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 In the situation where the victim was a well-respected and loved individual, the defendant 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
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.
1Payne v. Tennessee, 111 S. Ct. 2597, 2614 (1991) (Souter, J., concurring). 2482 U.S. 496 (1987).
3Payne, 111 S. Ct. 2597. The Court did not address the third type of victim impact evidence presented in Booth, leaving intact the holding that admission of opinions from the victim's family concerning the defendant, crime, and the appropriate sentence violates the Eighth Amendment. Id. at 2611 n.2. 4Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). 5Id. at 286-291 (Brennan, J., concurring). 6Id. at 256 (Douglas, J., concurring). The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. XIII. 7Furman, 408 U.S. at 313 (White, J., concurring). 8See generally Note, Discretion and the Constitutionality of the New Death Penalty Statutes, 87 Harv. L. Rev. 1690, 1710-13 (1974) (listing and discussing several death penalty statutes). 9Id. at 1700-1709. 10428 U.S. 153 (1976). Three other companion cases were decided at the same time: Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976);
Roberts v. Louisiana, 428 U.S. 325 (1976). The Court in Proffitt held that "the requirements of Furman are satisfied when the sentencing authority's discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition." 428 U.S. at 258. 11428 U.S. 280 (1976). 12Id. at 304. 13Woodson, 428 U.S. at 304 (Stewart, Powell, and Stevens, JJ., concurring). ("A process that accords no significance to relevant facets of the character and record of the individual offender and of the circumstances of the particular offense excludes from consideration. . . the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.") Gregg reiterated the same point by holding that the death penalty statute should force juries to "focus on the particularized nature of the crime and the particularized characteristics of the individual defendant." 428 U.S. at 206 (Stewart, Powell, and Stevens, JJ., concurring). 14Woodson, 428 U.S. at 304-05 (Stewart, Powell, and Stevens, JJ., concurring). 15438 U.S. 586 (1978). 16Id. at 604. 17Id. at 605. The Court pointed out that a prison sentence may be modified at a later time by a variety of measures like probation or parole. An executed death sentence closes the door on the possibility of later corrective or modifying measures. Id. 18Gary Casimir, Payne v. Tennessee: Overlooking Capital Sentencing Jurisprudence and Stare Decisis, 19 J. Crim. & Civ, Confinement 427, 446 (1993). 19Id. 20Booth v. Maryland, 482 U.S. 496, 497-98 (1987). 21Id. See Md. Ann. Code art. 41, § 4-609© (1986). 22Booth, 482 U.S. at 499-500. Both children of the victims complained of an inability to sleep and fear of being alone since the murder of their parents. The son felt his parents had been "butchered like animals" while the daughter felt that the defendant could "[n]ever be rehabilitated." Id. In addition to the emotional and personal problems of the family members, the statement related how much the victims would be missed and what outstanding citizens they had been. Id. 23Id. at 501. 24Id. 25Id. at 502. The Court expressly limited its holding to capital sentencing cases. Id. at 507 n.10. 26Id. at 502-503. The Court did provide an exception for information that was directly related to the circumstances of the crime. Id. at 507 n.10. 27Id. at 504-505. 28Id. at 505. In addition, the Court stated that the decision to execute someone should not turn on whether the victim was an outstanding individual instead of an immoral person. Both types of information do not furnish a "principled way to distinguish [cases] in which the death penalty was imposed, from the many cases in which it was not." Id. at 596 (quoting Godfrey v. Georgia, 446 U.S. 420, 433 (1980)). 29490 U.S. 805 (1989). 30Id. at 812. 31111 S. Ct. 2597 (1991). 32Id. at 2598. 33Id. at 2600. 34Id. at 2607 (quoting Mills v. Maryland, 486 U.S. 367, 397 (1988)). 35Id. 36Booth v.
Maryland,, 482 U.S. 496 (1987). 37See Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v.
