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



This page is designed to enhance your preparation for Paper Topic Number Two for PHILOSOPHY OF LAW, entitled "Taking A Bite Out of Crime". On this page, you will find links to supplemental information on this topic, as well as a link to the on-line forum, where you may discuss the issues with other members of the class, your T. A. and with Professor Teuber himself! You should also feel free to consult parents and friends.

ONLINE FORUM -- NOTE: Click here and you'll be directed to the page for the ONLINE FORUM.

Booth v. Maryland, 482 U.S. 496 (1987) -- Having found a defendant guilty of two counts of first-degree murder, two counts of robbery, and conspiracy to commit robbery in connection with the robbery and murder of an elderly couple in their home, a Maryland state court jury sentenced him to death after considering a presentence report compiled by the state division of parole and probation. As required by a Maryland statute, the report included a victim impact statement (VIS), which described the personal characteristics of the victims and the emotional impact of the crimes on the family, and set forth the family members' opinions and characterizations of the crimes and the defendant. The state trial court (1) refused to suppress the VIS, (2) rejected the defendant's contention that the VIS was irrelevant and unduly inflammatory and that therefore its use in a capital case violated the Eighth Amendment of the Federal Constitution, and (3) ruled that the jury was entitled to consider any and all evidence which would bear on the sentencing decision. The jury sentenced the defendant to death for one of the murders and to life imprisonment for the other murder. The Maryland Court of Appeals affirmed the convictions and sentences, holding that a VIS serves an important interest by informing the sentencer of the full measure of harm caused by the crime. In an opinion by Powell, J., joined by Brennan, Marshall, Blackmun, and Stevens, JJ., it was held that the introduction of a VIS at the sentencing phase of a capital murder trial violates the Eighth Amendment and therefore the Maryland statute is invalid to the extent that it requires consideration of this information, because this information is irrelevant to a capital sentencing decision and its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner, in that: (1) since the focus of a VIS is not on the defendant, but on the character and reputation of the victim and the effect on his family, factors which may be wholly unrelated to the blameworthiness of a particular defendant, allowing the jury to rely on a VIS therefore could result (a) in imposing the death sentence because of factors - such as the degree to which a family is willing and able to express its grief, or the relative worth of the victim's character - about which the defendant was unaware and that were irrelevant to the decision to kill, and (b) in diverting the jury's attention away from the defendant's background and record and from the circumstances of the crime; (2) it would be difficult, if not impossible, to provide a fair opportunity to rebut the evidence contained in the VIS without shifting the focus of the sentencing hearing away from the defendant; and (3) the formal presentation by the state of the information in the VIS can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant, the admission of the VIS being inconsistent with the reasoned decisionmaking required in capital cases.

South Carolina v. Gathers, 490 U.S. 805 (1989) -- A defendant was charged with murder and first-degree criminal sexual conduct, and was tried in the Court of General Sessions for Charleston County, South Carolina, on the basis of an incident in which, after he and three other youths had encountered another man, a self-proclaimed preacher, in a wooded section of a park at night and had beaten the man on the head with a bottle, the defendant perforated the man's rectum with an umbrella and stabbed him with a knife. The youths, looking for something to steal, had also rummaged through the victim's belongings, which consisted mainly of some bibles and various other religious tracts and articles, and scattered them on the ground; these items were introduced into evidence without objection at the guilt phase of the trial, but no reference was made at that time to the content of the papers. After the defendant was convicted, a sentencing hearing was held in which the prosecutor, during his closing argument, (1) commented on the fact that the victim had been a religious man, (2) read a prayer that had been printed on one of the victim's cards, (3) noted that the victim had been a vulnerable man with a history of mental problems which prevented him from holding a job, and (4) pointed to a voter registration card which the victim had been carrying as indicating the victim's belief in his community and his country. The defendant was sentenced to death; but the Supreme Court of South Carolina, while affirming the defendant's conviction, reversed the sentence and remanded the case for a new sentencing hearing, as it ruled that the prosecutor's closing argument had violated the rule of Booth v Maryland (1987), by focusing extensively on the personal characteristics of the victim. In an opinion by Brennan, J., joined by White, Marshall, Blackmun, and Stevens, JJ., it was held that the defendant's death sentence was invalid as a result of the prosecutor's comments, because those comments (1) were indistinguishable in any relevant respect from those involved in the Booth case, and (2) were not within a possible exception for information which relates directly to the circumstances of the crime, since (a) the prosecutor went well beyond describing the relevant circumstance that the victim's papers had been scattered around his body as the defendant went through them looking for something to steal, and (b) the contents of the victim's papers are not relevant to the circumstances of the crime or to the defendant's moral culpability, given the absence of any evidence that the defendant was aware of those contents and the unlikelihood that he was so aware in view of the darkness of the crime scene.

