Markus Dirk Dubber, JD, Roger and Karen Jones Faculty Scholar at the State University of New York at Buffalo School of Law, in his Jan. 2000 Buffalo Criminal Law Review article titled "The Victim in American Penal Law: A Systematic Overview," wrote:
"Once guilt has been established, victims can affect the punishment in various ways. Although victim testimony may play an important role at the sentencing phase of any criminal case, it has attracted most attention in capital cases. The U.S. Supreme Court now permits the use of socalled victim impact statements detailing the victim's personal characteristics as well as the harm suffered by the victim's family in a capital trial's second—or penalty— phase, during which the sentencer—most often a jury— chooses between life imprisonment and the death penalty.
Victims, however, are precluded from recommending a specific sentence at the sentencing hearing in capital cases, no matter how obvious the victim's opinion about the proper sentence might be, given that she will be called either by the side arguing for or by the side arguing against the imposition of the death penalty... In the case of capital punishment, victims likewise have no influence on the time or manner of execution, although victims' interests have been invoked in support of efforts to accelerate the disposition of death penalty cases. Representatives of the victim are among the small group of persons permitted to observe the execution of capital punishment."
Should Victims' Opinions Matter When Considering the Death Penalty?
Richard A. Divine, JD, State's Attorney for Cook County in Illinois, in an Oct. 8, 2008 email response to ProCon.org, offered the following:
"In all death penalty cases, our prosecutors discuss with the victim’s family their feelings regarding capital punishment. We make it clear that the final decision of whether to seek the death penalty will be made by our office, but in making that decision we will take into account the feelings and views of the family. Accordingly, the views of the victim’s family regarding the death penalty do matter, but it remains the responsibility of the prosecutor, as the representative of the people, to decide whether the penalty will be sought."
In Payne v. Tennessee, 501 U.S. 808, the US Supreme Court in a June 27, 1991 3 to 2 decision, recognizing that victims had rights in criminal cases, established the following:
"The Eighth Amendment erects no per se bar prohibiting a capital sentencing jury from considering 'victim impact' evidence relating to the victim's personal characteristics and the emotional impact of the murder on the victim's family, or precluding a prosecutor from arguing such evidence at a capital sentencing hearing... In the event that victim impact evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Fourteenth Amendment's Due Process Clause provides a mechanism for relief."
"Victims in Connecticut have a constitutional right to make a statement to the court at sentencing, and the Commission strongly believes that victim impact statements are and should be a critical part of the criminal justice process. In many cases, victims’ friends and relatives want the accused to hear and understand the impact that the crime has had on them.
The opportunity to speak at sentencing allows victims to share thoughts and feelings that would not be allowed at the time of trial. The victim impact statement can also make many in the court, including court personnel, the judge, the public and the media, aware of the victim’s perspective. The opportunity to speak on the day of sentencing makes their statement and their perception of their loved one a part of the permanent record of the court...
For victims to have confidence in the criminal justice system, the system must be responsive to their needs and those of their families. A victim’s inability to provide impact statements during the penalty phase limits, in the victim’s view, the information before the court or jury at a time when proper punishment of the accused is being considered."
Austin D. Sarat, PhD, JD, William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College, in a May 2004 North Carolina Law Review article titled "Putting a Square Peg in a Round Hole: Victims, Retribution and George Ryan's Clemency," wrote:
"The desire to experience a direct, immediate, passionate connection to the suffering of the criminal fuels the victims' rights movement. Only when victims become agents in the suffering of the people responsible for their own suffering is a kind of social equilibrium reached."
The New Jersey Death Penalty Study Commission, in its Oct. 25, 2006 hearing(1.2MB), included the oral testimony of Bill Piper who said:
"...as both a long-time opponent of capital punishment and as a person traumatized by a loved one's murder, and being very aware of how horrible it felt to be in the presence of death that way, I could not condone giving assent to another planned taking of life. I was being asked to take on the role of the violator in participating in killing him at a distance...
[I]spent... years in the emotionally untenable position of not only being opposed to and traumatized by the murder while being asked to participate in a state execution, but also of being morally obligated to speak out against the execution as a benefactor of the person who raped and murdered my 74-year-old mother. Not only did I feel violated by having been given both the responsibilities of executioner and rescuer, I can also say that giving victims the indirect power of revenge undermines the principle of government by law."
Eight members of the 23-member California Commission on the Fair Administration of Justice study titled "Report and Recommendations on the Administration of the Death Penalty in California," signed a June 30, 2008 supplement indicating their personal objections to the death penalty. Those eight members were Diane Bellas, JD, Alameda County Public Defender; Rabbi Allen I. Freehling, Executive Director at the City of Los Angeles Human Relations Commission; Michael Hersek, JD, California State Public Defender; Bill Ong Hing, JD Professor at UC Davis School of Law; Michael P. Judge, JD, Los Angeles County Public Defender; Michael Laurence, JD, Executive Director of the Habeas Corpus Resource Center; John Moulds, JD, US Magistrate Judge of the US District Court – Eastern District of California; and Douglas Ring, Businessman Founder of The Ring Group. The supplement stated in part:
"We can understand the desire of relatives of murder victims to see the murderers put to death by the state. Revenge, retaliation, and retribution are natural responses for many human beings. The Commission received some testimony to this effect. But in the words of former Missouri Supreme Court Justice Charles B. Blackmar, 'The relatives of the victim have the right to demand swift and sure punishment, but they do not have the right to demand death when the process is so severely flawed.' We sincerely wish that victims’ families who are looking for revenge or closure through the death penalty could find peace for their pain and agony through some other means."
Dan Markel, JD, Assistant Professor at Florida State University College of Law, in a Summer 2005 Harvard Civil Rights-Civil Liberties Law Review article titled "State, Be not Proud: A Retributivist Defense of the Commutation of the Death Row and the Abolition of the Death Penalty," wrote:
"No one wants to be deemed callous to the pain of victims or their survivors. But over-sensitivity to their rage or grief qua victims creates the risk of losing the distinction between retribution and revenge. To the extent this is true, we must be careful because the claims of victims as victims are of little retributive significance...
In the context of the death penalty, the fear of victim influence on sentencing looms even more menacingly... it is purely speculative --if not illusory-- to assert that the death or cruel punishment of the offender will necessarily achieve that healing, or that other means will not provide the closure victims seek... In sum... the preferences of victims or their survivors should not enjoy special consideration in determining the death (or life) of the offender."