Is Payne Defensible?: The Constitutionality of Admitting Victim-Impact Evidence at Capital Sentencing Hearings

Indiana Law Journal

Volumn 75, Issue 4, 2000, Pages 1347-1382

  Greenberg, Joshua D ^a  

^a NONE

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EID: 0347074709     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (192)

1. 501 U.S. 808 (1991).
2. There are three general categories of victim-impact evidence: accounts of the emotional, psychological, and financial harm the crime caused the victim's family members and community; descriptions of the victim's personal characteristics and attributes; and opinions of the crime and/or the appropriate sentence for the convicted defendant. Victimimpact evidence can be presented to the jury in three ways: through live testimony, videotaped testimony, or a written statement. See Booth v. Maryland, 482 U.S. 496, 502 (1987).
3. See, e.g., Susan Bandes, Empathy, Narrative, and Victim-Impact Statements, 63 U. CHI. L. REV. 361, 390-410 (1996); Vivian Berger, Payne and Suffering-A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21, 52-55 (1992); Angela P. Harris, The Jurisprudence of Victimhood, 1991 SUP. CT. REV. 77; Ashley Paige Dugger, Note, Victim Impact Evidence in Capital Sentencing: A History of Incompatibility, 23 AM. J. CRIM. L. 375, 382-83 (1996); Jonathan H. Levy, Note, Limiting Victim Impact Evidence and Argument After Payne v. Tennessee, 45 STAN. L. REV. 1027, 1046-47 (1993); Amy K. Phillips, Note, Thou Shalt Not Kill Any Nice People: The Problem of Victim-Impact Statements in Capital Sentencing, 35 AM. CRIM. L. REV. 93 (1997). Very few commentators have attempted to defend Payne. Among the better efforts are Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 90 NW. U. L. REV. 863 (1996), and Brian J. Johnson, Note, The Response to Payne v. Tennessee: Giving the Victim's Family a Voice in the Capital Sentencing Process, 30 IND. L. REV. 795 (1997). Partly because so few have tried to defend Payne, many believe that Payne rests on political rather than legal reasoning. See, e.g., David R. Dow, When Law Bows to Politics: Explaining Payne v. Tennessee, 26 U.C. DAVIS L. REV. 157, 165-76 (1992).
4. See, e.g., Susan Bandes, Empathy, Narrative, and Victim-Impact Statements, 63 U. CHI. L. REV. 361, 390-410 (1996); Vivian Berger, Payne and Suffering-A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21, 52-55 (1992); Angela P. Harris, The Jurisprudence of Victimhood, 1991 SUP. CT. REV. 77; Ashley Paige Dugger, Note, Victim Impact Evidence in Capital Sentencing: A History of Incompatibility, 23 AM. J. CRIM. L. 375, 382-83 (1996); Jonathan H. Levy, Note, Limiting Victim Impact Evidence and Argument After Payne v. Tennessee, 45 STAN. L. REV. 1027, 1046-47 (1993); Amy K. Phillips, Note, Thou Shalt Not Kill Any Nice People: The Problem of Victim-Impact Statements in Capital Sentencing, 35 AM. CRIM. L. REV. 93 (1997). Very few commentators have attempted to defend Payne. Among the better efforts are Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 90 NW. U. L. REV. 863 (1996), and Brian J. Johnson, Note, The Response to Payne v. Tennessee: Giving the Victim's Family a Voice in the Capital Sentencing Process, 30 IND. L. REV. 795 (1997). Partly because so few have tried to defend Payne, many believe that Payne rests on political rather than legal reasoning. See, e.g., David R. Dow, When Law Bows to Politics: Explaining Payne v. Tennessee, 26 U.C. DAVIS L. REV. 157, 165-76 (1992).
5. See, e.g., Susan Bandes, Empathy, Narrative, and Victim-Impact Statements, 63 U. CHI. L. REV. 361, 390-410 (1996); Vivian Berger, Payne and Suffering-A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21, 52-55 (1992); Angela P. Harris, The Jurisprudence of Victimhood, 1991 SUP. CT. REV. 77; Ashley Paige Dugger, Note, Victim Impact Evidence in Capital Sentencing: A History of Incompatibility, 23 AM. J. CRIM. L. 375, 382-83 (1996); Jonathan H. Levy, Note, Limiting Victim Impact Evidence and Argument After Payne v. Tennessee, 45 STAN. L. REV. 1027, 1046-47 (1993); Amy K. Phillips, Note, Thou Shalt Not Kill Any Nice People: The Problem of Victim-Impact Statements in Capital Sentencing, 35 AM. CRIM. L. REV. 93 (1997). Very few commentators have attempted to defend Payne. Among the better efforts are Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 90 NW. U. L. REV. 863 (1996), and Brian J. Johnson, Note, The Response to Payne v. Tennessee: Giving the Victim's Family a Voice in the Capital Sentencing Process, 30 IND. L. REV. 795 (1997). Partly because so few have tried to defend Payne, many believe that Payne rests on political rather than legal reasoning. See, e.g., David R. Dow, When Law Bows to Politics: Explaining Payne v. Tennessee, 26 U.C. DAVIS L. REV. 157, 165-76 (1992).
6. See, e.g., Susan Bandes, Empathy, Narrative, and Victim-Impact Statements, 63 U. CHI. L. REV. 361, 390-410 (1996); Vivian Berger, Payne and Suffering-A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21, 52-55 (1992); Angela P. Harris, The Jurisprudence of Victimhood, 1991 SUP. CT. REV. 77; Ashley Paige Dugger, Note, Victim Impact Evidence in Capital Sentencing: A History of Incompatibility, 23 AM. J. CRIM. L. 375, 382-83 (1996); Jonathan H. Levy, Note, Limiting Victim Impact Evidence and Argument After Payne v. Tennessee, 45 STAN. L. REV. 1027, 1046-47 (1993); Amy K. Phillips, Note, Thou Shalt Not Kill Any Nice People: The Problem of Victim-Impact Statements in Capital Sentencing, 35 AM. CRIM. L. REV. 93 (1997). Very few commentators have attempted to defend Payne. Among the better efforts are Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 90 NW. U. L. REV. 863 (1996), and Brian J. Johnson, Note, The Response to Payne v. Tennessee: Giving the Victim's Family a Voice in the Capital Sentencing Process, 30 IND. L. REV. 795 (1997). Partly because so few have tried to defend Payne, many believe that Payne rests on political rather than legal reasoning. See, e.g., David R. Dow, When Law Bows to Politics: Explaining Payne v. Tennessee, 26 U.C. DAVIS L. REV. 157, 165-76 (1992).
7. See, e.g., Susan Bandes, Empathy, Narrative, and Victim-Impact Statements, 63 U. CHI. L. REV. 361, 390-410 (1996); Vivian Berger, Payne and Suffering-A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21, 52-55 (1992); Angela P. Harris, The Jurisprudence of Victimhood, 1991 SUP. CT. REV. 77; Ashley Paige Dugger, Note, Victim Impact Evidence in Capital Sentencing: A History of Incompatibility, 23 AM. J. CRIM. L. 375, 382-83 (1996); Jonathan H. Levy, Note, Limiting Victim Impact Evidence and Argument After Payne v. Tennessee, 45 STAN. L. REV. 1027, 1046-47 (1993); Amy K. Phillips, Note, Thou Shalt Not Kill Any Nice People: The Problem of Victim-Impact Statements in Capital Sentencing, 35 AM. CRIM. L. REV. 93 (1997). Very few commentators have attempted to defend Payne. Among the better efforts are Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 90 NW. U. L. REV. 863 (1996), and Brian J. Johnson, Note, The Response to Payne v. Tennessee: Giving the Victim's Family a Voice in the Capital Sentencing Process, 30 IND. L. REV. 795 (1997). Partly because so few have tried to defend Payne, many believe that Payne rests on political rather than legal reasoning. See, e.g., David R. Dow, When Law Bows to Politics: Explaining Payne v. Tennessee, 26 U.C. DAVIS L. REV. 157, 165-76 (1992).
8. See, e.g., Susan Bandes, Empathy, Narrative, and Victim-Impact Statements, 63 U. CHI. L. REV. 361, 390-410 (1996); Vivian Berger, Payne and Suffering-A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21, 52-55 (1992); Angela P. Harris, The Jurisprudence of Victimhood, 1991 SUP. CT. REV. 77; Ashley Paige Dugger, Note, Victim Impact Evidence in Capital Sentencing: A History of Incompatibility, 23 AM. J. CRIM. L. 375, 382-83 (1996); Jonathan H. Levy, Note, Limiting Victim Impact Evidence and Argument After Payne v. Tennessee, 45 STAN. L. REV. 1027, 1046-47 (1993); Amy K. Phillips, Note, Thou Shalt Not Kill Any Nice People: The Problem of Victim-Impact Statements in Capital Sentencing, 35 AM. CRIM. L. REV. 93 (1997). Very few commentators have attempted to defend Payne. Among the better efforts are Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 90 NW. U. L. REV. 863 (1996), and Brian J. Johnson, Note, The Response to Payne v. Tennessee: Giving the Victim's Family a Voice in the Capital Sentencing Process, 30 IND. L. REV. 795 (1997). Partly because so few have tried to defend Payne, many believe that Payne rests on political rather than legal reasoning. See, e.g., David R. Dow, When Law Bows to Politics: Explaining Payne v. Tennessee, 26 U.C. DAVIS L. REV. 157, 165-76 (1992).
