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The use of victim impact evidence usually in the form of a victim impact statement VIS in death penalty litigation is relatively recent This type of evidence falls into three categories information pertaining to the characteristics of the victim information about the repercussions of murder on family and friends and opinions of the victims family members concerning the crime the defendant and the proper sentence1 The Supreme Court first considered the issue in a 1987 case Booth v Maryland holding that evidence pertaining to the victim and the effect of the crime on the victims family is per se inadmissible at a capital sentencing hearing because it violates the Eighth Amendment2 Four short years later the Court revisited the issue and did an abrupt shift holding that this type of evidence was now admissible3 While at first glance the Payne principle may appear to be a sound holding in practice this decision runs contrary to current death penalty jurisprudence IIDeath Penalty Jurisprudence Today In 1972 Furman v Georgia ushered in the current era of death penalty jurisprudence significantly altering the previous state of the law4 Death was recognized as a sanction quite different from all other punishments due to its severity and finality5 Judges and juries were no longer to be statutorily afforded unlimited discretion in capital sentencing The statutes at issue violated the Eighth Amendment by allowing the possibility of arbitrary and discriminatory application of the death penalty thereby violating the constitutional prohibition against cruel and unusual punishment6 In addition discretionary sentencing provided no meaningful basis for differentiating the large number of cases in which the death penalty was rejected from the few cases in which it was imposed7 Furman did not provide states with any guidance to draft statutes that would direct a jury in a sufficiently discretionary manner In response to Furmans mandate some states chose to enact mandatory death penalties for certain crimes in an effort to eliminate discretion altogether8 Other
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