What Say Should Victims Have?

By WALTER SHAPIRO

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 emblematic 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.

With reporting by Julie Johnson/Washington