9. See, e.g., Susan Bandes, Empathy, Narrative, and Victim-Impact Statements, 63 U. CHI. L. REV. 361, 390-410 (1996); Vivian Berger, Payne and Suffering-A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21, 52-55 (1992); Angela P. Harris, The Jurisprudence of Victimhood, 1991 SUP. CT. REV. 77; Ashley Paige Dugger, Note, Victim Impact Evidence in Capital Sentencing: A History of Incompatibility, 23 AM. J. CRIM. L. 375, 382-83 (1996); Jonathan H. Levy, Note, Limiting Victim Impact Evidence and Argument After Payne v. Tennessee, 45 STAN. L. REV. 1027, 1046-47 (1993); Amy K. Phillips, Note, Thou Shalt Not Kill Any Nice People: The Problem of Victim-Impact Statements in Capital Sentencing, 35 AM. CRIM. L. REV. 93 (1997). Very few commentators have attempted to defend Payne. Among the better efforts are Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 90 NW. U. L. REV. 863 (1996), and Brian J. Johnson, Note, The Response to Payne v. Tennessee: Giving the Victim's Family a Voice in the Capital Sentencing Process, 30 IND. L. REV. 795 (1997). Partly because so few have tried to defend Payne, many believe that Payne rests on political rather than legal reasoning. See, e.g., David R. Dow, When Law Bows to Politics: Explaining Payne v. Tennessee, 26 U.C. DAVIS L. REV. 157, 165-76 (1992).
10. See, e.g., Susan Bandes, Empathy, Narrative, and Victim-Impact Statements, 63 U. CHI. L. REV. 361, 390-410 (1996); Vivian Berger, Payne and Suffering-A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21, 52-55 (1992); Angela P. Harris, The Jurisprudence of Victimhood, 1991 SUP. CT. REV. 77; Ashley Paige Dugger, Note, Victim Impact Evidence in Capital Sentencing: A History of Incompatibility, 23 AM. J. CRIM. L. 375, 382-83 (1996); Jonathan H. Levy, Note, Limiting Victim Impact Evidence and Argument After Payne v. Tennessee, 45 STAN. L. REV. 1027, 1046-47 (1993); Amy K. Phillips, Note, Thou Shalt Not Kill Any Nice People: The Problem of Victim-Impact Statements in Capital Sentencing, 35 AM. CRIM. L. REV. 93 (1997). Very few commentators have attempted to defend Payne. Among the better efforts are Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 90 NW. U. L. REV. 863 (1996), and Brian J. Johnson, Note, The Response to Payne v. Tennessee: Giving the Victim's Family a Voice in the Capital Sentencing Process, 30 IND. L. REV. 795 (1997). Partly because so few have tried to defend Payne, many believe that Payne rests on political rather than legal reasoning. See, e.g., David R. Dow, When Law Bows to Politics: Explaining Payne v. Tennessee, 26 U.C. DAVIS L. REV. 157, 165-76 (1992).
11. See, e.g., Susan Bandes, Empathy, Narrative, and Victim-Impact Statements, 63 U. CHI. L. REV. 361, 390-410 (1996); Vivian Berger, Payne and Suffering-A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21, 52-55 (1992); Angela P. Harris, The Jurisprudence of Victimhood, 1991 SUP. CT. REV. 77; Ashley Paige Dugger, Note, Victim Impact Evidence in Capital Sentencing: A History of Incompatibility, 23 AM. J. CRIM. L. 375, 382-83 (1996); Jonathan H. Levy, Note, Limiting Victim Impact Evidence and Argument After Payne v. Tennessee, 45 STAN. L. REV. 1027, 1046-47 (1993); Amy K. Phillips, Note, Thou Shalt Not Kill Any Nice People: The Problem of Victim-Impact Statements in Capital Sentencing, 35 AM. CRIM. L. REV. 93 (1997). Very few commentators have attempted to defend Payne. Among the better efforts are Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 90 NW. U. L. REV. 863 (1996), and Brian J. Johnson, Note, The Response to Payne v. Tennessee: Giving the Victim's Family a Voice in the Capital Sentencing Process, 30 IND. L. REV. 795 (1997). Partly because so few have tried to defend Payne, many believe that Payne rests on political rather than legal reasoning. See, e.g., David R. Dow, When Law Bows to Politics: Explaining Payne v. Tennessee, 26 U.C. DAVIS L. REV. 157, 165-76 (1992).
12. Many commentators have also criticized Payne for allegedly violating stare decisis by overruling two cases decided within the four years preceding Payne: Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989). This Comment does not address, and takes no position on, whether Payne contravenes stare decisis. For a discussion of Payne and stare decisis, see Michael Vitiello, Payne v. Tennessee: A "Stunning Ipse Dixit", 8 NOTRE DAME J.L. ETHICS & PUB. POL'Y 165 (1994).
13. Booth, 482 U.S. at 501-02.
14. See id. at 497.
15. See id. at 498-500. Most states do not specify who qualifies as a "victim"; the consequence is that some courts have permitted friends of the victim, coworkers of the victim, and even members of the community who did not know the victim to testify. See Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence 4. Many commentators have also criticized Payne for allegedly violating stare decisis by overruling two cases decided within the four years preceding Payne: Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989). This Comment does not address, and takes no position on, whether Payne contravenes stare decisis. For a discussion of Payne and stare decisis, see Michael Vitiello, Payne v. Tennessee: A "Stunning Ipse Dixit", 8 NOTRE DAME J.L. ETHICS & PUB. POL'Y 165 (1994). 5. Booth, 482 U.S. at 501-02. 6. See id. at 497. 7. See id. at 498-500. Most states do not specify who qualifies as a "victim"; the consequence is that some courts have permitted friends of the victim, coworkers of the victim, and even members of the community who did not know the victim to testify. See Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 ARIZ. L. REV. 143, 154-55 (1999). However, because victim-impact evidence is most frequently presented by the members of the victim's family, I will refer throughout this Comment to victim-impact witnesses as "the victim's family members." Definitions of "victim" that extend beyond the victim's immediate family can be very cumbersome for courts. If numerous people desired to testify regarding a particular murder, the trial could be slowed and the judge's time diverted to considering the admissibility of reams of proffered victim-impact testimony. Indeed, this is precisely what happened during the recent trials of Oklahoma City bombers Timothy McVeigh and Terry Nichols, during which a combined 93 victim-impact witnesses testified. See id. at 156-57, Moreover, although a murder affects an entire community, the victim's family members are - other than the victim herself - the persons most directly and severely harmed by a murder. Therefore, if victim-impact evidence is to be admitted, only the victim's family members, or psychologists who have interviewed the family members, should be allowed to offer victim-impact testimony.
16. See Booth, 482 U.S. at 499-500.
17. See id. at 502-03 (Brennan, Marshall, Blackmun, Stevens, JJ., joining).
18. See id. at 505.
19. See id. at 505-06. Thus, Justice Powell argued, admitting victim-impact evidence would fail to provide "'a principled way to distinguish [cases] in which the death penalty was imposed, from the many cases in which it was not.'" Id. at 506 (Stewart, J.) (alteration in original) (quoting Godfrey v. Georgia, 446 U.S. 420, 433 (1980)).
20. The Court has held that the focus during a capital sentencing hearing must be on the defendant. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).
21. See Booth, 482 U.S. at 507-09. The Court has held that the capital sentencing decision must not be based on emotion. See Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality opinion) ("It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion."), quoted with approval in Beck v. Alabama, 447 U.S. 625, 637-38 (1980). However, excluding emotion from the capital sentencing decision is easier said than done. See infra Part IV.
22. See Booth, 482 U.S. at 515, 519 (White, J., Rehnquist, C.J., O'Connor, Scalia, JJ., dissenting; Scalia, J., Rehnquist, C.J., White, O'Connor, JJ., dissenting).
23. Victims' rights advocates often make a third argument: that including victim-impact evidence, particularly in the form of oral testimony, assists victims' efforts to cope with the psychological impact of the crime by helping victims regain a sense of control and allowing them to "vent" their anger at the defendant. None of the Justices offered this argument for including victim-impact evidence at sentencing. I shall address this argument along with the "balancing" justification in Part VII. See infra text accompanying notes 152-59.
24. See Booth, 482 U.S. at 516-17 (White, J., dissenting); id. at 519-20 (Scalia, J., dissenting). Both noted that the difference between reckless driving and manslaughter depends not on intent, but rather on the harm caused (the fortuity of whether a pedestrian happened to be crossing the street when the driver passed by). See id. at 516 (White, J., dissenting); id. at 519 (Scalia, J., dissenting). Justice White's dissent took the harm-based argument particularly far, arguing that the state may, "if it chooses, include as a sentencing consideration the particularized harm that an individual's murder causes to the rest of society." Id. at 517. Apparently Justice White would allow a State to make the severity of a murderer's sentence depend in part on the perceived social utility of his victim. See Gewirtz, supra note 3, at 874-75 n.32. However, in practice distinguishing between evidence of the victim's personal characteristics and the harm inflicted upon the victim's survivors will often be very difficult: evidence of the latter will often include some evidence of the former. As Justice Scalia asked, "Would the fact that the victim was a dutiful husband and father be [an admirable] personal characteristic or an indication of injury to others?" South Carolina v. Gathers, 490 U.S. 805, 823 (1989). If the victim was an alcoholic who abused his children, however, presumably the victim's family would not suffer the same amount of harm as would the survivors in Justice Scalia's example. But see Payne v. Tennessee, 501 U.S. 808, 823 (1991) (arguing that a jury's consideration of the harm visited upon society by the victim's loss need not and should not include a judgment of the victim's personal characteristics - and thus implicitly a judgment of the victim's "worth" - but rather should entail only that the jury consider the victim's "'uniqueness as an individual human being'"). In contrast to Justices White, Scalia, and O'Connor (in their respective Booth and Gathers opinions), Chief Justice Rehnquist's opinion for the Court in Payne presupposes that a distinction can be made between a victim's admirable personal characteristics and the harm visited upon society by the loss of these personal characteristics.
