{"id":23555,"date":"2021-01-02T11:07:38","date_gmt":"2021-01-02T11:07:38","guid":{"rendered":"https:\/\/www.lifeandnews.com\/articles\/?p=23555"},"modified":"2021-01-03T13:15:49","modified_gmt":"2021-01-03T13:15:49","slug":"when-families-of-murder-victims-speak-at-death-penalty-trials-their-anguish-may-make-sentencing-less-fair","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/when-families-of-murder-victims-speak-at-death-penalty-trials-their-anguish-may-make-sentencing-less-fair\/","title":{"rendered":"When families of murder victims speak at death penalty trials, their anguish may make sentencing less fair"},"content":{"rendered":"

Austin Sarat<\/a>, Amherst College<\/a><\/em><\/p>\n

The Trump administration is spending its final months authorizing executions<\/a>. Ten federal death row prisoners have been killed so far this year<\/a>, ending a 17-year federal moratorium on applying the death penalty.<\/p>\n

States, on the other hand, are carrying out<\/a> fewer executions this year \u2013 seven so far \u2013 than in any year since 1983, when five people were executed. This is in part because the COVID-19 pandemic poses serious health risks for the personnel responsible for putting prisoners to death<\/a>.<\/p>\n

Among the state executions postponed this year<\/a> was that of Pervis Payne, who in November was granted a temporary reprieve by Tennessee\u2019s governor until April 9, 2021<\/a>. Payne was sentenced to death in 1988 for the stabbing deaths of 28-year-old Charisse Christopher and her 2-year-old daughter. He also was convicted of assault with intent to commit first-degree murder of Christopher\u2019s 3-year-old son, who survived.<\/p>\n

Payne\u2019s is a significant case in America\u2019s death penalty history because, in 1991, the United States Supreme Court used it to affirm<\/a> the right of murder victims\u2019 families to participate in the penalty phase of capital cases.<\/p>\n

Their personal testimony gives surviving family members the chance to tell judges and juries about the impact of crimes on their lives. Victim impact statements are now a regular part of the capital sentencing process<\/a> in both federal<\/a> and state capital trials<\/a>.<\/p>\n

Victim impact statements have transformed the death penalty process, my research on capital punishment<\/a> shows \u2013 including because of how they have been dealt with by the Supreme Court.<\/p>\n

\"Man<\/a>
California, which has 737 people on death row, halted all executions because of the pandemic.<\/span>
\nCalifornia Department of Corrections and Rehabilitation via Getty Images<\/a><\/span><\/figcaption><\/figure>\n

Recognizing victims\u2019 rights<\/h2>\n

Throughout most of American history, victims played little role in<\/a>, and had little influence on, the criminal justice system.<\/p>\n

In the 1960s and 1970s, an organized victims\u2019 rights movement<\/a> began to emerge in response to<\/a> the perceived pro-defendant tilt of the Supreme Court led by then-Chief Justice Earl Warren. Crime victims pushed<\/a> for the right to be heard at critical junctures in the prosecution of offenders, especially when sentencing decisions were made.<\/p>\n

That push was especially strong in murder cases<\/a>. In the 1970s and 1980s, several states, including Tennessee, adopted legislation<\/a> affording murder victims\u2019 families the right to participate in capital cases.<\/p>\n

Defendants in some death cases challenged<\/a> the use of victim impact statements, asserting that the information they contained was irrelevant to sentence determinations and risked inflaming the passions of the jury.<\/p>\n

In 1987, the United States Supreme Court took up one of these challenges. In Booth v. Maryland<\/a>, it considered whether victim impact testimony violated the Eighth Amendment\u2019s ban on \u201ccruel and unusual punishment.\u201d The court, in a 5-4 decision, held that it did.<\/p>\n

In its majority opinion<\/a>, Justice Lewis Powell wrote that because victim impact statements present the jury with emotionally compelling testimony, there is substantial risk of prejudice. They focus attention on factors of which the defendants were \u201cunaware\u201d and \u201cdivert the jury\u2019s concern from the defendant\u2019s background and record, and the circumstances of the crime.\u201d<\/p>\n

Such testimony, then, threatens to undermine the \u201creasoned decision making we require in capital cases.\u201d<\/p>\n

Four years later, following the retirement of two justices who voted against victim impact statements, the Supreme Court used Pervis Payne\u2019s case to reconsider them. This time it found them constitutional in capital cases.<\/p>\n

In an opinion authored by Chief Justice William Rehnquist<\/a>, the court conceded Justice Powell\u2019s point that victim impact statements \u201cdo not in general reflect on the defendant\u2019s \u2018blameworthiness.\u2019\u201d<\/p>\n

