RE-EXAMINING THE ADMISSIBILITY OF VICTIM IMPACT STATEMENTS IN CAPITAL CASES.

• Author: Simmons, Cauley

CONTENTS INTRODUCTION I. DEATH VS. "EVERYTHING ELSE" II. EVOLUTION OF THE VIS III. PROBLEMS LEFT FROM THE BAN ON VICTIMS' FAMILY MEMBERS' CHARACTERIZATIONS AND OPINIONS ABOUT THE CRIME A. Do All Admissions of These Types of VISs Violate the Eighth Amendment? D. A Prohibition on Opposition VISs is Inconsistent with the Ideals of Furman C. Motivations of the Prosecutors IV. FIXING THE PROBLEMS LEFT BY BOOTH, PAYNE, AND BOSSE A. Proposed Solution B. Criticisms of the Proposed Rule i. Fairness to Those in Support of the Death Penalty ii. The State Is the Other Party in a Criminal Case, Not the Victim iii. Would Allowing Opposition VISs Risk the Arbitrary Sentencing that Furman Prohibits? iv. Motivations for Opposing the Death Penalty CONCLUSION INTRODUCTION

On March 27, 1995, Sister Joanne Marie Mascha, a member of the Ursuline Sisters of Cleveland, Ohio, was raped and murdered in the woods of the Ursulines' property. (1) She was discovered in the woods a day later under a quilted mattress pad; (2) she had been strangled and suffocated with a scarf. (3) Although one of their own had endured such a brutal murder, the other Ursuline Sisters immediately requested that the then-twenty-one-year-old man (4) charged with the crime be spared the death penalty. (5) Sister Joanne Marie was passionate about helping those in need, and she demonstrated her passion through the life she lived. During the holidays, she bought toys and gave them to children of prisoners. (6) She also advocated to ban nuclear weapons and encouraged Congress to "make hunger a political priority." (7) In the words of Sister Maureen McCarthy, General Superior of the Ursuline Sisters: "Isn't it ironic to think that this woman of justice, this woman of peace would experience death through violence?" (8) Sister Joanne Marie was a peace lover, a nature lover, and a lover of birdwatching--which she was originally doing the day she encountered her killer in the woods. (9)

That March 1995 encounter was not the first between Sister Joanne Marie and Daniel Pitcher. (10) The extent of their relationship, however, was not entirely clear. Some accounts claimed that "[Pitcher] was obsessed with her," waiting for her in the parking lot of the Ursulines' property; (11) whereas Pitcher testified that he had met her only once before March 27. (12) Sister Joanne Marie confirmed that she had met this man approximately a year and a half before her death. (13) While going through Sister Joanne Marie's possessions, searching for proof of a connection with Pitcher, Sister Joanne Gross, a member of the Ursuline Sisters and an attorney, found a paper in which Sister Joanne Marie documented an encounter with "a troubled young man searching for peace in the quiet of our forest." (14) According to the paper, Sister Joanne Marie hoped that, as she left the woods after her encounter with Pitcher that day, he could hear her sing her prayer for him: "May the blessing of God be upon you. May God's peace be with you. May God's presence illuminate your heart, now and forevermore." (15) When it came time for trial, the Ursuline Sisters made their stance known to the prosecutors and to the world: they did not want the death penalty for Daniel Pitcher (16) and they believed that Sister Joanne Marie would never have wanted it as well. (17) The Sisters were not the only ones who tried to sway the minds of the prosecutors, though. Support for their position poured into the prosecutors' offices and the judge's chambers from religious congregations around the world. (18)

Despite those pleas to the contrary, the prosecutors still sought the death penalty for Daniel Pitcher. (19) The reasoning behind the prosecutors' decision varied. Cuyahoga County Assistant Prosecutor Karl Wetzel said about the decision: "With any case, the victim, or the victim's family, their intentions come into play, but there are other factors . . . [including] the type of crime, strength of the case, and the defendant's history." (20) During a meeting between the prosecutors and a few of the Ursuline Sisters, though, the reasoning seemed slightly different. According to Sister Joanne Gross, "The prosecutors were polite and sympathetic but ultimately, unmoved." (21) After the Ursuline Sisters tried to change the prosecutors' minds at the meeting, the prosecutors gave the Ursuline Sisters "an article about death penalty politics and how prosecutors across the country are being elected and rejected based on their stance on capital punishment." (22)

