I. Introduction

The use of victim impact evidence, usually in the form of a victim impact statement ("VIS"), in death penalty litigation is relatively recent. This type of evidence falls into three categories: information pertaining to the characteristics of the victim, information about the repercussions of murder on family and friends, and opinions of the victim’s family members concerning the crime, the defendant, and the proper sentence.1 The Supreme Court first considered the issue in a 1987 case, Booth v. Maryland, holding that evidence pertaining to the victim and the effect of the crime on the victim’s family is per se inadmissible at a capital sentencing hearing because it violates the Eighth Amendment.2 Four short years later, the Court revisited the issue and did an abrupt shift holding that this type of evidence was now admissible.3 While at first glance the Payne principle may appear to be a sound holding, in practice this decision runs contrary to current death penalty jurisprudence.

II. Death Penalty Jurisprudence Today

In 1972, Furman v. Georgia ushered in the current era of death penalty jurisprudence

significantly altering the previous state of the law.4 Death was recognized as a sanction

quite different from all other punishments due to its severity and finality.5 Judges and

juries were no longer to be statutorily afforded unlimited discretion in capital

sentencing. The statutes at issue violated the Eighth Amendment by allowing the

possibility of arbitrary and discriminatory application of the death penalty thereby

violating the constitutional prohibition against cruel and unusual punishment.6 In

addition, discretionary sentencing provided no meaningful basis for differentiating the

large number of cases in which the death penalty was rejected from the few cases in which

it was imposed.7 Furman did not provide states with any guidance to draft statutes that

would direct a jury in a sufficiently discretionary manner. In response to Furman’s

mandate, some states chose to enact mandatory death penalties for certain crimes in an

effort to eliminate discretion altogether.8 Other states enacted statutes that required

the jury to channel their discretion during the sentencing phase of capital cases by

balancing a series of mitigating and aggravating factors.9 Four years after Furman, Gregg

v. Georgia,10 Woodson v. North Carolina,11 and their companion cases, examining several of

these state statutes, explained and refined this earlier decision by determining that

sentencing discretion should be merely limited not abolished. As a result, the statutes

that directed jurors to balance mitigating and aggravating factors ware upheld. The

mandatory death penalty statutes were declared unconstitutional since every defendant is a

unique human being and should not blindly be subjected to the death penalty.12 In order

for a jury to be allowed to impose a death sentence, the Court held that a state needed to

implement a system which examined all relevant aspects of the circumstances of the crime

and the particular character and record of the individual defendant.13 The Court focused

once again on the severity and irrevocability of a death sentence which cannot be modified

at a later point in time like other sentences. Since this is the case, the plurality

reasoned that the death penalty sentencing procedures require a greater indicia of

reliability and individualized consideration.14 The doctrine of "individualized

consideration" was further clarified in Lockett v. Ohio15 when the Court struck down a

statute that limited the number of mitigating factors a jury could consider.16 The

majority held that the Eighth Amendment requires that all mitigating factors be evaluated

when a jury is considering a capital sentence because "the imposition of death by a public

authority is so profoundly different from all other penalties, [that the Court could] not

avoid the conclusion that an individualized decision is essential in capital cases."17

Combining these important cases, death penalty jurisprudence mandates that a statute meet

two requirements in order to withstand constitutional scrutiny.18 A jury must not exercise

unlimited discretion during a capital sentencing procedure. In addition, juries must focus

on the individual characteristics of the defendant and the circumstances of the crime.19