25. See Booth, 482 U.S. at 517 (White, J., dissenting); id. at 520-21 (Scalia, J., dissenting).
26. Gathers, 490 U.S. at 805.
27. Id. at 806-07.
28. See id. at 808-10.
29. Id. at 811. Justices White, Marshall, Blackmun, and Stevens joined Justice Brennan's opinion. Justice White wrote a concurring opinion maintaining that the Court could not approve of the Gathers prosecutor's comments without overruling Booth. Id. at 812.
30. See id. at 811-12.
31. Id. at 814 (O'Connor, J., dissenting) (quoting Mills v. Maryland, 486 U.S. 367, 398 (1988) (Rehnquist, C.J., dissenting)).
32. Id. at 820-21.
33. See id. at 821 (O'Connor, J., dissenting). That the victim in this case was a deeply religious and harmless individual who exhibited his care for his community by religious proselytization and political participation in its affairs was relevant to the community's loss at his demise, just as society would view with grief and anger the killing of the mother or father of small children. Id. 26. See id. at 823-24 (Scalia, J., dissenting).
34. Id. at 823.
35. Id. 29. Payne v. Tennessee, 501 U.S. 808 (1991). The arguments about admitting victim-impact evidence at capital sentencing remained largely the same. The main differences in Payne from the Court's rulings in Booth and Gathers were personnel changes (Justices Powell and Brennan retired in 1988 and 1990, respectively, and were replaced by Justices Kennedy and Souter) and that Chief Justice Rehnquist and Justices O'Connor and Kennedy believed that the question addressed in Booth was squarely presented in Payne (they had refrained from voting to overrule Booth in Gathers because they believed the latter presented a distinct case). Additionally, Justice White overcame his reluctance in Gathers to overrule Booth even though he continued to believe it wrongly decided.
36. Id. at 812-13.
37. See id. at 814-15.
38. Id. at 815.
39. Justices White, O'Connor, Scalia, Kennedy, and Souter joined Chief Justice Rehnquist's opinion of the Court. See id. at 810.
40. See id. at 825-27.
41. Id. at 825.
42. Id. at 822 (quoting Mills v. Maryland, 486 U.S. 367, 397 (1988) (Rehnquist, C.J., dissenting)); see also id. at 825. "The State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family." Id. (citation omitted in original) (quoting Booth v. Maryland, 482 U.S. 496, 517 (1987) (White, J., dissenting)).
43. Id. at 827 (emphasis omitted).
44. Because Payne does not permit evidence of victims' views on whether a capital defendant deserves the death penalty, this Comment focuses on the two other types of victim-impact evidence: evidence of the harm caused by the murder, and evidence of the victims' personal characteristics. Booth was correct, however, to preclude the introduction of evidence of victims' views on the appropriate sentence. The adversaries in the criminal process are the people (the State) and the defendant, not the victim and the defendant; ours is not a system of private prosecution. Victims' views are therefore irrelevant to whether the defendant deserves the death penalty. See Gewirtz, supra note 3, at 870 n.17 (noting that evidence of the victim's "survivors' personal opinions about the defendant and the appropriate sentence . . . is the sort of witness 'opinion evidence' that is typically inadmissible"); Dugger, supra note 3, at 382 (pointing out that when victims state their opinions on the appropriate sentence they are testifying about things other than their personal experience, and their testimony is thus "not only emotional and biased . . . but also uninformed"). Moreover, while jurors are impartial, victims are obviously biased against the defendant. Therefore, "the victim's opinion as to the sentence the defendant deserves tends to inflame the jury and renders it potentially more prejudicial than any other type of victim information." Phillip A. Talbert, Comment, The Relevance of Victim Impact Statements to the Criminal Sentencing Decision, 36 UCLAL. REV. 199, 211 (1988). Furthermore, if the victim's family members are allowed to determine, or help determine, whether a defendant lives or dies, this would make the imposition of capital punishment depend on the irrelevant factor of whether the victim's family opposes capital punishment. See Catherine Bendor, Defendants' Wrongs and Victims' Rights: Payne v. Tennessee, 27 HARV. C.R.-C.L. L. REV. 219, 242 n.119 (1992). Finally, victim opinion evidence "might impermissibly encourage the jury to shirk its ultimate responsibility for the death decision and simply act as the agent of the grieving family." Harris, supra note 3, at 93. Admitting victim opinion evidence therefore might contravene the principle of Caldwell v. Mississippi, 472 U.S. 320 (1985), which held that because jurors must not be tempted to dodge the weighty task of deciding whether to impose death, prosecutors cannot suggest to the jury that ultimate responsibility for a death sentence rests with the appellate court rather than with the jury. See Harris, supra note 3, at 93.
45. Because Payne does not permit evidence of victims' views on whether a capital defendant deserves the death penalty, this Comment focuses on the two other types of victim- impact evidence: evidence of the harm caused by the murder, and evidence of the victims' personal characteristics. Booth was correct, however, to preclude the introduction of evidence of victims' views on the appropriate sentence. The adversaries in the criminal process are the people (the State) and the defendant, not the victim and the defendant; ours is not a system of private prosecution. Victims' views are therefore irrelevant to whether the defendant deserves the death penalty. See Gewirtz, supra note 3, at 870 n.17 (noting that evidence of the victim's "survivors' personal opinions about the defendant and the appropriate sentence . . . is the sort of witness 'opinion evidence' that is typically inadmissible"); Dugger, supra note 3, at 382 (pointing out that when victims state their opinions on the appropriate sentence they are testifying about things other than their personal experience, and their testimony is thus "not only emotional and biased . . . but also uninformed"). Moreover, while jurors are impartial, victims are obviously biased against the defendant. Therefore, "the victim's opinion as to the sentence the defendant deserves tends to inflame the jury and renders it potentially more prejudicial than any other type of victim information." Phillip A. Talbert, Comment, The Relevance of Victim Impact Statements to the Criminal Sentencing Decision, 36 UCLAL. REV. 199, 211 (1988). Furthermore, if the victim's family members are allowed to determine, or help determine, whether a defendant lives or dies, this would make the imposition of capital punishment depend on the irrelevant factor of whether the victim's family opposes capital punishment. See Catherine Bendor, Defendants' Wrongs and Victims' Rights: Payne v. Tennessee, 27 HARV. C.R.-C.L. L. REV. 219, 242 n.119 (1992). Finally, victim opinion evidence "might impermissibly encourage the jury to shirk its ultimate responsibility for the death decision and simply act as the agent of the grieving family." Harris, supra note 3, at 93. Admitting victim opinion evidence therefore might contravene the principle of Caldwell v. Mississippi, 472 U.S. 320 (1985), which held that because jurors must not be tempted to dodge the weighty task of deciding whether to impose death, prosecutors cannot suggest to the jury that ultimate responsibility for a death sentence rests with the appellate court rather than with the jury. See Harris, supra note 3, at 93.
46. See Payne, 501 U.S. at 827 ("There is no reason to treat such evidence differently than other relevant evidence is treated.").
47. Id. at 825 (citing Darden v. Wainwright, 477 U.S. 168, 179-83 (1986)).
48. See Tison, 481 U.S. at 151, 158.
49. Id. Justice O'Connor also made the dubious argument that in the instant case, the "brief [victim impact] statement did not inflame [the jury's] passions more than did the facts of the crime." Id. at 831-32. But as Jonathan Levy notes, this implies that unconstitutionally inflammatory evidence only warrants reversal when it is the most inflammatory evidence put before the jury. The underlying assumption here is that less inflammatory remarks have no effect on jurors when overshadowed by more inflammatory remarks. In other words, either inflammatory comments have no cumulative effect, or jurors reach some saturation point beyond which additional inflammatory comments have no effect. Levy, supra note 3, at 1057 (footnote omitted). Because the facts of the crime tend to be particularly inflammatory in capital cases, Justice O'Connor's argument would permit the most inflammatory victim-impact evidence in capital cases - "the very cases that the Eighth Amendment requires have the most protection." Id. 43. Payne, 501 U.S. at 835-36. Justice Scalia concurred as well, but did not discuss the relevance of victim-impact evidence at capital sentencing. Instead, Justice Scalia stated that he would vote to allow victim-impact evidence at capital sentencing even if the Court reversed its rulings in Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion), and Eddings v. Oklahoma, 455 U.S. 104 (1982), "requiring the admission of all relevant mitigating evidence," and responded to Justice Marshall's allegation that Payne violates stare decisis. Payne, 501 U.S. at 833-35. Justices O'Connor and Kennedy joined the portion of Justice Scalia's opinion in which he addressed Justice Marshall's stare decisis argument. See id. at 833.
50. Payne, 501 U.S. at 838. Justice Souter also briefly stated the balancing justification: "Indeed, given a defendant's option to introduce relevant evidence in mitigation, sentencing without such evidence of victim impact may be seen as a significantly imbalanced process." Id. at 839 (citations omitted).
