dissenting.
While I find Division 1 of the majority opinion to be a valiant effort to curtail the far-reaching effect of Georgia’s victim impact statement statute,8 I must respectfully dissent and write separately to point out the statute’s unconstitutionality and the catastrophic effect the admission of victim impact statements will have on our efforts to assure a fair trial for every defendant.
The majority opinion, in reliance on Payne v. Tennessee, 501 U. S. 808 (111 SC 2597, 115 LE2d 720) (1991), holds that the victim impact statement statute is constitutional under the Eighth Amendment of the United States Constitution. Since the U. S. Supreme Court is entitled to the last word on that issue and has spoken, I am compelled to agree. However, the majority opinion also holds that the statute is valid under the Georgia Constitution. It is that holding with which I take issue.
Some background information on the victim impact statement statute is necessary to understand fully how we have reached this particular cross-road. In the federal arena, there have been three significant developments concerning the admissibility of victim impact statements. In Booth v. Maryland, 482 U. S. 496, 508 (107 SC 2529, 96 LE2d 440) (1987), the United States Supreme Court forbade the use of victim impact statements, holding that such a statement “serve[s] no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant.” The court found the statement to be offensive to Eighth Amendment protections because it “creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner.” Id. at 505. Booth was followed by South Carolina v. Gathers, 490 U. S. 805 (109 SC 2207, 104 LE2d 876) (1989), which once again held the victim impact statement to be impermissible. However, just two years later, in Payne v. Tennessee, supra, the U. S. Supreme *414Court reversed itself and found that the Eighth Amendment to the United States Constitution does not erect a “per se bar” to the use of the victim impact statement.
In Georgia there have been four significant developments concerning the admission of the victim impact statement. First, § 27-2534 of the 1933 Georgia Code provided in relevant part that in presentence hearings in felony cases,
the jury shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant ....
No mention whatsoever was made of the victim impact statement or of testimony concerning the psychological effects of the crime on the victim, the victim’s family or the community. Second, OCGA § 17-10-1.1, enacted in 1985, provided in pertinent part that “except in cases in which life imprisonment or the death penalty must be imposed . . . the judge may consider a victim impact statement in determining the appropriate sentence. . .” Third, in Sermons v. State, 262 Ga. 286 (1) (417 SE2d 144) (1992), we recognized Payne, supra, but held that Payne only permitted and did not require that victim impact information be admitted. This court looked to the rule stated in Muckle v. State, 233 Ga. 337 (2) (211 SE2d 361) (1974), that victim impact evidence was not within the scope of statutorily approved evidence in aggravation, and held that victim impact evidence remained inadmissible. That position was reaffirmed in Moore v. State, 263 Ga. 11 (8) (427 SE2d 766) (1993). Fourth, one year after Moore, in 1993, our legislature amended the victim impact statement statute to permit use of victim impact statements in the penalty portion of death penalty cases. That amendment is the subject of this appeal.
1. In enacting legislation, the legislature seeks to strike a balance between competing interests. As it relates to the victim impact statement statute, the legislature has sought to balance the right of the defendant to have a fair trial against the right of the state to humanize the victim. The role of the judiciary is to determine whether the balance struck comports with constitutional requirements.
What I seek to do in this dissent is to consider the constitutionality of the victim impact statement statute under Georgia’s constitution. Since the Booth decision, our court has had numerous opportunities to consider the victim impact statement in light of our own constitution but we have failed to do so. I can only conclude that we have not acted because we found the Booth holding to be consistent with our own constitution. In Sermons, supra, we decided the issue of the victim impact statement on the basis of Georgia’s statutory law *415rather than reaching the state constitutional issue, a course consistent with our practice of not reaching constitutional issues unless necessary. Todd v. State, 205 Ga. 363 (2) (53 SE2d 906) (1949).
On several occasions we have said that Georgia can give its citizens more rights under its own constitution than are provided under the United States Constitution.9 In deciding under our constitution whether all victims should stand equal before the law, we must draw from the well-spring of Georgia history, keeping in mind that Georgia is one of the thirteen original colonies which, unlike the subsequently-formed states which drew strength from the central government, furnished strength to the central government from our storehouse of rights. But in doing so, we did not leave our state constitutional cupboard completely bare and entirely bereft of protection for our own citizens.
