family members were in expressing their grief, thus, victim impact statements increased the risk of arbitrary enforcement of the death penalty.(17) The Court also expressed concerns that victim impact statements invited jurors to base their sentencing decisions "on the perception that the victim was a sterling member of the community rather than someone of questionable character."(18) Furthermore, discussion of the victim's character would lead to a mini-trial on the victim's character where the defendant would be strategically discouraged from rebutting the family's testimony.(19)

The Court also addressed the constitutionality of victim impact evidence demonstrating the victim's family's opinions about the crimes and the defendant. It held that such statements served "no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant."(20) As such, these statements interfered with the requirement that the sentencing decision not be based on "caprice or emotion."(21) justices White and Scalia each authored dissenting opinions asserting that the harm caused by the defendant was in fact relevant to pUnishment.(22)

Two years later, the Supreme Court considered the case of South Carolina v. Gathers,(23) where it applied the reasoning of Booth to statements made by a prosecutor at a capital sentencing hearing. In Gathers, the prosecutor did not read from a prepared victim impact statement by the victim's family, but rather commented on his own about the religious beliefs and civic-mindedness of the victim.(24) The Court rejected arguments that, unlike the statements in Booth, the statements here merely described the circumstances of the crime because religious papers and a voter's registration card had been found near the victim's body.(25) While stating that valid "circumstances of the crime" were admissible even if they revealed some characteristics of the victim, the Court noted that the statements in this case went well beyond a valid description of the crime scene where the defendant had scattered the victim's belongings when looking for valuables.(26)

2. Payne v. Tennessee(27)

Only two years after Gathers, in Payne v. Tennessee,(28) the Court overruled Booth and Gathers by finding that victim impact evidence presented by the family of the victim and commented upon by the prosecutor in the penalty phase of a capital murder case did not violate the Eighth Amendment.(29) In Payne, the defendant attacked his girlfriend's neighbor, Charisse Christopher, and Christopher's two children with a butcher knife.(30) Christopher and her two-year-old daughter died, but her three-year-old son Nicholas survived.(31) jury convicted Payne of two counts of first degree murder and one count of assault with intent to commit murder in the first degree.(32)

At the sentencing phase of the trial, the prosecution presented the testimony of Nicholas's grandmother, who told the jury how the murders had affected him:

He cries for his mom. He doesn't seem to understand why she doesn't come

home. And he cries for his sister Lacie. He comes to me many times during

the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes.

He says, I'm worried about my Lacie.(33)

The prosecutor also commented on the effects of the murders on Nicholas during his closing and rebuttal statements to the jury:

But we do know that Nicholas was alive. And Nicholas was in the same room.

Nicholas was still conscious. His eyes were open. He responded to the

paramedics. He was able to follow their directions.... So he knew what

happened to his mother and baby sister...

There is nothing you can do to ease the pain of any of the families

involved in this case.... There is obviously nothing you can do for Charisse

and Lacie Jo. But there is something that you can do for Nicholas.

Somewhere down the road Nicholas is going to grow up, hopefully. He's

going to want to know what happened. And he is going to know what happened

to his baby sister and his mother. He is going to want to know what type of

justice was done.... With your verdict, you will provide the answer.(34)

The jury sentenced Payne to death for each of the murders and to thirty years in prison for the assault.(35) The Supreme Court of Tennessee affirmed the conviction and sentence,(36) and the U.S. Supreme Court heard the case on direct appeal.(37)

In an opinion written by Chief Justice Rehnquist, a six-member majority of the Court overruled Booth and Gathers. The Court reasoned that Booth and Gathers had been based on the premise "that evidence relating to a particular victim or to the harm that a capital defendant causes a victim's family" is not relevant to the capital sentencing decision.(38) The Court rejected this rationale, stating that the harm caused by a crime has long been a relevant consideration in determining both criminal liability and the appropriate sentence.(39) In fact, the majority argued that Gregg v. Georgia was based on the premise that the sentencer should be able to consider "as much information ... as possible when it makes the sentencing decision."(40)

The Court asserted that Booth had misread precedent to require that the individualized consideration of the defendant's sentence be made separate from the harm caused by the defendant.(41) Such a misreading had:

unfairly weighted the scales in a capital trial; while virtually no limits

are placed on the relevant mitigating evidence a capital defendant may

introduce concerning his own circumstances, the State is barred from either

offering "a glimpse of the life" which a defendant "chose to extinguish," or

demonstrating the loss to the victim's family and to society which has

resulted from the defendant's homicide.(42)

While admitting that victim impact evidence is irrebuttable by the defendant for all practical purposes,(43) the Court stated that victim impact evidence did not invite the jury to condition the defendant's sentence on the "value" of the victim's life. The Court asserted that victim impact evidence is not offered to encourage comparative judgments about the victim's contributions to society, but rather that it works to portray each victim as an individual. Ironically, the Court cited Gathers in illustration, writing that the victim impact evidence in Gathers depicted a victim who was mentally handicapped and out of work. The Court stated that the victim in Gathers was "not, in the eyes of most, a significant contributor to society"(44)--precisely the type of judgment the Court said would not be made. Lastly, the Court dismissed the issue of stare decisis, writing that the Court need not feel constrained to follow precedent that was "unworkable or badly reasoned...."(45)

Justice O'Connor wrote separately to clarify that while the Eighth Amendment did not constitute a "per se bar" to victim impact evidence, there might be cases where the witness's testimony or the prosecutor's statements so infected the proceedings with unfairness as to constitute a violation of the Due Process Clause.(46) O'Connor wrote that the Eighth Amendment bars only those practices that "so offend the moral consensus of this society as to be deemed `cruel and unusual'"(47) she then cited the efforts of many states to include victim impact statements as evidence that the …