Daniel Pitcher was found guilty of aggravated murder, aggravated robbery, kidnapping, and rape. (23) In a turn of events that was described by the judge as "pray[ing] this man out of the electric chair," the jury failed to attach the felony-murder specification form to their aggravated murder verdict when determining Pitcher's fate, which meant that he was no longer eligible to receive the death penalty. (24) It was said that the jury misunderstood the form and believed that their aggravated murder verdict alone would allow Pitcher to get the death penalty. (25) Daniel Pitcher was sentenced to "fifty years to life, the maximum sentence on each count, to be served consecutively." (26)

Although the Sisters' intervention may have helped save Pitcher from the criminal justice system's ultimate punishment, their statements' effect is the exception, not the rule. This Note explores the role victims' statements play, generally, in death penalty cases. Part I of this Note will outline the historical treatment of the death penalty as the ultimate punishment by the Supreme Court and will explore the justifications for the Court's continual limitations imposed on the penalty.

Part II will examine the relationship between the movement for increasing victim's roles in the criminal justice system and the evolution of admissibility of a Victim Impact Statement ("VIS") in capital cases leading up to the current ruling in Bosse v. Oklahoma. (27)

Part III will examine the issues left by the Court in refusing to reconsider part of the holding in Booth v. Maryland (28) when deciding Bosse. This will include questioning the constitutionality of VISs' admissibility, examining the current rule in light of the Court's historic treatment of death as "different," and will discuss the motivations of prosecutors in seeking the death penalty in contrast to the interests of the State.

Finally, Part IV will propose a new asymmetrical rule regarding the admissibility of VISs in capital cases, allowing the opinions of a victim's family who opposes the death penalty to be heard and taken into account by juries during the sentencing phase, and will address criticisms of the proposed rule.

1. DEATH VS. "EVERYTHING ELSE"

   Over the past few decades, the Supreme Court has taken significant steps to limit the use of the death penalty in the United States. The first of these steps came from the Court's decision in Furman v. Georgia. (29) In Furman, the Court determined that each of the capital punishment statutes at issue violated both the Eighth and Fourteenth Amendments by allowing the juries full discretion in imposing the death penalty, which in turn led to the possibility of arbitrary and discriminatory application. (30) As put by Justice Douglas: "Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12." (31) Although the Court did not find the death penalty to be unconstitutional per se, the holding in Furman effectively abolished the death penalty across the country, as its decision nullified the capital punishment laws of thirty-nine states (and the District of Columbia) out of the forty that allowed the death penalty at that time. (32)

   The Furman decision was by no means a united one: all nine of the Justices wrote separate opinions. (33) Throughout the individual opinions, though, many of the Justices reiterated a common idea: death is different. As stated by Justice Stewart,

   The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity. (34) This rationale gives an idea of why the Court has continued to limit the applicability of the death penalty. After Furman was decided, states reformed their capital punishment statutes to eliminate any unconstitutionally arbitrary application, thus "reinstating" the death penalty that had been effectively eliminated. (35) The Supreme Court clarified the constitutionally permissible ways of imposing the death penalty in 1976 in Gregg v. Georgia (36) and Woodson v. North Carolina (37) After Georgia's death penalty statute was found unconstitutional in Furman, Georgia amended its statute to no longer allow arbitrary imposition of the death penalty but narrowed the class of murderers eligible for the death penalty by requiring the jury to find one of ten statutory aggravating circumstances to exist beyond a reasonable doubt before a death sentence could be imposed. (38) The Court upheld the new statute, stating that with these revisions, "[n]o longer should there be 'no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.'" (39)

   After the Furman decision, and with the issue of the constitutionality of a mandatory capital punishment statute still undecided, (40) the North Carolina General Assembly enacted a statute that remained essentially the same as the previous death penalty statute held unconstitutional by Furman. The North Carolina statute severed the jury's discretionary authority to apply the death penalty and instead made the death penalty mandatory for all first-degree murder convictions. (41) The Supreme Court held...