Is the Introduction of Victim Impact Evidence
During the Sentencing Phase of a Death Penalty Case
a Violation of the Eighth Amendment,
i.e., "Cruel and Unusual" Punishment?

To Be Decided: April 12, 2002
By the Philosophy of Law Class


Drawing on the reading and your own considered opinion and good judgment, answer the question on the following page(s). The question lays out three cases that have come before the U. S. Supreme Court. These cases came before the High Court at two year intervals, in 1987, 1989, and 1991. You are asked to form an opinion in the first two cases on the specific issue raised in each of these cases, i.e., whether or not you, as a Justice of the Supreme Court, would allow victim impact evidence to be read to a jury in the sentencing phase of a capital trial, and, more particularly, whether you believe that the introduction of such evidence during the sentencing phase amounts to "cruel and unusual" punishment in violation of the Eighth Amendment. Then drawing on your opinion forged in the first two cases, how would you decide the third and last case? Do you stay with your opinion? Change your opinion? Side with the majority or with the minority and if so, why?

In arguing for your position, think of the arguments that could and have been made against it, and respond to them. In defending your position, offer what you believe are the most principled arguments you can make.

In thinking of objections to your argument, think of the best possible objections that someone on the other side might be able to come up with, i. e., give yourself a hard time. Imagine as best and fully as you can what it would be like to be in the shoes of someone who takes a position opposite to your own. Can you see the appeal of their taking the opinion they do, even though it is not your opinion? If you can respond to the other side at its strongest point rather than at its weakest, that can only help to strengthen your own opinion and make it that much more persuasive.

The paper should be about six (6) to seven (7) pages in length, preferably typewritten. It is due on Friday, April 12th, in class.

Imagine that you are appointed by President Bush to the U. S. Supreme Court. Imagine, too, that Bush has paid little or no attention to your political leanings. Much to everyone's surprise he has decided in this instance, and this instance only to make an effort to find the "best person for the job" regardless of party politics. You are, he decides, "the best person for the job." The year is 1987 and imagine that the following case, your very first Supreme Court case, comes before you.

Booth v. Maryland (1987)

In May of 1983 John Booth and an accomplice broke into the West Baltimore home of Rose and Irvin Bronstein. They bound and gagged the Bronsteins and stabbed them with a kitchen knife. The jury convicted Booth on two counts of first-degree murder, two counts of robbery, and conspiracy to commit robbery. The prosecutor intended to seek the death penalty. Maryland law required the State Division of Parole and Probation to put together a pre-sentence report that included a victim impact statement describing the effect of the crime on the victim's family. At sentencing, the prosecutor read the victim impact statement to the jury.

The victims' son reported "that his parents had been married for 53 years and enjoyed a very close relationship, spending each day together. [that] his father had worked hard all his life and had been retired for eight years." He describes his mother as "a woman who was young at heart and never seemed like an old lady." The son also talked about how "he was unable to sleep as well as drive on the streets near his parents' home." And the granddaughter "described the impact of the tragedy [as] completely devastating and life-altering experience. . . "

The report also included the family's opinion about the crime: "The son felt "that his parents were not killed, but were butchered like animals," adding that he not think "anyone should be able to do something like that and get away with it." The daughter stated "that her parents were stabbed repeatedly with viciousness and she could never forgive anyone for killing them that way. . ." adding that she did not feel "that the people who could do this could ever be rehabilitated."

Booth's attorney objected to the admission of the victim impact evidence arguing that it was "unduly inflammatory and irrelevant." The trial court overruled the objection, and Booth was sentenced to death. The Maryland Court of Appeals upheld the conviction. But the U.S. Supreme Court reversed Booth's death sentence, arguing that the introduction of victim impact evidence in a capital sentencing violated the Eighth Amendment. What is your opinion? Do you agree or disagree with Booth's attorney?

Now imagine that two years have passed and you are slowly becoming a seasoned veteran of the High Court, still quite young, but seasoned, and the following case comes before you:

South Carolina v. Gathers (1989)

Gathers was found guilty of murder and sentenced to death by lower courts. His victim was a self-proclaimed minister who-at the time of the murder-had "several bags containing religious items" in his possession ("Bibles, rosary beads, plastic statues, olive oil, and a religious tract titled The Game Guy's Prayer."). At sentencing, the prosecution offered no new evidence, but included a characterization of the victim as a religious person, based on these items he had with him. To bring his point about the victim's deep religious convictions home to the jury, the prosecutor read The Game Guy's Prayer out loud to the jury. No evidence was presented at the trial to show that the defendant had read the prayer or seen the religious articles. The Court made it clear that the admission of victim impact evidence during the sentencing phase of a capital trial, would create "a constitutionally unacceptable risk that the jury [would] impose the death penalty in an arbitrary, and capricious manner, "reiterating what the Court had concluded in Booth that most capital defendants had no prior knowledge of "the information about the victim and the victim's family typically contained in victim impact statements," nor do most capital murderers "select their victims based on whether the murder will have an effect on anyone other than the person murdered." Such information is "wholly unrelated" to the capital sentencing jury's proper and constitutionally required focus upon the defendant's "background and record, and the circumstances of the crime."