But it concluded that punishment could and should be meted out differently depending on the harm that is actually done.<\/p>\n

\u201cVictim impact evidence,\u201d Rehnquist argued, \u201cis simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question. \u2026\u201d It ensures that the victim is not a \u201cfaceless stranger,\u201d he wrote, and redresses the \u201cunfairness\u201d of criminal sentencing, which focuses solely on the life and circumstances of the offender.<\/p>\n

\"Half<\/a>
Death penalty opponents near the prison where Daniel Lewis Lee, the first federal prisoner executed in 17 years, was scheduled to be killed on July 13, 2020, in Terre Haute, Indiana.<\/span>
\nScott Olson\/Getty Images<\/a><\/span><\/figcaption><\/figure>\n

Grief, anger and racial bias<\/h2>\n

Victim impact evidence has had<\/a> a significant impact in death penalty trials since then.<\/p>\n

\u201c[I]n the past capital sentencing pitted the defendant against the State,\u201d wrote law professor Marcus Dubber in a Buffalo Law Review article<\/a> published after the Supreme Court\u2019s decision. Today, Dubber said, the defendant \u201cencounters an even more formidable opponent\u201d during sentencing: the victims\u2019 grieving family.<\/p>\n

Research suggests<\/a> that in many cases victim testimony provokes anger among jurors, compromising the rationality of their deliberations. Jurors use<\/a> the grief expressed in victim impact statements as a \u201cproxy for the level of defendant\u2019s \u2026 culpability, and by implication, the perceived seriousness of the crime,\u201d according to professors Janice Nadler and Mary Rose.<\/p>\n

But not all victim testimony is treated equally.<\/p>\n

Research shows that jurors tend to take the suffering of some victims\u2019 families more seriously<\/a> than others, depending on their social status. As law professor Susan Bandes notes<\/a>, \u201cA murder victim who met her assailant in a biker bar, for example, is valued less than a murder victim attacked while withdrawing money from an ATM machine.\u201d<\/p>\n

Prosecutors tend to encourage<\/a> families of middle-class victims to make statements while discouraging families from other backgrounds from doing so.<\/p>\n

Scholars have found that victim impact evidence also contributes<\/a> to the already substantial racial differences in capital sentencing, with juries giving more weight to the suffering of white murder victims\u2019 families.<\/p>\n

Mourning in court<\/h2>\n

Advocates for victims claim<\/a> that having the opportunity to talk about their loss promotes healing and closure.<\/p>\n

But giving a victim impact statement often does not provide<\/a> a psychological benefit, according to Marilyn Armour, who directs the Institute for Restorative Justice and Restorative Dialogue at the University of Texas at Austin.<\/p>\n

\"Woman<\/a>
A family member of a murder victim, consoled by her father, gives her impact statement at a capital trial in California on Aug. 16, 2013.<\/span>
\nStan Lim\/Digital First Media\/The Press-Enterprise via Getty Images<\/a><\/span><\/figcaption><\/figure>\n

Unlike churches, cemeteries or even therapists\u2019 offices \u2013 traditional sites for mourning and expressing outrage at cruel loss \u2013 courtrooms may not be \u201cwell suited to assist with the healing process,\u201d says Bandes.<\/p>\n

When victims speak in capital cases, public scrutiny invades their private suffering. Neither judges nor jurors are trained to deal with that deeply emotional process, and \u201cnobody ensures defendants will respond appropriately\u201d or that victims\u2019 families will receive the justice that they seek.<\/p>\n

Not all families of murder victims want the killer put to death<\/a>. In the case of Daniel Lee Lewis, the first person executed by the Trump administration, the victims\u2019 family members spoke out against<\/a> his sentence and execution.<\/p>\n

They had a voice in court, but did not get the justice they wanted.\"The<\/p>\n

Austin Sarat<\/a>, Associate Provost and Associate Dean of the Faculty and Cromwell Professor of Jurisprudence and Political Science, Amherst College<\/a><\/em><\/p>\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Austin Sarat, Amherst College The Trump administration is spending its final months authorizing executions. Ten federal death row prisoners have been killed so far this year, ending a 17-year federal moratorium on applying the death penalty. States, on the other hand, are carrying out fewer executions this year \u2013 seven so far \u2013 than in […]<\/p>\n","protected":false},"author":44,"featured_media":23556,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4,2450],"tags":[3548,5015,3545,9234,9235,2542,4389],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/23555"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=23555"}],"version-history":[{"count":2,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/23555\/revisions"}],"predecessor-version":[{"id":23566,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/23555\/revisions\/23566"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/23556"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=23555"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=23555"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=23555"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}