Payne v. Tennessee, 501 U.S. 808 (1991) -- In an opinion by Rehnquist, Ch. J., joined by White, O'Connor, Scalia, Kennedy, and Souter, JJ., it was held, overruling Booth and Gathers, that the Eighth Amendment does not prohibit a jury from considering, at the sentencing phase of a capital trial, "victim impact" evidence relating to a victim's personal characteristics and the emotional impact of the murder on the victim's family, nor does the Eighth Amendment bar a prosecutor from arguing such evidence at the sentencing phase, because (1) the contrary holdings of Booth and Gathers were based on two premises: that evidence relating to a particular victim or to the harm that a capital defendant causes to a victim's family does not in general reflect on the defendant's "blameworthiness," and that only evidence relating to "blameworthiness" is relevant to the capital sentencing decision; (2) however, the assessment of harm caused by the defendant as a result of the crime charged has long been an important concern of the criminal law, in determining both the elements of the offense and the appropriate punishment; (3) victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities; and (4) Booth and Gathers (a) were decided by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those decisions, (b) have been questioned by members of the Supreme Court, and (c) have defied consistent application by the lower courts.

Furman v. Georgia, 408 U.S. 238 (1976) -- The Supreme Court provided the modern setting for the debate over the applicability of th death penalty in its landmark decision Furman v. Georgia. In Furman, the Court held that a Georgia statute that gave a jury absolute and unguided discretion to impose the death penalty violated the Eighth Amendment. The Court issued the holding in Furman by a cursory per curiam opinion; each of the five concurring justices wrote a separate opinion. Justices Brennan and Marshall each concluded that capital punishment violates the Eighth Amendment. Justices Douglas, Stewart, and White each concurred on much narrower grounds: they would have held that the death penalty is violative of the Eighth Amendment only when it is imposed capriciously. n61 Because the Justices wrote five separate opinions, the law became unclear as to when capital sentencing would violate the Eighth Amendment.

Gregg v. Georgia, 428 U.S. 153 (1976) -- Four years later, the Court held in Gregg v. Georgia that the death penalty did not violate the Eighth Amendment per se. The statute at issue demanded two separate trials: an innocent/guilt phase and a sentencing phase; following the guilt phase, the court would hold a sentencing hearing to weigh aggravating and mitigating circumstances. The Court affirmed the notion that capital punishment may be an appropriate punishment in extreme cases, as an expression of society's belief that some offenses are so grievous an affront to humanity that death is an appropriate response. The Court in Gregg, however, reaffirmed the Furman Court's notion that when a sentencing body is afforded discretion on a matter so grave as the determination of whether to impose the death penalty, that discretion must be suitably directed and limited so as to minimize the risk of an arbitrary and capricious imposition of death.

