Payne, Victim Impact Statements, and Nearly Two Decades of Devolving Standards of Decency

Recommended Citation Joe Frankel, Payne, Victim Impact Statements, and Nearly Two Decades of Devolving Standards of Decency Payne, Victim Impact Statements, and Nearly Two Decades of Devolving Standards of Decency Joe Frankel 0 1 0 CUNY School of Law 1 The C UNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact , USA - Acknowledgements Th ank you to Sandra Dos Santos, Gregory Foley, Edward Frankel, Sarah Mugford, and Professors Jeffrey Kirchmeier and Steve Zeidman. Thi s article is available in City University of New York Law Review: https://academicworks.cuny.edu/clr/vol12/iss1/6 Joe Frankel* “[A]s a matter of international law, there’s sort of a correspondence to our evolving standards of decency that have generally governed our Eighth Amendment jurisprudence. It’s kind of a one-way ratchet, we look at trends in one direction but we don’t look to see if you can suddenly change gears and go in the other direction.” –Justice John Paul Stevens1 TABLE OF CONTENTS INTRODUCTION Pervis Payne is a polite, somewhat na¨ıve, mentally handi* Joseph Frankel, J.D. 2008, City University of New York (CUNY) School of Law. Thank you to Sandra Dos Santos, Gregory Foley, Edward Frankel, Sarah Mugford, and Professors Jeffrey Kirchmeier and Steve Zeidman. 1 Transcript of Oral Argument at 42, Kennedy v. Louisiana, 129 S.Ct. 1 (2008) (No. 07-343). capped2 man from Millington, Tennessee.3 As of this writing, he remains in the cell on Tennessee’s death row4 that he has occupied for nearly twenty years5 after his conviction for stabbing a mother and daughter to death in their home. Mr. Payne’s death sentence largely rests on two pieces of evidence introduced at his sentencing hearing. First, testimony of the victims’ mother and grandmother regarding the emotional effect of the crime on the victims’ family members was admitted. Second, the prosecutor focused on the character of the victims in closing arguments.6 The admission of this victim impact evidence was a clear violation of then-existing law. Booth v. Maryland, mandatory precedent at the time of Payne’s trial, established a per se bar to victim impact statements during the sentencing phase of capital trials.7 By the time of his appeal to the Supreme Court of Tennessee, another case, South Carolina v. Gathers, had extended the Booth rule to bar victim impact statements read into evidence by a prosecutor.8 However, in Payne’s case, the prosecutor violated the Tennessee Supreme Court precedent by introducing testimony from the victims’ family members, and the judge acquiesced. On appeal, the high court found no error,9 and eventually the U.S. Supreme Court affirmed that deci2008] sion. In Payne v. Tennessee, the Court held that the Eighth Amendment does not pose a per se bar to victim impact statements in capital cases10—a decision that stands in direct opposition to the legal principles that existed at the beginning of Pervis Payne’s case.11 Certainty is essential in the law. Nowhere is this maxim more important than in a capital sentencing decision because “death is different.”12 In a common law system, certainty is achieved through stare decisis.13 As Justice Stewart wrote in Woodson v. North Carolina: The penalty of death is different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.14 Because “death is different,”15 a capital jury’s sentencing discretion must be tempered by “clear and objective standards as to produce a non-discriminatory application.”16 Further, a capital sentencing statute must provide a “meaningful basis for distinguishing the few cases in which the [death penalty is imposed] from the many cases [in] which it is not.”17 To fulfill the “Gregg mandate,”18 most states have adopted statutes which enumerate certain aggravating factors that the prosecutor must prove before the accused can be considered among the “worst of the worst”19 and therefore deserving of death.20 In addition to the requirement that a capital sentencing scheme provide objective guidelines that meaningfully narrow the class of death-eligible defendants, there is a seemingly contradictory individualized sentencing requirement. To withstand constitutional muster a sentencing scheme must allow for “particularized considerations of relevant aspects of the character and record of each convicted defendant.”21 This mandate has been interpreted as a requirement that a sentencer must consider, as a mitigating factor, “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”22 Since Woodson, (...truncated)