dis-
senting. Today’s holding, as well as the holdings in Booth v. Maryland (1986), 482 U.S. 496, and South Carolina v. Gathers (1989), 490 U.S. _, 104 L. Ed. 2d 876, 109 S. Ct. 2207, is a step backward in the sentencing process in Ohio and the country. It was not until 1980 that Ohio enacted legislation concerning victims and the effect the crimes had on their lives. R.C. 2947.051 provides “[i]n all criminal cases in which a person is convicted * * * the court shall, prior to sentencing the offender, order the preparation of a victim impact statement by the department of probation.” Prior to this time victims were not considered at all during the sentencing process. This has been changed by the foregoing legislation. As Justice Scalia stated in his dissent in Booth, supra, at 520, “citizens have found one sided and hence unjust the criminal trial in which a parade of witnesses comes forth to testify to the pressures beyond normal human, experience that drove the defendant to commit his crime, with no one to lay before the sentencing authority the full reality of human suffering the defendant has produced — which (and not moral guilt alone) is one of the reasons society deems his act worthy of the prescribed penalty.”
The majority in Booth, supra, at 504, stated, “[i]n such a case, it is the function of the sentencing jury to ‘express the conscience of the community on the ultimate question of life or death.’ ” How can this be done without the sentencing authority knowing all the facts surrounding both the defendant and the victim? Further, the conscience of the community cannot properly be expressed if the sentencing authority lacks knowledge of the effect the defendant’s crime had on the community and especially the family, friends and associates of the victim. I am not intimating that such information should be provided to the fact-finders in the guilt phase of the trial. But in the penalty phase a statement prepared by the department of probation should be included and not be deemed prejudicial.
In light of recent victim rights legislation it is time that both Booth, supra, and Gathers, supra, be reconsidered so that when the sentencing authority is making that determination of whether or not to impose the death penalty it will be on an equal footing with the sentencing process in all other criminal cases. Victim impact statements are appropriate in the penalty phase of the proceedings especially in view of the fact that aggravated murder is the most heinous crime that can be committed. Why should the rights of a victim be less important? Based upon the majority’s holding the sentence of life or death is determined in a vacuum. The sentencing jury is not permitted to know anything about the personal characteristics of the victim. An appropriate, fair and just determination cannot be made without this information.
Based upon the foregoing I would find that the admission of the victim impact statement was not prejudicial error and I would therefore affirm the judgment of the court of appeals in its entirety.