Victims, Survivors and the Decisions to Seek and Impose Death

Abstract

This paper examines the constitutional, legal, and ethical issues regarding the consideration of victim and survivor sentiments, and victim characteristics, in deciding to seek and impose the death penalty. While in theory prosecutorial decisions to seek death and judge or juror decisions to impose it are driven by the heinousness of the killing and the culpability of the killer, in practice a range of other considerations often influence such decisions. This is especially so in the wake of the Supreme Court's landmark 1991 decision in Payne v. Tennessee, where the Court sanctioned use of victim impact evidence in capital trials, allowing survivors of murder victims to testify of the social, emotional and economic losses resulting from the murder. The paper surveys the diverse range of victim impact evidence admitted in courts today and the rules governing its admission. In addition, it considers the propriety of consideration being given in death penalty decisions to (i) victim characteristics and (ii) the views of victims and survivors on the propriety of capital punishment itself.

Keywords: death penalty, capital, victim, victims' rights, Payne