Florida, 428 U.S. 242 (1976); Furman v. Georgia, 408 U.S. 238 (1972). See notes 18-19. 38See Lockett v. Ohio, 438 U.S. 586, 604 (1978); Woodson v. North Carolina 428 U.S. 280, 304 (1976). 39Booth v. Maryland, 482 U.S. 496, 507 (1986). 40See Casimir, supra note 18, at 449-450 ("[V]ictim impact statements offer into evidence the pain a family may feel from the loss of a loved one. A capital defendant cannot possibly be expected to rebut 'the process' in which one comes to love another, especially family members.") 41Payne v. Tennessee, 111 S. Ct. 2597, 2630 (1991) (Stevens, J., dissenting). 42Id. See also Casimir, supra note 18, at 447 ("Juries are more likely to be drawn to the emotions of the victim impact statements and ignore any mitigating evidence offered by the defendant in a humane attempt to satisfy the legitimate cries of the victim's family."). 43Vivian Berger, Payne and Suffering - A Personal Reflection and a Victim-Centered Critique, 20 F.S.U. L. Rev. 21, 50-51 (1992). 44Id. The author pointed out that a minor extension of this doctrine could mean that a defendant accused of killing a drug dealer could offer victim impact evidence as a mitigating factor because the defendant rid society of an immoral and frightening individual. Id. 45482 U.S. 496, 505 (1986). 46Id ("Certainly 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."). See text accompanying note 28(??). 47Godfrey v. Georgia, 446 U.S. 420, 433 (1980). 48Philip A. Talbert, The Relevance of Victim Impact Statements to the Criminal Sentencing Decision, 36 UCLA L. Rev. 199, 202-212 (1988). The author describes the wide range of evidence that can be found in victim impact statements. 49The majority in Booth was troubled by "the implication that defendants whose victims were assets to their communities are more deserving of punishment than those whose victims are perceived to be less worthy." 482 U.S. at 506 n.8. 50Casimir, supra note 18, at 450-451. 51Payne v. Tennessee, 111 S. Ct. 2597, 2600, 2607 (1991) (emphasis in original). 52Id. at 2631 (Stevens, J., dissenting). 53See Rosemary J. Loverdi, Victim Impact Evidence - Eighth Amendment Does Not Erect a Per Se Bar to the Introduction of Victim Impact Evidence at a Capital Sentencing Hearing, Payne v. Tennessee, 24 Rutgers L.J. 543, 558 (1993). 54Leading Cases, 101 Harv. L. Rev. 166 (1987). 55Berger, supra note __, at 48. 56Id. 57Payne v. Tennessee, 111 S. Ct. 2597, 2606-2607 (1991) (citing Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)). See also id. at 2609 ("It is an affront to the civilized members of the human race to say that at a sentencing in a capital case, a parade of witnesses may praise the background, character , and good deeds of Defendant. . . without limitation as to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims."). 58Id. at 2627 (Stevens, J., dissenting). 59Id. See also Berger, supra note __, for a description of the defendant's protections. 60Leading Cases, supra note __, at 168. 61Berger, supra note __, at 48. 62Payne v. Tennessee, 111 S. Ct. 2597, 2616-17 (1991) (Souter, J., concurring). 63Id. at 2630 (Stevens, J., concurring). 64Id. 65Payne, 428 U.S. at 2628. 66Payne, 111 S. Ct. at 2604-2605, 2608-2609 ("Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first degree murder."). 67Id. 68The Court also fails to note that sentencing someone to death is far different from an ordinary sentencing procedure. 69Charlton T. Howard, III, Booth v. Maryland - Death Knell for the Victim Impact Statement?, 47 Md. L. Rev. 701, 717 (1988). 70See Furman v. Georgia, 408 U.S. 238, 343 (1972) (Marshall, J., concurring); Leading Cases, supra note __, at 166-167. 71See supra text accompanying note 1. 72Leading Cases, supra note __, at 167. 73Leading Cases, supra note __, at 168 (citation omitted).