51. Id.
52. See id. at 841.
53. See id. at 839-42.
54. See id. at 844, 856.
55. See id. at 845-46.
56. See id. at 844.
57. Id.
58. See id. at 844-45, 849-56.
59. Id. at 846 (emphasis in original).
60. See id. at 860-61 (quoting Enmund v. Florida, 458 U.S. 782, 801 (1982)).
61. Id. at 861 (quoting Gregg v. Georgia, 428 U.S. 153, 189 (1976) (plurality opinion)). Justice Stevens' point also raises due process concerns: the specific forms of harm inflicted upon a murder victim's survivors are not statutorily proscribed; thus the defendant has no advance notice that he will be held responsible for this harm. I will return to this point in Part III.
62. Id. at 856.
63. See, e.g., Bandes, supra note 3, at 406; Beth E. Sullivan, Harnessing Payne: Controlling the Admission of Victim Impact Statements To Safeguard Capital Sentencing Hearings from Passion and Prejudice, 25 FORDHAM URB. L.J. 601, 628 (1998); Talbert, supra note 38, at 209-11; Levy, supra note 3, at 1044-48, 1060; Phillips, supra note 3, at 105-12. Even proponents of victim-impact evidence recognize the potential problem here. See Gewirtz, supra note 3, at 874.
64. At first it may appear that a defendant would lack standing to bring this claim, since a jury which devalued the life of the defendant's victim would thereby help, not harm, the defendant. However, the Court held in Powers v. Ohio, 499 U.S. 400, 410-15 (1991), that a white defendant has standing to object to a prosecutor's use of peremptory challenges to strike African-American venirepersons. In addition, McCleskey v. Kemp, 481 U.S. 279 (1987), said that a defendant has standing to bring an equal protection challenge if he alleges that the State is "bas[ing] enforcement of its criminal laws on 'an unjustifiable standard such as race, religion, or other arbitrary classification.'" Id. at 291-92 n.8 (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)).
65. Gewirtz, supra note 3, at 879 n.50. However, selective sympathy is as much a problem with mitigating evidence - and all other forms of evidence - as it is with victim-impact evidence. See id. For a general discussion of selective sympathy, see Paul Brest, The Supreme Court, 1975 Term - Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 7 (1976).
66. See, e.g., Bandes, supra note 3, at 365, 398, 408; Berger, supra note 3, at 52-55; Harris, supra note 3, at 96-98.
67. See, e.g., Talbert, supra note 38, at 209-10 (noting that different victims' family members have varying degrees of communication skills and willingness to testify); Phillips, supra note 3, at 109 (noting the possibility that jurors will place lower values on the lives of recent immigrants whose family members have not yet mastered English because the family members will be unable to effectively convey their loss).
68. Cf. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987) (discussing the phenomenon of unconscious racism and arguing that equal protection analysis must take it into account).
69. See Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (holding that the capital sentencing authority may not refuse to consider, as a matter of law, relevant mitigating evidence); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (holding that a state may not preclude the capital sentencing authority from taking relevant mitigating evidence into account). Both Eddings and Lockett defined "relevant mitigating evidence" as "'any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'" Eddings, 455 U.S. at 110 (quoting Lockett, 438 U.S. at 604). By broadly defining mitigating evidence and failing to limit who may offer mitigating testimony, Eddings and Lockett compel trial judges to admit emotional pleas for the defendant's life by third parties such as the defendant's relatives, friends, and coworkers.
70. In their respective dissents in Lockett, however, Justices White and Rehnquist expressed concern that the Court's decision that capital defendants must be permitted to introduce all relevant mitigating evidence at sentencing would result in a return to the situation which Furman v. Georgia, 408 U.S. 238 (1972), attempted to remedy. See Lockett, 438 U.S. at 623 (White, J., dissenting) ("I greatly fear that the effect of the Court's decision today will be to compel constitutionally a restoration of the state of affairs at the time Furman was decided . . . ."); id. at 631 (Rehnquist, J., dissenting) (arguing that Lockett "will not eliminate arbitrariness or freakishness in the imposition of sentences, but will codify and institutionalize it. By encouraging [the] consideration [of] anything under the sun as a 'mitigating circumstance,' it will not guide sentencing discretion but will totally unleash it."); see also Richmond v. Lewis, 506 U.S. 40, 54 (1992) (Scalia, J., dissenting). In my view this Court has no colorable basis, either in constitutional text or in national tradition, for imposing upon the States a further constitutional requirement that the sentencer consider mitigating evidence, see Walton v. Arizona, 497 U.S. 639, 671-73 (1990) (Scalia, J., opinion concurring in part and concurring in judgment). As this and other cases upon our docket amply show, that recently invented requirement has introduced not only a mandated arbitrariness quite inconsistent with Furman, but also an impenetrable complexity and hence a propensity to error that make a scandal and a mockery of the capital sentencing process. Id.
71. One might raise two objections at this point. First, one might argue that it ignores reality to consider the mitigating testimony that wealthy capital defendants could offer: capital murder defendants are overwhelmingly poor and uneducated, and any wealthy person charged with murder will have paid counsel of sufficient competence to make a death sentence inconceivable. But the examples involving wealthy defendants are intended not to reflect reality, but only to sharpen the main point here, which is that there are significant parallels between how victim-impact evidence and mitigating evidence presented by a defendant's family members or friends can influence a capital sentencing decision, and that these parallels logically preclude considering one but not the other "arbitrary." Second, and building on the first objection, since capital defendants are more demographically homogeneous than are murder victims, the disparities in capital defendants' abilities to put on convincing mitigating evidence are less significant than are the corresponding disparities for victims' relatives' presentations. Therefore, the objection would continue, victim-impact evidence may arbitrarily influence capital sentencing even if mitigating evidence in the form of third parties' testimonials does not, since victim-impact evidence's influence would vary more from case to case than would the influence of third-party mitigating evidence. But this objection attempts to transform a difference in degree into a difference in kind: the salient factor here is not the extent to which a third party's testimony influences capital sentencing hearings or to which its influence varies from case to case, but rather the manner in which it influences capital sentencing hearings.
72. While some complain that victim-impact statements "reward" with the death penalty emotional displays by a victim's family members, see Phillips, supra note 3, at 112, they are silent with regard to the fact that defendants' family members are similarly rewarded with a life sentence for their tearful pleas for mercy. Cf. Maria Imperial, A Contrasting View of Victims ' Rights, N.Y. L. J., Apr. 15, 1992, at 2 ("Should defendants be denied their rights based on the fear that some defendants are more eloquent than others or could afford higher priced defense attorneys?"); Christine D. Marton, Comment, The Admissibility of Victim-Impact Evidence at the Sentencing Phase of a Capital Trial, 31 DUQ. L. REV. 801, 806 n.41 (1993) ("The argument concerning the possibility that a victim's articulateness as well as a victim's financial position might result in unequal justice can be likewise applied to defendants.").
73. While some complain that victim-impact statements "reward" with the death penalty emotional displays by a victim's family members, see Phillips, supra note 3, at 112, they are silent with regard to the fact that defendants' family members are similarly rewarded with a life sentence for their tearful pleas for mercy. Cf. Maria Imperial, A Contrasting View of Victims ' Rights, N.Y. L. J., Apr. 15, 1992, at 2 ("Should defendants be denied their rights based on the fear that some defendants are more eloquent than others or could afford higher priced defense attorneys?"); Christine D. Marton, Comment, The Admissibility of Victim-Impact Evidence at the Sentencing Phase of a Capital Trial, 31 DUQ. L. REV. 801, 806 n.41 (1993) ("The argument concerning the possibility that a victim's articulateness as well as a victim's financial position might result in unequal justice can be likewise applied to defendants.").
74. Importantly, the point is not that defendants' rights must be balanced with victims' rights, but rather that the Court cannot consider victim-impact evidence arbitrary if it does not consider mitigating evidence arbitrary. Either both mitigating and victim-impact evidence yield arbitrary results or neither does.
75. Cf. Furman, 408 U.S. at 309 (Stewart, J., concurring) ("These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.").
76. See Gregg v. Georgia, 428 U.S. 153, 188 (1976) ("Furman held that [capital punishment] could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.").
77. 481 U.S. 279 (1987).
78. Id. at 291-99. McCleskey also said that the Baldus study did not prove that Georgia's capital punishment system violated the Eighth Amendment. Id. at 299-319.
79. Id. at 292 (quoting Whitus v. Georgia, 385 U.S. 545, 550 (1967)).
80. Id. (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).
81. Id. (emphasis added).
82. Id. at 294. Justice Powell said that while the Court had held that statistics could prove discrimination in the context of selection of jury venires and employment decisions, the situation is different for juries' sentencing decisions. See id. at 294-95. The decisions of a jury commission or of an employer over time are fairly attributable to the commission or the employer. Therefore, an unexplained statistical discrepancy can be said to indicate a consistent policy of the decisionmaker. The Baldus study seeks to deduce a state 'policy' by studying the combined effects of the decisions of hundreds of juries that are unique in their composition. Id. at 295 n.15; see also id. at 293-96.
