Commentary. Henry's attorney argues that to permit the admission of victim impact evidence during the sentencing phase of a capital trial would violate the Eighth Amendment ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted"). The Eighth Amendment, Henry's attorney argues, demands "a reasoned moral response to the crime "that his client has committed and the Victim Impact Statement is irrelevant to that end.
The prosecution argues that just as the amount of harm one causes bears on the extent of one's "personal" responsibility, the Victim Impact Statement in this case bears on the magnitude of harm that Henry has caused and so ought to be admissible. The prosecution also insists that "it would be an affront to all civilized members of the community to say that at sentencing in a capital case, a parade of witnesses may praise the background, character, and good deeds of the Defendant without limitation or relevancy, yet not allow anything to be said that bears on the character of, or harm visited upon, the victims." What do you think? Do you allow the Victim Impact Statement to be read to the jury?
Now consider the following three scenarios:
(1) Alice comes home from work and discovers that John has left her. She drinks a few beers, loads John's shotgun, the one he used to use to go duck hunting, steps out onto the back porch, and fires the gun over and over again until she feels (a bit) less angry. She does damage to a bunch of trees, but nothing else.
(2) John comes home from work and discovers that Alice has left him. He drinks a few beers, loads his shotgun, the one he usually takes with him to go duck-hunting, steps out onto the back porch, and fires several rounds until his tears stop flowing. The following day, the body of a homeless man, call him Fred, is discovered at the base of a tree into which John has fired his shotgun. His shooting spree has damaged a bunch of trees and killed someone.
(3) The facts are the same as in scenario (2), but instead of Fred, John has killed Rabbi Ben Ezra Gold, an amateur entomologist who was searching for a rare beetle in the wooded area behind John's house.
Comparing scenarios (1) and (2), the penal codes of most states would permit John to be prosecuted for manslaughter and Alice to be charged at most with reckless conduct. Despite conventional wisdom that John "did" much the same thing as Alice, he will face a much more serious punishment. Is this reasonable and/or fair?
A central problem in the theory of punishment is to explain why we distinguish between scenarios (1) and (2). Why do we punish John more severely than we punish Alice? Both behaved recklessly and neither intended to kill another human being. What's the argument for punishing John more severely than Alice.
Armed with your argument for punishing John more severely than Alice, do you think it is also appropriate to determine the severity of John's punishment based on the identity of the person John has inadvertently killed? Does the tenability of the distinction between scenarios (1) and (2) also support a distinction between scenarios (2) and (3)? Should John of scenario (3) be punished more severely than John of scenario (2)? If so, why? If not, why not?
Now revisit your decision in scenario (4). Do your judgments in scenarios (1), (2) and (3) and your explanations for those judgments, prompt you to change or confirm your opinion about the admissibility or lack of admissibility of the Victim Impact Statement in the sentencing phase of Henry's trial? Are your judgments of Alice and John in scenarios (1), (2) and (3) consistent with your judgment in Henry's case?
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