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Victims’ rights works both ways

In 1989, the U.S. Supreme Court wisely ruled that it was unconstitutional for a jury deciding on the penalty in a murder case to take into account the character of a victim or the reactions to the crime of friends and family. Two years later, the court reversed itself, and victims’ rights activists rejoiced. They may now be having second thoughts. It turns out that focusing on the victim of a crime can sometimes mean lighter punishment for his killer.


For the record: This editorial says a Missouri Supreme Court ruling would invite prosecutors to attack a crime victim’s reputation. As the rest of the editorial makes clear, the ruling involved the use by defense attorneys of damaging information about a victim.


Last week, the Missouri Supreme Court overturned the death sentence of Mark Gill, a convicted murderer, because his attorney failed to inform jurors that Gill’s victim had child pornography on his computer. A capable lawyer, the court found, would have mentioned this unsavory aspect of Ralph Lape Jr.'s character to rebut tributes offered by relatives.

In other words, whether Gill lived or died may have depended not on his own conduct -- kidnapping and killing a man he and a confederate had targeted for robbery -- but on the character of the victim. This is exactly backward, as the U.S. Supreme Court initially argued in 1989. Quoting a previous ruling, Justice William J. Brennan Jr. wrote that a defendant’s punishment “must be tailored to his personal responsibility and moral guilt.”

That moral guilt can be greater if the killer, say, preyed on a child or assassinated the president, or less if the killer, say, murdered someone he knew to be a vicious wife-beater. Those are pieces of information about the victim that the killer knew at the time of the murder, and such factors can fairly be used to increase or decrease punishment. Far different is varying the penalty according to what is learned after the fact about the victim. That sort of information can be powerful, especially when it is presented artfully. Last year, the Supreme Court refused to hear appeals from inmates in California who were sentenced to death after jurors watched affecting videos about the victims made by their families.

But the Missouri ruling shows that “victim impact” evidence can backfire by inviting the prosecution to attack the victim’s reputation. Victims’ rights activists should ask themselves what they have wrought: an unseemly arrangement in which the culpability of a murderer varies according to the attractiveness of the victim. Do we really want juries deciding that some lives are worthier than others?

When the Supreme Court refused to review the cases involving victim-impact videos, Justice John Paul Stevens and two colleagues dissented. “The videos added nothing relevant to the jury’s deliberations and invited a verdict based on sentiment, rather than reasoned judgment,” Stevens wrote. That criticism applies equally to all victim-impact evidence, and as the Missouri decision shows, a practice designed to vindicate victims’ rights also can undermine them.


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