Academic journal article Washington and Lee Law Review

A Comment on Erin McCampbell's Tipping the Scales: Seeking Death through Comparative Value Arguments

Academic journal article Washington and Lee Law Review

A Comment on Erin McCampbell's Tipping the Scales: Seeking Death through Comparative Value Arguments

Article excerpt

Erin McCampbell's Note, Tipping the Scales: Seeking Death Through Comparative Value Arguments,1 brings insightful and important attention to a highly controversial subject in capital sentencing litigation. McCampbell asserts that such arguments persuade jurors but offend the Constitution. I disagree with both her assumption of the effectiveness of these arguments and her view of their constitutionality. "Comparative value" arguments do not violate a capital defendant's Eighth or Fourteenth Amendment rights, as they do not misstate the framework which the jury must apply to its ultimate sentencing determination. Moreover, a prosecutor's argument that a murder victim's life was somehow more valuable than the life of the man or woman responsible for his death runs the risk of offending individual jurors and flies in the face of both the adversarial process and the gatekeeping role of the court in guiding juror discretion.

I. What Is a Comparative Value Argument?

It is important to begin a discussion of this topic with some definition of what constitutes a comparative value argument. There are three distinct categories of arguments which fall within McCampbell's broad definition of comparative value. I believe each of these categories must be considered separately, as each category prompts a different result when held to Constitutional scrutiny.

The first category of comparative value argument is the type in which a prosecutor explicitly suggests to the jury that its sentencing discretion can and should be reduced to a simple mathematical formula. For instance, a prosecutor might argue that because a victim's virtuous life was more valuable than a capital defendant's despicable life, the jury must impose the death penalty. An example of this kind of argument is found in Hall v. Catoe.2 In that case, the prosecutor argued:

I am talking about values, because a jury verdict is a statement of values. And I am not talking about dollars and cents as far as what the [lives of the two girls were] worth, but nevertheless it is a question of values. What are the lives of these two girls worth? Are they worth the life of this man, the psychopath, this killer who stabs and stabs and kills, and rapes and kidnaps?3

The Supreme Court of South Carolina found that argument unconstitutional under the Eighth Amendment.4 The court specifically held that the prosecutor's argument "unquestionably directed the jurors to conduct an arbitrary balancing of worth, which required that Hall be sentenced to death if the jury found Hall's life was worth less than the lives of his victims."5 Hall demonstrates that a comparative value argument that misdirects jurors as to the legal standards that the law requires them to apply in arriving at their sentencing verdict is clearly unconstitutional. Any argument which suggests that capital sentencing is a contest of "comparative worth" rather than a reasoned balancing of specific, articulated factors will offend due process.

A second category of comparative value argument falls on the other, less objectionable end of the spectrum. A prosecutor might recite the virtues of the victim and the immoral character of the defendant without explicitly juxtaposing or linking the two. As the Supreme Court held in Payne v. Tennessee? victim impact evidence is admissible "to show . . . each victim's 'uniqueness as an individual human being.'"7 Similarly, the government may introduce evidence that bears upon a portrait of the defendant as a "uniquely individual human being[]."8 This authority makes clear that in a capital sentencing hearing, the government may properly introduce evidence regarding the life, conduct, and character of both the victim and the defendant. A summation in which the prosecutor restates established facts without comparing them is consequently proper.

The final category of comparative value argument falls somewhere between the above two categories. A prosecutor might explicitly juxtapose the life events, choices, or character of a murder victim with significant events, decisions, and qualities of the defendant, without asking the jury to compare them or arguing that the comparison between those individuals is the basis on which the jury should make its ultimate determination of sentence. …

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