Sentencing and the Victim: the Aftermath of Payne

Abstract

In 1991 the U.S. Supreme Court — reversing its earlier decisions on this point — held that it was permissible to present before a jury at a capital sentencing hearing evidence regarding the character of the victim and the suffering inflicted upon the vistim's family. The implications of this decision for sentencing philosophy are considered, particularly in the context of the ‘justice’ model, and in relation to the two components of determining offence seriousness — harm and culpability. Alternative models of justice are considred, and a suggestion is profferred for enabling the victim to have a ‘day in court’ without unfairly prejudicing the position of the defendant.

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