Woodson v. North Carolina, 428 U.S. 280 (1976) -- The Court decided Woodson v. North Carolina on the same day that it decided Gregg. In an attempt to conform with Furman, the North Carolina Legislature had revised its statutes to make capital punishment mandatory for certain offenses. These statutes were at issue in Woodson. The Court struck down the North Carolina legislative scheme because it failed to treat the defendants as uniquely individual human beings; rather, the Court ruled that the North Carolina statutes treated defendants as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death. Hence, the Woodson Court promoted individualized sentencing.

Lockett v. Ohio, 438 U.S. 586 (1978) -- The Woodson and Gregg decisions articulated two goals, which are somewhat conflicting. On the one hand, the Furman and Gregg Courts instructed state legislatures to direct juries when to impose the death penalty, while on the other hand the Woodson Court instructed the legislatures not to dictate to juries when to impose the death penalty. Through this tension a principle of "guided discretion" appeared, by which the state provided a jury with a list of aggravating and mitigating circumstances upon which it should base its sentencing decision. While the Court never has resolved this tension explicitly, in Lockett v. Ohio it indicated that promoting individualized sentencing is the more important of the two goals. The two goals can be phrased as (1) evenhanded capital sentencing (neither arbitrary nor capricious), and (2) individualized capital sentencing. The Court held that the sentencing authority cannot be prevented from considering, as a mitigating factor, any aspect of the defendant's character nor any of the circumstances of the crime that the defendant offers as a basis for imposing a sentence less than death and that the sentencing authority always must consider all mitigating factors except in the rarest kind of capital case.

Tison v. Arizona, 481 U.S. 137 (1987) -- Petitioner brothers, along with other members of their family, planned and effected the escape of their father from prison where he was serving a life sentence for having killed a guard during a previous escape. Petitioners entered the prison with a chest filled with guns, armed their father and another convicted murderer, later helped to abduct, detain, and rob a family of four, and watched their father and the other convict murder the members of that family with shotguns. Although they both later stated that they were surprised by the shooting, neither petitioner made any effort to help the victims, but drove away in the victims' car with the rest of the escape party. After the Arizona Supreme Court affirmed petitioners' individual convictions for capital murder under that State's felony-murder and accomplice-liability statutes, petitioners collaterally attacked their death sentences in state postconviction proceedings, alleging that Enmund v. Florida, 458 U.S. 782 , which had been decided in the interim, required reversal. However, the State Supreme Court determined that they should be executed, holding that Enmund requires a finding of "intent to kill," and interpreting that phrase to include situations in which the defendant intended, contemplated, or anticipated that lethal force would or might be used, or that life would or might be taken in accomplishing the underlying felony. Despite finding that petitioners did not specifically intend that the victims die, plan the homicides in advance, or actually fire the shots, the court ruled that the requisite intent was established by evidence that petitioners played an active part in planning and executing the breakout and in the events that lead to the murders, and that they did nothing to interfere with the killings nor to disassociate themselves from the killers afterward. Although only one of the petitioners testified that he would have been willing to kill, the court found that both of them could have anticipated the use of lethal force. Held: Although petitioners neither intended to kill the victims nor inflicted the fatal wounds, the record might support a finding that they had the culpable mental state of reckless indifference to human life. The Eighth Amendment does not prohibit the death penalty as [481 U.S. 137, 138] disproportionate in the case of a defendant whose participation in a felony that results in murder is major and whose mental state is one of reckless indifference. A survey of state felony-murder laws and judicial decisions after Enmund indicates a societal consensus that that combination of factors may justify the death penalty even without a specific "intent to kill." Reckless disregard for human life also represents a highly culpable mental state that may support a capital sentencing judgment in combination with major participation in the felony resulting in death. Because the Arizona Supreme Court affirmed these death sentences upon a finding that the defendants "intended, contemplated, or anticipated that lethal force would or might be used or that life would or might be taken," the case must be remanded.