What is your opinion? Do you agree or disagree with the majority's opinion? If so, why? If not, why not? Now imagine that yet another two years pass (you are a little less young and even more seasoned) and another case, the following case, comes before you.

Payne v. Tennessee (1991)

Pervis Tyrone Payne spent the morning of the murders drinking beer and injecting cocaine waiting for his girl friend, Bobbie Thomas, to come home to her apartment in Millington, Tennessee, from a trip to visit her mother in Arkansas. At 3:00 PM when Bobbie still had not returned, Payne forced his way into the apartment across the hall where 28-year-old Charisse Christopher lived with her 2-year-old daughter, Lacie, and her 3-year-old son, Nicholas. Payne made sexual advances towards Charisse, was rebuffed and responded by stabbing her and her two young children repeatedly with a butcher knife. Payne escaped but was apprehended later that same day. At trial Payne was found guilty on two counts of first-degree murder and one count of assault.

During the sentencing phase of the trial, the prosecution asked for the death penalty for the murders of Charisse and Lacie. The prosecutor called Nicholas's grandmother to the witness stand to give victim impact evidence on how Nicholas was taking the loss of his mother and little sister. When asked how Nicholas had been affected, the grandmother said: "He cries for his mom. He doesn't seem to understand why she doesn't come home. And he cries for his sister Lacie.

In an impassioned plea, the prosecutor implored the jury to put Payne to death for Nicholas's sake, pointing out that he had to watch as his mother and baby sister were stabbed over and over again. "He's going to want to know what happened. He is going to want to know what type of justice was done."

In his rebuttal to Payne's closing argument, the prosecutor also said: "[Payne's attorney] doesn't want you to think about ...the brother who mourns for (his sister( every single day and wants to know where his best little playmate is. He doesn't have anybody to watch cartoons with him . . . These are the things that go into why it is especially cruel, heinous, and atrocious, the burden that that child will carry forever."

On appeal Payne and his attorney argued that the admission of the grandmother's testimony and the prosecutor's closing argument constituted prejudicial violations of Payne's right to a fair trial.

If a defendant has the right to offer evidence about his own good character during the sentencing phase, why shouldn't victims and their relatives be allowed to provide evidence about the value of a loved one, in this case the value of two loved ones, murdered in cold blood?

Payne's attorney argued that the Eighth Amendment, which forbids "cruel and unusual" punishments, demands that sentencing by juries reflect "a reasoned moral response to the crime" and the victim impact evidence given by the grandmother and the final remarks by the prosecutor were not just "irrelevant," they distracted the jury from a proper focus upon the "blameworthiness" of the defendant, making them more sympathetic to the plight of the victim and more likely to support the death penalty.

Drawing upon your opinion in Booth and Gathers, what is your opinion in Payne? Do you agree or disagree with Payne's attorney? Is there a cause or reason for you to change your mind about Booth and Gathers after hearing the arguments in Payne? Is there something in Payne's case, absent in the cases of Booth and Gathers, that might be a ground for thinking about Payne's case differently?

A special Web Page has been created to accompany the Paper Topic with the title "Taking A Bite Out of Crime legal Resources Page".

Here you will find links to all three cases as they were actually decided by the Court in 1987, 1989, and 1991, as well as to various organizations for victims' rights. In thinking about the various theories of punishment which might form a basis for your arguments, you may find the handouts on "The Aims and Limits of Punishment" and "Cruel and Unusual Punishments" and "The Death Penalty" to be of some use. So, too, there are the handouts on the Victims' Rights Constitutional Amendment" that includes "A Brief History of the Vistims' Rights Movement," on "Victims' Rights: Justice or Revenge?" that might come in handy as well as one reproducing Scalia's dissent in Booth.

Jeffrie Murphy's essay on"Getting Even: The Role of the Victim," J. L. Mackie's "Retributivism: A Test Case for Ethical Objectivity,"Russ Shafer-Landau's "The Failure of Retributivism" and Richard Parker's "Blame, Punishment, and Result" in the PHILOSOPHY OF LAW book may also come in handy and in thinking about retribution and revenge. A slightly edited version of Payne is also reprinted in the PHILOSOPHY OF LAW book at page 799.

In sorting out your opinion whether to allow the Victim Impact Statement in the sentencing phase of capital trials, you may want to glance at the Supreme Court opinions in both Furman v. Georgia, United States Supreme Court, 1972, Gregg v. Georgia, United States Supreme Court, 1976, and Woodson v. North Carolina, United States Supreme Court, 1976 as well as in Coker v. Georgia, United States Supreme Court, 1977 should prove more than helpful in identifying the core principles of the Court's capital jurisprudence as well as the Court's understanding of the special relevance of the Eighth Amendment in capital cases.

You may also find Van den Haag's "In Defense of the Death Penalty: A Practical and Moral Analysis" and Nathanson's "Should We Execute Those Who Deserve to Die?" of some use, also in PHILOSOPHYOF LAW, pp. 836-850. Finally, the two essays by Feinberg :("The Expressive Function of Punishment" and "The Classic Debate") and the essay by Massaro ("Shame, Culture, and American Criminal Law") directly tackle the fundamental question of the point and purpose of punishment which you may - at some stage - wish to sort out for yourself in any case.


Prepared: March 19, 2002 - 5:02:29 PM
Edited and Updated, March 22, 2002

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