In fact, as judges we have a sworn duty to interpret our own constitution and not merely to follow blindly the interpretation given the federal constitution.10 Therefore, what I seek to do in my dissent is to breathe life into our own constitution and not treat it merely as some relic to be placed in a museum for viewing only. Accordingly, any reference to federal decisions in support of the positions I take is merely for instructive and illustrative purposes, and is not intended as authority for the positions which I take, authority for which I find in the Georgia Constitution.
Four paragraphs of Art. I, Sec. I of the Georgia Constitution are pertinent to this consideration: Pars. I, II, XVII & XXV.
(a) Life, liberty, and property.
No person shall be deprived of life, liberty, or property except by due process of law.
*416Ga. Const. 1983, Art. I, Sec. I, Par. I.
During the sentencing phase of a death penalty trial, the state may offer evidence of any of the statutory aggravating circumstances alleged in the indictment pursuant to OCGA § 17-10-30. Additionally, the jury is authorized to consider “any mitigating circumstances or [non-statutory] aggravating circumstances otherwise authorized by law.” OCGA § 17-10-30 (b). However, the state may not offer evidence which would result in the imposition of the death penalty due to “passion, prejudice, or any other arbitrary factor.” OCGA § 17-10-35 (c) (1); 1983 Ga. Const., Art. I, Sec. I, Par. I. As the U. S. Supreme Court stated in Gregg v. Georgia, 428 U. S. 153, 189 (96 SC 2909, 49 LE2d 859) (1976), “that discretion [of the jury] must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”
In Georgia, the jury is permitted to consider mitigating and non-statutory aggravating evidence relating to “the character of the defendant . . . and the circumstances of the crime on trial.” Ford v. State, 257 Ga. 461, 463 (360 SE2d 258) (1987); Zant v. Stephens, 250 Ga. 97, 100 (297 SE2d 1) (1982). Evidence admitted for these purposes serves to narrow the jury’s discretion in determining whether to impose the death penalty because it is relevant to the issue of punishment for a specific crime committed by the particular defendant on trial. See, e.g., Horton v. State, 249 Ga. 871, 874 (295 SE2d 281) (1982). Additionally, the statutory aggravating circumstances, OCGA § 17-10-30 (b), which focus on the nature of the crime, “limit to a large degree” the jury’s discretion in imposing the death penalty. Zant v. Stephens, supra, 250 Ga. at 100.
In sharp contrast to these limitations, OCGA § 17-10-1.2 not only fails to narrow the jury’s discretion to impose the death penalty, but permits the jury to base its determination of punishment on a broad range of arbitrary and highly prejudicial factors which relate neither to the nature of the crime nor the character of the defendant.
I would hold that OCGA § 17-10-1.2 is unconstitutionally over-broad, advancing far beyond the presentation of evidence which enables the jury to see the victim’s “uniqueness as an individual human being.” Payne, supra, 111 SC at 2607. Rather than focusing on evidence which would define the victim’s personal characteristics while in life, the statute permits evidence of the ripple-effect of the victim’s death on both the victim’s family and the victim’s community. Such evidence is irrelevant to the state’s portrayal of the victim as a human being and infuses the sentencing trial with arbitrary factors on which the jury may determine to impose the death penalty.
Further, admission of victim impact evidence shifts the focus of the sentencing trial from the defendant and the nature of the crime to the value the victim’s family and community place on the victim’s *417life. The state “cannot make the existence of ... an identifiable characteristic of . . . the victim an issue per se and justification for a death sentence.” Ingram v. State, 253 Ga. 622, 634 (323 SE2d 801) (1984). More insidious is the statutory permission given the trial court to invite a detailed narration of the emotional and economic sufferings of the victim’s family and members of the victim’s community resulting from the victim’s death. These inflammatory factors cannot but infect the jury’s decision-making process, rendering the sentencing trial fundamentally unfair and denying the due process of law guaranteed in the Georgia Constitution.
(b) Protection to person and property; equal protection. Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws.
Ga. Const. 1983, Art. I, Sec. I, Par. II.
