Beyond Victim Impact Evidence: A Modest Proposal

The United States Supreme Court held in Payne v. Tennessee that the introduction of 'victim impact' evidence in capital cases does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. The fact finder in a capital case may consider the unique consequences of a specific murderous act in order to assess the defendant's blameworthiness and, in turn, to determine whether he should be sentenced to death. Dean Foster wholeheartedly agrees with the reasoning underlying the Payne decision, but points out that the Court did not take its premises to their logical conclusion. In her Proposal, she sets forth a comprehensive plan both for quantifying a criminal's culpability and for compensating individual victims and society.

Her conclusion contains a novel compensatory scheme in which the victim will gain an opportunity to participate in the criminal's punishment and society will achieve significant cost savings, enhanced deterrence, and the catharsis arising from the satisfaction of its retributive objectives.