III. Victim Impact Evidence

The first Supreme Court case to consider victim impact evidence was Booth v. Maryland. John Booth was convicted on two counts of first degree murder and chose to be sentenced by a jury.20 Since the State requested the death penalty, a Maryland statute required that a VIS be compiled that described the effect of the crime on the victims’ family members.21 The VIS related in exhaustive detail the effect of the murders on the family and capitalized on the extraordinary personal characteristics of the victims.22 Booth was sentenced to death, and the Maryland Court of Appeals affirmed.23 The Supreme Court granted certiorari to determine the constitutionality of victim impact evidence in a capital sentencing proceeding.24 The Court held that introducing a VIS into a capital sentencing hearing violated the eighth amendment.25 The majority found that the information contained in a VIS was irrelevant at a death penalty hearing and created the possibility that the death penalty would be applied in an arbitrary and capricious manner.26 The information was not relevant to the defendant’s decision to kill in most circumstances and therefore should not factor into the defendant’s blameworthiness. Allowing the jury to focus on factors of which the defendant was unaware could potentially shift attention away from the evidence the jury should properly be considering.27 Even if the defendant was aware of some of the information contained in the VIS, due to the nature of the information, it still creates an unacceptable risk that the death penalty will be applied in an arbitrary manner. The Court expressed concern that articulate families would express their grief in a persuasive manner while other families’ experiencing the same sense of loss would not communicate to the jury in the same manner. Such distinctions should not affect a capital sentencing hearing because "the degree to which a family is willing and able to express its grief is irrelevant to the decision whether a defendant, who may merit the death penalty, should live or die."28 Shortly thereafter, the Court expanded the Booth doctrine to include prosecutorial comments concerning the victim’s characteristics in South Carolina v. Gathers.29 The Court relied heavily on the rationales put forth in Booth finding that evidence about the victim of which the defendant was unaware and which did not factor into the decision to kill was irrelevant to the circumstances of the crime.30 A mere four years after the Court’s first ruling on victim impact evidence, the Court abruptly reversed its position on the issue in Payne v. Tennessee.31 The majority held that the Eighth Amendment does not per se bar a jury hearing a capital sentencing case from considering victim impact statements which include the victim’s characteristics or the impact of the death on the victim’s family, and that prosecutors are free to argue such evidence at the hearing.32 The Court found that assessment of harm is a factor to consider when determining punishment and that victim impact evidence constitutes another way to show the jury the harm caused by the defendant.33 Moreover, since no limits are placed on the number of mitigating factors that can be put into evidence, the State should also have the opportunity to offer "a glimpse of the life" which the defendant "chose to extinguish."34 Last, victim impact evidence provides an opportunity for the sentencing authority to view each victim’s uniqueness as a human being.35 Since Payne, no other Supreme Court decisions have dealt with victim impact evidence.

IV. The Effect of Victim Impact Statements

Admitting victim impact evidence into a capital sentencing proceeding permits the

possibility that the death penalty will be imposed in an arbitrary and capricious manner in

violation of the Eighth Amendment.36 Consideration of death penalty jurisprudence since

Furman shows that the Court has focused on two factors. In order to insure that the

sentence is not imposed in an arbitrary or discretionary manner, the first involves the

channeling and directing of discretion afforded the jury in determining whether an

individual defendant deserves a capital sentence.37 Second, the jury’s decision to impose

death should be focused on the defendant as an individual and the circumstances of the

particular crime.38 Victim impact evidence as either an aggravating factor or information

that should factor into the jury’s sentencing determination should be evaluated in light of

these two factors to conform with current capital sentencing jurisprudence. Upon doing so,

it is apparent that victim impact evidence violates both of these requirements. The

complete focus on the victim is the first problem with allowing a jury to consider a VIS.39

is placed in a position where he cannot rebut the family’s testimony for fear that the

defendant and defense counsel will appear callous for criticizing a dead person. Moreover,

a defendant could not possibility attempt to rebut the extent of an individual’s love for

someone.40 This type of evidence does no more than inflame the jury and allows a death

sentence to be imposed in an arbitrary manner since the jury potentially focuses on the

victim not the defendant. Moreover, no standard is offered to determine when the VIS

information should warrant the death penalty and when it should not. It also "allows the

possibility that the jury will be so distracted by prejudicial and irrelevant

considerations that it will base its life-or-death decision on whim or caprice."41 The

flip side to admitting this evidence is equally distressing. The sentencing phase becomes

a "mini-trial" on the victim’s character and forces the jury to focus on the traits of the

victim and not on the characteristics of the defendant and circumstances of the crime.42