On previous occasions I have raised the issue of the equal treatment of all who come before the courts of this state. In considering the jury selection process in Congdon v. State, 262 Ga. 683 (424 SE2d 630) (1993), I cautioned against the unequal treatment of prospective jurors. In Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991), I warned against creating a system where defendants will engage in character assassination of the victim. In Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190 (429 SE2d 671) (1993), I cautioned against the creation of a “ ‘throw-away’ class of workers.” Here, I caution against the creation of a throw-away class of victims by use of the victim impact statement and the re-victimization of the relatives of victims by inquiry into their backgrounds and that of their deceased loved one.
One of the hallmarks of the American system of jurisprudence is that all citizens stand equal before the law and we have put in place rules of substantive and procedural law to assure this sense of equality. Unlike other societies which have a homogenous population, we in America are heterogenous in our makeup. We have people of different races, religions and cultures. Such diversity requires us to go to great lengths to treat all citizens equally, and nowhere is that notion of equality more carefully scrutinized than in our court system. However, the unchanneled scope of victim impact evidence which is admissible under the statute creates a grave risk that the jury may conclude that it is permissible for its decision to impose the death penalty to be based on such constitutionally impermissible factors as race, religion, (Conner v. State, 251 Ga. 113, 121 (303 SE2d 266) (1983)), class, or wealth. Ingram v. State, supra.
*418(c) Bail; fines; punishment; arrest, abuse of prisoners.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; nor shall any person be abused in being arrested, while under arrest, or in prison.
Ga. Const. 1983, Art. I, Sec. I, Par. XVII.
Although Payne, supra, reflects a conclusion that the arbitrary and capricious enforcement of capital punishment which will follow the admission of broad-scale victim impact evidence does not offend national standards,
[t]he “standard of decency” that is relevant to the interpretation of the prohibition against cruel and unusual punishment found in the Georgia Constitution is the standard of the people of Georgia, not the national standard. Federal constitutional standards represent the minimum, not the maximum, protection that this state must afford its citizens. Harris v. Duncan, 208 Ga. 561 (67 SE2d 692) (1951).
Fleming v. Zant, 259 Ga. 687, 690 (386 SE2d 339) (1989). I believe that the standard of decency of the people of Georgia is offended by the admission of evidence about the victim which is irrelevant to the issue of the defendant’s personal blameworthiness for the killing of another human being. So too is our standard of decency violated by a policy that guarantees capriciousness in the implementation of the death penalty by consideration of elements which cannot be ascertained prior to the commission of the crime and cannot, therefore, be applied consistently in different cases. Notwithstanding the federal judiciary’s recognition of less demanding standards, this state should retain its own standards and apply them to assure fair and impartial trials.
(d) Status of the citizen.
The social status of a citizen shall never be the subject of legislation.
Ga. Const. 1983, Art. I, Sec. I, Par. XXV.
Not only does the admission of victim impact statements create two classes of defendants, those who kill worthy members of society and those who kill less worthy citizens, it necessarily creates classes of victims: those whose lives were so worthwhile that their killer should be put to death, and those whose lives are so worthless that their killer should only receive a sentence that will put them back into society in less than ten years.
In the trial of capital offenses in the past, we have focused on the *419conduct of the defendant and we have looked to matters of defendant culpability, rather than the background of the victim or the impact on the survivors, in determining what punishment should be meted out. Booth, supra. That is not to say that we have had a prohibition against humanizing the victim. That can and should be done, however, without making the victim the focus of the inquiry. The statute upheld by the majority opinion, however, not only makes the victim the focus of the inquiry, but invites the social status of the victim to be the deciding factor in determining whether a defendant should live or die. To suggest that such a statute does not make social status its subject is to ignore reality.
I conclude, for the reasons stated above, that the victim impact statement statute at issue here fails to conform to the high standards established by our constitution’s guarantees.
2. In reaching the conclusion that the statute is constitutional, the majority opinion has failed to consider a myriad of problems that will be created by the allowance of the victim impact statement:
(1) To what extent will the victim’s background be the subject of inquiry by the defendant?
(2) Under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), what must the state disclose regarding the background of the victim or other witnesses who furnish information for the victim impact statement?
(3) Will failure to investigate, pursue and present information about the victim’s background by defense counsel give rise to a valid claim of ineffectiveness of counsel?
(4) Will fashioning instructions for the jury in a victim impact statement case become a judicial nightmare?
(5) Will there be mini-trials within the sentencing phase of the trial just to consider various victim impact evidence?
