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

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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penalty cases.(5) Due to current political pressures to remain "tough on crime," it is unlikely that these laws will be repealed in the near future.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. …