Tipping the Scales: Seeking Death ThroughComparative Value Argumentst

I. IntroductionIn describing to the jurors of a capital trial the type of analysis that the law requires them to use during sentencing deliberations, one prosecutor stated:Why do we have the death penalty? The reason we have the death penalty ... comes down to one basic thing. Whose life is more important to you? Whose life has more value? The Defendant's or [the victim's]?1Is this the type of analysis that the law requires jurors to use? Most likely, it is not.2 Arguments of this nature, known as "comparative value arguments,"3 are widely used by prosecutors throughout the United States. These arguments have been described as the most effective tool a prosecutor has to obtain a death verdict.4 It is uncertain, however, whether these arguments are constitutionally permissible.This Note examines the constitutional validity of these arguments, which remains unaddressed in most capital sentencing jurisdictions. Part II begins with a discussion of a change in the legal landscape that eventually led to the use of comparative value arguments-namely, the Supreme Court's decision to permit presentation of victim impact evidence.5 Part II also discusses the aftermath of the Supreme Court's decision and describes and defines as one of its results the use of comparative value arguments.6 Part III explores the constitutional duties of prosecutors, including the duty to refrain from arguments that mislead jurors on the law.7 This limitation on the powers of prosecutors is discussed in relation to precedent under both the Eighth Amendment and the Due Process Clauses.8 Part IV argues that comparative value arguments mislead jurors in several ways, thereby violating both constitutional doctrines.9 Finally, this Note concludes that, in the event a challenge to the use of comparative value arguments reaches the Supreme Court, the Court should hold these arguments unconstitutional.10II. The Rise of Comparative Value ArgumentsTo understand the significance of comparative value arguments, some context is necessary. Comparative value arguments have emerged as one of the uses of victim impact evidence.11 Victim impact evidence is evidence that is said to inform the capital sentencing jury of the victim's "uniqueness as an individual human being."12 This evidence is presented to inform jurors of the full impact of the crime on the victim, the victim's loved ones, and the victim's community.13 This Part discusses the development of victim impact evidence, the push for its admission into criminal trials, its limitations, and its uses. Then, this Part explores at length one of its evolved uses-comparative value arguments.A. The Development of Victim Impact EvidenceThe push for the admission of victim impact evidence into criminal trials originated within the victims' rights movement of the 1960s and 1970s.14 This movement formed "based on the idea that the criminal justice system has generally ignored the needs and interests of victims of crime and should become more responsive to these concerns."15 Numerous nationwide victims' rights groups formed to further this goal.16 They lobbied for an "increased role for crime victims in the criminal justice process,"17 and were largely successful.18 The admission of victim impact evidence into criminal trials is described as the most "prominent and controversial" change to occur as a result of the victims' rights movement.19The admission of victim impact evidence into criminal trials only recently gained the Supreme Court's approval.20 This approval represents a major change in the Supreme Court's treatment of this evidence. In 1987, the Court first addressed the constitutionality of victim impact evidence in Booth v. Maryland,21 holding introduction of this evidence into capital sentencing hearings unconstitutional.22 Two years later the Court reinforced its position, holding both evidentiary presentations and related prosecutorial arguments unconstitutional. …