St. Mary's Law Journal


In Payne v. Tennessee, the United States Supreme Court held the scope of the Eighth Amendment does not include a per se bar to the use of victim impact evidence in the sentencing phase of a capital trial. As a result of Payne, the realm of information admissible during the sentencing phase of a capital trial now includes victim impact evidence. The use of victim impact evidence improperly diverts the sentencer’s attention away from the defendant’s moral blameworthiness to the victim’s character and reputation. Although advocates of victim’s rights may see this decision as a victory, the reasoning of the Court and the implications on the criminal justice system indicate the decision was erroneous. Specifically, the decision goes against the capital sentencing goals of proportionality and non-arbitrariness. The decision in Payne will likely weigh heavily against criminal defendants. Thus, the majority’s opinion marks a significant step backward in the pursuit of a capital sentencing scheme free of arbitrariness. Although societal values do factor into Eighth Amendment analysis when determining cruel and unusual punishments, the Court should not bind itself to this concern at the expense of other overriding concerns such as reliability in sentencing. The scope of significant factors in death penalty decisions will now include the victim’s ability to express grief persuasively enough to earn the sentencer’s sympathy. Prosecutors will take advantage of this new weapon by tailoring their arguments to jurors who are most susceptible to an emotional display by the victims. Sentencers will therefore view evidence which does not reflect the criminal defendant’s culpability and can consider that evidence in deciding his ultimate fate.


St. Mary's University School of Law