In the case of South Carolina v. Gathers, 1988, the U.S. Supreme Court ruled that a prosecutor's comments about the victim during sentencing in a murder trial were inappropriate and violated the defendant's Eighth Amendment rights against cruel and unusual punishment. The court held that such comments could potentially inflame a jury to make decisions based on emotion rather than fact, which would be unfair to defendants. This ruling overturned Tyrone Gathers' death sentence for murdering George Martin in Charleston County Park because prosecutors had made extensive remarks about Martin’s character during closing arguments at sentencing without any evidence being presented regarding his personal characteristics or qualities as part of an effort to secure capital punishment for Gathers.

In the dissenting opinion for South Carolina v. Gathers, Justice Scalia argued that the majority's decision to overturn a murder conviction based on comments made by prosecutors about the victim during closing arguments was incorrect. He contended that these remarks were not prejudicial enough to warrant such an action and did not violate any constitutional rights of the defendant. Furthermore, he criticized the majority for creating a new rule prohibiting prosecutors from making "victim impact" statements without providing clear guidelines as to what constitutes permissible commentary about victims in future cases. This lack of clarity could potentially lead to further confusion and inconsistency in court rulings across different jurisdictions, according to Scalia’s view.