TIME: Almanac 1993/TIME Almanac 1993.iso/time/052791/0527110.000

Text File | 1992-08-28 | 6KB | 122 lines

                                                                                LAW, Page 61

What Say Should Victims Have?


A boy's anguish at watching the murder of his sister may change
the death-penalty laws

By WALTER SHAPIRO -- Reported by Julie Johnson/Washington


    If, as the Declaration of Independence so eloquently
declares, "all men are created equal," then can society place
an unequal weight on the tragically lost lives of murder
victims?

    This is not an exam question in a college philosophy
course but a moral conundrum at the core of perhaps the most
intriguing case facing the U.S. Supreme Court, Payne v.
Tennessee. Justice David Souter, the court's swing vote, asked
during oral argument last month whether "it really is legitimate
to value victims differently depending upon the circumstances
of the lives that they have chosen to lead." Tennessee Attorney
General Charles Burson's response was unequivocal: "There can
be no doubt that the taking of the life of the President creates
much more societal harm than the taking of the life of the
homeless person."

    Just 25 years ago, such stark legal reasoning was
virtually unknown in modern American jurisprudence. Punishment
was meted out because of the nature of the crime, devoid of any
reference to the social identity of the victim. But since then,
compassion and political calculation have combined to transform
crime victims and their advocates into a potent lobbying force.

    Beginning with California in 1978, 47 states now allow
some form of so-called victim-impact statements to be included
among the evidence weighed during the sentencing phase of
criminal trials. Congress endorsed the principle in 1982 by
approving victim-impact statements in federal cases. But the
Supreme Court, by a 5-to-4 vote in 1987, carved out a crucial
exception: neither the life of the victim nor the suffering of
his survivors could be a factor in any state or federal case
punishable by death. Now the court appears about to reverse
itself in its forthcoming decision in Payne.

    The details of the case are grisly: in 1987 a
three-year-old boy, Nicholas Christopher, watched as his mother
and baby sister were stabbed to death in Millington, Tenn., a
Memphis suburb. The murders were committed by Pervis Tyrone
Payne, a 20-year-old retarded man, who also badly wounded the
boy. Payne's guilt is not in question; in 1988 he was convicted
by a Tennessee court.

    Instead, what is at issue before the Supreme Court is the
legal validity of evidence the prosecution presented to the jury
before it decreed death rather than life imprisonment for Payne.
The most controversial testimony was provided by the boy's
grandmother, Mary Zvolanek, who recounted in heartrending
fashion how Nicholas cries out almost daily for his dead sister.
The prosecutor ended his final argument to the jury with this
emotive passage: "Somewhere down the road, Nicholas . . . is
going to know what happened to his baby sister and his mother.
He is going to know what type of justice was done. With your
verdict, you will provide the answer."

    But should young Nicholas' anguish have a direct bearing
on Payne's punishment? Will a Supreme Court decision upholding
Payne's sentence create a climate where the wails of a murder
victim's relatives will ordain vengeance in the form of capital
punishment? During the oral argument, Chief Justice William
Rehnquist probably reflected his own views when he asked
Payne's attorney, "Are you suggesting that the jury's feeling
of sympathy or perhaps outrage at the crime and what it's left
the victim with is not a permissible factor at all?"

    Like the debate over capital punishment itself, the Payne
case is rife with em blematic importance, yet it is only
tangentially connected with the nation's alarming murder rate.
Currently, the death penalty is decreed in only 3% of all murder
convictions, and only a small percentage of these lead to actual
executions. "The significance of Payne is more societal in terms
of what it says about the proper role of the crime victim in the
criminal-justice system," argues Richard Samp, a lawyer with the
conservative Washington Legal Foundation, which is representing
the Zvolanek family. This political symbolism has not been lost
on the Bush Administration; Attorney General Dick Thornburgh
made a rare appearance before the Supreme Court to argue that
a jury should be given "the full picture of the nature and
extent of the harm that's been caused to the family.''

    Critics of the government's position raise provocative
philosophical and practical objections to an additional legal
enshrinement of victims' rights. "It will take a giant step away
from presumptions of equality in the worth of lives," broods
Tufts University philosophy professor Hugo Bedau. "The
criminal-justice system has traditionally been held to the myth
of equal treatment of all who come before it."

    With serious questions of racial and class bias already
swirling around capital punishment, there are concerns that a
decision upholding Payne's death sentence will produce further
inequities. Hypothetically, the grieving family of a murdered
bank president would be persuasive witnesses for the death
penalty, while no one would speak for a slain prostitute. Diann
Rust-Tierney of the A.C.L.U. is worried that the Supreme Court
will "sanction different punishment based on the worth of the
victim and aggravate an already pronounced discrimination in the
way that the death penalty is applied."

    There is, sad to say, no way society can ever provide more
than token recompense to the relatives of murder victims. That
is why it is an illusion -- born of compassion, it is true --
that justice can be found by adding their pain to the calculus
of retribution in the courtroom.