Justices Hear Arguments on Allowing ‘Victim-Impact’ Testimony

The issue of a young boy’s sorrow over the loss of his murdered mother prompted the Supreme Court on Wednesday to confront a larger question: Should a crime’s impact on a family affect the perpetrator’s punishment?

The justices were debating whether to overturn a 1987 decision that forbids prosecutors in death penalty cases to tell jurors about the life of the victim or how the murder has affected the victim’s survivors.

That 5-4 decision is at the heart of an appeal from a murderer in Tennessee, who is seeking to escape his death sentence by arguing that the prosecutor should not have been allowed to discuss how his victim’s little boy “cried for his mom” long after she died of 42 stab wounds.

Many conservatives and advocates of victims’ rights argue that it is not fair to prohibit testimony about the life of a victim and the tears of her son, especially since character witnesses were allowed to praise the woman’s killer.

But the hourlong argument raised questions that clearly left the conservative justices troubled and the outcome in doubt.

Although it is agreed generally that the punishment should “fit the crime,” can it depend in part on the status of the victim? For example, if testimony about victims’ and their families’ lives were allowed, would it cause the killer of a well-liked person to be punished more harshly than the killer of a cranky misanthrope?

On the other hand, is it fair to allow a killer’s friends to testify that he was a “nice guy” and loved by his family, while forbidding testimony from the family of a murder victim?

If prosecutors can urge the death penalty by telling jurors that a murder victim was a beloved person and a pillar of the community, could a defense lawyer in another case seek a lesser punishment for his client by telling jurors that the murder victim was a tax evader?

Chief Justice William H. Rehnquist, who wants testimony about victims to be allowed, said Wednesday that prosecutors should be permitted a “few rhapsodies” and “some poetic license” in arguing their cases. Atty. Gen. Dick Thornburgh also made a rare appearance before the court to urge a reversal of the ban on “victim-impact” statements.

But several of Rehnquist’s fellow conservatives said that they were concerned about opening the door to testimony that would focus on the victim, rather than on the killer’s character and culpability.

They seemed particularly disturbed by testimony from Tennessee Atty. Gen. Charles Burson, who said that he saw no problem in imposing a harsher punishment on one who murders the President rather than a homeless person, because the former crime “creates more societal harm.”

Burson also said that it would be constitutional for a state law to impose the death penalty for “the father of a family of four” but not for “a single person” because the father, in effect, is more significant to society.

Justices Sandra Day O’Connor, Anthony M. Kennedy and David H. Souter all seemed troubled by that.

“Isn’t the real problem that (such testimony) implies that society is valuing victims differently?” asked Souter.

On the afternoon of June 27, 1987, 20-year old Pervis Payne broke into the Memphis apartment of a young mother and stabbed her to death. He also stabbed both of her children. One died but 3 year-old Nicholas survived.

A Memphis jury convicted Payne of the two murders.

During the sentencing hearing, Payne’s parents and girlfriend testified that he was a churchgoer who did not drink or use drugs.

The prosecutor put Nicholas’ grandmother on the witness stand to testify about the impact of the crime on the little boy. “He cries for his mom,” she began.

In his closing plea, the prosecutor declared: “His mother will never kiss him good night or pat him as he goes off to bed or hold him and sing him a lullaby. Are you going to let (her murder) go unpunished?”

When lawyers for Payne appealed his conviction, the Supreme Court announced that it would consider the case (Payne vs. Tennessee, 90-5721) but only to decide whether the Booth vs. Maryland ruling should be reversed.