The principle set forth in Payne permits defendants to introduce the character of the

defendant even when the prosecution has not.43 When the drunk, insane, immoral, or

criminal victim is murdered, the defense attorney will feel compelled to decimate the

victim’s memory.44 This simply adds to a family’s distress over having lost a loved one by

forcing them to watch the destruction of the victim’s character. In the situation where

the victim has no loved ones, the defense counsel is spending time attacking the victim

when the focus should be on the defendant. Once more, the focus is on the victim and not

the defendant violating the "individualized consideration" portion of the death penalty

jurisprudence. In a similar vein, the Booth Court pointed out that "in some cases the

victim will not leave behind a family, or the family members may be less articulate in

describing their feelings even though their sense of loss is equally severe."45 The

decision to sentence a defendant to death should never turn on a family’s ability to

express its grief.46 Similarly, a defendant should not benefit solely because the victim

he chose has no family to testify during the sentencing phase. This evidence offers no

"principled way to distinguish [situations] in which the death penalty was imposed, from

the many cases in which it was not,"47 and therefore should not be admissible. By nature,

the content of victim impact evidence varies greatly from case to case and will therefore

inject a unacceptable degree of arbitrariness into the sentencing procedure and provide no

means to channel the jury’s discretion. Victim impact evidence is used in capital

sentencing proceedings to show the jury the extent of psychological and emotional harm

caused by the victim’s murder.48 The social worth and stature of the victim in society

fits within this definition as harm to society as a whole and harm to the family.49

Therefore, the murderer of a victim whose reputation in the community was impeccable will

be perceived as having caused greater harm to a family and will have an increased

likelihood that death will be imposed. If the victim had no societal worth, the chances

that death will be imposed on the defendant are diminished.50 The majority in Payne argued

that evidence of this nature was not offered to make comparisons of victims but instead to

show "each victim’s uniqueness as an individual human being."51 However, as Justice

Stevens effectively countered in his dissent, the uniqueness of every individual is so

basic a proposition that no evidence to support that idea is necessary.52 Since the

uniqueness of each person is obvious, the evidence can only serve to show that some victims

were worthier than others and therefore the punishment for the worthier victims should be

harsher.53 In addition, "the possibility that a sentencing decision might turn on

irrelevant distinctions among defendant’s victims is also troublesome because it

legitimates the notion that society should be more outraged about crimes against some

victims than about those against others."54 The criminal justice system views the crime as

murder regardless of what standing in the community the victim had. The goal of treating

all defendants equally is frustrated by allowing in victim impact evidence. The potential

for decisions based on objectionable and discriminatory motives and the possibility for

arbitrary application of the death penalty are great in this instance. Moreover, the jury

is forced to focus on the value of the victim’s life. Another problem arises with the

admission of victim impact statements. When the personal worth of the victim is a factor

to be considered when evaluating whether a defendant should receive the death penalty, the

potential for discrimination based on race, social standing, religion, or sexual

orientation arises.55 Obviously, the prosecution does not argue that the defendant

deserves the death penalty because the victim was white, of a certain religion, or was

wealthy. Perhaps even more dangerous, these factors are presented in more subtle ways that

are more difficult to address and then rebut. Articulateness, often associated with wealth

and status, ends up substituting for factors that are deemed inappropriate in a sentencing

hearing.56 To support the admission of victim impact evidence, the Payne Court

argued that since the defendant can offer any relevant mitigating circumstance to explain

his actions, the State should be able to provide the jury with similar evidence about the

victim such as information about the victim’s characteristics or a description of the loss

to society and the family.57 In his dissent, Justice Stevens effectively rejects this

argument by pointing out that an even-handed balance between the defendant and the State at

a criminal trial is never required.58 The Constitution protects the criminal defendant

from the potential abuse of power by a more powerful State by providing certain rights to

the defendant and limiting the power of the State. For example, the State must prove that

a defendant is guilty beyond a reasonable doubt.59 Moreover, the only acceptable interest

the family has in the sentencing procedure is to insure that justice is served.60 A

sentencing procedure should have both sides arguing about the defendant and the

circumstances of the crime not about the victim. This type of "proceeding is no more

skewed than a funeral centered on the deceased."61 In his concurring opinion in Payne,