Even the majority opinion in Payne acknowledges that victim impact evidence can be so unduly prejudicial that it violates the due process guarantees of the U. S. Constitution. Id. at 111 SC 2608. I am convinced that the statute we are considering is so broad that it denies due process to all defendants in death penalty trials. The majority has sought to alleviate those problems by limiting the application of the statute, but those limits will create such burdens on the trial of death penalty cases that they will themselves violate due process. The questions I have raised above and others not foreseen today will vex and hamper the administration of justice beyond the limits set by the due process guarantees of the Georgia Constitution.
3. The prohibition against admission of a victim impact statement is rooted in the belief that all people stand equal before the law, defendants and victims alike. The value of a rich man’s life is just as important to society as that of a poor man. Life gains its value not *420from one’s status but from one’s existence and the State should never be in the position of passing on the value of one’s life to society in general.
Decided June 27, 1994 — Reconsiderations denied July 21, 1994. Michael Mears, Valpey & Walker, Harold M. Walker, Stephen B. Bright, Colleen Q. Brady, Barry J. Fisher, for appellant (case no. S94A0277).With the victim impact statement statute, we will begin a journey down the treacherous path of determining the relative worth of citizens in seeking the death penalty for the accused. We will force prosecutors to consider matters of race, education, economics, religion and ethnicity of the victims and their survivors in deciding whether to seek imposition of the death penalty on the accused. Not only will due process suffer but the image of justice will be permanently scarred.
We should not take lightly the image of justice. To signify our notion of equality we have as a symbol of justice a woman blindfolded, with evenly-balanced scales, holding a sword. The sword symbolizes our willingness to fight for the rights of all our citizens. The scales symbolize the equality of treatment before the courts. And the blindfold symbolizes that the law is not a respecter of person or position. Unfortunately, today’s decision rips the blindfold from the symbol of justice and forces us to take into consideration factors which heretofore have had no place in the fair administration of justice.
My fear is that the virus of the victim impact statement will so infect the sentencing process that the trial will be rendered fundamentally unfair, thereby greatly increasing the likelihood of appellate reversals of otherwise valid convictions. No matter how good and noble the intentions of the legislature in enacting the statute, its attempt to show the uniqueness of the individual victim will inevitably encourage sentencing juries to discriminate among victims and thereby aggravate already festering sores of race, ethnicity and class.
The conclusion is inescapable that the victim impact statement as an evidentiary tool is too unmanageable and totally irrelevant to the trial of a capital offense; therefore, to allow such evidence would place an undue and unwarranted burden on constitutionally protected rights under the Georgia Constitution. Consequently, I would hold the statute violative of the Georgia Constitution’s guarantees of due process and equal protections and its prohibitions against cruel and unusual punishment and legislation with social status as its subject. Accordingly, I respectfully dissent.
*421Miller, Rucker & Associates, Curtis W. Miller, Stanley W. Robbins, for appellant (case no. S94A0279). J. Richardson Brannon, Watson & Watson, Anne H. Watson, for appellant (case no. S94A0280). Lydia J. Sartain, District Attorney, Lee Darragh, William M. Brownell, Jr., Assistant District Attorneys, for appellee.OCGA §§ 17-10-1.1; 17-10-1.2.
See, e.g., State v. Miller, 260 Ga. 669, 671 (398 SE2d 547) (1990) (finding 1983 Georgia Constitution provides broader protection than the First Amendment); Green v. State, 260 Ga. 625, 627 (398 SE2d 360) (1990) (finding State Constitution grants a broader right against self-incrimination than the U. S. Constitution); Fleming v. Zant, 259 Ga. 687, 690 (386 SE2d 339) (1989) (holding state constitutional guarantee against cruel and unusual punishment is more extensive than federal constitutional standard).
OCGA § 15-2-3. Oath of Justices; compensation
(a) Before entering on the discharge of their duties, the Justices shall take the oath prescribed for judges of the superior courts, along with all other oaths required for civil officers.
OCGA § 15-6-6. Oath of judges
“I swear that I will administer justice without respect to person and do equal rights to the poor and the rich and that I will faithfully and impartially discharge and perform all the duties incumbent on me as judge of the superior courts of this state, according to the best of my ability and understanding, and agreeably to the laws and Constitution of this state and the Constitution of the United States. So help me God.”