83. Id. at 297.
84. Id. at 325 (Brennan, J., dissenting).
85. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW 337 (1997) (noting that "Powell and the Court majority resolutely shut the door to any statistics-driven, class-based challenge to the administration of punishment"); David C. Baldus et al., Reflections on the "Inevitability" of Racial Discrimination in Capital Sentencing and the "Impossibility" of Its Prevention, Detection, and Correction, 51 WASH. & LEE L. REV. 359, 370 (1994) ("The standard set by McCleskey for proving constitutional violations means that proof of racial discrimination in capital punishment cases is beyond the capacity of virtually all capital defendants.").
86. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW 337 (1997) (noting that "Powell and the Court majority resolutely shut the door to any statistics-driven, class-based challenge to the administration of punishment"); David C. Baldus et al., Reflections on the "Inevitability" of Racial Discrimination in Capital Sentencing and the "Impossibility" of Its Prevention, Detection, and Correction, 51 WASH. & LEE L. REV. 359, 370 (1994) ("The standard set by McCleskey for proving constitutional violations means that proof of racial discrimination in capital punishment cases is beyond the capacity of virtually all capital defendants.").
87. Though the Supreme Court prefers to ignore the problem by setting an impossibly high standard of proof, overwhelming evidence suggests that whether a capital defendant gets the death penalty depends largely on the race of his victim. See, e.g., U.S. GEN. ACCOUNTING OFFICE, DEATH PENALTY SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISPARITIES 5-6 (1990) (analyzing the results of 28 studies from various jurisdictions, all of which found that the victim's race was a significant factor in the imposition of capital punishment); David C. Baldus et al., Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. CRIM. L. & CRIMINOLOGY 661, 708-10 (1983) (providing extensive supporting data for, and statistical analysis of, the Baldus study's race-of- victim findings). For a list of additional studies finding a correlation between a murderer's likelihood of receiving a death sentence and his victim's race, see KENNEDY, supra note 78, at 450 n.51.
88. Though the Supreme Court prefers to ignore the problem by setting an impossibly high standard of proof, overwhelming evidence suggests that whether a capital defendant gets the death penalty depends largely on the race of his victim. See, e.g., U.S. GEN. ACCOUNTING OFFICE, DEATH PENALTY SENTENCING: RESEARCH INDICATES PATTERN OF RACIAL DISPARITIES 5-6 (1990) (analyzing the results of 28 studies from various jurisdictions, all of which found that the victim's race was a significant factor in the imposition of capital punishment); David C. Baldus et al., Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. CRIM. L. & CRIMINOLOGY 661, 708-10 (1983) (providing extensive supporting data for, and statistical analysis of, the Baldus study's race-of-victim findings). For a list of additional studies finding a correlation between a murderer's likelihood of receiving a death sentence and his victim's race, see KENNEDY, supra note 78, at 450 n.51.
89. McClesky, 481 U.S. at 297, 315-19.
90. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). Levy argues that "whether a victim has an articulate and caring family is just as arbitrary a characteristic as the color of the victim's skin." Levy, supra note 3, at 1044-45 n.137. That may be true, but whether a victim has an articulate and caring family is not constitutionally arbitrary. While the Constitution bars distinctions along racial lines, it says nothing about distinctions on the basis of a person's family members' articulateness or capacity for empathy. These characteristics appear to lie outside the ambit of the Equal Protection Clause. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938) ("[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."). Thus rationality review applies to allegations of discrimination on the basis of a nonsuspect characteristic of a victim. Even if a defendant satisfied McCleskey's standard of proof, such discrimination is not clearly irrational. Indeed, some devotees of "law and economics" argue that considering victims' "value" in assessing punishments would more efficiently deter crime. See David D. Friedman, Should the Characteristics of Victims and Criminals Count?: Payne v. Tennessee and Two Views of Efficient Punishment, 34 B.C. L. REV. 731, 747-56 (1993) (arguing that considering a murder victim's characteristics in the capital sentencing decision is efficient, at least in cases where the murderer knew the victim's characteristics ex ante).
91. Gewirtz, supra note 3, at 875-76 n.32.
92. While McCleskey did not technically "permit" assigning values to victims' lives, its standard of proof is virtually impossible to meet and apparently applies to claims of discrimination on the basis of nonsuspect victim characteristics. See supra text accompanying notes 76-79. Thus McCleskey in practice - although admittedly not in theory - allows prosecutors and jurors to discriminate on the basis of victims' characteristics.
93. Payne, 501 U.S. at 861.
94. Moreover, current capital sentencing statutes' guidelines (or lack thereof) for jurors' consideration of mitigating evidence are a direct result of the Court's rulings preventing legislators from attempting to guide capital sentencing jurors' consideration of mitigating factors. See supra text accompanying note 63.
95. Buchanan v. Angelone, 522 U.S. 269, 273 (1998); see also Tuilaepa v. California, 512 U.S. 967, 971 (1994). In the eligibility phase, the jury decides whether the defendant is eligible for the death penalty, usually by determining whether the murder involved aggravating circumstances. In the selection phase, the jury decides whether a death-eligible defendant should be executed. See Buchanan, 522 U.S. at 273; Tuilaepa, 512 U.S. at 971-73.
96. See Windom v. State, 656 So. 2d 432, 438 (Fla. 1995) (Under Florida's capital sentencing system, "victim impact evidence is admitted only after there is present in the record evidence of one or more aggravating circumstances. The evidence is not admitted as an aggravator . . . ."); Cargle v. State, 909 P.2d 806, 828 n.15 (Okla. Crim. App. 1995) (noting that victim-impact evidence does not help the jury determine whether the defendant is eligible for the death penalty because it cannot help prove the existence of an aggravating factor, and thus cannot support the imposition of a death sentence in the absence of an aggravating factor); Johnson, supra note 3, at 805-06 ("Aggravating circumstances are facts sufficient to elevate a crime to a death-eligible category, while victim impact evidence are [sic] facts relevant to a determination as to whether a death sentence should be imposed on a death-eligible defendant.").
97. See Buchanan, 522 U.S. at 275; cf. Maynard v. Cartwright, 486 U.S. 356, 363-64 (1988) (striking down instruction allowing the jury to find an aggravating circumstance if the murder was "especially heinous, atrocious, or cruel"); Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980) (invalidating instruction permitting the jury to find an aggravating circumstance if the murder was "outrageously or wantonly vile, horrible and inhuman").
98. California v. Ramos, 463 U.S. 992, 1008 (1983).
99. Buchanan, 522 U.S. at 275-76. Buchanan's discussion of the Court's requiring "a broad inquiry" occurs in the context of deciding whether the Eighth Amendment requires that capital juries "be instructed on the concept of mitigating evidence generally, or on particular statutory mitigating factors." Id. at 270. However, the Court has not said that the jury's broad inquiry must be limited to mitigating evidence and has not stated a reason why this constitutional evidentiary standard for the selection phase would not apply to victim-impact evidence (and all other relevant evidence) as well as mitigating evidence. Cf. Tuilaepa, 512 U.S. at 971-73, 978-79 (noting that at the selection phase, the State can allow the jury unfettered discretion); Zant v. Stephens, 462 U.S. 862, 875, 878-79 (1983) (rejecting the argument that Furman v. Georgia, 408 U.S. 238 (1972), prohibits states from allowing a capital sentencing jury "to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is [death-eligible]" and noting that accepting this argument would require overruling Gregg v. Georgia, 428 U.S. 153 (1976), since the capital sentencing statute in that case "clearly did not channel the jury's discretion by enunciating specific standards to guide the jury's consideration of aggravating and mitigating circumstances").
100. See Buchanan, 522 U.S. at 275.
101. I thank Professor Marvin Cummins for this point. Cf. Harris v. Alabama, 513 U.S. 504, 512 (1995) ("[T]he Constitution does not require a State to ascribe any specific weight to particular factors, either in aggravation or mitigation, to be considered by the sentencer."); Franklin v. Lynaugh, 487 U.S. 164, 179 (1988) (rejecting the notion that "a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required"); Zant, 462 U.S. at 884 ("[T]here can be 'no perfect procedure for deciding in which cases governmental authority should be used to impose death.'") (quoting Lockett v. Ohio, 438 U.S. 586, 605 (1978)).
102. Of course, this objection does not apply to capital sentencing schemes that specifically authorize the admission of victim-impact evidence at capital sentencing hearings. In Payne, the victim-impact evidence was not admitted pursuant to a statute authorizing the admission of such evidence. Payne, 501 U.S. at 821. In fact, when Payne was decided, no state specifically authorized the admission of victim-impact evidence at capital sentencing. See Johnson, supra note 3, at 800. Since Payne, 12 of the 38 states which employ capital punishment have revised their death penalty statutes to explicitly permit the introduction of victim-impact evidence at capital sentencing. See id. at 800 n.43. Of the remaining 26 death penalty states, 15 have statutes that include a "catch-all" phrase that authorizes the admission at sentencing of all relevant evidence, and 11 have statutes that do not provide for the admission of evidence not relevant to the statutorily enumerated aggravating factors. See id. 94. Bandes, supra note 3, at 396 n. 177 (noting that due process, fair play, "and the settled rules of law" require that "the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties"). Bandes argues that in the absence of a specific statutory proscription, considering the harm inflicted upon a murder victim's survivors "conflicts with the legal principle of nulla poena sine lege (the requirement of prior notice that particular conduct is criminal). . . . [T]o the extent that courts take the magnitude of harm into consideration, they must do so within the boundaries previously authorized by legislative enactment." Id. 95. Payne, 501 U.S. at 825.