Justice Souter argues that much of the evidence in victim impact statements is already

introduced in the guilt phase of the trial.62 In order to follow the Booth mandate, he

claims that a new jury must be empaneled for the sentencing phase of the trial so that the

guilt phase jury will not use evidence in an improper way. As Justice Stevens points out

in his dissent, evidence at a trial that is admissible for one purpose may not be excluded

because it is inadmissible for another purpose simply because it might prejudice the

jury.63 The effect of the admission of much of the victim impact evidence at the guilt

phase of the trial is to limit the number of cases in which the principle in Booth affects

the outcome of the sentencing phase.64 Justice Stewart offered another compelling reason

for the prohibition of victim impact evidence in capital sentencing procedures. The

content of the victim impact statement and whether it will be sufficient to change a

sentence of imprisonment to a sentence of death is not determined until after the crime has

been committed. As a result, no standard is created to judge the sufficiency of this type

of evidence, and it cannot be applied in a consistent manner.65 This violates both Furman

and Gregg by affording a jury unguided discretion in its determination of whether a certain

defendant deserves the death penalty. An additional rationale offered in Payne for the

admission of victim impact evidence is that this type of evidence shows the extent of the

specific harm caused by the defendant, which is a frequent basis for punishment in criminal

law.66 The Court rejected Booth’s focus on the defendant and his blameworthiness by

stating that two equally blameworthy defendants can cause differing amounts of harm. The

majority then proceeded to point out that two defendants who are involved in a robbery and

act with reckless disregard for human life may be guilty of different crimes if in one of

the robberies a victim dies. Only in the case where a victim dies can a defendant be put

to death.67 Therefore, although both planned to commit only robbery, the amount of harm

caused differs, and as a result, one receives a harsher punishment. This is a basic

proposition, and the problem with this argument is that it seems to just offer more support

for the Booth proposition. The harm in the argument used by the majority is the death

committed during the robbery. Likewise, the harm in Booth and Payne fact situation is also

the death caused. The Court offers no explanation for deciding that in the Payne case the

definition of harm should suddenly be expanded.68 The jury is already aware that a murder

has been committed by the defendant and is now attempting to find the appropriate sentence

for the offender. So it would seem that instead of proving its own point that victim

impact evidence shows the specific harm caused by a defendant, the majority is supporting

the Booth proposition that this evidence adds nothing but instead does inject prejudice and

emotion to a capital sentencing procedure by focusing on the victim. On a similar note,

"the circumstances of the crime" are the deaths of victims and "not the continuing

emotional problems or the desire for vengeance of surviving family members, as compelling

as they may be."69 Families are understandably distraught by the loss of a family member

and may want to see the defendant get what they feel is his just deserts. However, while

vengeance is a natural response, it is not an acceptable justification for punishment in

the criminal law system.70 Although victims’ rights advocates reject the notion that

revenge is a motive for allowing in victim impact evidence, the content of these statements

runs contrary to this claim. In fact, one element of many victim impact statements is the

opinion of a victim’s family members concerning the crime, the eh, and the proper

sentence.71 Therefore, victim impact evidence furthers a illegitimate punishment goal by

causing the jury to respond in an emotional manner and "to heed the implicit call for

revenge."72

IV. Conclusion

The use of victim impact evidence frustrates current death penalty jurisprudence and injects arbitrariness into the sentencing procedure. Since Furman, the Court had focused on the notion that death is different from all other punishments and should be treated accordingly. Booth followed this mandate and found that victim impact evidence had no place in a capital sentencing hearing. Unfortunately, the Court decided to shift its position on the matter in ann effort to give victims and their family a voice. The shift is so far reaching that now "the cathartic nature of the testimony in victim impact statements seems more to serve the psychological and emotional needs of victims than to aid the jury in selecting the appropriate sentence."73 With time, the Court will surely realize the detrimental effects of the Payne doctrine and readopt its decision in Booth.

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