Enmund v. Florida, 458 U.S. 782 (1982) -- Petitioner and a codefendant, at a jury trial in a Florida court, were convicted of first-degree murder and robbery of two elderly persons at their farmhouse, and were sentenced to death. The Florida Supreme Court affirmed. The court held that, although the record supported no more than the inference that petitioner was the person in a car parked by the side of the road near the farmhouse at the time of the killings waiting to help the robbers and killers (the codefendant and another) escape, this was enough under Florida law to make petitioner a constructive aider and abettor and hence a principal in first-degree murder upon whom the death penalty could be imposed. It was thus irrelevant to petitioner's challenge to the death sentence that he did not himself kill and was not present at the killings, or whether he intended that the victims be killed or anticipated that lethal force might be used to effectuate the robbery or escape. Held: The imposition of the death penalty upon petitioner is inconsistent with the Eighth and Fourteenth Amendments.

Rummel v. Estelle, 445 U.S. 263 (1980) -- Petitioner, who previously on two separate occasions had been convicted in Texas state courts and sentenced to prison for felonies (fraudulent use of a credit card to obtain $80 worth of goods or services, and passing a forged check in the amount of $28.36), was convicted of a third felony, obtaining $120.75 by false pretenses, and received a mandatory life sentence pursuant to Texas' recidivist statute. After the Texas appellate courts had rejected his direct appeal as well as his subsequent collateral attacks on his imprisonment, petitioner sought a writ of habeas corpus in Federal District Court, claiming that his life sentence was so disproportionate to the crimes he had committed as to constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The District Court rejected this claim, and the Court of Appeals affirmed, attaching particular importance to the probability that petitioner would be eligible for parole within 12 years of his initial confinement. Held: The mandatory life sentence imposed upon petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments.

Coker v. Georgia, 433 U.S. 584 (1977) -- While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from a Georgia prison and, in the course of committing an armed robbery and other offenses, raped an adult woman. He was convicted of rape, armed robbery, and the other offenses and sentenced to death on the rape charge, when the jury found two of the aggravating circumstances present for imposing such a sentence, viz., that the rape was committed (1) by a person with prior capital-felony convictions and (2) in the course of committing another capital felony, armed robbery. The Georgia Supreme Court affirmed both the conviction and sentence. Held: The judgment upholding the death sentence is reversed and the case is remanded. MR. JUSTICE WHITE, joined by MR. JUSTICE STEWART, MR. JUSTICE BLACKMUN, and MR. JUSTICE STEVENS, concluded that the sentence of death for the crime of rape is grossly disproportionate and excessive punishment and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.

Mccleskey v. Kemp, 481 U.S. 279 (1987) -- In 1978, petitioner, a black man, was convicted in a Georgia trial court of armed robbery and murder, arising from the killing of a white police officer during the robbery of a store. Pursuant to Georgia statutes, the jury at the penalty hearing considered the mitigating and aggravating circumstances of petitioner's conduct and recommended the death penalty on the murder charge. The trial court followed the recommendation, and the Georgia Supreme Court affirmed. After unsuccessfully seeking postconviction relief in state courts, petitioner sought habeas corpus relief in Federal District Court. His petition included a claim that the Georgia capital sentencing process was administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments. In support of the claim, petitioner proffered a statistical study (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the murder victim's race and, to a lesser extent, the defendant's race. The study is based on over 2,000 murder cases that occurred in Georgia during the 1970's, and involves data relating to the victim's race, the defendant's race, and the various combinations of such persons' races. The study indicates that black defendants who killed white victims have the greatest likelihood of receiving the death penalty. Rejecting petitioner's constitutional claims, the court denied his petition insofar as it was based on the Baldus study, and the Court of Appeals affirmed the District Court's decision on this issue. It assumed the validity of the Baldus study but found the statistics insufficient to demonstrate unconstitutional discrimination in the Fourteenth Amendment context or to show irrationality, arbitrariness, and capriciousness under Eighth Amendment analysis.

The Constitution of the United States -- We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America . . ."

Victims of Violent Crime Resources -- Links to victims of crime resources throughout the United States:

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

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