Will the Punishment Fit the Victims? The Case for Pre-Trial Disclosure, and the Uncharted Future of Victim Impact Information in Capital Jury Sentencing

The United States Supreme Court decision in Payne v. Tennessee, upholding the use of victim impact statements in capital jury sentencing proceedings, marked one of the most dramatic reversals of a precedent in the history of United States constitutional jurisprudence. The decision in Payne expressly overruled Booth v. Maryland decided only four years earlier. The Booth case rejected the use of victim impact statements in capital sentencing cases that involved juries. In Payne, the Supreme Court made it clear that victims were entitled to offer, and juries were permitted to consider, the effect that a "death eligible" homicide had on surviving relatives, even if the defendant was unaware of the impact he would cause at the time of the crime.The understandable desire of surviving relatives to participate in the criminal justice process, coupled with the perceived lack of balance which is said to occur when the victim is not permitted to address the jury, while members of the defendant's family are permitted to plead for the life of the defendant, contributed to the Court's abrupt departure from its earlier doctrine. In departing from Booth, however, the Supreme Court created a potential for uncertainty and confusion in capital jury sentencing that is likely to effect decisions by trial courts, prosecutors and defense attorneys for years to come. This article is an attempt to examine what has occurred in the Supreme Court regarding victim impact information. It will also explore what the future holds for courts attempting to set boundaries on the sentencing jury's consideration of such information. Finally, I will suggest some procedural safeguards that federal and state courts or legislatures concerned with capital cases should consider as they determine when it is appropriate to make this type of information part of its capital sentencing scheme.The Supreme Court has expressed its concern that a capital sentencing process should "facilitate the responsible and reliable exercise of sentencing discretion." It has ruled that certain procedural safeguards must be put in place to make the procedure constitutional. However, by removing the bright line prohibition against victim impact information that the Supreme Court previously announced in Booth, it has allowed a potentially volatile category of evidence into capital cases without carefully explaining how it should be considered by a sentencing jury. State and federal law remains unclear as to how victim impact evidence is relevant to establish statutorily relevant aggravating circumstances or how it should be considered as a sentencing factor.Not only do uncertainties exist that concern the relevance of such information, but consideration of the confrontation problems presented by victim impact evidence have been largely unaddressed by the courts. Furthermore, legitimate questions arise regarding whether a defendant is entitled to any pre-trial disclosure of who the victims are, what they intend to present and how they intend to present their stories. This article advances the proposition that disclosure of victim impact information should be available at least in time for a capital defendant to consider his election of either a judge or a jury sentencing, where an election of the sentencer is available.I will first examine the short but turbulent reign of Booth's per se ban of victim impact information and Payne's dramatic and controversial reversal of Booth. Secondly, I will examine the history of victim participation in sentencing and the rise and influence of the modern "victims rights" movement on sentencing in general and capital sentencing in particular. Thirdly, I will examine the major criticisms of the use of victim impact information in capital sentencing, focusing particularly on the racial disparity that is likely to occur when the emphasis on capital sentencing is focused on the victim. Finally, I will offer some suggestions to improve the fairness in the use of victim impact information in capital cases for both defendants and victims. Hopefully, I will demonstrate why disclosure of victim impact evidence early in the capital case should be adopted as a threshold procedural safeguard if capital sentencing is to retain any integrity at all.The seriousness of capital jury sentencing, and the recognition that victim impact information is going to be a part of such sentencing in the foreseeable future, requires that serious attention be given to those matters left unaddressed by the Supreme Court. Lower courts will be required to resolve such concerns generated by the Supreme Court's recent pronouncement on victim impact information in Payne and the uncharted course set by that precedent. It is certain that any court involved in the process of administering the death penalty must confront the difficult and recurring issues which are generated when a capital sentencing jury is asked to consider "victim impact" in the calculus of its "life or death decision."