103. See id. at 820-21 ("[T]he sentencing authority has always been free to consider a wide range of relevant material."); United States v. Tucker, 404 U.S. 443, 446 (1972) ("[A] judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come."); cf. Williams v. New York, 337 U.S. 241 (1949) (holding that judge's imposition of death sentence based in part on presentencing report prepared by probation department, despite life imprisonment recommended by jury, did not violate Due Process Clause).
104. See Levy, supra note 3, at 1046.
105. See, e.g., Bandes, supra note 3, at 392-93; Levy, supra note 3, at 1046; Talbert, supra note 38, at 209.
106. See Samuel H. Pillsbury, Emotional Justice: Moralizing the Passions of Criminal Punishment, 74 CORNELL L. REV. 655 (1989) (arguing that capital sentencing decisions always do and should have some emotional basis).
107. See Bandes, supra note 3, at 366 ("[T]here is broad agreement on one crucial point - that emotions have a cognitive aspect - and its corollary - that reasoning has an emotive aspect."); Gewirtz, supra note 3, at 877-78 ("[T]he glib distinction between 'reasoned' responses and 'emotional' responses is far too simplistic. . . . [S]cholars from fields as diverse as philosophy, psychology, and neurobiology have demonstrated that emotions have a cognitive dimension . . . emotions can open up ways of knowing and seeing, and can therefore contribute to reasoning."); Harris, supra note 3, at 92 ("Emotions are not inimical to the reasoning process, particularly in a contextual decision-making situation. Rather, emotions, being partly cognitive, are partly intellectual and can serve as guides to reasoned decision making.").
108. See Gewirtz, supra note 3, at 878; Pillsbury, supra note 99, at 655-56, 699-703.
109. Gewirtz, supra note 3, at 877.
110. Id. at 879; see also Williams v. Chrans, 945 F.2d 926, 947 (7th Cir. 1991) ("We must recognize that the state should not be required to present victim impact evidence . . . devoid of all passion.").
111. William L. Menard et al., Twentieth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1989-1990: Capital Punishment, 79 GEO. L.J. 1123, 1141 n.2394 (1991) (quoting Thompson v. Oklahoma, 487 U.S. 815, 878 (1988) (Scalia, J., dissenting)).
112. Talbert, supra note 38, at 203 n.23 (omission in original) (quoting U.S. DEP'T OF JUSTICE, VICTIMS OF CRIME: PROPOSED MODEL LEGISLATION, II-9 (1986)).
113. See Gewirtz, supra note 3, at 870-71 & n.18.
114. Livingston v. State, 444 S.E.2d 748, 751 (Ga. 1994); see also State v. Muhammad, 678 A.2d 164, 180 (N. J. 1996) ("The greater the number of survivors who are permitted to present victim impact evidence, the greater the potential for the victim impact evidence to unduly prejudice the jury against the defendant."); Johnson, supra note 3, at 816 ("[W]ith each witness paraded before the jury, the chances increase that an appellate court will view such evidence as cumulative and prejudicial.").
115. While the Federal Rules of Evidence do not apply at sentencing proceedings, Rule 403 provides an example of adequate guidelines for judges deciding whether to admit victim-impact evidence at capital sentencing. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403. "'Unfair prejudice' . . . means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." FED. R. EVID. 403 advisory committee's note.
116. The Court has left little room for defendants to argue that improper prosecutorial comments rendered their trial fundamentally unfair. For instance, in Darden v. Wainwright, 477 U.S. 168 (1986), the Court found no denial of due process even though the prosecutor referred to the defendant as an "animal" and several times said that someone should have "blown [the defendant's] head off." Id. at 180 n.12. Justice Powell, writing for the Court in Darden, said, "[I]t 'is not enough that the prosecutors' remarks were undesirable or even universally condemned.' The relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id at 181 (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983), and
117. See, e.g., Bandes, supra note 3, at 401; Dugger, supra note 3, at 403-04.
118. Richard A. Posner, Legal Narratology, 64 U. CHI. L. REV. 737, 745 (1997) (reviewing LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW (Peter Brooks & Paul Gewirtz eds., 1996)).
119. Richard A. Posner, Legal Narratology, 64 U. CHI. L. REV. 737, 745 (1997) (reviewing LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW (Peter Brooks & Paul Gewirtz eds., 1996)).
120. See Gregg v. Georgia, 428 U.S. 153, 183 (1976); see also Posner, supra note 111, at 745 ("Revenge is primitive, in the sense of instinctual, as also is love, of which compassion for a criminal is a dilute form; but I do not think that the primitiveness of an emotion should disqualify it from playing a role in sentencing.").
121. However, vengeance cannot be the only reason for imposing the death penalty. See infra note 151.
122. Sullivan, supra note 57, at 630.
123. Payne v. Tennessee, 501 U.S. 808, 826 (1991).
124. However, such evidence is relevant to the larger question of whether the defendant should live or die. See Jurek v. Texas, 428 U.S. 262, 275-76 (1976).
125. See id. at 269, 274-76.
126. Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (opinion of Stewart, J.).
127. Richard S. Murphy, The Significance of Victim Harm: Booth v. Maryland and the Philosophy of Punishment in the Supreme Court, 55 U. CHI. L. REV. 1303, 1316 (1988) (emphasis in original).
128. This Part employs the Model Penal Code's five-level hierarchy of mental states. In order of increasing culpability, the five mental states are strict liability, negligence (the defendant should have known his conduct risked causing harm, or a "reasonable" person would have been aware or foreseen that his conduct created a risk of harm), recklessness (the defendant was consciously aware that his conduct created a substantial risk of harm), knowledge (the defendant was consciously aware that his conduct was virtually certain to cause harm), and purpose (the defendant's conscious object was to cause harm). See MODEL PENAL CODE § 2.02(2) (1962). Despite its logical and philosophical merits, the Court has never incorporated into its Eighth Amendment jurisprudence the Model Penal Code's principle that punishment should be based solely on culpability. Note that if the Eighth Amendment prohibited factoring the harm caused into noncapital sentencing decisions, differentiating between the sentences for attempts and completed crimes would be unconstitutional.
129. See Michael S. Moore, The Independent Moral Significance of Wrongdoing, 5 J. CONTEMP. LEGAL ISSUES 237, 237-38 (1994).
130. See, e.g., H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 131 (1968).
131. See id. ("Why should the accidental fact that an intended harmful outcome has not occurred be a ground for punishing less a criminal who may be equally dangerous and equally wicked?").
132. See Moore, supra note 121, at 237-38.
133. "[W]hen culpability is present, wrongdoing independently influences how much punishment is deserved." Id. at 238.
134. Id. at 281.
135. Chief Judge Richard Posner of the Seventh Circuit Court of Appeals has said, "'moral luck,' as philosophers refer to distinctions in culpability that are based on consequences rather than intentions, is, rightly or wrongly, a pervasive characteristic of moral thought in our society, at least the moral thought that informs the criminal law." United States v. Martinez, 16 F.3d 202, 206 (7th Cir. 1994); see also United States v. Tham, 118 F.3d 1501, 1507 (11th Cir. 1997) ("Distinctions based on the consequences of a criminal act, as opposed to the intentions of the actor, represent an enduring and pervasive characteristic of the moral thought that informs our system of criminal law."). On the relevance of moral luck to criminal responsibility, see, for example, THOMAS NAGEL, Moral Luck, in MORTAL QUESTIONS 24, 24-38 (Thomas Nagel ed., 1979); BERNARD WILLIAMS, Moral Luck, in MORAL LUCK: PHILOSOPHICAL PAPERS 1973-1980, at 20, 20-39 (Bernard Williams ed., 1981); R.A. Duff, Auctions, Lotteries, and the Punishment of Attempts, 9 LAW & PHIL. 1, 30-37 (1990); Moore, supra note 121, at 253-58. For arguments that moral luck is irrelevant to criminal responsibility, see, for example, IMMANUEL KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS passim (H.J. Paton trans., 1964) (1785); Larry Alexander, Crime and Culpability, 5 J. CONTEMP. LEGAL ISSUES 1 (1994);
136. Chief Judge Richard Posner of the Seventh Circuit Court of Appeals has said, "'moral luck,' as philosophers refer to distinctions in culpability that are based on consequences rather than intentions, is, rightly or wrongly, a pervasive characteristic of moral thought in our society, at least the moral thought that informs the criminal law." United States v. Martinez, 16 F.3d 202, 206 (7th Cir. 1994); see also United States v. Tham, 118 F.3d 1501, 1507 (11th Cir. 1997) ("Distinctions based on the consequences of a criminal act, as opposed to the intentions of the actor, represent an enduring and pervasive characteristic of the moral thought that informs our system of criminal law."). On the relevance of moral luck to criminal responsibility, see, for example, THOMAS NAGEL, Moral Luck, in MORTAL QUESTIONS 24, 24-38 (Thomas Nagel ed., 1979); BERNARD WILLIAMS, Moral Luck, in MORAL LUCK: PHILOSOPHICAL PAPERS 1973-1980, at 20, 20-39 (Bernard Williams ed., 1981); R.A. Duff, Auctions, Lotteries, and the Punishment of Attempts, 9 LAW & PHIL. 1, 30-37 (1990); Moore, supra note 121, at 253-58. For arguments that moral luck is irrelevant to criminal responsibility, see, for example, IMMANUEL KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS passim (H.J. Paton trans., 1964) (1785); Larry Alexander, Crime and Culpability, 5 J. CONTEMP. LEGAL ISSUES 1 (1994);
