When Victims' Families Eschew Vengeance:
Pro-Defendant Victim Impact Statements in Terry Nichols's Trial

Note: The original version of this column contained an error regarding the nature of the judge's ruling regarding witness testimony at sentencing in the Nichols case. The column suggested that certain defense witnesses were not allowed to testify at all. In fact, they were allowed to testify, but were not allowed to say that they opposed the death penalty and that they did not want Nichols executed. The error has been corrected. We regret the error. -- Ed.

On Friday, June 11, a state jury was unable to reach consensus on whether to sentence Terry Nichols to death for his role in the Oklahoma City bombing of 1995. (Nichols' co-conspirator, Timothy McVeigh, has already been executed on federal murder charges in 2001.)

Earlier last week, the prosecution and the defense had opportunities to offer evidence regarding the crime, its impact, and Nichols, that might bear on the proper sentencing decision."Victim impact" evidence, in particular, included testimony from victims' loved ones, and prosecutors offered it to show the pain and loss caused by the defendant's violence and thus to argue for execution.

In the Nichols case, not only the prosecutor, but the defense as well offered victim impact testimony, and the purpose of the defense's evidence was to spare the defendant's life.

Though they were not permitted to say that they did not want Terry Nichols to die, the judge allowed the two anti-death penalty loved ones to testify.

The Relevance of Victim Impact Evidence

Victim impact evidence has had a controversial history in our courts.In 1987, in Booth v. Maryland, the U.S. Supreme Court held that the admission of such evidence violates the Eighth Amendment right of the criminal defendant to be free of cruel and unusual punishments.The Court reasoned that the difference between life imprisonment and the death penalty cannot turn on suffering for which the defendant may not be blameworthy, and that impact evidence risks arbitrary decision-making.

Four years later, however, the Court reversed itself in Payne v. Tennessee and held that victim impact statements were a permissible feature of capital sentencing proceedings, and that a jury could legitimately consider them in deciding whether a particular defendant should die for his crime.And that remains the law today.

What is the purpose of victim-impact evidence?It is there to bring a human face to the victims of a defendant's crimes.

During a sentencing hearing, the jury can take evidence from people who say that the killer had redeeming characteristics, and moments, that counsel against execution.The victim impact statements say that victims and their loved ones have a stake in such proceedings as well.It is in part to address their grief and loss that punishments exist at all '" the victim is perhaps entitled to retribution and, in any event, might seek it privately if their putative entitlement is ignored by the law.The victim impact evidence gives a voice in the sentencing determination to the victims' interest in seeing justice served.

I wrote a prior column arguing against victim impact statements, because of what they say about the victims whose killers are ultimately not sentenced to die.To hear what a victim's loved one has said, and then vote for life imprisonment, is like a slap in the face to the loved one '" a statement that "I have heard what you have to say about the loss of that individual, and I think it is not that bad."

But if we assume that victim-impact evidence are legitimate, as the Supreme Court's doctrine says it is, then should victims be able to argue against an execution?

Not Victim Impact Evidence?

One could defend the exclusion of anti-death-penalty victim impact statements, as follows:Perhaps the fact that a victim's loved ones oppose the death penalty and therefore oppose the execution of the victim's murderer is not truly relevant to the impact of the killing.

If your beloved uncle is murdered, for example, and you oppose the death penalty for everyone, including your uncle's killer, then your view of sentencing in his case arguably has nothing to do with either the murder of your loved one or the effect of that murder on you.It also has nothing to do with the character of the defendant or his potential for change.The fact that you oppose his execution, then, is no more relevant to the jury than the fact that the A.C.L.U. does, and you should have no special standing to state your views.

Though plausible on its face, this argument is not necessarily convincing.It ignores the complexity of impact.Consider for illustration the more typical testimony of a victim's loved one.A woman whose mother was killed, for example, might testify as follows:"I used to spend every evening talking to mom about my day.We laughed, and she made me see how I'd taken life too seriously and could laugh off half of the things that bothered me.She was my cheerleader and my support when things didn't work out.And now she's gone.A day does not go by when I don't cry and talk to my memory of her.I thought I'd have her for much longer, but [the defendant] took her away.As long as he's in the world, and she's not, I'll feel that justice has not been served."

What makes her statements relevant to a sentencing jury is that executing her mother's killer will ostensibly provide some sense of closure for her, and thereby give her a small measure of comfort and relief.She is suffering as a direct result of the defendant's crime, and it is therefore perhaps fitting that she should have a say in what happens to him.But by the same token, she might have had a very different reaction to the crime.

Consider the following hypothetical testimony from a different woman:"I suffer greatly because my mom is gone.She was a great listener and made me feel better whenever I was sad.When the defendant took her away, I felt very angry at him.I wanted him to be punished very severely and to be kept away from other potential victims.But I didn't and don't want him to be executed.I'm against the death penalty, and now I know that my opposition survives the murder of my own mother.If the state kills the defendant, then that will be one more unnecessary death, unnecessary because prison will do everything that needs to be done to him.It will make me depressed rather than relieved to see the government imitate the defendant and plan and carry out a killing just as he did.Please do not sentence him to die."

What we see in these examples is that if losing a loved one to a violent crime makes one's resulting feeling relevant, then those feelings may be relevant as long as they are connected to the crime in some way.

The second woman did not simply state her opposition to the death penalty; she talked about the impact of the crime and how it made her want a specific sentence:life imprisonment.Many assume that the greatest vindication for a victim's loved one in a homicide case is an execution, but that assumption may not always and necessarily be correct.

Indeed, it is precisely because people have a great variety of reactions to a violent loss of life that we might want victim impact statements:victims and their families have an interest in letting the jury know what punishment feels right, and why.And for some people, such as those who testified for the defense last week, it is life imprisonment and not execution that would provide the greatest sense of closure.

The Peculiarity of the Question:  Are Victim Impact Statements Truly Relevant?

The truth is that the legitimacy of victim impact statements is open to serious question.I have made arguments, in my earlier column, about the disturbing implications of choosing which murders are the "worst" and which are not quite so terrible.But it is also unclear whether a case in which the government prosecutes an individual should really include a private person's feelings about the matter.

If, in other words, it is the State of Oklahoma that is bringing its criminal action on behalf of the people of that state, then maybe the particular feelings of victims' families do not have a place in such a proceeding.

Most of those who favor victim impact evidence also favor the death penalty.It is not surprising that a jury is more likely to sentence a man to die if it hears from people who have been personally wounded by the man's crimes.The sense, however, that perhaps victims should not be able to save the defendant's life may '" ironically '" provide support for banning all victim impact evidence from the courtroom.

After all, a natural response to the victim's loved one wanting to spare the defendant is to say, "He has no right to do that; the defendant has harmed all of us by his crimes, and the prosecutor should not have to argue against a family member who happens to oppose capital punishment."But the very same argument applies to testimony in favor of execution.

If we believe, as many people do, that victims and their families have a right to be heard on what punishment feels appropriate to them, then they should be heard no matter what their position on the death penalty is.And if they are presumptuous to tell a jury to spare the life of a killer, then they are no less so when they are urging death.