137. Chief Judge Richard Posner of the Seventh Circuit Court of Appeals has said, "'moral luck,' as philosophers refer to distinctions in culpability that are based on consequences rather than intentions, is, rightly or wrongly, a pervasive characteristic of moral thought in our society, at least the moral thought that informs the criminal law." United States v. Martinez, 16 F.3d 202, 206 (7th Cir. 1994); see also United States v. Tham, 118 F.3d 1501, 1507 (11th Cir. 1997) ("Distinctions based on the consequences of a criminal act, as opposed to the intentions of the actor, represent an enduring and pervasive characteristic of the moral thought that informs our system of criminal law."). On the relevance of moral luck to criminal responsibility, see, for example, THOMAS NAGEL, Moral Luck, in MORTAL QUESTIONS 24, 24-38 (Thomas Nagel ed., 1979); BERNARD WILLIAMS, Moral Luck, in MORAL LUCK: PHILOSOPHICAL PAPERS 1973-1980, at 20, 20-39 (Bernard Williams ed., 1981); R.A. Duff, Auctions, Lotteries, and the Punishment of Attempts, 9 LAW & PHIL. 1, 30-37 (1990); Moore, supra note 121, at 253-58. For arguments that moral luck is irrelevant to criminal responsibility, see, for example, IMMANUEL KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS passim (H.J. Paton trans., 1964) (1785); Larry Alexander, Crime and Culpability, 5 J. CONTEMP. LEGAL ISSUES 1 (1994);
138. Chief Judge Richard Posner of the Seventh Circuit Court of Appeals has said, "'moral luck,' as philosophers refer to distinctions in culpability that are based on consequences rather than intentions, is, rightly or wrongly, a pervasive characteristic of moral thought in our society, at least the moral thought that informs the criminal law." United States v. Martinez, 16 F.3d 202, 206 (7th Cir. 1994); see also United States v. Tham, 118 F.3d 1501, 1507 (11th Cir. 1997) ("Distinctions based on the consequences of a criminal act, as opposed to the intentions of the actor, represent an enduring and pervasive characteristic of the moral thought that informs our system of criminal law."). On the relevance of moral luck to criminal responsibility, see, for example, THOMAS NAGEL, Moral Luck, in MORTAL QUESTIONS 24, 24-38 (Thomas Nagel ed., 1979); BERNARD WILLIAMS, Moral Luck, in MORAL LUCK: PHILOSOPHICAL PAPERS 1973-1980, at 20, 20-39 (Bernard Williams ed., 1981); R.A. Duff, Auctions, Lotteries, and the Punishment of Attempts, 9 LAW & PHIL. 1, 30-37 (1990); Moore, supra note 121, at 253-58. For arguments that moral luck is irrelevant to criminal responsibility, see, for example, IMMANUEL KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS passim (H.J. Paton trans., 1964) (1785); Larry Alexander, Crime and Culpability, 5 J. CONTEMP. LEGAL ISSUES 1 (1994);
139. Chief Judge Richard Posner of the Seventh Circuit Court of Appeals has said, "'moral luck,' as philosophers refer to distinctions in culpability that are based on consequences rather than intentions, is, rightly or wrongly, a pervasive characteristic of moral thought in our society, at least the moral thought that informs the criminal law." United States v. Martinez, 16 F.3d 202, 206 (7th Cir. 1994); see also United States v. Tham, 118 F.3d 1501, 1507 (11th Cir. 1997) ("Distinctions based on the consequences of a criminal act, as opposed to the intentions of the actor, represent an enduring and pervasive characteristic of the moral thought that informs our system of criminal law."). On the relevance of moral luck to criminal responsibility, see, for example, THOMAS NAGEL, Moral Luck, in MORTAL QUESTIONS 24, 24-38 (Thomas Nagel ed., 1979); BERNARD WILLIAMS, Moral Luck, in MORAL LUCK: PHILOSOPHICAL PAPERS 1973-1980, at 20, 20-39 (Bernard Williams ed., 1981); R.A. Duff, Auctions, Lotteries, and the Punishment of Attempts, 9 LAW & PHIL. 1, 30-37 (1990); Moore, supra note 121, at 253-58. For arguments that moral luck is irrelevant to criminal responsibility, see, for example, IMMANUEL KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS passim (H.J. Paton trans., 1964) (1785); Larry Alexander, Crime and Culpability, 5 J. CONTEMP. LEGAL ISSUES 1 (1994);
140. Sanford H. Kadish, Foreword: The Criminal Law and the Luck of the Draw, 84 J. CRIM. L. & CRIMINOLOGY 679 (1994);
141. Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U. PA. L. REV. 1497, 1601-03 (1974).
142. See Moore, supra note 121, passim. 129. See id. at 280; cf. Lynne N. Henderson, The Wrongs of Victim's Rights, 37 STAN. L. REV. 937, 999 (1985) ("Often the substantive law defines the criminal offense and the sanction to be imposed by the actual harm that has resulted. The definition of an offense frequently depends on the result of the conduct - simple battery, aggravated assault, and murder all encompass particular results within their definitions."). Similarly, the current United States Sentencing Guidelines allow departures from the recommended sentences for consequences of criminal conduct. See U.S. SENTENCING GUIDELINES MANUAL §§ 5K2.1 (death), 5K2.2 (physical injury), 5K2.3 (extreme psychological injury), 5K2.5 (property damage or loss) (1996).
143. The lead opinion in Gregg v. Georgia said that the Eighth Amendment permits a state to impose the death penalty in order to advance two penological objectives: retribution and deterrence. 428 U.S. 153, 183 (1976). Since Gregg, the Court has come to rely more on retribution than deterrence. See Harris v. Alabama, 513 U.S. 504, 518 (1995) (Stevens, J., dissenting) ("[T]he interest that [the Court has] identified as the principal justification for the death penalty is retribution . . . ."). Apparently, many of the Justices have ceased believing that the death penalty deters crimes - and a number of studies support the Justices' shift away from relying on deterrence to justify capital punishment. See, e.g., Death Penalty Information Center, Facts About Deterrence and the Death Penalty (visited Sept. 15, 1999) 〈http://www. essential.org/dpic/deter.html〉 (citing statistics indicating that the death penalty fails to deter murders).
144. When evaluating Eighth Amendment challenges to capital sentencing proceedings, the Court has consistently noted that the death penalty should be a "'reasoned moral response.'" Penry v. Lynaugh, 492 U.S. 302, 328 (1989) (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring)). Unlike retribution, deterrence is a utilitarian penological theory that focuses on results rather than moral desert.
145. Chief Justice Rehnquist's opinion for the Court includes the statement that victim-impact evidence is necessary "for the jury to assess meaningfully the defendant's moral culpability and blameworthiness." Payne v. Tennessee, 501 U.S. 808, 825 (1991). However, this is the only statement in either Rehnquist's opinion or the concurrences of Justices O'Connor and Scalia that claims victim-impact evidence sheds light on the capital defendant's moral guilt. Since most of Rehnquist's opinion rests on the harm-based theory of retribution, criticism of the Court's culpability analysis should be directed primarily at Justice Souter, whose concurrence repeatedly emphasizes the ostensible significance of negligently caused harm for determining a capital defendant's blameworthiness. See id. at 837-39 (Souter, J., concurring).
146. See MODEL PENAL CODE § 2.02(2) (1962).
147. Payne, 501 U.S. at 838 (Souter, J., concurring).
148. See PHILLIP E. JOHNSON, CRIMINAL LAW: CASES, MATERIALS AND TEXT 204-05 (5th ed. 1995).
149. But see Gewirtz, supra note 3, at 872 ("[T]o the extent that predictable and foreseeable consequences of murder actually occur in a specific case, that particular evidence seems to provide a highly relevant reason for punishing a particular defendant more severely."). Assuming that Gewirtz does not view negligence, standing alone, as a sufficiently culpable mental state to make the difference between life and death, he evidently adheres to the impure harm-based theory of retribution - a theory which the Court had never endorsed in the capital punishment context until Payne. See infra text accompanying note 151-54.
150. Payne, 501 U.S. at 838 (Souter, J., concurring).
151. See Booth v. Maryland, 482 U.S. 496, 519 (1987) (Scalia, J., dissenting) ("If a bank robber aims his gun at a guard, pulls the trigger, and kills his target, he may be put to death. If the gun unexpectedly misfires, he may not. His moral guilt in both cases is identical, but his responsibility in the former is greater."); Murphy, supra note 119, at 1325-26 ("[E]ligibility for the death penalty always depends upon the harm that results . . . . Fortuitous factors, irrelevant to the offender's culpability, can always intervene to save the victim's and consequently the defendant's life.") (emphases in original).
152. Perhaps Justice Scalia meant to suggest that although the harm caused is normally not relevant to an offender's criminal responsibility when it is outside the range of culpability (with recklessness being the minimal relevant level of culpability), when one commits capital murder and the prosecution has established beyond a reasonable doubt the presence of at least one aggravated factor, at that point the harm caused by the crime may be considered in deciding whether the defendant lives or dies. Cf. Gewirtz, supra note 3, at 871 ("[E]ven assuming that blameworthiness is the only measure of relevance in deciding whether to impose the death penalty, why isn't the defendant to blame for the suffering endured by the survivors of someone he or she has intentionally murdered?"). If so, this would fall under impure harm-based retribution, which the Court had never sanctioned prior to Payne. See infra text accompanying notes 151-54.
153. See Booth, 482 U.S. at 516 (White, J., dissenting); id. at 519 (Scalia, J., dissenting); cf. Talbert, supra note 38, at 208-09 (arguing that while the harm caused may justify distinguishing between two different offenses, as in White and Scalia's examples, two defendants convicted of the same offense should not receive different sentences because their respective victims' families suffered different levels of harm). If the state may legitimately distinguish offenses on the basis of the harm caused, however, why may it not distinguish among perpetrators of the same crime on the basis of the harm they inflict?
154. Professor George Fisher was instrumental in helping me sort through the problems with White and Scalia's reckless driving-manslaughter analogy to victim-impact evidence.
155. See, e.g., Booth, 482 U.S. at 509 n.12; Harris v. Alabama, 513 U.S. 504, 516 (1995); Lankford v. Idaho, 500 U.S. 110, 125 (1991); Clemons v. Mississippi, 494 U.S. 738, 750 n.4 (1990); Solem v. Helm, 463 U.S. 277, 289, 294 (1983); Enmund v. Florida, 458 U.S. 782, 797 (1982), Beck v. Alabama, 447 U.S. 625, 637-38 (1980); Gardner v. Florida, 430 U.S. 349, 357-58 (1977) (plurality opinion).
156. See Enmund, 458 U.S. at 782, 788, 797-801.
157. See id. at 801.
158. 481 U.S. 137 (1987).
159. See id. at 139-41, 157-58.
160. Id. at 150-51, 158.
161. Id. at 157-58 (emphasis added).
162. Id. at 152 (emphasis added).
163. Id. at 158.
164. The pure harm-based theory of retribution cannot support the outcome in Payne. No Justice has said that blind vengeance alone can support a death sentence - some culpable mental state is a prerequisite for a constitutionally acceptable execution. Otherwise, the Eighth Amendment would permit a State to execute one who is merely negligent - or even strictly liable - with respect to a death occurring. Clearly, Enmund precludes this outcome.
165. Gregg v. Georgia, 428 U.S. 153, 187 (1976) (emphasis added).
166. Enmund v. Florida, 458 U.S. 782, 800 (1982).
167. Tison, 481 U.S. at 151, 158.
168. See supra note 142.
169. See PRESIDENT'S TASK FORCE ON VICTIMS OF CRIME, FINAL REPORT 77 (1982) ("The victim, no less than the defendant, comes to court seeking justice."). Of course, this part of the balancing argument assumes that murder victims' survivors want the defendant to die for his crime. This assumption, however, is not always valid; a victim's survivors may be philosophically opposed to capital punishment.
170. Or as Chief Judge Posner of the U.S. Court of Appeals for the Seventh Circuit puts it, when it comes to emotion-evoking testimony at capital sentencing, "what is sauce for the goose should be sauce for the gander." Posner, supra note 111, at 745; see also Livingston v. State, 444 S.E.2d 748, 755 (Ga. 1994) (Carley, J., concurring specially) ("[T]he very purpose of victim impact evidence is to counteract that very broad range of mitigating evidence which the defendant is authorized to introduce . . . .").
171. State v. Payne, 791 S.W.2d 10, 19 (1990), quoted in Payne v. Tennessee, 501 U.S. 808, 826 (1991); see also PRESIDENT'S TASK FORCE ON VICTIMS OF CRIME, supra note 156, at 77 ("When the court hears, as it may, from the defendant, his lawyer, his family and friends, his minister, and others, simple fairness dictates that the person who has borne the brunt of the defendant's crime be allowed to speak.").
172. Many victims' rights advocates argue that increasing the extent to which victims are involved in the prosecution of the person who harmed them assists victims' efforts to cope with the psychological impact of the crime by helping victims regain a sense of control and allowing them to "vent" their anger at the defendant. See. e.g., PRESIDENT'S TASK FORCE ON VICTIMS OF CRIME, supra note 156, at 76. However, the purpose of a capital sentencing hearing is to determine whether a convicted defendant should receive the death penalty, not to ease surviving victims' psychological pain. That including a victim-impact statement may help victims recover from the loss of a loved one is irrelevant to whether the defendant deserves the death penalty.
173. See Bandes, supra note 3, at 406 ("[T]he victim impact statement benefits the conservative crime control agenda more consistently than it benefits the victim."); Henderson, supra note 129, at 1001-03 (arguing that proponents of victim-impact evidence are more interested in fighting crime than in genuinely helping victims).
174. The Supreme Court of Georgia said: As it is the defendant who is on trial in a capital murder case and who is, therefore, subject to the imposition of the death penalty, we cannot agree that Georgia courts are required to maintain some sort of "balance" between the victim and the defendant in a death penalty prosecution . . . . [L]ong-standing Georgia law . . . has never embraced a "tit-for-tat" doctrine with respect to defendants' and victims' rights. Livingston, 444 S.E.2d at 750 n.3.
175. Bandes, supra note 3, at 402 (emphasis in original); see also Payne, 501 U.S. at 860 (Stevens, J., dissenting) ("The premise that a criminal prosecution requires an even-handed balance between the State and the defendant is . . . incorrect. The Constitution grants certain rights to the criminal defendant and imposes special limitations on the State designed to protect the individual from overreaching by the disproportionately powerful State.").
176. Another, less common argument is that including victim-impact evidence (or otherwise increasing the participation of victims in the criminal justice system) encourages victims to cooperate with prosecutors and thus helps the criminal justice system to run more efficiently. See Maureen McLeod, Victim Participation at Sentencing, 22 CRIM. L. BULL. 501, 505-06 (1986). This fourth argument suffers from the same major defect as the "to help the victims" and "balancing" justifications: it cites a goal wholly unrelated to the purpose of a capital sentencing hearing as a reason for admitting victim-impact evidence. Moreover, its presupposition that admitting victim-impact evidence will increase the criminal justice system's efficiency is as speculative as the "to help the victims" argument's presupposition that including victim-impact evidence at capital sentencing hearings will assist a murder victim's family members' efforts to cope with and recover from the crime. Controversial, unsubstantiated hypotheses such as these do not rise to the level of a persuasive consideration in the volatile context of capital sentencing hearings.
177. I will examine these two defenses for Payne together because the relevant considerations are largely identical.
178. Cf. Robert Weisberg, Deregulating Death, 1983 Sup. CT. REV. 305, 305 (arguing - presciently, since William H. Rehnquist had not yet been promoted to Chief Justice - that in a quartet of death cases decided in 1983 the Court essentially announced that the States could implement capital punishment as they please).
179. See National Center for Victims of Crime, Infolink: Victim Impact Statements (visited Sept. 15, 1999) 〈http://www.ncvc.org/Infolink/Info72.htm〉.
180. See Logan, supra note 7, at 150.
181. Some polls find that a majority of death penalty supporters say that retribution is the main reason for their position. A 1985 Gallup poll - the last detailed poll on the reasons for support of capital punishment - found that aplurality (48%) of death penalty proponents based their view on retribution (30% on "revenge" and 18% on "desert"). GALLUP ORG., GALLUP REPORT: THE DEATH PENALTY 3 (1985). Fifty-one percent of respondents said they would continue to favor capital punishment even if it was conclusively proven that it failed to deter criminals. See id. "[A] factor variously called retribution, revenge, or a desire to see criminals receive their just deserts seems to have become the dominant motive for supporters of the death penalty."
182. James O. Finckenauer, Public Support for the Death Penalty: Retribution as Just Deserts or Retribution as Revenge?, 5 JUST. Q. 81, 90 (1988). Although a more recent poll found that 60% of respondents did not think that "a loved one's feeling of vengeance" is a legitimate reason for capital punishment, the result likely would have been quite different had the pollsters asked about society's interest in vengeance or retribution rather than the victim's "loved one"; the same poll found that 52% of respondents think the death penalty does not deter people from committing crimes.
183. See Eric Pooley, Death or Life?, TIME, June 16, 1997, at 33.
184. The meaning of the Eighth Amendment is informed partly by public opinion. See Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion); Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
185. See Martin v. Ohio, 480 U.S. 228, 232 (1987) (noting the Court's "reluctance . . . to disturb a State's decision with respect to the definition of criminal conduct").
186. Schall v. Martin, 467 U.S. 253, 269 n.18 (1984); see also Abbate v. United States, 359 U.S. 187, 195 (1959) ("[T]he States under our federal system have the principal responsibility for defining and prosecuting crimes.").
187. Patterson v. New York, 432 U.S. 197, 201 (1977), quoted in Montana v. Egelhoff, 518 U.S. 37, 43 (1996).
188. See, e.g., Robinson v. California, 370 U.S. 660, 666-67 (1962).
189. Powell v. Texas, 392 U.S. 514, 545 (1968) (Black, J., concurring).
190. Gregg, 428 U.S. at 182. Although the public's view that victim-impact evidence is relevant to sentencing is not an opinion about apunishment, that it is an opinion about whether a particular type of evidence is relevant to a punishment does not exempt it from the Eighth Amendment principle that public opinion alone is not dispositive.
191. See Enmund v. Florida, 458 U.S. 782, 797 ("Although the judgments of legislatures . . . weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty . . . .").
192. Cf. Miguel Angel Méndez, A Sisyphean Task: The Common Law Approach to Mens Rea, 28 U.C. DAVIS L. REV. 407 (1995) (discussing the flaws in California and U.S. Supreme Court rulings involving issues of culpability).